118-NLR-NLR-V-18-BENAH-v.-MOHIDEEN.pdf
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me,
Present! Wood Benton C«l. ami De Sainpayo J.
BEXAH ». MOHIDEEN.-J— P.C. Matale, 4,526.
Cacao Thefts Prevention Ordinance, 1904, s. 4*-Licensed dealer buyingcaeao tfaough unlicensed agents.
A licensed denier in cacao is not at liberty to eflec*o bis pturcha*«8through unlicensed agents.
fjpHE facts appear from the judgment.
Bawa, K.G.t and Drieberg, for accused, appellant.
Qarvin, S.-G.t and Fernando, C.C., for the Crown.
Cur. ado. volt.
January 28, 1916. Wood Renton C.J.—
This appeal came before me in the first instance alone, and as thepoint involved in it is one of considerable difficulty and importance,1 referred it to a Bench of two Judges. The appellant was chargedwith, and has been convicted of, an offence under section 4 of theCacao Thefts Prevention Ordinance, 1904,^ which prohibits thepurchase of cacao by unlicensed persons. The evidence showsthat, acting as the agent of Mr. Victoria, a licensed dealer in cacaoin Matale, the appellant made an offer to Mr. Miller, the superin-tendent of Wiltshire estate, which the latter accepted to purchasea certain quantity of cacao. Mr. Miller was aware that thispurchase was being .effected on Mr. Victoria’s behalf. The accountfor the cacao was rendered to Mr. Victoria, and was paid for byhim. Neither Mr. Miller nor the appellant has any license to dealin cacao. The question that arises for decision is whether a trans-action such as I have described is a " purchase ” of cacao by anunlicensed person within the meaning of the Ordinance of 1904 ;or, in other words, whether a licensed person can legally effectpurchases of cacao by an unlicensed agent. That question has tobe answered with reference to the provisions of the enactment asa whole. The appellant’s counsel referred us to a series of decisionsunder the English Licensing Acts, dealing with the doctrine ofagency in its application to the sale of intoxicating liquor, andcounsel for the Crown relied upon a body of similar authoritiesunder the English Sale of Food and Drugs Act, 1876, and PharmacyActs. The cases under these enactments, however, wrist us forthe most part only by their dear enunciation of the principle that
i No. 8 of 1904.
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far & V purpose oi arriving at a solution of such tf problem as we
have eip to deal with, eaoh enactment has to be interpreted in the wood
light J its Ora provirions.BasaroCJ.
Afti • earcful consideration I have came to* die conclusion that BauAthe ajpeikd has been rightly convicted under section 4 of* the <w'
Cacao Tbeha Flrevehtfaa-^htiinsnce, 1904,1 amf that under tha£
Ordinance a licensed dealer in eaess is not at liberty to effect hispurchasesunlicensed agents. On this point *1 am unable
to of .■ee wi&£ the decision of Ennis J? in racxeer Au^ v. Batcha *.
It is no dou$t that, as a matter of contract, the purchaseof ea ao herein question was-made, not by the appellant, but byMr. Victoria. But in another ease* I have ventured to expresstiie opinion that the term." purchase *’ in section 4 of the Ordinancesof 190*1 should be interpreted in its popular raise, without referenceto the rules laid down by the Sale of Goods Ordinance, 1898,4 inorder to ascertain the civil rights mid liabilities of parties to anordinaiy contract of sale, mid that where there is a consensus adidem in regard to the tea mid the merx, there is a purchase withinthe maaning of the section. Applying the principle of that decision-to the present case, I think that there may be for the purposesof the Cacao Thefts Prevention Ordinance, 1904,1 $ “ purchase ”by an agent, even although the real purchaser in the eye of thecivil law is his principal. I may refer, in this connection, to thecase of Hoyle v. Hitekman, in which it was held that where anarticle of food, which was not of the nature, substance, and qualityof the article demanded, was raid to an inspector of nuisances, whowas merely an employee of a local authority, and who bought thearticle with monqy belonging to the local authority by which hewas employed, there was a sale “ to the prejudice of the purchaser ”within tiie meaning of the Sale of Food and Drugs Act, 1875.® Theobject of the Ordinance of 1904 was to prevent those petty theftsof cacao which in their cumulative effect are productive of so muchTwirahi«f in this country. The Ordinance was made applicable intiie first instance not to the Colony as a whole, but to those dis-faiets, villages,, or parts of the Island only in which it was proclaimed,and its provisions have in fact been applied in a careful and tenta-tive manner. The Legislature has placed no restrictions on the salaof cacao by licensed dealers to unlicensed purchasers. But theOrdinance is clearly baaed on the assumption that the purchaseof cacao by licensed dealers would. ordinarily be effected at theirlicensed premises. It is only where a licensed dealer has obtainedunder section 5 (5) of tiie Ordinance a special license in that behalf,which. the Government Agent has a discretion to grant or to refuse,
* No. 8 of lim.4 No. U of 2896.
