K. S. P. MAHABOOD and another, Appellants, and FOOD AND PRICE CONTROL INSPECTOR,

026-NLR-NLR-V-72-K.-S.-P.-MAHABOOD-and-another-Appellants-and-FOOD-AND-PRICE-CONTROL-INSPECTOR.pdf


.116
TENNEKOON", J.—jllahabood v. Food and Price Control Inspector
Present: Tennekoon, J.
K.S. P. MAHABOOD and another, Appellants,and FOOD AND PRICE CONTROL INSPECTOR, Respondent
S. C. 3G3-3G0J67—31. C. Colombo, 3-52751AFood Price Order Xo. 300—Charge of sale oj beef at excessive price by more than oneperson jointly—Quantum of evidence—Penal Code, s. 3-5—Question whetherthe beef sold toas not imported—Burden of proof—Fvidence Ordinance, s. 105—Control of Prices Act, s. S (/) and (0).
In n prosecution of tho 1st and 2nd accused for jointly selling beef withbones at a price above tho controlled maximum retail price, the evidenceestablished that the sale was effected by menus of several nets, some done hytho 1st. accused, others by the 2nd accused.
Held, that upon an application of tho principle of liability contained insection 35 of the Penal Code, each of the two ncctiscd was guilty of tho offencecharged.
Held-further, that evidence led by the prosecution that the beef which wassold was fresh meat was suificicnt to establish prima facie that tho beef didnot fall into the category of “ imported beef whether frozen, salt or chilled ”which is exempted in the relevant Prieo Order.
Quaere, whether, if tho beef had in fact been imported,- that fact was afact peculiarly within the knowledge of the accused so ns to make section 105of the Evidence Ordinance applicable.
.A.PPEAL from a judgment of tho Magistrate’s Court, Colombo.
Y. L. M. Mansoor, with Gam unit Seneviratne, for tho accused-appellants.
V. S. A. PuUen<t>jrtjum, Crown Counsel, for tho Attorney-General..
Cur. ado. vult.
November 6, 1967. Tennekoox, J.—
The two appellants wore charged with jointly soiling beef with bones-at a price above the controlled maximum retail price fixed by FoodPrice Order No. 390 and thereby committing an offence under sectionS (1) of the Control of Prices Act and punishable under section S (G)thereof. They were both convicted and each sentenced to four weeks’rigorous imprisonment and to a fine of Rs. 500. in default a further4 weeks’ simple imprisonment.
The prosecution ease rested, mainly on the evidence of three pricecontrol inspectors, d'« Silva, Manoy and \ eurasokera. '1 ho Magistratesaid of them that their evidence .was consistent, uncontradicied andclear.
TEXXEKOOX J.—Mahabood v. Food and Price Control Inspector117
Do Silva’s evidonce was to the effect that he was the organiser of theraid : that ho gave Maney a fivo-rupce note and instructed him to goto the beef stall at Edinburgh Market and buy some beef; he himself;stood a short distance away near the entranco to tho Market while Maneyand Weerasckcra went up to tho accused’s stall. He goos on to say—
“ Maney asked for 2 pounds of beef from the 1st accused and the1st accused cut and weighed and gave a parcel of beef to Maney.Maney tendered tho Rs. 5 note to the 2nd accused as directed by- tho 1st accusod. Thon I saw him taking a balance from tho 2ndaccused and Maney gave me a signal. ”
Cross-oxamincd he said—
“ The 1st accused cut the beef. He cut the boef and put it intotho spring balance and to that ho added somo bones. After thathe wrapped it in a pieco of brown paper and handed it to Maney.Thereafter Maney was directed by the 1st accused to go to the 2ndaccused and pay the money. Hewcnfto the 2nd accused-and paidtho money. I did not hear the 1st accused saying anything to the2nd accusod. I did not see the 1st and 2nd accused having a conver-sation prior to this. The 2nd accused is only a cashier. Tho 2ndaccused handed over something to Maney. I did not know whatit was. ”
A close-up of what actually transpired at the stall is obtained fromthe evidence of Maney and Weorasekera.
