090-NLR-NLR-V-71-K.-THIRUNAVUKARASU-Appellant-and-P.-A.-S.-JAYAWARDENE-Food-and-Price-Control-.pdf
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SIRIMANE, J.—Premadaaa v. tfhe Queen
Present: de Kretser, J.K.THIRUNAVUKARASU, AppeUant, and P. A. S. JAYAWARDENE(Food and Price Control Inspector), Respondent
S. C. 876/68—M. C. KegaUe, 69062
Sale of matches—Price Order of 23rd July, 19G5—Invalidity—Control of Prices Act(Cap. 173), s. 4—Manufacture of Matches Ordinance (Cap. 170), a. 12 andRegulations 42, 43, 44, 53 (1) made under a. 10 (1).
The accused-appellant was convicted of the charge of selling a box of matchescontaining 50 sticks for ~/06 cents when the controlled price for such a box was—/05 cents.
Held, that the relevant Price Order of 23rd July 1985 was bad in law in thatit was in conflict withRegulation 43 (1) made under Section 10 (1) of Cap. 170which enacted that a trader must sell his box of matches with the Governmentbanderol intact. To make a Price Order that requires a trader to fix his pricein accordance with the number of sticks in the box which he cannot know withcertainty except by breaking the banderol is manifestly unreasonable, andgoes beyond the authority given to the Controller of Prices by section 4 of theControl of Prices Act.
1 (1956) 60 N. L. R. 281.
DE KRET8ER, J.—Thirunavukaraau r. Jayavardtne431
A.PPEAL from a judgment of the Magistrate’s.Court, Kegalle.
P.Nagendran, with Wilson Fernando, for the Accused-Appellant .Priyantha Perera, Crown Counsel, for the Attorney-General.
Cur. adv. vull.
January 21, 1969. de Kbetser, J.—
The Magistrate of Kegalle (Mr. lllayperuma) sentenced the accused inthis case to one month’s R. I. and a fine of Rs. 250 in default six months’
R.1. when he found the accused guilty of the charge laid against himnamely that he had sold a box of matches containing 50 sticks for 06 centswhen the controlled price for such a box is 05 cents. The fact that theaccused sold the box in question for 06 cents is not contested, and thepoint taken before the Magistrate is the same point that is taken inappeal, namely that the relevant prioe order is bad in Law.
The relevant Price Order found in G. G. No. 14,459 of 23rd July 1965fixed .the price of matches as follows :—Rs. 328 as the maximum priceabove which a case of matches shall not be sold in Ceylon, ex factory.
Rs. 338 as the maximum wholesale price for a case.
Rs. 360 as the maximum retail price for a case.
It also fixed the price for boxes of matches as follows :—
containing not less than 50 sticks — 05 centsnot less than 40 sticks — 04 centsnot less than 30 sticks — 03 centsnot less than 20 sticks — 02 centsnot less than 10 sticks — 01 Gent
It will be observed that under this Price Order a box of matchescontaining less than 10 matches was not price controlled ; that themaximum- price Rs. 328 ex factory could apply to any case of matchesirrespective of the number of- sticks in each match-box making up thecase ; that the wholesale price could be Rs. 338 for a case quite irrespectiveof the price paid ex factory for it and quite irrespective of the number ofmatches in each box that was found in the case.
* j
Counsel’s submission is that this Price Order is bad in Law in thaf.it conflicts with the regulations mule under section 10 (1) of the Manu-facture of Matches Ordinance, Cap. 170 of Vol. 6 of the L. E., which are“ as valid and effectual once approval has been duly gazetted as if theywere enacted in the Ordinance itself. ” These regulations are found inVol. 3 of the Subsidiary Legislation of 1956 and were made and dulygazetted in 1938/1941/ Those relevant to this Order are Nos. 43 and 44-
Box of matchesdo.do.do.do.
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DE KRETSER, J.f-Thirunavukaraeu v. Jayatcardene
No. 43 (1) forbids the sale by any person to another of any matchesmanufactured in Ceylon unless there is securely fixed to every box ofmatches so sold a Government banderol issued by the Director. 43 (2)extends the prohibition to sale by licensed manufacturers. Reg. 44provided for the manufacturer affixing the banderol and sets out themanner it is to be affixed, and the portion relevant to this Order reads :“ The banderol must be so fixed as to prevent the box from being openedin the ordinary way without first breaking the banderol ”. To sell a boxwith a broken banderol is an offence punishable under section 12, Cap. 170.Beg. 42 enacts that no more than 50 match-sticks shall be packed in anybox sold or offered for sale. It follows then that it is open to a manu-facturer to pack them for example in boxes containing 40 sticks or 30. sticks, etc., if he so pleases, and he is the only person who would knowthe number of sticks each box contains. There is no provision for eitherthe banderol, the label which has to be affixed on each box in terms ofReg. 53 (1) or both to show the number of sticks in the box to which theyare affixed. How then, is the retail dealer in these circumstances to fixhis selling price ? While it may be possible to ascertain from the manu-facturer or the wholesaler how many sticks the boxes in a case offeredfor sale contain, there can also be times when this information cannotbo obtained or may not be vouchsafed. The reasonableness of a PriceOrder can always be checked by its application to an extreme case. Thelaw enacts that a trader must sell his box of matches with the banderolintact. To make a Price Order that requires him to fix his price inaccordance with the number of sticks in the box which he cannot knowwith certainty except by breaking the banderol is manifestly unreason-able ; and in my opinion goes beyond the authority given to the Controllerof Prices by section 4 of Cap. 173 of Vol. 6 of the L. E. The Price Orderbeing invalid I allow the appeal of the accused. The conviction andsentence are set aside.
Appeal allowed.