098-NLR-NLR-V-72-M.-H.-M.-HASSAN-Appellant-and-INSPECTOR-OF-POLICE-PANADURA-Respondent.pdf
Hassan r. Inspector of Police, Panadura
419
1969Present:Weeramantry, J.
M.H. M. HASSAN, Appellant, and INSPECTOR OF POLICE,PANADURA, RespondentS. C. 74S}GS—M. C. Panadura, 5169
Control of Prices Act—Sections 3 (2) and 4 (J)—Contravention of Price Order of 7lhNovember 1964 relating to sale of beef—Place of offence—Proof as to whetherit fell within Kalutara district—Judicial notice—Power of Court to consultappropriate bools of reference—Evidence Ordinance, s. 57—AdministrativeDistricts Act (Cap. 392), Schedxtle 1—Ordinary meaning of " beef ”—Whetherit includes buffalo meat—Butchers Ordinance (Cap. 272), s. 2.
The accused-appellant was convicted of selling beef at a rate abovo themaximum controlled price. It was contended on his behalf (1) that there wasno proof that the offence was committed within the administrative district ofKalutara to which the relevant Gazette notification applied, and (2) that theprosecution, by failing to eliminate the possibility that what was sold was theflesh of a buffalo, had failed to prove that the item sold was “ beef ” within thecontemplation of the Price Order of 7th November 1964.
Held, (i) that, for the purposo of ascertaining whether the village ofKescI watte, which was the place where the offence was committed, fell withinPanadura, section 57 of the Evidence Ordinance empowered the Court toconsult, os an appropriate book of reference, the compilation of the Departmentof Census and Statistics known os An Alphabetical and Numerical List ofVillages in the "Western Province. Panadura in its turn was within theadministrative district of Kalutara, as would appear from the second entry inthe first Schedule to the Administrative Districts Act.
{ii) that the ordinary meaning of beef does not exclude the flesh of a Ceylonbuffalo.
.A.PPEAL from a judgment of the Magistrate’s Court, Panadura.
Colvin R. de Silva, with M. T. M. Sivardeen and I. S. de Silva, for theaccused-appellant.
Shibly Aziz, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
450WEERAMAXTRY, J.—Hassail i«. Inspector of Police, Panadura
November 12, 1969. Weer.amantrv, J.—
The accused appellant in this case stands charged, under Section 4 (1)of the Control of Prices Act read with Section 3 (2) of the Act, with thosale of beef at a rate above the maximum price fixed in terms of the Act“and notified in Government Gazette No. 14,21S of 7.11.64. Theaccused is alleged to have sold a pound of beef without bones for Re. 1,whereas the maximum controlled price was 90 cents.
Tho two principal points taken on behalf of tho appellant are firstlythat there is.no proof that the offence was committed within theadministrative district of Kalutara to which the relevant Gazettenotification applies, and secondly that tho prosecution has failed toprove that the item sold was “beef” within the contemplation of the• order in question.
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Tho first contention is based on the fact- that tho stall at which the saleoccurred has been described variously in the proceedings as the Kesel-‘ watte-Panadura stall and as the Sarikkaimdla beef stall. It is submitted .for the defence that there is no proof that Keselwattc-Panadura oralternatively Sarikkamulla are places falling within the administrativedistrict of Kalutara.
In support of this contention the appellant submits certain decisionsof this Court where appeals have been allowed against convictions on thebasis of the failure of tho jjroseeution to prove by affirmative evidencethat the place where tho offence was committed fell within the area towhich the relevant Order applied. In Jinadasci v. Edirisuriya1 theoffence was committed at No. 135, Main Street, Deniyaya while in thearea of operation of the price order the only reference to Deniyaya was areference to the V.C. area of Deniyaya. There was no evidence thatNo. 133, Main Street, Deniyaya, was within the V.C. area of.Deniyaya.
It was held in that case that the prosecution had failed to prove that thesale took place in an area covered by .the Price Order.
Another decision referred to was that in S.C. 1250/61/MC Matara63947 1 2 where Herat J. upheld tho point taken for tho appellant thatthere was no direct evidence tendered .by the prosecution that the sceneof offence, namety, Kotuwcgoda, was within tho administrative limits ofMatara. .The Court disapproved of an observation by the Magistratethat he could take judicial notice of this fact from his knowledge of the. area. Again in Hamza Naina v. Inspector of Police, Gampaha 3 the placeof offenco was “Yakkala, in the Gampaha-Kirindiwcla road”, whereastho Pi'ico Order .applied to the Colombo District outside the MunicipalLimits of Colombo. It was held that the prosecution had failed toprove that tho offence was committed within the Colombo District, as
1 S.C. 75/10GS/M.C. Matara 36S10/S.C. Minutes 13111 GO.
1 S.C. liloO/GlfM.C. Matara 61307/S.C. Minute.) 14(6/62.
3 {1063) 72 X. L. It. 166 ; 75 C.L.W. 00.
