201-NLR-NLR-V-47-ALWIS-Appellant-and-FERNANDO-Food-Control-Inspector-Respondent.pdf
NAG ALIN GAM A..T.—Altai* v. Fernando.
571
1946Present: Nagalingam A.J.ALWIS, Appellant, and FERNANDO (Food Control Inspector),Respondent.
286—M. C. KegaUa, 11,221.
Prosecution for refusal to sell bread—Defence that on the occasion in questionaccused had not sufficient quantity in his custody or control—Scope ofsuch defence—Control of Prices Ordinance, No. 39 of 1939, s. 5 (2) (3).
Where the accused, a seller of bread, refused to sell bread to a casualbuyer for the reason that the quantity of bread which he had in stockwas all required to supply his regular customers—
Held, that there was no contravention of section 5 (2) (6) (i) of theControl of Prices Ordinance as the accused had not a sufficient quantityof bread in his custody or under his control within the meaning ofsection 5 (3).
A
PPEAR against a conviction from the Magistrate’s Court,Regalia.
A. Hayley, K.C. (with him D. A. Jayasuriya), for the accused,appellant.
J.O. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. mill.
December 17, 1946. Nagalingam A.J.—
The accused in this case has been convicted of having refused to sella. pound of bread in contravention of section 5 of the Control of PricesOrdinance, No. 39 of 1939, as amended by the Defence (Control of Prices)(Supplementary Provisions) Regulations dated October 4, 1942, andpublished in the Government Gazette No. 9,019 of October. 8, 1942.
The facts very briefly are these :—On the day in question a PriceControl Inspector dressed as a bungalow podian went to the shop of theaccused and there asked for one pound of bread of a salesman whodirected him to the accused who was at the counter. The accusedinquired from him where he was from and on being told that he wason his way to Kandy declined to sell him any bread. On these factsthere can be little doubt that there has been a contravention ofsection 5 (2) (b) (i) of the Ordinance and that an offence has beencommitted.
The defence of the accused is based upon the exemption provided bysub-section 3 of the same section which enacts that in any prosecutionfor an offence under sub-section 2 it shall be a sufficient defence for theaccused to prove that on the occasion in question he supplied a reasonablequantity of the article or had not a sufficient quantity in his custodyor under his control to supply the quantity demanded. It is not thecase of the accused that he did supply a reasonable quantity of thearticle; he depends entirely on the second alternative and seeks to
672
NAGALINOAM A.J.—AXwia v. Fernando.
establish that he had not a sufficient quantity of bread in his custodyor under his control to supply the one pound of bread demandedof him.
The facts relevant to this part of the case are that immediately afterthe refusal by the accused to sell bread the Assistant Food Controllerof the area together with other Inspectors came on the scene and notonly questioned the accused as to why he had refused to sell bread butalso conducted a search both of his stores and bakery. The accusedpromptly stated that as he had not sufficient stock of bread to supplyhis regular customers as a result of the reduction in the quantity of flourissued to him he was not in a position to make a sale of a pound of breadto a casual purchaser. The search conducted by the Assistant FoodController revealed that the accused had 24 half-pound loaves in acupboard in the stores and 114 one-pound loaves in the bakery. Noattempt was made to check the accused’s statement that he had regularcustomers to whom he had to supply the quantity of bread that wasavailable both in his stores and at the bakery.
At the trial the accused produced a register D 2 which he affirmshe kept in pursuance of an order issued to him by the Food Controller’sDepartment and which was inspected by officers of the Departmentshowing particulars of flour consumed, bread manufactured, breadsold to customers and bread sold to casual buyers. His evidence isfully supported by the register. At page opposite to that marked D 2Atherein the quantity of flour used by him daily in making bread andthe quantity of bread turned out and the total quantity sold both toregular customers and casual buyer., is entered and at page D 2C appearthe names of the regular customers numbering, according to Counsel,no less than 156. These entries clearly establish that on 1st Februarythe accused had made use of 290 pounds of flour in making 401 poundsof bread of which he had supplied to his regular customers 321 poundsand sold the balance of 80 pounds to casual buyers. On each of the2nd, 3rd and 4th of February he has made use of 210 pounds of flourin baking 290 pounds of bread and he has supplied the total quantityof bread so made to his regular customers and none to casual buyers.On oth February he appears to have made 311 pounds of bread bymaking use of 225 pounds of flour and to have supplied the totalquantity of bread on that day too to his regular customers and noneto casual buyers. On 6th February he has converted 210 pounds offlour into 293 pounds of bread and this quantity of bread again he hasused entirely in supplying his regular customers. It is dear, therefore,that between 2nd and the 6th February he has sold no bread tocasual buyers ; on the 6th, it is in evidence, he wrote a letter P 6 tothe Assistant Food Controller informing him that in view of the smallallowance of flour he had received ho was unable to supply bread tohis regular customers and also sell to casual visitors calling for bread,and that he had therefore arranged to distribute the full quantity ofbread made by him daily to his “ long standing customers ” andinquiring further whether his proposal would be approved. Curiouslyenough on the day that this letter reached the Kachcheri the raid wasmade on the stores of the accused.
