116-NLR-NLR-V-53-JOSEPHAppellant-and-D.-M.-H.-PERERA-Respondent.pdf
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SWAN J.—Joseph v. D. M. H. Perera
1952Present: Swan J.JOSEPH, Appellant, and D. M. H. PERERA, RespondentS. C. 124—M. C. Colombo, 21,906
Control of Prices Act, No. 29 of 1950—Section 8 (I) (6)—Sale of bread—Excess of price
—Accuracy of balance—Proof of.
Accused was charged with selling a loaf of bread weighing 15 ounces for twenty-six cents which is the controlled price for a pound loaf, in breach of section 8(1) of the Control of PriceB Act.
Held, that if the loaf weighed less than a pound according to the accused'sown Beales and weights there was a prima facie case made out against theaccused.
•i^^-PPEAL from an order of acquittal of the Magistrate’s Court, Colombo.
T.S. Fernando, Crown Counsel, with-A. C.-Alles, Crown Counsel, for thecomplainant appellant.
No appearance for the accused respondent.
Cur. adv. vult.
May 20, 1952. Swan J.—
This is an appeal with the sanction of the Attorney-General againstan—order of acquittal made by the learned Chief Magistrate of Colomboacquitting the accused-respondent on a charge preferred against himby the complainant-appellant of having sold a loaf of bread weighing15 ounces for twenty-six cents which is the controlled price for a poundloaf in breach of Section 8 (1) of the Control of Prices Act, No. 29 of 1950,an offence punishable under Section 8 (6) of the said Act.
The accused-respondent was an employee of the Sandasiri Bakery andHotel and it was common ground that he had sold what purported to be apound loaf of bread to one L>. M. W. Jayasekera for twenty-six cents.The complainant-appellant stated that he weighed the loaf with hisown scales and weights and found it to be 15 ounces. He then weighedit again using the scales and weights of the accused-respondent with thesame result. In the face of these facts it is difficult to understand how-the accused came to be acquitted. In cross-examination the com-plainant-appellant said that his “ stamped weights ” were sent everythree months to the Kachcheri to be tested but could not be certainwhen they were last so sent.
The accused gave no evidence. In fact, when the case for the prose-cution was closed, Counsel for the defence made certain submissionsand the learned Magistrate dictated his grder acquitting the accusedwithout calling for a defence. In that order the learned Magistratesays that although the sale was not disputed the accuracy of the weightswas challenged. He seemed to think that the prosecution had not provedthe accuracy of the weights used and that he was therefore bound “ tohold with the defence ”. He thought that in order to prove the accuracy
SWAN J.—-Joseph o. D. M. H. Perera
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of the weights used by the complainant-appellant there should be someevidence that those weights had been recently compared with the standardweights in the Kachcheri. He did not realize that the aocused wasunder a legal obligation to use correct weights himself, and if the loafweighed 15 ounces according to the accused’s own scales and weightsthere was, to say the least, a prima facie case made out against the accused.
In the case of S. I. Police, Kandy v. Wassira 1 Howard C.J. said thatthe accuracy of the scales must be established beyond reasonable doubt.That statement has unfortunately been construed to mean much morethan it plainly says.
In that case the complainant with the leave of the Attorney-Generalappealed against an order of the Kandy Magistrate acquitting the accusedon a charge of selling what was alleged to be two “ four-ounce ” loavesof bread for fifteen cents when the controlled price was thirteen cents.The learned Magistrate had acquitted the accused on the ground thatthere was no evidence regarding the accuracy of the scales and weightsused to weigh the loaves. In this Court a further point was taken onbehalf of the accused, namely, that the Ordinance only affected sales ofsixteen-ounce and eight-ounce loaves, and the appeal was dismissed onthat ground. That, in point of fact, was not a correct reading of theOrdinance. However that may be, the ratio decidendi of that appealwas not the absence of evidence regarding the accuracy of the scales andweights employed. But there can be no question that the prosecutionmust establish beyond reasonable doubt the accuracy of the scales andweights used when that fact is challenged or not conceded by thedefence.
In the case of Gnanaiah (Price Control Inspector) v. Kandiah 3which came up before a Divisional Bench consisting of Howard C.J.and Soertsz S.P.J. reference was'made to the learned Chief Justice’sdictum in S. I. Police, Kandy v. Wassira 1 and it was made abundantlyclear that in that case there was no evidence at all as regards the accuracyof the scales and weights. The learned Chief Justice also drew attentionto the fact that in the unreported case of Segarajasingham (Food andPrice Control Inspector) v. William Singho 3 he had distinguished the caseof S. I. Police,, Kandy v. Wassira 1. The appeal was allowed and the easewas remitted to the Magistrate for conviction and sentence.
In the case of De Alwis (Food and Price Control Inspector) v. Subra-maniam * Basnayake J. held that where the article sold was re-weighedby the Price Control Inspector with the scales and weights of the accusedand there was no discrepancy, the accused could not reasonably be heardto complain that the prosecution had not proved its case. Said HisLordship: —
“ I think it can safely be presumed that in the ordinary course ofbusiness a trader will not keep a balance which gives the customermore goods than the quantity he purports to sell, nor is a trader
1 (1946) 46 N. L. B. 93.
{1948) 49 N. L. B. 163.
3 S. O. 810IM. C., Qalle, 6,343/S. C. Minutes of 19.8.1947.
* 7871788 M. G„ Badulla, 7,812/S. C. Minutes of 23.9.1949.
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SWAN J.—Joseph v. D. M. H. Perero
likely ■ to keep a weight which weighs more than the weight indicatedon its face, for the reason that a trader who sells with such scalesor such weights is inviting loss and not gain. Profit being the motiveof trade, it must be presumed that a trader’s scales are not inaccurateat least to the extent of causing him loss. A person who claimsthat he trades with scales which favour the customer must rebut thepresumption in favour of the accuracy of his scales and weights.
The correct statement of law is in my view to be found in the latterof the .two cases cited by counsel, wherein Howard C.J. observes‘ in the absence of any evidence indicating the inaccuracy of theweights or scales the accused should be convicted ’. The Weights andMeasures Ordinance provides that all weights shall have the numberof pounds or aliquot parts or multiples thereof in legible figures andletters in the English, Sinhalese or Tamil Language (Section 9). Provi-sion is also made for the periodic examination and stamping of weightsby examiners appointed by the local authority of each area. TheOrdinance also penalises the possession of false weights by the imposi-tion of a fine and also by forfeiture of the offending weights. Withthese safeguards it is idle to contend that the prosecution must inevery case, regardless of the circumstances, prove the accuracy ofthe offender’s scales and weights.
With those remarks I entirely agree. In this case the offending loafwas not only weighed with the complainant’s scales and weights butalso with the scales and weights in the bakery and the result was thesame. The prosecution had therefore proved the weight of the loafbeyond reasonable doubt to be 15 ounces.
I set aside the order of acquittal and remit the case for the trial to becontinued, directing the Magistrate to make bis order after hearingwhat the accused has to say in his defence.
Acquittal set aside.