WEER AMAXTRY, J.—Nassau v. Inspector of Police, Pemadura
451
the Sub-Inspector of Police had admitted that he could not speak to thelimits of the Colombo District. The Court observed that the Magistratewas not justified in presuming that the stall in question was within theColombo District as the judicial districts of Ce3'lon with which theMagistrate might have been familiar did not correspond to the admini-strative districts of Ce-lon as set out in the Administrative Districts ActNo. 4 of 1955, Cap. 392. This case cited with approval another judgmentof this Court in Mendis v. Jayaicardena 1 where de Ivretser J. .arrived ata similar conclusion.
For reasons which I shall immediately mention it does not appear thatany one of these decisions can assist the appellant in this case.
Though the description Sarikkamulla stall as well as the descriptionKcsclwatte-Panadura stall are found in the evidence in this ease, itwould appear that these are not descriptions of different stalls but of oneand the same stall. Thus Inspector Rasanayagam speaks of the Sarik-kamulla beef stall and says that he saw the decoy Jamis and PoliceSergeant Saputantri at the beef stall meaning thereby tlie Sarikkam u 11astall. Jamis speaks of the Sarikkamulla stall to which he proceeded onthe instructions of the Inspector. Sergeant Saputantri on the otherhand speaks of having proceeded to the Iveselwatte-Panadura meat stallwith Jamis on the instructions of Inspector Rasanaj'agam. The learnedMagistrate as well, who presumabty knows the area, has understood theevidence of all these witnesses to relate to the same stall, and hasana^'sed their evidence on this basis. In a careful and comprehensiveorder he has made no reference to any contention that the descriptionsrelate to different stalls and it may therefore be safely assumed that nosuch suggestion was urged by the defence even at the stage of addresses.There can be no doubt then that the stall which Rasanayagam and Jameswere referring to is the identical stall referred to b3' Saputantri andI must therefore conclude that this same .stall is know'n by bothdescriptions. It follows that the evidence of Sergeant Saputantri con-stituted evidentiaiy material before the court indicating that the stall issituate in Panadura, and if further proof wero wanting that Iveselwatteis situate in Panadura, this is provided by a compilation of theDepartment of Census and Statistics known as An Alx>habetical andNumerical List of Villages in the Western Province, to which the Crownhas referred me. This work shows that the village of Keselwatte fallswithin Panadura. It is a work published by authority and anappropriate book of reference which in terms of section 57 this courtmay consult and act upon if indeed that were neccssar3*.
Now Panadura in its turn is within the administrative district ofKalutara, as would appear from the second entry in the first Schedule tothe Administrative Districts Act No. 24 of 1955, Cap. 392, and there isthus conclusive proof in this case that the beef stall in question fallswithin the administrative district of Kalutara.
For all these reasons I consider that there is sufficient material to satisfythe Court that the sale occurred within the area proclaimed.
1 S.C.543[G8fM.<?. Avissaicclla 80S3S/S.C. Minutes 23.10.68.
452WEERAMANTRY, J.—Hassan v. Inspector of Police, Panadura
This suffices to distinguish the present case from the decisions cited ineach of which there was no evidence showing the connection between theplace of offence and the district proclaimed. A given place in Dcniyavacould not bo presumed to be within tho V.C. area of Deniyaya or a placeon the Gampaha-Kirindiwcla road to be within the Colombo District intho absence of evidence to such effect or proof by alternative means.
I pass now to the second question urged on behalf of tho appellant,namely that there is no proof adduced by the prosecution that t he subjectmatter of the sale was “ beef”.
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It has .been strenuously' urged at the argument of this appeal that theprosecution has failed to exclude the possibility that .tho meat sold isbuffalo meat, a species of meat which is often sold in butchers’ shops asbeef, and that so long as such a reasonable possibility exists, there canbe no conviction of this offence.
