032-NLR-NLR-V-48-FERNANDO-et-al.-Appellant-and-HAMID-Respondent.pdf
NAG ALIN GAM AJ.—Fernando v. Hamid.
91
1946Present: NagaUngam AJ.
FERNANDO et al., Appellants, and HAMID, Respondent.991/992—M. C. Colombo, 17,534.
Control of Prices—Maximum retail price of potatoes—Food Price OrderNo. C S3—Applicable equally to both imported and locally-grownpotatoes—Control of Prices Ordinance. No. 39 of 1939, s. 5.
The term “ potatoes ” in Schedule I of the Food Price Control OrderNo. C 83 (.Gazette No. 9,517 of February 8, 1946) applies both to locally-grown potatoes as well as to the imported variety.
A
PPEALS against two convictions from the Magistrate’s Court,Colombo.
V. Perera, K.C. (with him S. Nadesan), for the accused, appellants.
J.G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vutt.
November 27, 1946. Nagalxngam A.J.—
The two accused in this case appeal from their conviction and sentenceupon a charge of having sold 13 pounds of potatoes for Rs. 10.50, a pricein excess of the maximum retail price of Rs. 3.12 for the said quantity,and thereby having committed an offence punishable under section 5-of the Control of Prices Ordinance.
Two points have been urged in appeal. One is that the article inrespect of which the charge is laid is Nuwara Eliya potatoes and thatthe commodity controlled is not locally-grown potatoes but the importedarticle. The reasoning upon which this argument is based is said to bethat a reading of Schedules 1 and 2 to the Food Price Control Order No. C 83leads irresistibly to this conclusion. It is said that the first Schedulenot only , sets out. in the 1st column the description of the articles but incolumn 2 the imported maximum price per cwt., in column 3 the maximumwholesale price per cwt., in column 4 the maximum wholesale price perpound and in column 5 the maximum retail price per pound, showingthat the whole schedule must be regarded as one scheme, for in regardto any article there is a gradation of prices set out in the various columnspointing clearly to the interdependence of both wholesale and retailprices upon the imported price and therefore if a particular articlecan be shown to be not subject to an imported price that article is outsidethe ambit of the Price Control Order. I 'am not disposed to accept thisargument more so as in two earlier cases Kretser J. and Dias J. havetaken the view that the description of the article in column 1 does notand cannot be said to be limited by the reference to the importers pricein column 2 thereof that the various columns in regard to prices are notmutually dependent but are'independent. In other words if the articleis imported then column 2 in regard to the importer’s price would applybut, if locally-grown, then that column would not apply but the othercolumns would apply equally to both imported and locally-grown articles.
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NAG ALIN GAM A.J.—Fernando v. Hamid.
Learned Counsel for the appellants submits that when the matter wasargued before Dias J.* he had not brought to his notice the existence ofSchedule 2 which shows that the prices in outstations would be higherthan the corresponding prices in Colombo excepting for the importer’sprice which either has no application to outstations or, if it has, would bethe same as that for Colombo: if this aspect of the matter is takeninto consideration he argues that as there is evidence in this case to showthat the potatoes were Nuwara Eliya potatoes despatched to the accusedfrom Kandapola, the interpretation placed in the Order would lead to theabsurd result that a trader is expected to make a purchase of the locally-grown articles at Kandapola at a price much in excess of the Colomboprice and sell them in Colombo at a lower price.
The simple answer to that is that the prices are maximum pricesand not the minimum and that the trader in Colombo need notnecessarily pay the maximum price fixed in Schedule 2 in makinghis purchase. It is open to him to buy the commodity at a price lowerthan what is fixed in that Schedule. If he could purchase potatoes at asufficiently low figure that would enable him—after adding to the costprice, the transport charges and allowing a margin of profit for himself—to sell the article in Colombo at a price not exceeding the controlled pricethere would be no objection to it, but if he cannot possibly do so, theobvious course he should pursue is to desist from undertaking suchventure.
I therefore hold that the perfectly general term ‘ potatoes ’ in theSchedule I applies both to the locally-grown article as well as to theimported variety.
The second point taken is that the evidence does not disclose that thesecond accused took any part in the sale. It is undoubtedly true to saythat two persons can be convicted upon a single charge of selling a com-modity in excess of the controlled price but the question here is whetherthere is sufficient evidence to show that the second accused did takepart in the sale. The evidence against him is that he was consulted bythe first accused who actually took the' order from the Price ControlInspector and after consulting the second accused, he mentioned the priceto the Price Control Inspector. As to what the nature of the consultationwas between the first and second accused there is no evidence; butassuming that the consultation was with regard to the price it may verywell be that the second accused who was described by the prosecution as aSales Clerk worked out the selling price having regard to the cost price,transport charges and the margin of profit, which the firm allows to itself—and conveyed the figure to the first accused who is described as a partproprietor of the business. The case may have been otherwise had thefirst accused been a salesman and the second accused a Sales Manager.A Sales Clerk is not a Sales Manager and the evidence does not showwhat his precise functions are, so that no inference adverse to the secondaccused should be drawn if his conduct can be given an innocent com-plexion ; another piece of evidence which is relied upon against himis that he handed the balance out of the amount’ the complainant hadtendered in payment of the purchase he had made. The fact that the
* Vide (1946) 47 N. L. R. 501—Ed.
NAG ALIN GAM AJ.—Fernando v. de Saram.
93
second accused handed over the balance shows that he acted in thecapacity of a cashier and this does not lead to an inference that he hadtaken part in the sale.
I am not therefore satisfied that there is sufficient evidence upon whichone could come to the conclusion that the second accused had taken partin the transaction.
In these circumstances I affirm the conviction and sentence imposedon the first accused but quash the conviction of and acquit the secondaccused.
Conviction of first accused affirmed.Conviction of second accused set aside.