J ay as ana v. Dabera
1949Present: Gratlaen J.JAYASENA, Appellant, and DABERA (SanitaryInspector), Respondent
S. C. 274—M. M. C. Colombo, 42,238
Milk—Adulterated—Found in possession of servant—Liability of dairyman—Colombo Municipal Council—By-laws—Rules 8 and 5.
A registered dairyman is guilty of an offence under rule 5 of Chapter14 of the by-laws of the Colombo Municipal Council if adulterated milkis found in the possession of his authorized servant while engaged on hisbusiness.
GRATIAJEIST J.—Jayasena v. Dabera
AlPPEAL from a judgment of the Municipal Magistrate, Colombo.
W. Obeyesekere, for accused appellant.
O. Weeramantry, for complainant respondent.
Cur. adv. vult.
March 24, 1949. Gbatiaen J.—
The appellant was a dairyman duly registered under the provisionsof the Municipal Councils Ordinance (Chapter 193). ’During the periodrelevant to these proceedings he employed a man named Velaythenamong others to deliver milk to his regular customers and at the appel-lant’s request a milk vendor’s card had been issued to Velaythen by theMunicipal authorities in Colombo.
On September 27, 1948, Sanitary Inspector Dabera of the ColomboMunicipal Council met Velaythen who was returning from a bungalowin Karlshrue Place at which he had delivered milk to a customer of theappellant. Samples of the milk stillin Velaythen’spossessionandintended,presumably, for delivery to other customers were taken by the Inspectorand, on analysis by the City Analyst, the milk was f ound to be adulteratedto a most scandalous degree. The appellant was charged with thecommission of an offence punishable under the Council’s by-laws relatingto the adulteration of milk. He was found guilty and sentenced to paya fine of Rs. 500.
No attempt was made on the appellant’s behalf either in the Courtbelow or at the hearing of this appeal to contest the position that on theday in question Velaythen was engaged on the appellant’s business.It has nevertheless been strenuously argued that the evidence does notestablish the commission of any offence. I am glad to find that this isnot so.
The relevant by-laws are rules 5 and 8 of Chapter 14 of the by-lawsof the Colombo Municipal Council. Rule 8 provides as follows:—
Should any sample of milk taken under the provisions of the preced-ing by-laws prove to be adulterated, the person in whose possessionit is found shall be guilty of an offence. If such person be a vendorof, or a person in the employ of, or acting on behalf of, a dairyman*then both such person and the dairyman shall be guilty of anoffence.
I agree with learned Counsel that no offence could be committed underrule 8 unless the offending sample of adulterated milk had been takenon an occasion authorized by the by-laws. It is therefore necessaryto examine the scope of rule 5 in order to decide whether the sampletaken from Velaythen had been lawfully obtained by Inspector Dabera.
Rule 5 empowers Municipal Inspectors and certain other officers todemand and to take for purposes of analysis samples of any milk “ whichis in possession of a registered dairyman or of any person who is foundselling, hawking or exposing milk for sale It is I think sufficientlyclear that at the time of the incident Velaythen was not “ a person
GRAT1AEN J.—Jayasena v. Dabera
selling or hawking or exposing milk for sale He was not solicitingcustom or in any sense negotiating a sale of his master’s milk but hadmerely delivered what was already the subject of a concluded contractof sale between the appellant and the customer concerned—White v.Mayor of Yeovil1 and Juan Appu v. Perera3. The latter part ofrule 5 is therefore inapplicable. This does not, however, concludethe matter, because I am satisfied that the adulterated milk of which asample was taken by the Inspector must be regarded as having been“ in the possession of ” the appellant within the meaning of rule 5.The appellant was a registered dairyman and in my opinion it is notnecessary for the purposes of rule 5 that the milk should actually havebeen found in his physical custody. The rule is satisfied if milk is foundin the possession of a registered dairyman’s authorized servant whileengaged on his master’s business—Regina v. Williams3. The by-lawsprohibiting the adulteration of milk have been specially enacted in theinterests of public health and would to a great extent be rendered nugatoryand indeed absurd if—unless the prosecution could prove hawking oran actual sale—their scope were to be restricted to those rare caseswhere milk is traced to the physical custody of a dairyman himself.The language of rule 5 does not compel such an unreasonable interpre-tation of its true meaning. A dairyman’s business requires that themilk which he proposes to deliver to his customers should be handledby one or more persons employed for the purpose, and it seems to methat the possession of milk by each and every servant acting within thescope of his employment should be regarded in law as his master’spossession for which the master is responsible. Rule 5 does not requireproof of sale, exposure for sale or of hawking in cases where adulteratedmilk is found in the possession of a registered dairyman or his servant.That requirement only arises in the case of milk found in the legal posses-sion of some person other than a registered dairyman.
For the reasons which I have given I hold that the milk in Velay then’spossession on the day in question was milk “ in the possession ” of theappellant within the meaning of rule 5. The appeal is devoid of meritand must be dismissed. In my opinion this is a case where an order forcosts against the appellant in terms of section 352 of the Criminal Pro-cedure Code would be justified. The appellant has flagrantly abusedthe privilege of carrying on a profitable business as a dairyman in thecity of Colombo. I order him to pay to the respondent a sum of Rs. 52 • 50as costs of this appeal. Mr. Obeyesekera’s enthusiastic advocacy wasworthy of a better cause.
i (1892) 61 L. J. M. O. 213.2 (1944) 45 N. L. R. 216.
3 174 E.R^&7.
JAYASENA, Appellant, and DABERA (Sanitary Inspector), Respondent