ItAJARATNAM, J.—Jalatdeen v. Jayawardena
1972Present: Rajaratnam, J.
A. M. JALALDEEN, Appellant, and C. JAYAWARDENA (O.I.C.,Central Vice Squad), Respondent
S. C. 937/71—M. C. Colombo, 70776/D
Charge of profiteering in beef—Burden of proof—Meaning of expressions"beef” and "offal”—Evidence Ordinance, s. 114—Control ofPrices Act, s. 8 (1) (6).
The accused-appellant was convicted on a charge of selling apound of beef without bones at a price in excess of the controlledprice. The definition of “ beef ” in the relevant Price Order excludedany form of offal. The Oxford Dictionary defines offal as includingkidney, heart and liver.
Held, that, in regard to the burden of proof on the prosecution,it could be presumed that the accused did not sell liver and kidney:when he was asked for beef* The term offal normally relates torefuse and the rejected stuff from slaughtered cattle.
A. PPEAL from a judgment of the Magistrate’s Court, Colombo.Mark Fernando, for the accused-appellant.
P. Ramanathan, State Counsel, for the Attorney-General.
Cur. adv. vult.
December 15, 1972. Rajaratnam, J.—
The accused-appellant in this case was convicted on a chargeof profiteering in beef by selling a pound of beef without bonesfor Re. 1.50 when the maximum controlled retail price of a pound
RAJARATNAM. J.—Jalaldeen v. Jayawardena191
of beef without bones was Re. 1.25" an offence punishable unders. 8, sub-section 1 of the Control of. Prices Act, Chapter 173, andpunishable under s. 8 (6) of the Act.
Learned Counsel for the appellant very forcefully made asubmission on a point of law in that the prosecution failed toestablish that the article sold was beef as defined in the PriceOrder. He contended that the prosecution had the burden toprove that it was beef that was defined in the order and notbeef as it is popularly understood. I have had the advantage ofthe oral and the written submissions he has made in supportof his argument. According to the Price Order the expression“ beef ” is defined excluding inter alia any form of offal. Thereforeoffal is excluded. The report of the Government Analyst wascalled for in this case to state as to whether the sample of thebeef, PI, that was sold contained beef without bones and wasfree of offal. The report P5 stated that no examination for offalwas done and in his evidence the Government Analyst statedthat he was not competent to do so and he generously concededthis competence to the Government Veterinary Surgeon. He,however, stated that the seriological examination revealed thatthe sample PI was beef.
Learned Counsel referred me to the definition of offal in theOxford Dictionary which defines offal as including inter aliakidney, heart, and liver. This definition no doubt includes in theterm offal such choice parts as the liver and the kidney. LearnedCounsel therefore argued that the prosecution has not excludedthe probability or even the possibility that the accused sold thesechoice parts which may have accounted for the higher price.He cited the case of Ummar v. Rambukwella1 reported in 44N. L. R. 161 where Moseley A. C. J. held that if what was soldwas offal the price of offal is not controlled and therefore nooffence was committed and he regretfully set aside the convictionin the case. Again in the case of The Attorney-General v. Rahim369 N. L. R. 519, Abeyesundere J. held that where in a prosecutionfor contravention of Price Order relating to beef, the expression“ beef ” is defined in the order as including any kind of beefother than imported beef or any offal, the burden is on theprosecution to prove that the beef referred to in the charge wasnot imported beef or any offal. I respectfully agree with thesetwo decisions although I am not prepared to apply the decisionsin these two cases without examining the particularcircumstances of each case. The burden no doubt is on theprosecution to prove that the beef referred to was not offal. Ifthe,accused, spld offal he would have been guilty of some other
» (iAffl) 44 N. L. B. 161.V.'..** (1966) 69 N. L. B. 519.192
RATARATNAM, J.—Jalaldeen v. Jayawardena
I am in respectful agreement with the observation made byMy Lord the Chief Justice in the case of Jalaldeen v.Jayawardena1 70 N. L. R. 476 at p. 479. I have myself neverenjoyed the pleasant surprise of being given liver and kidneyby a butcher when I asked for beef. Applying the observationof My Lord the Chief Justice it would be absurd to suppose thata butcher adopted the uncommon course of practice to sell liverand kidney when he was asked for beef.
The fact that the law demands that the burden is on theprosecution to prove that the article sold was beef and not offaldoes not mean that the prosecution can only prove it throughan Analyst or Veterinary Surgeon. The Court can take the factsof each case and the circumstances to arrive at a finding of facton this question.
Quite apart from the law even on the facts there is the evidenceof the Sub-Inspector at page 15 of the record that he did notfind any offal in the beef although he was not an expert in theveterinary field. One does not require expert knowledge todistinguish offal from beef or bread from cake. There is thefurther evidence of Police Constable Jayalath that the beef thatwas cut was cut from a hanging chunk and that there were twopieces so cut which contained nothing but beef. In my view thisevidence apart from the evidence of Government Analyst thatfrom a seriological examination it was revealed that ithe sampleof flesh PI was beef as defined in the Price Order was sufficientproof and the prosecution discharged its burden.
In the totality of all the evidence and in the absence of anyevidence given by the accused or any other witness it is notpossible for me to say that the prosecution has not proved itscase that it was beef that was sold. I also take into considerationthe item of evidence that what was asked for was beef and thereis no counter evidence that something else was given.
I therefore dismiss the appeal.
Appeal dismissed.,1 U967)>/0U<h.B.476cd479.<!
offence. The term offal normally relates to refuse and the rejectedstuff from slaughtered cattle. No doubt the Oxford Dictionaryincludes the liver and the kidney which is within the knowledgeof every one more expensive than the flesh. Therefore the courtis entitled to presume this fact under s. 114 of the EvidenceOrdinance regard being had to the common course of naturalevents, human conduct and public and private business.Furthermore the price order in Tamil refers to offal as “ Kalivu ”
and in Sinhala offal is referred to as “ Manshavashesha,v