113-NLR-NLR-V-45-HASSAN-Appellant-and-BADULLA-POLICE-Respondent.pdf
Hassan and Badu.lla Police.
425
1944Present: Wijeyewardene J.HASSAN, Appellant, and BADULLA POLICE, Respondent.
098—M. G. Bad-ulla, 9,881.
Price control—Sale of goods in excess of maximum, price—Power of Magistrateto order sale of goods—Defence (Control of Prices) Regulation 16 (1)and (2).
In a charge of selling goods in excess of the maximum price fixed,the power given to a Magistrate to order the sale of goods under regula-tion 16 (2) applies only to goods seized as articles in respect of whicha person is suspected of havingcontravened the provisions of the
Order or the regulation.
A PPEAL from a conviction by the Magistrate of Badulla.
N. Nadarajah, K.C. (with him Ponnambala-m and Vanderkoon), for theaccused, appellant.
’Walter Jayawardene, C.C., for the Crown, respondent.
1 43 N. L. R. 97.
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WIJE YE WATtDENE J.—Hassan and Badtdla Police
June 9, 1944. Wxjetewaxdene J.—
The accused was charged with selling two bags of dried chillies, weighing1 ewt., at a price in excess of- the maximum price and failing to give,on demand, a receipt to the purchaser. The Magistrate convicted theaccused and imposed fines of Us. 2,000 and Rs. 250 on the two counts.
The Inspector of Police, who instituted the criminal proceedings on awritten report, produced in Court on September 4, 1943, seven bags ofchillies, in addition to the two bags of chillies which were the subjectmatter of the charge. Those bags which have been marked P 9 to P 15were found in the boutique of the accused, when the Price ControlInspector searched the boutique shortly after the sale of the two bags'
After the examination of some of the material witnesses for the prose-cution, the Magistrate charged the accused as stated above and adjournedthe trial for September 20. The Price Control Inspector then “ movedfor an order regarding the chillies ”. The Proctor for the accused sub-mitted that “ the bags of chillies P 9 to P 15 should be returned to theaccused as there was no charge in respect of them ”. The Magistrate,thereupon, made the following order: —
“ I refuse the application as they are liable to confiscation if thecharge is proved. As the chillies are liable to speedy decay send themto the D. F. C., Badulla, to sell them at the controlled price and depositthe money in Court.”
On October 13, the Deputy Food Controller forwarded to the -Magistratea cheque for Rs. 283.25 being amount realized by sale of the chillies.The order made by the Magistrate on receipt of this cheque is, ” Deposit ”.
After hearing the evidence, the Magistrate convicted the accused anddid not make any order directing the sum of Rs. 283.25 to be remittedto the owner of the seven bags.
In the petition of appeal filed by the accused against his conviction,it was pleaded that—
“ The Magistrate was wrong in ordering the confiscation and sale of the.other bags of chillies, which were not the subject of any chargeagainst the accused-appellant.”
At the argument before me, the Counsel for the accused-appellantquestioned the correctness of the order and 1 directed the Registrar ofthis Court to return the record to the Magistrate and ascertain from himthe provision of law under which he acted in making that order; theexplanation of the Magistrate is—
“ The seven bags of chillies P 9 to P 15 which were productionsin the case were not confiscated but were sold under section 16 (2) of theDefence (Control of Prices) (Supplementary Provisions) Regulations ofOctober 4, 1942, as they were liable to speedy decay and the proceedsare in deposit in this Court.”
I am unable to understand how the Magistrate submitted that explana-tion especially when he had the record before him. His order showsclearly that he thought that the seven bags of chillies could be and shouldbe confiscated on the conviction of the accused on the present charge.
KEUNBMAN J.—de Fonseka and The Chartered Bank.
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If he did not have in view sueh a confiscation, no reason has been disclosedby him for not returning those bags to their owner. 'Those bags could nothave been required for any purposes of identification, as in that case hewould not have ordered the bags to be sold. It is difficult to think ofany reason reconcilable with the explanation given by the Magistratefor his providing in the order that the money should be kept in Court.The Magistrate did not direct, either in the course of the proceedings orat the close of the trial, that the sum of Rs. 286.25 should be given to theowner of the bags. I do not think it necessary to make any further-corrupaents either on the order or the explanation. It is equally impossibleto entertain the explanation or sustain the order.
I may add that Regulation 16 (2) referred to by the Magistrate appliesonly to articles which have been seized under Regulation 16 (1) as articlesin respect of which “ any person is suspected to have contravened theprovisions of any Order or any of these Regulations ”. There was no suchsuspicion in respect of the seven bags P 9 to P 15 and therefore theMagistrate could not have acted under Regulation 16 (2).
While upholding the conviction and sentence I direct that the sum ofRs. 283.25 should be remitted to the person who owned the seven bagsof chillies.
Varied.