087-NLR-NLR-V-73-M.-C.-HAMZA-LEBBE-Appellant-and-FOOD-AND-PRICE-CONTROL-INSPECTOR-PUTTALAM-.pdf
Hamza Lebbe v. Food and Ft ice Control Inspector
47b
I969Present: Samerawickrame, J.M. C. HAMZA LEBBE, Appellant, and FOOD AND PRICECONTROL INSPECTOR, PUTTALAM, RespondentS. C. 22 If 68—J/. C. Pullalam, 4060
Control of Prices Ac!—Price Order relating to condensed milk—Charge of contraveningit— Wright of tin—Statement on label of tin—Evidential value of it—Standard ofproof varies according to nature of oflcnce.
In a prosecution for selling a tin of condensed milk " Coldcn Crown ” 14ounces at n price in excess of tho maximum controlled price, the til! that waseo|,|, if it js produced in Court, cons'itutes real or materia! evidence which thoCourt may consider.
In such a ease, prirr.a facia proof that tho tin sold was one of 14 ounces inweight inny bo furnished by the production of the tin of condensed milk whichis to a'l ap|<caraoccs a tin uf I t ounces in weight Anri the statement of tho- accused to flic'decoy that it was a 14 ounce t-n. Such evidence will siiTrc,os the standard of prooPrC'(uifrJ'd is not so strict ns in the more serious case ofan ofleucc relating to opium, ganja or unlawfully manufactured spirits. *
* (JOdl) 2 Q. D. 317 at 325.
476 SAMERAWICKRAME, J.—Hamza Lcbbt t>. Food and Price Control Inspector
-A.PPE.AL from a judgment of tho Magistrate’s Court, Puttalam.
C. Ranganathan, Q.C., with M. T. M. Sivardeen, for theaccused-appeflant.
Kosala Wijayalilake, Crown Counsel, for the Attorney-General.
. "Cur. adv. vult.
-October 22, 1969. Samerawickrame, J.—
The appellant appeals against his conviction under the Control ofPrices Act for having sold a tin of condensed milk “ Golden Crown ’’ 14ounces for 98 cents when the maximum controlled retail price was 90cents.
Learned counsel for the appellant submitted that there was no evidenceto prove that the tin that was sold was one of 14 ounces in weightand that the statement to that effect on the label which was relied uponby the prosecution was hearsay. He relied on decisions of the Privy■ Council in Patel v. Comptroller of Customs 1 and Comptroller of Customs v.Western Lectric Co., 2 which held that legends or marks on bags or goodsstating the country of which they were the produce or the country oforigin were hearsay and insufficient evidence of such facts on which tofound a conviction.
The Food and Price Control Inspector who acted as the decoy andwhose evidence has been accepted has stated, “ I asked him if he couldgive me a tin of condensed milk. He said * yes ’. He told me he hadcondensed milk of the Golden Crown Brand. I asked him if that wasgood and he said it was very good and could be given even to children.
– I asked him if they were lib. tins. The accused said they were 14 ozs.tins. I asked him for the price of a tin of condensed milk of Golden-Crown Brand. He quoted 93 cents for a tin of condensed milk. GoldenCrown Brand. I asked him to reduce the price. He said he could notdo that and that he was getting only 7 to 8 cents profit. Then Iasked him for a tin of Golden Crown Brand Condensed milk. Theaccused gave me a tin and I gave him Rs. 2 and the accused gave meRe. 1 02 The tin of condensed milk was a production in the case andit was presumably to all appearances a tin of condensed milk 14 ounces inweight. It was real or material evidence produced in Court and was amatter before it which the Court could consider when deciding whetherthe case was proved.
In my view there was sufficient circumstantial evidence to affordprima facie proof that the article that was sold by the appellant was the.article referred to in the Food Price Order PI. In the schedule to PI-.there is “ Golden Crown—14 oz. tin”. The evidence might not have been
M1965) 3 A. E. B. 593. ''(1965) 3 A. E. R. 599.
SAMERA'VICKRAME, .1.—Hamza Lebbe v. Food and Price Control Inspc'lir <77
sufficient if the offence related to opium, ganja or unlawfullymanufactured spirits for tho reason that such things are per se citherinjurious and harmful or prohibited by law. Condensed milk, on theother hand, is not only not harmful but is an useful articlo of food andits salo is an offence only when it is sold at a price in excess of thecontrolled price. It is true that in the case of offences in respect of opium,ganja, or unlawfully manufactured spirits as well as offences in respectof condensed milk the standard of proof is that of proof beyond reasonabledoubt but in tho case of the latter, proof need not be as strict as in thocase of the former. This is because of the principle that tho more serioustho imputation the stricter is the proof which is required.
Denning, L.J. in Baler v. Baler 1, stated :—
" It is true that by our law there is a higher standard of proof incriminal cases than in civil cases, but this is subject to the qualificationthat there is no absolute standard in either case. In criminal cases thocharge must be proved beyond reasonable doubt, but there may bodegrees of proof within that standard. Many great judges have saidthat, in proportion as the crime is enormous, so ought the proof to beclear.”
Later he stated :—
“ What is a real and substantial doubt ? It is only another way ofsaying a reasonable doubt, and a ' reasonable doubt ’ is simply thatdegree of doubt which would prevent a reasonable and just man fromcoming to a conclusion. So the phrase ‘ reasonable doubt ’ gets oneno further. It docs not say that the degree of probability must be ashigh as ninety-nine per cent, or as low as fifty-one per cent. Thodegree required must depend on tho mind of the reasonable and justman who is considering the particular subject-matter. In some casesfifty-one per cent, would be enough, but not in others. ”
In my view, to require the kind of proof that learned counsel for theappellant submitted should have been led in this case and to reject thocircumstantial evidence led in this case would be to require a ninety-ninepercent, degree of probability in a matter in which a lower degreewould suffice. This case Is to be distinguished from tho two PrivyCouncil decisions cited to me by the learned counsel for the appellant. Anexamination by itself, however close, will not reveal the country of originof an article. On the other hand by an examination of a tin ofcondensed milk one can be satisfied as to its weight to that degree ofprobability referred to by Denning, L.J. in the dictum set out above.
I am accordingly of the view that the finding of guilt is correct andmust be uphe’d. Learned counsel for the appellant pointed out that theprosecution itself conceded that at the time a tin of condensed milkfetched in the market between Re. 125 to 1 ’30 and that tho
113S0) 2 A. £. P. 4SS.
473
Potfi S’nyho v. Karunaratne
accused appellant had sold this tin for OS cents which was only 8 cents inexcess of the controlled price. The learned magistrate in considering thematter of sentence stated that he was bound, by the amending Act of19C6 to impose a sentence of imprisonment. I find however, that theolTence was committed at a time when the Emergency Regulation whichmade the provisions of Section 325 of the Criminal Procedure Codeinapplicable had not yet been made. 1 accordingly set aside theconviotionandsenteneeandactingunders. 325 of the Criminal ProcedureCode, I direct that the accused-appellant be warned and discharged andthat he'be ordered to pay a sum of Rupees five-hundred {Rs. 500) as'Crown costs.
Accused. deaU with under s. 325 of CriminalProcedure Code. .