Maney testified—-
“ I went to Stall No. 24 and asked for 2 pounds of beef with bonesfrom tho 1st accused. Ho cut two pounds of beof with bones andhaving weighed it, ho handed it over to mo. I asked him for theprice and ho quoted Rs. 2-50. When I gave him the Rs. 5 note,ho diroctod me to pay it to the 2nd accused. When I wont to the2nd accused and tendered the Rs. 5 note, he quoted Rs. 2-50. Herecovered Rs. 2’50 from the Rs. 5 and handed over to me a balancoof Rs. 2 • 50 made up of a two-rupeo noto and a 50 cent coin.”
Cross-examined as to what oxactly took place between him and the2nd accused Maney said :
** I asked for the price of beof from tho 2nd accused. He quotedRs. 2’50. The 1st accusod also shouted out tho amount.”
Witness Weerasekera also testified in rolation to this part of thoincident as follows :—
“ Manoy asked for the price. Tho 1st accused said Rs. 2 '50. ThenManey offered the Rs. 5 note to the 1st accused. He wanted itr to be given to the 2nd accused. While offering the Rs. 5 to the2nd accused, Maney said two pounds of beef with’ bones.”
1 IS TENNEIvOOX, J.—Mahabood v. Food and Price Control Inspector
A veterinary surgeon Mr. Amarasingho to whom tlio beof was takonimmediately after the “ raid ” testified that “ the meat was tho flesh ofneat cattlo and was fresh. There woro no offals prosont.”
Counsel for tho accused raised two points at the hearing of tho appeal.Tho.first was that the 2nd accusod was wrongly convicted because whilethe salo was offectod only by tho 1st accused, tho 2nd accused mcroly•collected tho money as cashier. I am not disposed to agreo that nocase has been mado out against tho 2nd accusod. Tho charge againsttho two accused was that thoy jointly committed tjie offonco. Thoovidenco establishes that the salo of bcof with bones in excess of thecontrolled price was committed by moans of soveral acts, somedono by tho 1st accused, othors by tho 2nd accused. Tho first accusedquotos tho price and delivers tho beof into tho hands of Manoy; thosale is not completo at that stage. Tho 2nd accusod tlxon himsolf quotesthe sum of Rs. 2-50 as the price for 2 pounds of beef without bonesand receives that sum from tho buyer. It is obvious that ho was not amore cashier in the sense that ho was collecting a sum statod on a billor a sum that ho was .asked by the 1st accused to collect without referenceto the salo of a particular quantity of hoof. The ovidenco establishesthat tho 2nd accused was awaro of tho fact that two pounds of beofwith bones was tho subjoct of tho transaction whon lie quoted andrecovored Rs. 2*50 as tho price thereof.
Thore is in my mind no doubt arising on tho evidence that tho 1stand 2nd accused knowingly co-oporatod to offectuato a sale of two poundsof beof with bones at Rs. 2-50, oach one Of thorn doing what ho did attho differont stages of tho transaction in order to effect a salo of thatquantity of beef at that price. Section 35 of.tho Ponal Code providesthat—
“When an ofi'cncc is committed by means of soveral acts, whoevorintentionally co-operates in tho commission of that offence by doingany one of thoso acts, either singly or jointly with any othor person,commits that offence.”
I am of the opinion that upon an application of tho principle of liabilitycontained in this provision of law, tho 1st and 2nd accused arc eachguilt}* of tho offence charged.
Tho second, ground urged by counsel'for tho appellants is that theprosecution has failed to establish that the subjoct of tho salo was ‘beef*.He relics of tho definition given to the word ‘ beef’ iii the Price Order.
It roads as follows :—
“ For the purpose of this Order the expression ‘ beef ’ docs notinclude imported beof whether frozon, salt or chilled and any form•of offal.” –
TEXXEKOOX, J.—Mahabood v. Food and Price Control Inspector
119
There was ovidouco in the case to show that the moat was the fleshof neat cattle and that it was not offal, but tlicro was no direct ovidcncoto show that the beef in question was not imported. Counsel for theappollant submitted that the burden of proving all ingredients of theoffence was on the prosecution and thero being no evidence that thebeef was not imported the accused Averc entitled to bo acquitted. Herelied on the case of The Attorney-General iv A. M. A. Rahim1 wherein a similar case my brother Abej*esundere, J. hold that tho burdenof proving tho fact that the beef in respect of Avhich the chargo Avasframed Avas not imported beef A-as on tho prosecution.