This submission is made in view of tho report of the GovernmentAnalyst which states that the production was founduponanalysis to be beefwithin tho meaning of that term in the Butchers Ordinance. A perusalof the Butchers Ordinance shows however that the word beef as thereinused includes the flesh of any of the animals which in the Ordinance aredenoted by tho term “cattle”1. The word “cattle” is explained insection 2 of that Ordinance as including oxen, bulls, cows, calves andtame buffaloes. The only expert evidence before Court thus leaves openthe possibility that the flesh in question is that of a buffalo and it is for:that reason that the contention is advanced that the prosecution by failingto eliminate that possibility, has failed to prove that what was sold wasbeef.
It is necessary to note that the Price Order, which appears in Govern-ment Gazette No. lf,21S of 7th November 1964, directs, among othermatters that for tho purpose of that order tho expression “beef” doesnot include imported beef whether frozen, salt or chilled or any form ofoffal. Beyond that explanation the order does not seek to propound adefinition of the expression “ beef ”. Indeed on this matter later orderssuch as the order produced by the defence and marked Df do attempt adefinition of beef and specify that beef shall mean the flesh of neat cattleor buffaloes and shall exclude any form of offal.
We have no such definition to guide us in regard to tho present Price .Order and we can therefore only proceed on the basis that the expression j“ beef” must be given tho normal meaning which it bears in the Englishlanguage. It is necessary then to ascertain whether the ordinarymeaning of beef would exclude the meat of buffaloes.
.. The Oxford Dictionary defines beef as the flesh of an ox, bull or cow,used as food. Tho word also has certain extended meanings and isapplied in this extended meaning to the flesh of any animal “ of tho oxkind Is then tho buffalo an animal of the ox kind ?
1 Section 24.
WEERAMANTKY, J.—HaSsan v. Inspector of Police, Panadura
453
Turning now to tho meaning of tiio word t! buffalo ” one sees from tlicsame Dictionary that the word, though properly denoting a kind ofantelope, is the name of several sjwcics of oxen. According to theDictionary it is applied to the animal bos bubal its originally a native ofIndia, inhabiting most'of Europe, Southern Europe and Northern Africa,which, the Dictionary observes, is tamed in India, Italy and elsewhere.
Now, tho question before us is whether the Ceylon buffalo falls withinthe description of buffalo or bos bubahts which according to the OxfordDictionary is a species of oxen, and thus an animal of the ox tribe, whoseflesh would be beef.
Tire expression bos bubalus being a scientific term it becomes necessaryfor the ascertainment, of its true meaning to consult appropriate works ofreference, which this Court is entitled to do in terms of section 57 of theEvidence Ordinance1. I am assisted on this matter by the case ofAnnakumaru Pillaiv. Mulhupayal3 where to ascertain the meaning ofthe word “ chanks ” tho Court referred inter alia to the EncyclopaediaBritannica and.Emerson_Tennent’s Ceylon.
I consider therefore that I would be entitled to seek further guidanceon these matters from the Encyclopaedia Britannica and also fromstandard works on the fauna of Ceylon of which W. W. A. Phillip’sTreatise on the Mammals of Ceylon is perhaps the most comprehensiveand authoritative.
The Encyclopaedia Britannica while stating that bubalus (the buffalo)is a member of the ox family, goes on to describe as a variety of bubalusthe Indian buffalo which it states is larger than the ox, less docile, and isemployed as a draught animal. One learns from the same Encyclopaediathat the animal bubalus belongs to the sub-family bovivae of the mammalfamily known as bovidae.
XV. XV. A. Phillips in his treatise on the mammals of Ceylon3 states thattho family bovidae is subdivided into several divisions—bovtnae (thecattle) criprinae (the sheep and goats) and so forth. The sub-familybovinae though represented in India by three genera is representedin Ceylon by only one—the bubalits bubalis, commonly termed thebuffalo.
All this material indicates that the buffalo of Ceylon is the animalbubalus which is scientifically grouped as a member of the ox family, andis therefore an animal of the ox kind. Consequently its flesh would be“ beef” as defined in the Oxford Dictionary and, in the absence of adefinition in the Price Order, would be “ beef” for the purposes of thatOrder. It follows that even if the prosecution lias failed to eliminate thepossibility that the article sold was buffalo meat, it has still proved thatit is “ beef ” for the purposes of the. Order in question.
For these reasons the appeal must fail and it is accordingly dismissed-
Appeal dismissed.
1 See Menon v. Lcntin, (1941) 43 N. L. R. 34 at 35 ; 22 C.L.W. 24 at 25.
• (1904) 1JL.R. 27 Madras 551 D.B.
8 p. 318.