070-NLR-NLR-V-73-J.-A.-MARTIN-COORAY-Appellant-and-SUB-INSPECTOR-OF-POLICE-BORELLA-Responde.pdf
SAUERAWICKHAMB, J.—Coo ray v. Sub-Inspector oj Police, Borella 397-
1970Present : Samerawickrame, J.
J.A. MARTIN COORAY, Appellant, andSUB-INSPECTOR OF POLICE, BORELLA, Respondent
S. C. 1157/67—31. M. C. Maligahande, 45073
‘ Control of Prices Act (Cap. 173)—Section it, subsections (3), (4), (5), (7)—Contraventionoj a Price Order—Whether Minister's approval of the Order should be proved bythe prosecution.
In a prosecution for selling an article at a price above the maximum controlledprico fixed by a Price Order, it is not necessary to prove that the Order had beenapproved by the Minister and that notification of the approval had beenpublished in the Gazette in accordance with section 4 (7) of the Control ofPrices Act. Once a Prico Order has boon made by the Controller.it becomesfully operative independently d any further efficacy it may receive fromthe subsequent approval of it by the Minister.
Appeal from a judgment of the Municipal Magistrate’s Court,Maligakande.
.i
S Colvin R. de Silva, with Harischandra Mendis and P. Tennekoon, foryie accused-appellant.
Tyrone Fernando, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 17, 1970. SAMERAWICK9AME, J.
The accused-appellant was convicted of an offence under the Controlof Prices Act in that he sold Bombay onions above the maximumcontrolled price fixed by Price Order No. C 426 of 2.5.67.
Counsel for the appellant submitted that before the Price Order couldbe acted upon there should be proof—(a) that the Order had been approvedby the Minister and that notification of the approval had been publishedin the Gazette in accordance with Section 4 (7) of the Control of PricesAct, and (b) that at least s. 4 (4) of the Control of Prices Act had beencomplied with and that s. ! (5) of the said Act had been complied with orwas in the process of being complied with.
Section 4 (3) of the Control of Prices Act provides :—
” Every Order made under subsection (1) shall come into operationwhen such Order is mode and signed by the Controller.”
Subsection (7) provides that upon approval by the Minister and notifi-cation of such approval in tho Gazette the Order “ shall be deemed to beas valid and effectual as if it were herein enacted.” It would appear
3:)S SAMEItAWICKRAME, J.—Cooray v. Sub-Inspector oj Police, Borcllo
therefore, that upon notification of the approval by the Minister in theGazelle in terms of subsection (7) the Order which has already como intooperation is given additional status and is to be deemed as valid andeffectual as if it were enacted in the Act. There may be cases where anOrder is impeached on the ground that it is inconsistent with anotherorder or some other provision of law and in such a case the prosecutionmay seek to meet- the attack on it by relying upon the provision insubsection (7) upon proof of the notification of approval in the Gazelle. Ina case however such as this where the prosecution merely relics on thefact that the Order was in operation there is, in my view, no need for it toprove that there has been notification of approval in terms of subsection .
. In Food and Price Control Inspector v. Pbjasena1 Weerasooriya, J.,considered this provision and stated at page 311, “These provisionsmake it clear, I think, that once an order has been made and signed (andalso, perhaps, duly published) it becomes fully operative independentlyof any further efficacy it may receive from the subsequent notification.of its approval by the Minister.” With respect, I agree with thatdictum.
; ' Subsection (4) of section 4 requires public notice of the Order to be. given forthwith after it is made in one of three modes and one mode is bypublication of the Order in t he Gazette. The Gazette in w'hich the Orderwas published has been produced in this case and accordingly, subsection
has been complied with.5
Subsection (5) provides :—
" Every Order shall, as soon as may be after the date on which itcomes into operation, be placed before the Minister for considerationand the Minister may thereupon approve or rescind the Order.”
Learned counsel submitted that there must be some evidence thatthere was compliance with tho provisions of s. 4 (5). He submittedthat the provisions of s. 4 (5) wero imperative and that it was necessarythat the Order should, within a reasonable time, be placed before thoMinister and that a duty was cast on him to eithor rescind or approvethe Order. I agree that compliance with subsection (5) is obligatory.
It does not, however, follow that the prosecution must lead evidence ofcompliance with subsection (5) for an Order would be already operativebefore compliance with tho provisions of subsection (5) arises.
It may bo open to tho defence to put before Court material whichshows prima facie that no steps have been taken under s. 4 (5) to placethe matter before the Minister or that tho Minister has failed either toapprove or rescind the Order. In such a case the Court may well requireto be satisfied by the prosecution that there has been no default incomplying with s. 4 (5). It is however unnecessary that I should decidethis'matter in the present case. The defence did not take up tho •
• (1055) 57 N. L. B. 310.
H. N. G. FERNAXDO, C. j.—Battison v. Kaiulara Special Criminal309
Investigation Bureau
position that there had not been a compliance with subsection (5). Itrelied on the mere technical ground that proof of compliance with thatprovision had to be placed before Court by the prosecution.
I am of the view that the two grounds urged by counsel for the appellantwhy the Price Order should not have been acted upon fail. The appeali8 therefore dismissed.
Appeal dismissed.