148-NLR-NLR-V-48-ABDULLA-Appellant-and-MARIKAR-Respondent.pdf
468
HOWARD C.J.—Abdulla v. Marikar.
1947Present: Howard CJ.
ABDULLA, Appellant, and MARIKAR, Respondent.
S. C. 610—M. C. Galle, 4,453 D. R.
Defence (Control of Prices) (.Supplementary Provisions) Regulations—PriceControl Inspector—Proof that he was authorised officer—Right toprosecute—Criminal Procedure Code, section 148 (I) (b).
The accused was charged with the sale of mutton in excess of themaximum price. The main evidence for the prosecution was that ofthe complainant who stated that he was the Price Control Inspector atGalle on the day the offence was committed, that he watched the trans-action of sale and that the accused charged more than the control price.The Magistrate discharged the accused on the ground that there was noproof that the complainant was an authorised officer within the meaningof the Defence (Control of Prices) (Supplementary Provisions)Regulations.
Held, that proof that the complainant was an authorised officer wasnot necessary when the only question in issue was whether the accusedhad committed an offence against the Regulations.
Held, further,, that a Court should take judicial notice of the fact thatPrice Control officers are public servants within the meaning of section148 (1) (b) of the Criminal Procedure Code.
Perera v. Alwis (1944) 45 N. h- R. 136, distinguished.
Hameed v. Thuraisamy Nadar (1946) 48 N. L. R. 119, not followed.
^^PPEAL against an acquittal from the Magistrate’s Court, Galle. .
T. S. Fernando, C.C., for the complainant, appellant.
Cyril E. 3. Perera (with him Vernon Wijetunge), for the accused,respondent.
Cur. adv. vult.
October 8, 1947. Howard C.J.—
In this case the complainant, with the sanction of the Attorney-General,appeals from an order of the Magistrate’s Court at Galle, who, afterhearing the evidence for the prosecution, acquitted the accused-respondenton the ground that there was no proof that the complainant-appellantwas an authorised officer within the meaning of the Defence (Control ofPrices) (Supplementary Provisions) Regulations. The respondent wascharged with selling on January 7, 1947, to one A. Jayawardene 17 ozs.of mutton in excess of the maximum price of Re. 1.06 in breach of theorder made by the Controller of Prices published in Government GazetteNo. 9,573 of July 1, 1946, and thereby committing an offence punishableunder section 5 of the Control of Prices Ordinance, No. 39 of 1939, asamended by the Defence (Control of Prices) (Supplementary Provisions)Regulations 2 (2) now appearing in the Consolidated Reprint of theDefence (Miscellaneous) Regulations of May 1, 1944. The evidencesubmitted by the prosecution in support of this charge consisted ofA. W. M. Razik Marikar who stated that he was the Price ControlInspector at Galle on the day the offence was committed, that he watchedthe transaction of sale between peon Jayawardene and the respondent,and that the respondent charged more than the control price. The only
HOWARD CJ.—Abdulla v. Marikar.
469
other witnesses were peon Jayawardene who spoke as to the transactionwith the respondent and also A. B. Abayewickrema, an Examiner ofWeights and Measures, who weighed the mutton sold to Jayawardene.The Magistrate without calling on the defence acquitted the respondenton the ground already stated. In doing so the Magistrate consideredhe was bound by the decision in Hame°d v. Thuraisamy Nadar
The Defence (Control of Prices) (Supplementary Provisions) Regulations,regulation 1 (3) of the schedule defines “ authorised officer " as any otherofficer or person (other than a Controller or any Deputy or AssistantController) appointed by the Controller by a notification published inthe Gazette to be an “ authorised officer ”. Under Regulation 1 (3) of theControl of Prices Regulations, 1942, an “authorised officer” is definedas follows : —
“ The expression * authorised officer ’ when used in any of theseRegulations—
means the Controller or any Deputy or Assistant Controller ;
and
includes any other officer or person appointed by the
Controller by notification published in the Gazette to be anauthorised officer for the purposes of the Regulation inwhich the expression occurs.”
Regulation 16 (1) is worded as follows: —
“Where any person is suspected to have contravened the provisionsof any Order or of any of these Regulations, it shall be lawful for theController or any authorised officer to enter the premises in which, andto seize any article in respect of which, that contravention is suspectedto have occurred.”
Now the question in issue in this case is not whether the complainantwas justified in law in taking the mutton and balance from the respondent’sstall, but whether the respondent had committed an offence against theRegulations. His evidence on this question was for acceptance or notby the Magistrate irrespective of <the question as to whether he was an“ authorised ” officer. The proof that the complainant was an authorisedofficer was not one of the ingredients of the charge. In the case ofPerera v. Alwis1 the accused was charged under section 183 of the PenalCode with obstructing the complainant in the discharge of his duty andpreventing him from searching the premises of the Welcome Stores.Unless the complainant was an authorised officer he was not obstructedin the discharge of his duties. It was not proved that the complainantwas an authorised officer. Hence one of the ingredients of the chargewas not established. In the circumstances I do not consider that thedecision in Perera v. Alwis was so wide in its scope as the Court consideredit was in Hameed v. Thuraisamy Nadar.
The further point has been raised that there was no proof that thecomplainant who claimed to be a Price Control Inspector was a publicservant within the meaning of section 148 (1) (b) of the Criminal Procedure• 11946) 46 N. L. R. 119.5 (1944) 45 N. L. R. 136.
470CANEKERATNE J.—Emis Silva v. Lilinia Silva.
Code entitling him to file the plaint. The complainant in his evidence hasstated that he was Price Control Inspector, Galle, on January 7, 1947.This evidence was not challenged and is proof that the complainantwas a Price Control Inspector. I think the Court should without formalproof take judicial notice of the fact that Price Control Inspectors arepublic servants. In this connection the maxim “ omnia praesumunturrite acta” applies, vide R. v. Cresrwell' and R. v. Morris Rogers In thelatter case Coleridge L.C.J. at p. 103 stated as follows : —
“ One of the best recognised principles of law, omnia praesumunturesse rite et solemniter acta donee probetur in contrarium is applicableto public officers acting in discharge of public duties. The mere actingin a public capacity is sufficient prima facie proof of their proper appoint-ment ; but it is only a prima facie presumption, and it is capable ofbeing rebutted.”
For the reasons I have given the order of acquittal is set aside and thecase is remitted to the Magistrate so that he should call upon the defence.
Acquittal set aside.