030-NLR-NLR-V-07-CASIE-CHETTY-v.-MENDIS.pdf
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CASIE CHETTY v. MENDIS-■M.C., Colombo, 1841.
Ordinance No. IS of 1862, $. 1 (8)—" Fish ’’—Pearl oysters—Exposing for salepearl oysters in public market—Allowing such sale.
Pearl oysters are “ fish ” under section 1* snb-section 8, of OrdinanceNo. 16 of 1862.
In a charge of “ allowing.” pearl oysters to be exposed for sale,—
Held, that a person can be said to allow a thing to be done only wherehe has control over the acts of the person who does it, and where he canat his will prevent the thing being done.
Where the lessee of a Municipal fish market permitted a person tobring within its precincts pearl oysters and expose them for sale there,though they were giving ont a noxious smell, and refused to stop thesale at the request of the Municipal Inspector, and where at the trialthe accused did not choose to explain his conduct by entering thewitness-box,—
Held, that there was sufficient evidence to show that the accused” allowed ” pearl oysters to be exposed for sale.
T
HE accused was convicted under section 1, sub-section (8), ofOrdinance No. Id of 1862, and sentenced to a fine of Bs. 25,
in that he, being the lessee of St. John’s fish market, did exposeor allow to be exposed for sale in the public fish mart, a portionof the said market, pearl oysters unfit for the food of man.
It was proved that pearl oysters are not eaten; that the oystersexposed for sale in the Municipal market were smelling badly;and that when the accused was ordered by Mr. Inspector GasieChitty to “ stop ” the sale, he refused to do so.
The Magistrate held as follows:—“ The facts of the case are notdisputed, but it is contended that the section of the Ordinance wasnot intended to apply to anything that is not ordinarily used as the
food of manIt says nothing about being ‘ intended * for the
food of man. It makes it an offence to sell any animal, meat, fish,&c., which is unfit for the food of man. ‘ Fish ’ in this section is ageneric term, including shell-fish, and is used in contradistinctionto flesh and fowl. The accused has clearly infringed the section ”
The accused appealed. ,
The case was argued on 10th May, 1904.
Walter Pereira, for accused, appellfjnt.
Van Langenberg, for complainant, respondent.
Cur. adv. vult.
13th May, 1904. Rampayo, A..J.—
The accused has been convicted on the chaige that he, beinglessee of St. John’s Fish Market, did #on the 31st March, 1904,expose or allow to be exposed 'for sale in. the public fish mart.
1904.Sday 13,
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1004.
Man 13.
Saufayo,
AX
a portion of the said market, pearl oysters which were unfit forthe food of man, in breach of section 1, sub-section (8), of the Ordi-nance No. 15 of 1862. The charge in the alternative form is bad.Moreover, there is no legal evidence that the accused himselfexposed or even caused to be exposed for sale the pearl oysters.The complainant did indeed say that the accused exposed theoysters for sale, but that is not evidence, but the charge itself.The witness should, if he could, have deposed to acts from whichit was for the Court to infer that the accused in fact exposedoysters for sale. The conviction, so far as the first alternative ba-the charge is concerned, cannot be sustained.
I shall deal with' the case as though the conviction was forallowing the oys.ters, which were rotten and unfit for humanconsumption, to be exposed for sale in the fish mart.
Counsel argued that pearl oysters were not under any circum-stances an article of food, and unless they were so their sale didnot coine within the purview of the sub-section in question.This point has been already decided, adversely to the appellant’scontention by Layard, C. J., in M. C., Colombo, 1,640, on 12thApril, 1904, and I agree with that decision.
It was further argued that the sale should be as food, which washere not the case. But under sub-section (8) the article exposedfor sale need not be intended for food of man, and that case isprovided for in sub-section (9).
The appeal really turns on the next point argued, viz., that theaccused could not upon the evidence in the case be held to have“ allowed ” the pearl oysters to be exposed for sale in the fish mart.The word “ allow ” no doubt implies the right or power to disallow,or, in other words, a person can be said to allow a thing to be doneonly where he has control over the acts of the person who does itand where he can at his will prevent the thing being done. As wassaid in Hobson v. Middleton (6 B. C. 295), “ the words ' permittingand suffering ’ do not bear the same meaning as ‘ knowing ofand being privy to; ’ the meaning of them is that the defendantshould not concur in any act over which fie had a control. ,
The question is whether in this case the accused allowed theoysters to be exposed for sale* in the above sense. It is provedthatf the accused rWas lessee of the Municipal market at St. John’sLroad. The market consists of three portions: a vegetable‘market,a fish market, and vfhat ist called the fish mart. It- is in this lastportion that the oysters were exposed for sale. It appears that inthe course of business fish is brought in the first instance to thefish mart, where it is spld wholesale (I believe by auction! to retaildealers, who then remove the fish to the fish market and retail it
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there. Id the vegetable market and the, fish market the vendorsoccupy separate spaces or stalls and pay rent to the lessee, and itmay be that in the case of these two portions of the public marketthe accused has not such control over the conduct of the retaildealers as to make him responsible for their acts. But the case ofthe fish mart, where the oysters were exposed for sale, seems tome somewhat different. So for as appears, it is used only for thesale of fish wholesale, and in the absence of anything to the contraryI should say that the accused as lessee must be supposed to havesufficient control so as to prevent anything unusual being donethere. Further, the accused was personally on the premises, andwhen asked by the Inspector to stop the sale of oysters, refused todo so. The accused himself did not choose to give evidence, andthat being the case I think the evidence, though it might beclearer, is sufficient for the Cour-t to hold that the accused allowedthe oysters to be exposed for sale in the fish mart. Besides, thiswas not his defence in the Court below and is not alluded to evenin the petition of appeal, the only point depended on by him being-that pearl oysters were not an article of food. Under the circum-stances, I affirm the conviction and sentence on the charge forallowing the pearl oysters to be exposed for sale.
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1904.
May H.
Sampayo,
A.J.