Tho facts of that caso aro clearly distinguishable. Counsel for thoappellant overlooks tho fact that in the instant ease thero Avas theevidence of Mr. Amarasinghc to tho effect that the beef Avhen brought tohim immediately after the raid Avas fresh meat. The learned Magistratehimself took the vicAV that this Avas sufficient to establish prima faciethat tho beef did not fall-into the category of ‘ imported beef whetherfrozen, salt or chilled I am inclined to agree. To my mind tho words' Avhether frozen, salt or chilled ’ exhaust the kinds of imported beefthat aro not subject to the Price Order. The arrangement of tho Avordsdoes not lend support to the view that OA*en fresh beef imported fresh(if that is CA-er done) is also subject to tho Price Order. Tho Price Orderappears to me to haA-e proceeded on an assumption of fact, which isnotorious, that beef imported for sale in Ceylon is ahvays beef that hasundergone one or other of tho processes of preserA-ation—-freezing, saltingor chilling. Counsel for tho appellant submitted that thero may betho extraordinary and rare caso of fresh beef being imported by airfrom South India for sale hero, and that the existence of such a possi-bility Avas sufficient to raise a doubt as to Avhether the beef in questionin this case is beef Avithin the meaning of the Price Order. The ansAverto this is that tho Price Order Avould apply even to that kind of beefAA'hich though imported is not frozen, salt or chilled. EA-en if I woreAvrong in taking this A iew, tho possibility of the accused avIio arc beefstall holders at the Edinburgh Market, having imported fresh beefby air from India is so fanciful in the prevailing context that such apossibility can be ignored. In my opinion the evidence that the beefAvas fresh Avas prima facie OAudcncc of the fact of non-importationsufficient to ‘ shift. ’ tho burden to the accused. Here I may quotefrom Stephen’s Digest of the Law of Evidence 12th Edn. Art-. 104 apassage that Avas cited Arith approA7al in R. v. KaJcelo- and in R. v.Cohen 3 :—
“ in considering tho amount of eA-idence necessary to shift thoburden of proof, tho court has regard to the opportunities of know-ledge Avith respect to tho fact to be proA-ed which may be possessed,by tho parties rcspoctiA'ely.”
1 (1966) 69 N. L. F. 519.* (1923) 2 K. B. 793 at 795-
a tio^j » V. — r.rtr
120 TEiSTXEKOOXj J.—Mahabood v. Food and Price Control Inspector
Mr. Amarasinghe was not cross-examined at all. Neither of thoaccused gave evidence nor produced any other evidence. It scorns to-me that if the beef wero in fact imported beef that would bo a fact pecu-liarly within the knowledge of the accused and no ovidence to that effecthaving been adduced by tho accused, the court is on titled to prosumothat tho ovidence if produced would establish not importation but thocontrary. Tho proof of non-importation is thus established beyondreasonable doubt-.
Learned Crown Counsel submitted that no evidence of non-impor-tation ncod have- been adduced by the prosecution at all because inhis submission the effect of tho definition of ‘ beef ’ in tho Price Ordoras " not including imported beef whether frozen, salt or chilled andoffal ” is to create an exception to the offence that arises under section.S (1) of tho Control of Prices Act read with Price Order 390 and thataccordingly tho burden of proving importation (if that was tho dofenceof tho accused) was on them, nndor section 105 of tho Evidence Ordin-ance. He rolied for this submission on tho case of Mudliyar, PitigalKorale North v. Kiri Banda Ho also submittod that the caso of TheAttorney-General v. A. M. A. Rahim2 was wrongly decided. Apartfrom noting a certain attractiveness in tho argument and the fact thatThe Mudliyar’s case was not- cited to my brother Abe3'esundere, J.when he heard the case of Rahim, it scorns to mo unnecessar}’’ to considerin this caso the correctness or otherwise of learned Crown Counsel’ssubmission in view of the fact that tho conclusion reached by me in thoparagraphs immediately preceding this one render that oxorciso supor^fluous.
Tho appeals of both accused are dismissed. Their convictions andsentences arc affirmed.
Appeals dismissed.
1 (1000) 12 N. L. R. 301.
– (I960) 69 N. Ir. R. 519.