SomaUngam v. Jayawardene
1967Present : Tennekoon, J.A. SOMALINGAM, Appellant, and K. A. JAYAWARDENE(Food and Price Control Inspector), Respondent
S. C. 682j67—M. C. Badulla (holden at Bandarawela), 46873
Control of Prices Act—Charge of selling imported foodstuffs in excess of maximumcontrolled price—Inspector of Foodstuffs—Competency to give evidence as anexpert.
In a prosecution for selling Masoor Dhal Imported Split (Grade I) in excessof the maximum controlled retail price, an Inspector of Foodstuffs who hassufficient experience and practical knowledge in the examination of importedfoodstuffs is competent to give evidence as an export in order to establish thatthe subject of the sale was Masoor Dhal Imported Split (Grade I).
.A.PPEAL from a judgment of tlie Magistrate’s Court, Badulla,
Colvin R. de Silva, with Nimal SenanayaTce and Bala Nadarajah, forthe Accused-Appellant.
Faisz Mustapha, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
TENNEKOON, J.—SomaUngam v. Jayawardene
November 6, 1967. Tennekoon, J.—
The accused-appellant was convicted of the offence of selling a poundof Masoor Dhal imported split (Grade I) at a price in excess of themaximum controlled retail price and sentenced to one month’s rigorousimprisonment and also to a fine of Rs. 1,000.
The main submission in appeal was that the learned Magistrate hadmisdirected himself in holding on the evidence that the article sold wasMasoor Dhal imported split (Grade I). The Price Order in questionreferred to two varieties of Masoor Dhal—
Masoor Dhal—Imported Split (Grade I)
Masoor Dhal—Locally Milled (Grade II)
In order to establish that the subject of the sale was Masoor DhalImported Split (Grade I) the prosecution called one Gooneratne. Hetestified to the effect that PI the subject of the sale was submitted tohim for an opinion and that he identified it as Masoor Dhal importedsplit Grade I. Gooneratne testified that he was an Inspector of Food-stuffs attached to the wharf for the last 24 years. He had joined theFood Department in 1945 ; in 1965 he was sent to India to follow a coursoof training in the physical analysis of foods. His ordinary duties werethe examination of foodstuffs imported into the Island by the Govern-ment or the C. W. E. for quality, condition and variety ; he issues reportsin respect of all foodstuffs taken over or imported for purposes of pay-ment ; he stated that the Government has been the sole importer ofMasoor Dhal for the last 12 years, and that he had given expert evidenceon foodstuffs in a number of cases in courts. He also stated the pointsof distinction between Masoor Dhal imported split (Grade I) and MasoorDhal locally milled (Grade II). Gooneratne also stated that while it maybe possible to produce Grade I quality Masoor Dhal from the unmilledMasoor Dhal that is imported and distributed to millers, he himself wasunaware of Grade I Masoor Dhal being produced by millers in Ceylon.
On the question of whether Gooneratne was rightly treated as aperson “ specially skilled ” on the science of identifying foodstuffs and inparticular different varieties of Masoor Dhal, I need only refer to thejudgment of my brother T. S. Fernando, J. in the case of the Solicitor-General v. Fernando 1- It was held in that case that in a prosecution forunlawful possession of an excisable article, viz., fermented toddy, anexcise inspector who has sufficient experience, and practical knowledgein the detection of excise offences relating to fermented toddy may bequalified to give evidence as an expert on the question whether the liquidclaimed to have been found in the possession of the accused was fermentedtoddy. I think that on this principle Gooneratne’s opinion that thesubject of the sale in this case was Masoor Dhal Imported Split (Grade I)was properly treated by Hie Magistrate as relevant evidence.
'(1965) 61 N. L.B. 169.
TENNEKOON, J.—Somalingam v. Jayawardene
In the course of cross-examination, Gooneratne was asked whether hewas aware that any local miller could produce Grade I Masoor Dhalfrom unsplit Masoor Dhal that is imported and distributed by theGovernment to millers. Gooneratne’s answer was that millers to whomimported unsplit Masoor Dhal is given by the Government are onlyauthorised to mill the dhal up to Grade II quality, and that he himselfwas unaware of millers, contrary to instructions, producing Grade IMasoor Dhal. He was also asked whether it is not possible for millers toutilise the percentage that is allowed to them for processing and wastageby the Government for conversion into Grade I Masoor Dhal. Hisanswer was that he was unaware of any such practice. This suggestionhaving been denied by the expert, the learned Magistrate said : “ Evenif that be so it was for the accused who has preferred to sell such a varietyin open market in spite of the Price Order in P4 to satisfy court that thisdhal was locally milled (Grade I). ” It was submitted by Counsel for theappellant that here the Magistrate was ignoring the principle that in acriminal prosecution the burden was on the prosecution to establish itscase, and that there was no burden on the accused. I do not think thatthe Magistrate had misdirected himself at all. There was sufficientprima facie evidence on which the Magistrate was entitled to, and indeeddid, call upon the accused for his defence. If the case of the accusedwas that what he sold was Grade I dhal produced in some unusual fashionby millers from imported unsplit dhal, a practice of which the experthimself was unaware, he should have placed evidence of that fact beforecourt.
In the absence of such evidence I do not think the Magistrate hasmisdirected himself in holding on the evidence of the expert and thefailure of the accused to produce any evidence on that point, thatthe prosecution has proved beyond reasonable doubt that the dhal thatwas sold in this case was Masoor Dhal Imported Split (Grade I).
The appeal is dismissed. The conviction and sentence are affirmed.
A. SOMALINGM, Appellant, and K. A. JAYAWARDENE (Food and Price Control Inspector