1&N.L.B.4BB.s 42870) 4 Q, B. D. 338.
s P. G. SSataU, No. 4JT08 (5. C. Mhu., « 38 & 89 VieL, & 63, s. 6,
Pecsmbs? S2, 1913).
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ms. .that lie is entitled to purchase cacao at any place other than hiVood own ^cenae<l premises. It is unnecessary for the purposes of thisRtaTOH C.J. case to decide the point, but as at present advised I $m not prepared-
to accept the view suggested in 031—P. (J. Matale, No. 4,562,1 that
MMdccnEmission of the word ‘‘ his ” in section 1, sub-section 1 (a), of.file Ordinance in* the clause '* other than licensed premises,enables one licensed dealer to purchase cacao at the premises of'another without the special permit provided for in section 5 (5^ X'am inclined to think that to interpret the law in that sense wouldto a great extent stultify the provisions of sections 11 and 16 as tothe inspection of licensed premises. The prohibition in section 4of the purchase of cacao by any unlicensed person is as wide and^8 peremptory as it could well be made. Sections 8 and 12 makespecial provision for the case of partners, enabling them to deal incacao under a single license, but rendering each member of the findliable for the acts or omissions, of his co-partners, unless he is ableto supply affirmative proof of his innocence. I cannot believe that'an enactment of this kind would have found its place in the Ordinanceif the intention of .the Legislature had been to leave every licensed4,dealer free to employ as many agents as he chose, and to make the-9 liability of those agents for their conduct dependent only on theordinary civil law. Moreover, section 9, sub-section 1 (6), presents,in my opinion, an insuperable obstacle in the way of the successof this appeal. It provides that:11 It ahall be unlawful for any*
licensed dealer to purchase or to take delivery of cacao from any'person who is not personally known to him, or from any personwhom he knows or has reasonable grounds for believing is underthe age of twelve years, or from any estate labourer. f*
This enactment clearly contemplates the personal purchase ofcacao by licensed dealers. It is absurd .to suppose that the Legis-lature could have intended to authorize such a dealer to engage theservices of as many agents as he desired, and at the same time toimpose upon this facility a restriction which would render it futile,namely, that each of these agents should be in a position to saywhether every would-be vendor was or was not personally knownto his employer.
I am not greatly impressed with the argument, which was urgedupon us in appeal, that if we interpret section 4 of the Cacao Thefts"Prevention Ordinance, 1904,2 in the sense above indicated, alicensed dealer will be unable not only to effect purchases, which hehimself has directly made, through a servant, but even to employhis servant for subsidiary and wholly innocent purposes, such asthe entry of the delivery of cacao at his licensed premises, or itsremoval ■ therefrom. The question in each case will have to bedetermined whether there has been a “ purchase " by the agenf inthe sense which I have endeavoured to explain above; and therei 8. C. Mins., October 2$, 1916.2 No. 8 of 1904.
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is nothing in this decision that can prevent the employment ol the *****servants ot the licensed dealer in any form of service which the Woon •Legislature has not either expressly or by necessary implication* Rbwpoh C.J.prohibited.^ I am glad to be able to arrive at this solution of the Benahdifficulty before us, because I fed that to interpret the Cacao Thefts v- MMAso*he?e&6on Ordinance 1 in any other seme would %e jbo reduce itsprovisions to a nullify.
I woud affirm the conviction, but as die case is practically a .testone, and as there is no suggestion that Mr. Victoria oqted in thismatter otherwise .than in good faith, I would reduce the sentenceto a fine of Rs? 20.
De Sampayo J.—I agree.
Affirmed.