Ounapala v. Wilson de Silva
1968Present: Weeramantry, J.A. H. GUNAPALA, Appellant, and WILSON DE SILVA(Food and Price Control Inspector), Respondent
8. O.104168—M. C. Colombo, 41448
Control of. Prices Act (Cap. 173), as amended-by Acts Nos. 44 of 1957 and 16 of 1966—Subsections (1) and (6) of section 8—Dried chillies—Sale to a decoy at excessiveprice—Whether it is a sale for the purpose of consumption or use within.themeaning f Rule 11 (b) of the relevant Price Control Order—Inapplicability ofnoscuntur a sociis rule of interpretation—Sentence—Imprisonment as well asfine mandatory—Penal Code, s. 72—Criminal Procedure Code, s. 325.
A sale of dried chillies to a decoy is a sale for the purpose of consumption oruse within the meaning of Rule 11 (6) of the relevant Price Control Order. Insuch a case the rulo of interpretation noscuntur a sociis cannot give the word“ use ” a meaning cognate to that of the word “ consumption
Where an offence punishable under section 8 (6) of the Control of PricesAct has been committed, it is mandatory not only to pass aof '
imprisonment but also to impose a fine.
Observations on the applicability of section 325 of the Criminal ProcedureCode to oontraventions ofPrico Control Orders.
WEERAMANTRY, J.—Ounapala v. Wilson dt Silva
A.PPEAL from a judgment of the Magistrate’s Court, Colombo.
E. R. S. R. Coomarcmcamy, with C. Chakradaran and M. S. Aziz,for the Accused-Appellant.
Ranjith GunatiUeke, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 24, 1968. Weeramantky, J.—
The accused appellant in this case was charged with having sold 2ounces of dried chillies for 38 cents, a price in excess of the maximum retailprice of 241 cents for 2 ounces, and thereby committing an offenceunder section 8 (1) of the Control of Prices Act (Cap. 173) punishableunder section 8 (6) of the said Act as amended by the Control of Prices(Amendment) Acts No. 44 of 1957 and No. 16 of 1966.
The detection of this offence was effected through the employment ofa decoy who was instructed to purchase a reasonable quantity of flourand failing that to buy any other price controlled article. The decoyfirst asked for wheat flour and on being told that this was not available,asked for dried chillies and was given 1 /8th of a pound by the 1st accusedin response to this request. The decoy tendered a marked one rupee notefor this purchase and received a balance sum of 62 cents from the 1staccused.
According to the prosecution the actual sale was effected by the firstaccused and the second accused was the cashier in the boutique to whomthe first accused gave the rupee note that had been handed to him bythe decoy and from whom the balance sum of 62 cents had beenobtained.
After trial the second accused was acquitted on the ground that theonly evidence against the second accused was that he had appropriated38 cents out of a rupee note handed to him by the first accused, butthere was no evidence that he had been apprised of the particular sale inconnection with which he was asked to take the money. The first accusedwas found guilty and sentenced to a term of 4 weeks’ rigorousimprisonment.
The relevant order made under the Control of Prices Act as appearingin Gazette No. 14,724/3 of 3rd December 1966 fixed the maximum retailprice per pound for dried chillies at Rs. 1*90 and states that for the purposeof that order any sale of any quantity of the article less than 1 cwt. grossfor the purpose of consumption or use shall be deemed to be a sale byretail.
The correctness of the learned Magistrate’s findings on questions offact cannot be assailed. A point was indeed made of the fact that one ofthe Price Control Inspectors who participate^ in this raid, an inspector
WEERAMANTBY, J.—Gunapala v. Wilson de Silva
by the name of Jayawardene, had not been, called as a witness althoughhe was, according to the prosecution, the only witness standing at apoint close enough to the boutique to hear the conversation between thedecoy and the first accused. It is not essential however, to the successof the prosecution case that this witness Jayawardene should have beencalled, for the other prosecution witness Wilson de Silva who was in chargeof the raid was standing at a point across the road from which he couldoommand an unobstructed view of the first accused and the decoy.From here he states that he saw the first accused weighing out thearticle sold, and it was not seriously challenged in cross-examinationthat Wilson de Silva saw the sale in question being effected by the firstaccused. This sale was clearly one in respect of the dried chillies inquestion, for these were found immediately afterwards in the possessionof the decoy.
The marked note given by the decoy to the first accused was found inthe second accused’s drawer and although there was a discrepancy in theserial letter of the rupee note, as noted down by de Silva in his note book,all the eight digits of the note tallied with the number as noted by deSilva. The discrepancy in the serial letter is clearly, as the learnedMagistrate has observed, due to a genuine mistake on the part ofde Silva.
It is clear from all these circumstances that the sale was effected bythe first accused to the decoy and that it was a sale in respect of driedchillies, and I do not think the prosecution case has suffered in any wayfrom the failure to call the witness Jayawardene.
The appeal was, however, more seriously pressed on a point of law,namely that, inasmuch as this was a sale to a decoy, it was not a sale forthe purpose of consumption or use within the meaning of Buie 11 (6) ofthe Price Control Order.
The first limb of the appellant’s argument was that an application ofthe noscuntur a sociis rule of interpretation would give the word * use * ameaning cognate to that of the word ‘ consumption and hence that,even though the word ‘ use ’ be wide enough to cover a variety of purposesother than consumption, for which the article may be purchased, theword in association with the word * consumption ’ takes its colour fromthis word, and means use as food.
