011-SLLR-SLLR-1995-2-ABEYSIRI-V.-WIJESIRI.pdf
CA
Abeysiri v. Wijesiri (Ismail, J.)
51
ABEYSIRI
v.
WIJESIRI
COURT OF APPEAL.
ISMAIL. J.
C.A. 247/87
M.C. HINGURAKGODA 59083MARCH 13,1995.
Weights and Measures Act S 29, S. 44(b) – Selling petrol short of the quantity -Decoy – Evaporation – Benefit of the Doubt.
Accused-Appellant a pump attendant was charged for selling Petrol short of thequantity demanded. The Petrol was purchased by a Decoy in. a plastic can. TheMagistrate’s Court found him guilty.
Held:
It was alleged that the measure of Petrol was short of the quantity demanded by90 ml. The time of the alleged offence was around 11.30 a.m. shortly before noon.Therefore, there was every possibility of evaporation of a certain quantity of Petrol;before the Petrol was re-measured. There was also the possibility of evaporationof Petrol even at the stage of re-measuring, when Petrol is poured into themeasuring can. Further it was in evidence that Petrol Meters cannot be tamperedwith, without damaging the seal.
In the circumstances the benefit of the doubt should be given to the accused.
AN APPEAL from the Order of the Magistrate’s Court of Hingurakgoda.
Daya Guruge with Nimal Jayasingha for Accused-Appellant.
Aruna Jayasekera S.C. for State.
March 13, 1995.
ISMAIL, J.
The accused-appellant who was a pump attendant was found guiltyof a charge under section 29 read with section 44(b) of the Weights andMeasures Act for selling petrol short of the quantity demanded on05.10.86 from the Filling Station at Giritale. The prosecution led the
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
witness K. M. Abeysiri, Weights and Measures Inspector, W. A.Dharmasena, Price Control Inspector and a minor employee namedS. Tennakoon who acted as the decoy. The defence witness wasChandra Bandara, the Regional Manager of the Petroleum Corporation.The accused was found guilty after trial and was ordered to pay a fineof Rs. 500/-.
Learned Counsel for accused-appellant has pointed out that thepetrol was purchased by the decoy Tennakoon in a plastic can whichhas not been produced at the trial. He submitted that the decoy walkeda distance of 50 meters from where the vehicle was parked andpurchased the petrol. After purchasing he has walked back the samedistance to report the purchase to the Weights and Measures Inspector.The time of the alleged offence was about 11.30 a.m. shortly beforenoon. It was submitted that the can must have been warm and thatthere was every possibility of evaporation of a certain quantity of petrolfrom the can during the time before the petrol was remeasured. Theprosecution alleged that the measure of petrol was short of the quantitydemanded by 90 ml. Instead of 5 litres the quantity of petrol alleged tohave been sold was 4 litres and 910 ml. It was further submitted that aperiod of 10 minutes had lapsed before the petrol was remeasured. Inregard to remeasuring itself it appears that the petrol which waspurchased in a plastic can was poured into a 2 litre can andremeasured. Thus the petrol would have been poured three times fromthe 5 litre can in which the petrol was purchased by the decoy into thecan which was used for measuring. There was a possibility ofevaporation of petrol even at this stage. The decoy does not sayanything in regard to the meter used at the Filling Station. His evidenceis that he did not look at the meter when he purchased 5 litres of petrol.
The defence witness who had experience and who periodicallychecked the petrol meters explained that petrol is measured for thepurpose of checking the measure by pouring into a standard 5 litre canon which the measurement is indicated. He also stated that the petrolmeters cannot be tampered with without damaging the seal. Theprosecution has failed to exclude the possibility that the shortfall of90 ml. could have been due to evaporation during the space of about10 minutes which lapsed before it was remeasured in the manner it was
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Abeysiri v. Wijesiri (Ismail, J.)
53
done. I am of the view that the benefit of the doubt created as the resultof the possibility of evaporation of petrol as being a cause for the shortmeasure of 90 ml. of petrol should have been given to the accusedappellant. I therefore set aside the conviction and sentence and acquitthe accused of the charge.
Appeal allowed.
Accused acquitted.