111-NLR-NLR-V-58-C.-T.-RASARATNAM-Inspector-of-Police-Appellant-and-K.H.-V.-PREMATILLEKE-.pdf
Present : H. N. G. Fernando, J.
t
C. T. RASARATNAM (Inspector of Police), Appellant, and K. H. V.
PREMATILIjEKE, Respondent
S. C. 176—31. G. Colombo, 35,390
Shop and Office Employees (Regulation of Employment and Jiemuneration) Act, Xo. 10oj 10-51—“ Serving oj customers ”—Burden oj proof—Sections 43 (J), 51,6S (</).
Where tliero is proof of delivery, nfter closing time, of goods purchased beforotho closing time, in contravention of section 43 (I) of the Shop and OfficeEmployees (Regulation of Employment a nil Remuneration) Act, tho prose-cution need not prove that tho shop was kept open for tho purpose of makingtho delivery.
Sharujdeen v. Sinnadurai (1955) 57 X. L. R: 214, distinguished.
-^^-PPEAL, with the sanction of the Attorney-General, from a judgmentof tho Magistrate's Court, Colombo.
1'. S. A. Pidlenayegum, Crown Counsel, for the complainant-appellant.
S. B. Leka mge, for the accused-respondent-.
Cur adv. unit.
May 24, 1957. H. N. G. Fernando, J.—
This is an appeal with tire sanction of the Attorney-General againstthe acquittal of the accused by the Magistrate of charges of keeping ashop open for the serving of customers in contravention of a closing ordermade under Act No. 19 of 1954 and of failing to prevent a customer fromentering the shop when the shop was required to be closed. The chargeswere framed under sections 43 (I) and 43 (2) respectively of tho Act,contravention of those provisions being punishable under section 51.
The admitted fact is that on a Sunday, being a day on which the shopshould have been closed for customers in terms of the closing order, theInspector of Eabour entered tho shop and saw a salesman handing theparcel to a womaiv The parcel was found to contain coriander, coffeeand cinnamon. According to the accused tho .articles had been soldto the woman on the previous day and on this Sunday she had come forand obtained delivery of the parcol froni tho salesman. Tho learnedMagistrate thought that this evidence did not establish tho charge of acontravention of section 43 (1) of the Act.
The section provides that “ no shop shall be or remain open for theserving of customers in contravention of any Closing Order. ” Accordingto the definition of the- expression “ serving of customers ", that expres-sion includes “ the delivery at such shop during any time when suchshop is required to be kept closed by any closing order, of goods purchasedwhile such shop is kept open ; ”
Clearly -vvli'at is contemplated in this paragraph is the very act admittedby the accused in this case, namely the delivery during the '* closingperiods ” of goods purchased during “ open periods ”, so that theadmitted act constitutes the serving of customers within the meaning oftho definition.
It is argued, however, for the defence that, upon the evidence, theaccused kept tho shop open not with the object of serving customers,but because some repairs had to be done to a wall : that since he had nointention when ho kept the shop open that customers should be served,he did not contravene section -13 (1). I do not think, however, that themore fact that the doors of a shop are left open for an innocent reasoncan assist a proprietor if in fact a customer is “ served ” within themeaning of tlio definition. Tho intention and effect of the. section is toprohibit transactions in a shop with customers during a t: closing periodAnd if a transaction takes place, the shop for that reason is open for theserving of customers and the offence is thereby committed.
In view of an argument adduced to me by Counsel for the accused,I should refer to the following passage in my judgment in Sharufcleen c.Sinnadurai 1: “ Applying the decision in the unreported case I would saythat it is not necessary for the prosecution to prove an actual deliveryafter closing time of goods purchased before the closing time. But theprosecution must prove that the shop was kept open for the purpose ofmaking or facilitating such a delivery. That being so it was incumbentto prove in the present case that one purpose at least for which theaccused kept Iris shop open was in order that deliveries may be made ofgoods purchased earlier. ” It is argued from this passage that- tho presentquestion for determination is whether the shop was kept open with thoobject of serving customers, but the facts in that case were different fromthe present facts in that there, there was no proof of a delivery, and inthe absence of such proof I held that the prosecution must prove thatthe shop was kept open for the purpose of making a delivery. Theneed to prove the purpose with which the shop is kept open would not-,however, arise in a case whore a customer is in fact served. Section -13 (I)prohibits a shop being kept open for the serving of customers. Thetypical instance of a contravention would be the actual serving of thecustomers, proof of which would suffice by itself for conviction. Inaddition the section would also apply to cases where actual service ofcustomers cannot be proved but where it can nevertheless be establishedthat the shop was kept open for tho purposo or with the object of servingcustomers. Jly observations in the judgment referred t-o should not beconstrued as being applicable in the typical cases.
In the present case the evidence clearly establishes a contravention ofsection -t.'l (1), but in the absence of evidence regarding the entry of thewoman into the shop T do not propose to consider the second count . Theorder of acquittal is set- aside. I convict the accused on the first countand sentence him to a fine of Rs. 100, in default two weeks rigorous,imprisonment.
Acquittal set- aside-
1 (IO j.-j)_Y. L. B. -214.