Abusally v. Price Controller
1969Present: de Kretser, J.
A. ABUSALLY, Appellant, and THE PRICE CONTROLLER,
S. C. 964(68—M. C. Kandy, 63132
Control of Price.3 Act—Price order relating to sale of mutton with bone—Validity.
A Price Order of 7th August 19G2 fixed tlio controlled price of mutton withbones at Rs. 2 2.5 per pound and further directed that “ when muttonis so!d with bones tho weight of bones sold therewith shall not exceed25 per cent, of tho total weight sold ",
Held, that the Prico Order was invalid to tho oxtent that it i3 not possiblo tosay of mutton with bone, when it i3 sold as an indivisible whole, what percentageof it is bone. In such a sale, it is unreasonable to insist that tho percentageof bono must not exceed 25 per cent.
Appeal from a judgment of tho Magistrato'3 Court, Kandy.
N.Satyendra, for the accused-appc'Jant.
Tyrone Fernando, Crown Counsel, for tho Attorney-General.
Cvr. adv. vnlt.
'70DE KRETSER, J.—Abusally v. Price Controller
April 26, 1969. de Kretser, J.—
The Magistrate of Ksmdy (Sir. D. F. Dharmasckera) found the accused—a butcher by name Abusally—guilty of the two charges laid againsthim :
of selling a pound of mutton with bones at Rs. 2‘50 when the
controlled price was Rs. 2 -25 ;
of selling a pound of mutton with bones—the weight of tho bones
exceeding 25% of the total weight of one pound.
– The Magistrate imposed a sentence of four weeks’ R. I. and a fine ofRs. 250 in default two weeks’ R. I. on each count. Tho jail sentencesto be concurrent. The accused has appealed.
The relevant Prico Order No. ICD. 107 is found in G. G.' 13255 of7th August 1962 and states (para. 2) that mutton for the purpose of theorder means the flesh of sheep or goat but shall exclude all forms of offaland controls the price of mutton as follows :—
Mutton without bones Rs. 2*50 per pound.
Mutton with bones Rs. 2*25 per pound.
Para. 3 of the Order.directs that “ when mutton is sold with bones theweight of bones sold therewith shall not exceed 25% of tho total weightsold ”.
It is this direction that Counsel for the appePant submits is bad inLaw in that it requires a seller of mutton with bone to do what isimpossible, for he submits that where mutton is not separated from boneit is impossible for a seller to ascertain the bone content in it with theprecision required to say what percentage of the total weight it is., e.g.,when a butcher sells a mutton chop it is impossible for him to ascertainwith precision what per cent, of it is bone short of scraping the flesh• off it and weighing flesh and bones separately and making it to cease tobe what the customer wants to buy, namely a mutton chop.
To sell three-quarter pound mutton and one-quarter pound of bonois to sell a pound of mutton and bone, but that is something quite differentto selling a pound of mutton with bone which at the time of sale is anindivisible whole. There are cuts of mutton which are sought to bebought in butchers* stalls in which adherence of mutton to bone isessential for the purpose it is bought for, and the sale separately of muttonand bone cannot be adequately used as a substitute. The Price Orderrecognises this for while the Price Order controls the price of mutton andnot tho price of bone, it recognises that mutton has to bo oftwo descriptions : (1) Mutton with bones ; (2) Mutton without bones.
Were that not so it could content itself with only controlling the priceof mutton arid stating that as in the case of mutton with offal (vide para.
5 of the Price Order) mutton when sold with bone must be weighedseparately from the bone.
DE KRETSER, J.—Abusally v. Price Controller
The Law does not force anyone to do what is impossible, and when aPrice Order directs a person to do what is impossible a Court can saywith certainty that Parliament never intended to give the Controllerof Prices authority to make such an order and that it is unreasonable andultra vires. In the instant case I am completely satisfied that it is notpossible to saj' of mutton with bone what percentage of it is bone andthe proof of that is that even in this case a veterinary surgeon had tobe called who says that he separated the flesh from the bone and had itweighed and it is on these weighings that this prosecution was launched.It is so unreasonable to insist that whero there is a sale of mutton withbone that the percentage of bone must not exceed 25% that I hold thatthe Prico Order to that effect is ultra vires. The conviction of the accusedon the charge of selling a pound of mutton with bones the weight of thebones exceeding more than 25% of the total is set aside.
– – There remains the conviction on.count 1. _ It is accused's own evidencethat what he was asked for and what he supplied was a pound of muttonwith bones. That he supplied a pound of mutton with bones the weightapparently being made up by the addition of bones is also establishedon complainant’s evidence read with the evidence of the veterinarysurgeon. The conflict of evidence is in regard to the price charged.For while accused admits he had handed over Rs. 2 *50 as change from theRs. 5 tendered in pajmnent, he says that he intended to hand over 25 centsmore but had no change and had sent 50 cents to be changed for thatpurpose. The decoy admits that he was asked whether he had 25 centschange and he strangely says that he cannot remember whether theaccused asked people around whether they had 25 cents with them, andalso that he cannot remember whether the accused gave 50 cents to bechanged. But lie docs claim that he asked the accused “ whether theamount was correct and when the accused said yes he lifted the parcelwhich was the agreed signal for the other Inspectors to come up.” Hehas denied under XXM that he never asked that questiou.
The Magistrate bases his conviction on the evidence of the decoy whohe says gave his evidence in a truthful maimer. But he has apparentlynot given his mind to the fact that a person speaking to a true incidentcan give evidence iu a truthful manner and 3'et smuggle in one lie withoutcausing a change of impression. In this instance the one matter iswhether it is true that he asked whether the amount was correct. Itappears to me to have been an unusual question to ask in the given-circumstances for surely what he would have asked is “ What about thebalance 25 cents ”—the accused admittedly having asked him for change.The prosecution could have corroborated his evidence on this vitalpoint by calling the Inspector who was sent for the specific purpose ofwatching the transaction and was doing so according to the decoy from4 to 5 feet away. But the prosecution does not call him. While it is
DE KRETSER, J.—Abuscilly v. Price Controller
possible that the Magistrate is. correct when ho says that the witnessPercra called for the defence-was not a witness of truth, the falsity ofevidence given for the defence dees not necessarily show that tho evidencofor the prosecution is true.
It appears to me that as the Magistrate has not given his mind tothese aspects of the evidence I am entitled to give the accused thobenefits of the doubts that assail me that what the accused says is true,namely, “ Before I could givo the 2f» cents I was arrested.” I set asidethe conviction on this count as well. Tho appeal of the accused isallowed. –
A. ABUSALLY, Appellant, and THE PRICE CONTROLLER, KANDY, Respondent