NAGALINGAM A.J.—Alwis v. Fernando.
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The register again proves that on 7th February he had converted210 pounds of flour into 290 pounds of bread and that if he adopted thecourse followed by him on the previous five days he would not have hadany excess even to the extent of one pound after supplying his regularcustomers. But as a result of the raid and the directions given to himby the Assistant Food Controller on that day the accused says he soldbread to anyone who called at his stores after the raid and sold no lessthan 221 pounds of bread to casual buyers and, according to the register,only S3 pounds to his regular customers. According to the record, itwould appear that the accused stated at one stage that he had supplied31 pounds and at a later stage that he had supplied 33 pounds of breadto his regular customers, but this is obviously incorrect in view of theentries made in the register.
The facts established by the accused are not challenged by theprosecution. If, therefore, it is the fact that the 290 pounds of breadthat he had baked that day would all have been required to supply hisregular customers whom he had rationed as a result of the cut in thesupply of flour to him, the question is whether his defence thathe had not a sufficient quantity in his custody or under his control tosupply the one pound of bread demanded is entitled to succeed. Thathe had more than one pound of bread in the stores at the time therequest for bread was made is not disputed in view of the fact thatadmittedly he had 24 half-pound loaves at that time. It is thereforecontended on behalf of the prosecution that where a trader is shownto have in his stores loaves of bread in excess of the quantity demandedby a prospective buyer the trader must necessarily be deemed to havesufficient quantity in his custody or under his control to supply thequantity demanded. Normally, when goods are shown to be in a shopor stores of a trade, such goods would no doubt be regarded as being inthe custody or under the control of the trader for purposes of sale andavailable to a buyer who is prepared to pay for them the prices fixed.But where it is shown that the goods though lying in his shop or storeshave already been earmarked and appropriated for delivery to one ormore of specified customers, can it be said after such appropriationthe goods continue to remain in the custody or under the control of thetrader ? I think the answer to this question is provided by the words“ a sufficient quantity ” that precede the phrase “ in his custody orunder his control ”. These words undoubtedly do signify, as contended forby the prosecution, that the quantum or amount of the commoditywith a trader is large enough to admit of the issue of the quantity appliedfor by an intending purchaser; but are they capable of no other meaning ?Having regard to the framework and object of both the Ordinance andthe Regulations I have little doubt that these words are wide enoughalso to denote the extent to which the commodity is available for sale,after setting apart what is needed to Supply the requirements of standingor regular customers.
In the case of Mohamed v. Nuwara Eliya Police 1 where a butcher wasable to show that he had orders from his regular customers for quantities
1 {1943) 44 N. L. S. 260.
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NAG ALIN GAM A.J.—Alwia v. Fernando.
exceeding the amount of beet lying in his stall on the day in question,Wijeyewardene J. held that he had not a sufficient quantity in hiscustody or under his control to supply a customer who had called atthe stall to make his purchase. That case was distinguished by thelearned Magistrate. It is true that in that case there were specificorders from customers which more than covered the quantity of beefin the stall, while in this case there is no proof of specific orders givenby the regular customers, but that is a variant which must necessarilyresult from the difference in the nature of the commodities dealt ..with.While one may expect a specific order for the quantity of meat thatmay be received by a householder on a particular day, a standing orderover a long period for the delivery daily of a specified number of poundsof bread is more often the rule than the contrary so far as regularcustomers are concerned. The fact, however, remains that in view ofthe rationing the accused had to adopt with regard to his own customersas a body the full quantity of bread that was available to him for disposalwould have been insufficient to supply the full needs of his regularcustomers and it follows therefore he would not have been in a positionto spare even a pound of bread. Accused says that this was the positionon that day. It has been suggested that when a trader had about 126pounds of bread he might very well have afforded to have sold one pound,but then if he could have afforded to have sold one pound the argumentcould be advanced that he might equally well have afforded to sellanother pound to a second casual buyer and a third pound to a thirdand a fourth, and so on, till it will be seen, the argument would embracethe sale by the baker of the total quantity of bread made by him forthe day to casual buyers as distinguished from regular customers.
I am therefore of the view, having regard to the course of conductof the accused on the previous five days, that he did not have a sufficientquantity in his custody or under his control to supply the pound- ofbread he was asked for by the Food Control Inspector. The conclusionI have reached on this question disposes of this appeal but I shouldsay one word in regard to another argument advanced on behalf of theappellant, and that is that as the accused did not have in his custodyin his stores any one-pound loaves of bread but only half-pound loavesa demand for one pound of bread could not have been met. I do notthink this contention is entitled to prevail. Had the request beenfor the purchase of a one-pound loaf of bread, then there might be someroom for urging that the accused was not in a position to execute thatorder, but the evidence in this case clearly shows that what was askedfor was not a one-pound loaf but a pound of bread and by using thesewords the customer has clearly indicated that he was not fastidiousas regards the manner in which the one pound was made up, whetherof half-pound loaves or of a pound loaf, but he was only desirous ofhaving a quantity of bread weighing one pound.
In the view I have reached on the main question argued in appealI would set aside the conviction and acquit the accused.
Appeal allowed.