060-NLR-NLR-V-71-K.-M.-DHARMAWARDENA-and-another-Appellants-and-EDIRISINGHE-Municipal-Inspect.pdf
Dharmatrarden* v. Bdirisinghe
261
1968Present: de Kretser, J.K.M. DHAEMAWARDENA and another, Appellants, andED1RISINGHE (Municipal Inspector), Respondent
8. C. 108-10911968—M. M. C. Colombo, 31054
Charge of possessing unstamped weights or measures—Ingredients of offence—Weightsand Measures Ordinance (Cap. 158), ss. 41 (b), 51—Penal Code, e*. 25, 25’J.
Tn a prosecution for possessing any unstamped weight or measure incontravention of Section 41 (6) of the Weights and Measures Ordinance, thepossession contemplated in that Section involves the idea of proprietorship,la contradistinction to n&re custody, of the weight or measure,
202
DEI KRET8ER, J.—Dharrtuiuxtrdena v. Edirisingte
A.PPEAL from a judgment of the Municipal Magistrate’s Court,Colombo.
A. S. Wijetunge, for the Accused-Appellants.
Arinealey Per era, with Nalin Abeysekera, for the Complainant-Respondent.
Cttr. adv. wit.
August 20, 1908. De Kretseb, J.—
The evidence in this case is that an organisation referred to in theplaint, charge sheet and evidence as the C. W. E. which Counsel informedme is how the Co-operative Wholesale Establishment is generally known,is the licensee of Stall No. 6 in the Municipal Council Market atBambalapitiya and does a retail trade in Dry Fish in it.
K. M. Dharmawardena, an employee of the C. W. E., was the salesmanin charge of the stall and Tikiri Banda also an employee of the C. W. E.was the Bill Clerk who took over charge of the stall when Dharmawardenawas away from it. There were other employees of the C. W. E. in thisstall as salesmen, etc. This stall together with a number of other stallswere under the supervision of a regional officer who was also an employeeof the C. W. E.
On 11.5.67, D. B. Edirisinghe, a Weights and Measures Inspectorwho was a duly authorised officer, found in this stall an Avery CounterScale and a set of weights ranging from 4 lbs. to J lb. unstamped.
W.Tikiri Banda was in charge of the stall at the time of this detection.
The consequence was the plaint in this case which charged bothDharmawardena and Tikiri Banda with having in their possession for usein the trade in Dry Fish, the Counter Scale and the weights which wereunstamped. The offence was one punishable under Section 41 (6) ofCap. 158, Vol. 6 of the L. E.
The Magistrate (Mr. C. B. Walgampaya) found both the Accused guiltyand fined each of them Rs. 25. Both Accused have appealed.
Mr. A. S. Wijetunge urges that the Magistrate was wrong in imputingconstructive possession of these weights to 1st Accused Dharmawardenawho admittedly was not in this stall at the time of the detection, andthat the Magistrate was wrong in holding that the 2nd Accused was in“ possession ” of these weights in terms of S&tion 41 (b) of Cap. 158,
DE KRETSER, J.—Dharmawardena v. Ediriainghe263
Section 25 of the Penal Code recognises that possession of property bya servant on account of a master is the possession of the master. It istrue that there is no definition of possession in Cap. 15S, but one mustremember that Chapter 13 of the Venal Code also deals with offents.:relating to weights and measures and Section 51 of Cap. 158 states thatthe provisions of Part 6 of Cap. 158 which commences with Section 41are in addition to, and not in substitution for the provisions of Cap. 13 ofthe Penal Code. In Chapter 13 of tho Penal Code as well as in Part 6 ofCap. 158 there are sections dealing with offences^ of which the mainingredient is possession, e.g., Section 259 of Chapter .13 of the Penal Codeand Section 41 (5) in Part- 6 of Cap. 158.
If possession by a servant on account of a master can be possession ofthe master for the purposes of Section 259 of the Penal Code, then thereis no reason why it should, not be the possession of the master for thopurposes of Section-41 (6) of Cap. 158. It appears to me that thopossession referred to in the Section is the possession which involves theidea of proprietorship, the right to exercise power and control over thothing possessed in contradistinction to the mere physical possession bythe officer in charge of the stall which is really the equivalent of custody.
The evidence shows that in regard to the stamping of weights neitherAccused could do anything except to request the general manager of the
W. E. to take the necessary action, and 2D (a) shows that this wasdone as far back as 11.2.67, and no action was taken by the GeneralManager to have the weights stamped.
The learned Magistrate has referred to a number of cases which wouldhave been of much assistance in showing that if Accused had beendetected using these unstamped weights, they would be as much guilty of- an offence as the licence holder of the stall. But in the instant case, thocharge is not one of user, but of possession and the evidence makes itclear that whether it was 1st Accused who wa3 in charge of the stall orwhether it was 2nd Accused acting for 1st Accused in charge of the stall,he had no more than the custody of everything including the scale andweights in the stall, and had not the power to deal with them as owner.He held them on account of the employer, the licence holder and anyphysical possession he had must be deemed to be that of the licenceholder
In the result I am of the view that it was the C. W. E. as licence holderthat should have been prosecuted in this ca3e for being in possession ofunstamped weights and not the 2nd Accused who was in charge of thestall at the time of detection nor the 1st Accused for whom he wasdeputising.
The appeal is allowed ant' the Accused are acquitted.
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DIC KKETSEK, .1.—LihsirmuO.uiil- nu C. Mdirieinykt.
I think »i necessary to invite the* attention of the .Uaeistrnte to tinfact, that the clerk in his court, responsible for the preparation of appealbriefs, has caused considerable inconvenience to this Court bv not havingconies of the relevant documents that were produced at the Trial, typedin the brief, and that he himself should not have permitted the productionof documents without translations as re'jaired by law.
Appeal aliened.