033-NLR-NLR-V-70-K.-A.-MARTIN-Appellant-and-KANDY-POLICE-Respondent.pdf
SILVA, j.—Martin v. Kandy Police.
Ui
1957
Present: G, P. A. Silva, J.
K.A. MARTIN, Appellant, and KANDY POLICE, Respondent
S. C. 547167—.M. C. Kandy, 50042
Price controlled article—Sale at excessive price to a decoy sent by the Police—Punishability—“ Sale by retail ”—“ Consumption and use "—Control ofPrices Act (Cap. 173), ss. 4 {1), 8.
The sale of a price-controlled article to a decoy employed by the Police fordetection of offences under the Control of Prices Act is a sale by retail for thepurposes of the Act and an Order made thereunder. Such a sale is a sale for“ consumption and use ” within the meaning of the relevant Price Order.
Appeal from a judgment of the Magistrate’s Court, Kandy.
Nihal Jayawickrema, for the accused-appellant.
V. S. A. Pullenayegum, Crown Counsel, with Faisz Mustapha, CrownCounsel, for the Attorney-General
Cur. adv. vult.
October 27, 1967. Silva, J.—
The accused-appellant, a trader in Kandy, was charged with havingon the 24th October, 1966 sold a pound of potatoes for 38 cents being aprice 6 cents in excess of the maximum retail price at which the articlecould have been sold according to the relevant Price Order applicableto the article. The evidence on which the prosecution relied consistedof that of a Sub-Inspector of Police who made the detection with thehelp of a decoy who was sent by him with a marked rupee note withinstructions to purchase a pound of potatoes from the boutique run bythe accused. The decoy, a labourer residing at Peradeniya, testifiedto the fact of having gone to the boutique of the accused with the rupeenote handed to him by the Sub-Inspector and having purchased a poundof potatoes for which he was charged 38 cents. The relevant PriceOrder showed that the maximum retail price at which a pound of potatoescould be sold was 32 cents. Although these facts were contested in
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the lower court counsel for the appellant in this court confined himselfto the point of law that a sale to a decoy was not a sale by retail which,in his submission, meant a sale for consumption or use only. In otherwords, his submission was that, in order to succeed, the prosecution hadto prove, among other things, that the alleged excess price in this casewas charged by the accused in respect of a sale by retail and in viewof the definition of a sale by retail contained in (iii) (b) of the Price Orderthe prosecution had failed to prove one element of the offence, namely,that the pound of potatoes was sold by tho accused for the purpose ofconsumption or use.
The question that arises for consideration therefore is whether thesale of a price controlled article to a decoy employed by tho Police fordetection of offences under the Control of Prices Act is a sale by retailfor the purposes of the Act and an Order made thereunder. In order todetermine this question it is necessary to appreciate tho purpose of theControl of Prices Act (Chapter 173) and to analyse tho wording of therelevant sections. The words of section 4 (1) which empower the Con-troller to make Orders fixing the maximum prices and prescribing theconditions of sale are very significant in tills regard. This sect ion providesthat if it appears to the Controller that there is or is likely to .arise in anypart of Ceylon any shortage of any article or any unreasonable increasein the price of any article he may by Order fix the maximum price (bothwholesale and retail) above which the article shall not be sold and alsoprescribe the conditions of the sale of that article including conditionsas to the time and place of the sale and the quantity and quality of thearticle to be sold. Section 8 makes it a punishable offence for any personto act in contravention of such an Order. The Price Order made bythe Controller in terms of section 4 with which we are now concerned ispublished in Government Gazette No. 14716/7 of 12.10.I960.Among
other articles sought to be controlled by this Order are potatoes. Forthe purpose of the Order, any sale of any quantity of the articles enume-rated for the purpose of resale or the sale of any quantity of onehundredweight gross or more at a time is to be deemed a sale bywholesale and any sale of any quantity less than one hundredweightgross for the purpose of consumption or use is to be deemed to be a saleby retail.
It seems to me on a reading of section 4 and the Order that the soleobject thereof is to protect society against unscrupulous traders and toimpose a price restriction on such traders who sell the article concernedin order to ensure that no sale takes place at a price above the maximumprescribed in the Order. In doing so the legislature had necessarily to laydown twoprices, one a wholesale price which covered a sale by any personfor resale and a sale of more than one hundredweight and another aretail price at which the article should reach the consumer. The whole-sale price would of course be slightly lower than the retail price as theretailer has necessarily to incur some further expenditure in the distribu-tion of the article after purchasing it from the wholesaler. In making
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this Order, the object of the legislature was to distinguish between a saleby Avholesale and a sale by retail and the former was defined as a salefor resale or a sale of more than one hundredweight which too wouldpresumably be for resale while the latter was defined as a sale forconsumption or use. The purpose of defining a sale by retail as one forconsumption or use was in my view only to draw this distinction and notto protect a seller from the penalties attaching to sales above thecontrolled price whenever a small quantity of the article was purchasedby someone for a purpose other than consumption as food.
Secondly, it is to be noted that in both these definitions the accentis laid on the sale over which only the seller has control and not on thepurchase over which the buyer will have control. It seems to me thatthe question whether an offence against the Order has been committedmust be considered from the point of view of the intention of the sellerat the time of the sale of the article and the question to be asked is whetheror not he intended to effect a sale for the purpose of consumption oruse or for some other purpose when he accepted the money from thedecoy for a pound of potatoes and delivered it to him. The intentionof the buyer, and the purpose for which he is purchasing the article,which the seller cannot reasonably be expected to be aware of, is nota consideration that affects the question as to the nature of the sale.
Thirdly, the word c: use ” in the phrase “ for the purpose of consump-tion or use ” is so comprehensive that it can cover almost any conceivablepurpose other than consumption as food. In that view of the meaningattributable to this word, the use of the pound of potatoes by the decoyfor a purpose for which the Police required it, cannot be said to falloutside the purposes contemplated by the section. Although counseldid not advance that argument another possible construction of thesewords is that they were used synonymously for expressing the samething, namety, consumption or use as food. I do not however thinkthat it was necessary for the legislature to use the second wordredundantly in the context as the word consumption is quite ade quate toexpress the meaning that is intended to be conveyed thereby. To giveany other construction to the words for consumption or use in this Orderwould in my view defeat the clear object of this legislation.
A converse test that may be applied to determine this matter is toask oneself the question as to what the accused was indulging in whenhe accepted the 38 cents and released a pound of potatoes to the decoy,if, as counsel for the appellant submitted, he did not indulge in a saleby retail. It is reasonable to think that a person who stocked potatoesand parted with them for money could only do one of two thingsdepending on the quantity he disposed of, namely, a sale by wholesaleor a sale by retail. The sale in the present case being clearly not one bywholesale there is no other sale which can be conceived of, eitheraccording to the definition in the Order or otherwise, apart from a saleby retail. This process of reasoning too helps one to deduce that the saleby the accused was a sale by retail particularly when the word “ use ”in the definition does not necessarily preclude that interpretation.
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I have examined the cases of Brierly v. Phillips and Brierly v. Brear 1but I cannot say that they are very helpful in deciding the questionat issue before us. Nor do I think that the other case cited, Cooke v.the Governor and Company of the New River 2, has any application to theimmediate question involved. Further, the employment of decoysbeing a course resorted to in many countries for the detection of offencessuch as the one before us, the inability of counsel to cite in his favour acase where a similar point has been considered is also a factor that makesme feel that the point raised in this case is without substance.
For all the aforesaid reasons the appellant’s contention fails and theappeal is therefore dismissed.
Appeal dismissed.
1 (1947) 1 K. B. 541.
(1889) 14 A. O. 698.