Ariyadasa o. Inspector o] Police, Nawalapitiya
1971Present : Samerawlckrame, J.
H. M. ARIYADASA, Appellant, and INSPECTOR OFPOLICE, NAWALAPITIYA, Respondent
S. C. 699/68—M. C. Nawalapitiya, 8297Control of Prices Act—Charge of selling price-controlled article at excessive price—Omission to state therein the name of the buyer—Effect—Criminal ProcedureCode, s. 171.
In a prosecution for selling a price-controlled article at an excessive pricethe failure to state in the oharge the name of the person to whom the artiolowas sold would not per se vitiate the oonviction of the accused if the accusedwas not misled by the omission.
SAMERAWICKRAME, J.—Ariyadaaa v. Irupector of Police, tfavralapitiya 135
Appeal from a judgment of the Magistrate's Court, Nawalapitiya.
E. Chitty, Q.C., with E. A. O. de Silva, for the accused-appellant.Ranjith Qunatilake, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
September 1, 1971. Samerawickkame, J.—
The charge against the appellant read :—“ You are hereby charged,that you did, within the jurisdiction of this court, at No. 46, GampolaRoad, Nawalapitiya, on 23rd August, 1967 being a place in the DivisionalRevenue Officer’s division of Pasbage Korale in the Kandy District inwhich Food and Price Order No. KD. 129 made by Assistant Controllerof Prices (Food) under section 4 read with section 3 (2) of the Control ofPriceB Act (Chapter 173) and published in Government Gazette Extra-ordinary No. 14,707/2 of 7.8.1966 was in operation in fixing themaximum retail price per lb. above which wheat flour shall not be soldin that area, sell 2 lbs. of wheat flour for cents 65 price in excess of themaximum control price of cents~59 for the said 2 lbs. of wheat dour andthereby you did commit an offence punishable under section 8 (6) of thesaid Chapter 173 as amended by section 2 (2) of Act No. 44 of 1957 andsection 2 of Act No. 16 of 1966.”
Learned counsel for the appellant submitted that the charge failed toset out the person to whom the sale was made and that on this groundthe conviction of the appellant was vitiated and should be Bet aside. Hereferred to the cases reported in 21 N. L. R. page 492 and 22 N. L. R.page 380. In the first case relied on, the charge did not specify anyperson to whom the sale was made nor the price above the controlledprices at whioh the rice was sold. Three witnesses deposed to the factthat the accused sold rice to each of them and none of them saidanything as to the sale to the others. The accused in that case wouldnot have known in respect of which sale he was being charged.Similarly, in the other case relied on, the charge did not give particularsas to the quantity sold or to whom it was Bold and four witnesses gave.evidence that on the day in question the accused sold to each of them abag of rice for over the control price.
In this case the prosecution evidence which has been accepted is thatthe gramasevaka of an adjoining area acted as decoy and he pointed outthe appellant as the person who sold the wheat flour to him.. Thereuponthe appellant's cash box was searched, the marked two rupee discovered,the wheat flour was weighed and the parcel containing it was sealed withthe left thumb impression of the appellant. There is no evidence of anyother sale and it is not suggested that there was any other sale of wheatflour which was either detected or was the subject of a complaint.
Asilin Nona v. Don William
Section 171 of the Criminal Procedure Code states :—
“ No error in stating either the offence or the particulars requiredto be Btated in the charge and no omission to state the offence or thoseparticulars shall be regarded at any stage of the case aB material,unless the accused was misled by such error or omission.”
On an examination of the evidence and the facts of the case I amunable to take the view that the appellant was misled by the omissionin the charge of the name of the person to whom he sold wheat flourand I hold accordingly that his conviction is not vitiated even if thename of the person to whom the sale was made was necessary for acorrect formulation of the charge.
Learned counsel also submitted that the excess over the maximumcontrol price in respect of two pounds of wheat flour was only six cents,that is, three cents per pound and that the appellant might be dealtwith under s. 325 of the Criminal Procedure Code. An excess of threecents in respect of an article the control price of which is 29J centsthough Bmall is not negligible and is not to be treated lightly in the caseof a trader who deals in that article. The appellant appears to be afirst offender but no other circumstance that might make s. 325 appli-cable has been shown. I do not however think there was any justificationfor a sentence of imprisonment in excess of the mandatory minimumterm. I alter the sentence of six weeks’ rigorous imprisonment to oneof four weeks’ rigorous imprisonment. The fine imposed by the learnedmagistrate will stand. Subject to the variation in the sentence theappeal is dismissed.
Appeal mainly dismissed.
H. M. ARIYADASA, Appellant, and INSPECTOR OF POLICE, NAWALAPITIYA, Respondent