However, as Silva, J. has observed in Martin v. Kandy Police it wouldhardly have been necessary for the legislature to use the second wordredundantly, the word * consumption * being quite adequate to expressthe idea of use as food.
In the Bngltoh cases of Briefly v. Phillips and Briefly v. Brear8, whichwere relied on by the appellant, the offence under consideration was thesale of eggs at a price exceeding the maximum price specified for sale
» (1967) 70 N. L. B. 141 at 143.
• (1947) 1 K. B. 641, (1947)$ AU E. B. 269.
WEERAMANTRY, J.—Ghinapalo v. Wilson dt Silva
by a producer to a consumer. In that connection it was held that aperson who buys eggs for the purpose of hatching is not a ‘ consumer ’within the meaning of the relevant Order.
The word ‘ consumption ’ was explained by Lord Goddard as bearingthe ordinary meaning which the English language would attach to thatword. Having referred to the nature of the article in question, the Courthad no difficulty in concluding that a person who bought it for the purposeof hatching was not a ‘ consumer ’. This finding cannot therefore availthe appellant in the totally different context of an Order where therelevant purpose is not limited to consumption but is extended to coverother purposes as well.
On the basis that the words ‘ consumption ’ or * use ’ are to be under-stood in the limited sense of * consumption * or ‘ use for purposes ofconsumption the further argument is advanced that the sale to a decoydoes not come within this description as the decoy’s purpose was notconsumption of the article but detection of the offence.
One cannot lose sight however of the fact that there is a dual aspectto every transaction of sale, for it may be viewed from the standpointof the buyer or from that of the seller. This dual aspect, clearly reflectedin the term emptio-venditio, by which the accurate terminology ofRoman Law chose to describe it, assumes particular importance when oneconsiders the purpose of the transaction. The buyer’s purpose inpurchasing and the seller’s understanding of that purpose do notnecessarily coincide. For example, a buyer purchasing an article offood for the purpose of a scientific experiment may well be thought bythe seller to be purchasing it for consumption. It is in appreciation ofthis possible divergence between the buyer’s purpose and the seller’sunderstanding of that purpose that the Order in question speaks not ofthe purpose of the purchase but of the purpose of the sale. Concerningitself as it does with the seller, the Order concentrates on his state of mind.What the buyer intends to do or in fact does with his purchase cannottherefore affect the applicability of the Order to a seller who understandshis sale to be for the purpose specified. This is the sense in which therelevant Order has been understood by this Court in more than onecase.1
I am therefore unable to hold with the appellant on either limb of hisargument, and the point of law urged on his behalf must fail.
It remains only to consider the question of sentence.
Learned Counsel for the appellant draws my attention to the fact thatsection 72 of the Penal Code is made inapplicable to this offence. Hesubmits that the imposition by the Legislature of a mandatory sentenceof imprisonment particularly in these circumstances must necessarily
1 Martin v. Kandy Police (1967) 70 N. L. R. 141 at 143, Podimenike v. Inspectorof Police, KirieUa, S. O. 80167/MO Ratnapura 26330j^CM of 22.11.67.
WEERAMANTRY, J.—Qtinapaia v. IFi/soji de Silva
cause a Court to construe very strictly the provision creating the offence,and to give to the accused the benefit of every possibility of leniencywithin the law. In this regard reliance is placed on the judgment ofMy Lord, the Chief Justice, in Podiappuhamy t>. Food and Price ControlInspector, Kandy1. This decision drew attention to the exclusion byregulation of section 325 of the Criminal Procedure Code and describedthe fetter on the discretion of Court in regard to punishment as neitherprudent nor necessary. As was there observed, in an expression ofopinion with which I respectfully agree, the Courts, which have ndiscretion even in cases of homicide, ought not to be denied this discretionin simple cases of profiteering. In the present case, as in the case towhich I have just referred, the exclusion of section 325 was subsequentto the offence in question and the Court is therefore not prevented fromacting under section 325 if the circumstances warrant such a course.There are, however, in the present case, no. mitigatory circumstancessuch as existed in that case, where the accused was not aware of theactual weight of any particular loaf, since he was not a manufacturerbut only a purchaser of about fifteen loaves of bread every day from abakery.
In the absence of any such circumstances which may so mitigate theoffence as to justify the Court in acting under section 325 I do not thinkthe appellant can invoke the benefit of the principle enunciated in thatcase.
Since in this case there has been a conviction which in my view hasbeen correctly entered and a sentence of imprisonment is mandatory interms of the provision to which I have referred, there is no room for anyinterference with the sentence of imprisonment imposed by the learnedMagistrate,, which is the minimum prescribed by law.
Learned Crown Counsel draws my attention to the fact that in terms ofsection 8 (6) (a) (*) of the Price Control Act as amended by Acts 44 of 1957and 16 of 1966 it is mandatory not only to pass a sentence of imprisonmentbut also to impose a fine not exceeding seven thousand five hundredrupees. The Magistrate has not imposed a fine and it becomes necessaryin the circumstances to comply with the law and impose the penalty of afine as well, as required by Statute.
I therefore impose on the appellant in addition to the sentence ofimprisonment a fine of Rs. 250/, in default 2 weeks* rigorous imprisonment.
The appeal is accordingly dismissed.
c 1 (1968) 71N. L. R. 93.
A. H. GUNAPALA, Appellant, and WILSON DE SILVA (Food and Price Control Inspect