128-NLR-NLR-V-41-KULATUNGA-v.-PULLRE.pdf
WIJEYEWARDENE J.—Kulatunga v. P.ulle.
501
1940Present: Wijeyewardene J.
KULATUNGA v. PULLE.213—M. C. Gampola, 18,627.
Weights and Measures Ordinance—Prosecution by Police Sergeant—Weightsnot found by authorized examiner—Offence in respect of the aliquot partsof a pound—Weights and Measures Ordinance, s. 16 (Cap. 127).
A prosecution under the Weights and Measures Ordinance may beinstituted by a Police Sergeant.
A charge under section 16 ot the Ordinance may be maintained inrespect of a false weight by a person, who is not an examiner of weightsand measures.
A charge under section 16 of the Ordinance can be maintained inrespect of the aliquot parts of a pound avoirdupois.
^^PPEAL from an acquittal by the Magistrate of Gampola.
H. T. Gunasekera, C.C., for appellant.
,No appearance for respondent.
Cur. adv. vult.
July 24, 1940. Wijeyewardene J.—
The complainant appellant has preferred this appeal with the sanctionof the Attorney-General against the acquittal of the accused who wascharged with having committed an offence under section 16 of theWeights and Measures Ordinance (Legislative Enactments Vol. III.Chap. 127).
When the accused appeared on summons the Magistrate read thecharge to him from the summons. The statement of particulars as givenin the summons has not been drawn up with due regard to the provisions ofsection 16 of the Ordinance ; for instance, the summons states that theaccused “ possessed ” certain weights whereas, according to the Ordinance,it should have been stated that the weights were found in his boutique..Section 187 of the Criminal Procedure Code gives a Magistrate the powerto make the necessary amendments in the statement of particulars
502WIJEYEWARDENE J.—Kulatunga v. Pulle.
contained in the summons before adopting it as the charge to be readto an accused. It is desirable that Magistrates should exercise somecare with regard to the framing of charges. In this case, however, noobjection has been taken to the .charge itself by the accused’s proctor,though he appears to have argued several points of law at the close of thetrial, on behalf of the accused. Whatever defects there may be in thecharge, the prosecution has led the necessary evidence to prove that theaccused has committed an offence under section 16 of the Ordinance.
The prosecution called as witnesses the complainant, the Examiner ofWeights and Measures and two constables, Perera and Devasagayam.According to their evidence the accused was during the material perioda person selling and dealing in goods by weight. The complainant, aPolice Sergeant, entered the accused’s boutique on December 16, 1939,and found there three weights—J lb., lb., and 2 oz.—which were un-stamped. The accused was present at the time. The complainant tookcharge of the weights. Perera pasted labels on these weights and thecomplainant wrote on the labels the name of the accused and his owninitials. They were then removed from the boutique to the PoliceStation. The weights were here made into a parcel which after beingsealed by the complainant with the seal of the Police Station was kept inthe strong box at the station. All this was done in the presence of Perera.On December 21, the complainant took the parcel out of the strong boxand sent it by Devasagayam to the Kachcheri, where the parcel wasreceived with seals intact by the Examiner of Weights and Measures.He found that the 2 oz. weight was too heavy and that all the weightswere unstamped. When the weights were produced before the Magis-trate, they had the labels put on them by Perera at the accused’s boutiqueand the weights were identified by the complainant and Perera as theweights seized in the accused’s boutique. The Examiner of Weightsand Measures identified the weights in Court as the weights examined byhim.
The defence called no evidence and the Magistrate acquitted theaccused, his chief grounds being—
that there was “ no evidence that the weights packed were the
actual weights delivered to the Examiner. ”
that the complainant “ is not a person authorized under chapter
127 to bring this prosecution. ”
that the weights were not “ found ” in the accused’s boutique
by a person authorized under chapter 127.
that “ there is no evidence that the Examiner of Weights and
Measures was duly appointed by the Government. ”
that there could be no offence probably with regard to J lb., i lb.,
and 2 oz. weights under section 16 as that section “ makes no
mention of the aliquot parts referred to in sections 9 and 12.”
I find it difficult to appreciate the first reason given by the Magistrate,in view of the evidence of the prosecution witnesses which stands un-contradicted. While it may be conceded that more stringent precautions
WIJEYEWARDENE J.—Kulatunga v. Pulls-503
could have been taken by the Police to avoid even the bare possibility ofany one entertaining the slightest doubt as to the identity of the weights,I do not think that in the circumstances of this case there could be anyreasonable doubt that the weights “ possessed ” by the accused werethe weights produced in Court.
With regard to the second ground it has to be observed that the Weightsand Measures Ordinance does not state in express terms that any personis authorized to bring a prosecution. I do not see any reason why thecomplainant in this case—a Police Sergeant—could not have institutedthe proceedings under section 148 (1) (b) of the Criminal Procedure Code.especially in view of section 119 of the Code. I find that in 5 SupremeCourt Circular 221, the complainant was an Inspector of Police while in.31 New Law Reports 255, the complainant was a Police Sergeant.
There have been conflicting views on the question of law involved inthe third reason given by the Magistrate. Sorqe of the earlier' decisionsfavour the view that a prosecution under section 16 of the Ordinancecould be entered, only if the weights were “ found ” by an Examinerof Weights and Measures. I think that in giving these decisions theeffect of section 119 of the Criminal Procedure Code or the correspondingsection of the earlier Code has not been fully considered. If I may say so,[ agree with the opinion expressed by Lyall-Grant J. in Daniel v. San-diris Appu’ that a prosecution under section 16 of the Ordinancecould be instituted even if the weights were found by a Police Sergeant.I may add that there is an expression of opinion even in some of theearlier cases (vide 2 Supreme Court Circular 180 at 181 and 5 SupremeCourt Circular 221) that it is not necessary that the weights shouldbe found by an Examiner of Weights and Measures.
With regard to the fourth ground it is only necessary to say that theExaminer has himself given evidence to the effect that he was appointedon December 18, 1939.
The last reason given by the Magistrate necessitates an examination•of section 16 and section 9 of the Ordinance. It is true that section 16requires that the impugned weight should have been intended torepresent any of “ the weights mentioned, in the schedule ” and thatihe relative part of the schedule is more or less the usual table of theavoirdupois weights. I do not think that this is a ground for thinkingthat section 16 does not penalize a person in whose boutique a “false”£ lb. weight is found. The fallacy of such reasoning is due to a mis-conception of the phrase “ the weights # mentioned in the schedule. ”Section 9 of the Ordinance makes it clear that the “ Weights mentionedin the schedule ” include aliquot parts of a pound. The relevant passageof this section reads : — “ All weightsintended to represent
any of the weights mentioned in the schedule,
of the weight of one ounce avoirdupois or more, shall have the numberof pounds or aliquot parts or multiples thereof contained in every such
weight stampedon the top or side thereof”
■ (1929) 31 A L. R. 255.
504
WIJEYEWARDENE J.—Kulatunga v. Pulle.
I set aside the order of acquittal and remit the case to the Magistrate toamend the charge and take any further proceedings that may be necessary-on the amended charge. The evidence already recorded will be takenas evidence in the case but the accused will be given a further opportunityof cross-examining the witnesses already called. After completing suchfurther proceedings the Magistrate will record his verdict and pass anappropriate sentence if he finds the accused guilty.
Set aside.