067-NLR-NLR-V-72-M.-T.-M.-MUSTAPHA-Appellant-and-SUB-INSPECTOR-OF-POLICE-BATTICALOA-Responden.pdf
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i>E KRETSEJ?, j.—Mustapha v. Sub-Inspector of Police,
Batlicaloa
1969Present: de Kretser, J.
M.T. M. MUSTAPHA, Appellant, and SUB-INSPECTOR OF POLICE.
BATTICALOA, RespondentS.C. 1070/OS—M. C. Batlicaloa, 2412S
Control of Prices Act—Price Order reluting to sale of Ncspray milk food—Charge' ofcontravening it—Quantum of evidence—Statements on label—Eelevancy.
Selling tv marketed tin of milk footl labelled “ Nespmy 1 pound " at a price inexcess of tho price permitted by the relevant- Prico Order is n contravention ofthat Price Order. In such a case it is not necessary for the prosecution toprove that the, tin contained a pound of the milk food, for tho price is fixed pertin and not per pound/ and tho question whether wlmt is stated on tho label isfactually correct does not arise-
Appeal from a judgment of the Magistrate’s Court, Batticaloa.
O.E. Chilly, Q.C., with T. IF. Bajurat.netin and G. E. Chilly (Jnr.), forthe accused-appellant.
Tyrone Fernando, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
May 2S, 1969. t>e Kretser, J.—
The Magistrate of Batticaloa {Mr. 0. S. M. Seneviratnc) convicted theaccused of the two charges laid against him ; viz. selling a pound tin ofNcspray which is Price Controlled at Rs. 2 90 for Rs. 3/- and failing toexhibit conspicuously on the Price Board the controlled price of Ncspray.He sentenced the accused to G weeks R. T. and a fine of Rs. 1,000/- indefault- G weeks R.-.I. on count 1, and a fine of Rs. 50/- in default 2 weeksR.I. on count 2. The accused lias appealed.
The Magistrate who had the advantage- of seeing the school-boy witnessMarso giving evidence has accepted that evidence after carefully weighingall that- was urged by Counsel against that course. I sec no reason todisagree with him. Marso’s evidence established that, the accused askedhim for Rs. 3/- for a one pound tin of Ncspray, and when Marso gave hintthe Rs. 10/- note of which the number has been noted, in payment, theaccused gave him the tin of Ncspray produced as P3 and a*balance ofRs. 7/-. The accused's defence was that he had no ten cent bit at thecashier’s table he was at, and that lie had intended giving it, taking itfrom another table in the boutique but that he was arrested before hecould do so. Ifc appears to have been a foolish thing to do—so foolishthat I find myself unable to believe it happened that lie, a trader dealingin Price Controlled goods should have handed over only a balance thatestablished guilt when lie could have given the true balance in a minuteor two. The fact- that I have observed in appeals from convictions inother Price Control cases similar claims of having intended to hand over
DE KRETSEK, J.— Mustapha v. Sub-Inspector of Police,
Datticaloa
311
the balance, which makes all the difference between guilt and innocence,but not having had the time to do so, makes me all the more sceptical.The Magistrate did not accept his testimony and I am of the view thatthe Magistrate was correct in doing so. On the facts, then, it is estab-lished that the accused sold to Marso as a one pound tin of Nespray, theproduction P3 which the 3fagistrate notes was untampered with andwhich bore the label “ Nespray nett weight 1 pound *' (454 grams).
Mr. Chitty for the appellant submits that the prosecution to succeedmust prove that the tin P3 contained a pound of the milk food known asNespra3' and that the prosecution docs not prove that by proving thatthe accused sold a tin of milk food bearing a label, Nespray nett, weight-one pound (454 grams).
Counsel for the Crown relying on the case of Jalaldeen v. Jaya war dene1submits that the accused when he sold to a customer the tin so labelled“ adopted the specification on the label and admitted by conduct theweight and contents stated in the label
If by this is meant that the accused must be held to have admittedthat what was stated on the label was the truth, I must with allrespect disagree, for the evidence is that the tin was untampered with.Therefore the accused relied as much as anyone else on what was statedoti the label. The fact that he pinned his faith on what was stated on thelabel does not. mean that his faith could not be misplaced.
From the evidentiary point of view the legend Nespray lib. nett o11the label is hearsay and the case of Myers v. Director of PublicProsecutions 2 cited with approval in Patel u. Comptroller of Customs3,
“ makes clear be3’ond doubt that the list of exceptions to the hearsayrule cannot be extended judicial^' to include suen things as labels ormarking
Counsel for the Crown further submits that it is common knowledgethat the milk food known as Nespray is marketed ’03* its manufacturerin tins of which the contents weigh 1 pound, pounds and 5 poundsrespective^. His submission is that the Price Order fixes prices for milkfood in tins so labelled, and in the instant case, the prosecution havingproved that the accused sold the tin P3 bearing such a label for Rs. 3 00when the controlled price was Rs. 2 90, the accused is guilty of thecharge laid against him.
It then becomes necessar}* to decide what it is that is Price Controlled.
Is it a pound of the milk food of the brand known as Nespra3' ordinarilymarketed in tins or is it a tin of milk food labelled Nespray 1 pound nettweight (454 grains.) ? The relevant price order is No. 407 of 1.3.G6published in G.G. (Extraordinarj-) 14,664 of 1.3.66, and what is relevantin it to this case is: (ii) fixes with immediate effect the prices specified incolumns 2 and 3 of the Schedule hereto to be the maximum wholesaleprice per dozen tins and the maximum retail price per tin respectively
1 (106S) 70 N. L. R. 470.1 (1064) 2 A .B. R. SSI.
1 (1965) 3 A. E.R. 593.
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DE KRETSER, J.—Muslapha v. Sub-Inspector of Police,
BaUicaloa
above which the brand of milk food specified in the corresponding entryin column 1 of the Schedule shall not be sold within the island of Ceylon. . • What is relevant in the Schedule reads :—
Column 1
Brand of Milk Food
Nespray 1 lb.Nespray lb.Nespray 5 lb.
Column 3Maximum RetailPrice 'per tinRs. c.
..2 90
7 013 25
In my view an examination of the Price Order confirms the correctnessof the submission of Counsel for the Crown.- Milk food is marketed in tinsand what the Price Order controls is the price at which such tins can besold. It is to be noted that the price is fixed |>cr tin and not per pound.So a tin of milk food described under column 1 of the schedule as “Nespray1 pound ” for the reason that that is how it is labelled by its manu-facturers, is controlled at Rs. 2 90. A tin of milk food described undercolumn 1 as Nespray 2 lbs. is controlled at Rs. 7/- and so on. In thesecircumstances, it appears to me the question of whether what is stated onthe label is factually correct docs not arise, and there is no need to comfortoneself with the thought that “it would be absurd to suppose that manu-facturers of Nespray adopt any uncommon course of conduct or businesspractice, and that theyunderstate in their labels tho weight of the milkfood they sell The evidence having established that the accused didsell P3 a tin of milk food labelled Nespray 1 pound for Rs. 3/-, when sucha tin is Price Controlled at Rs. 2 90, is, in my opinion rightly convicted ofthe charge.
There remains the conviction on the charge which should be that theaccused failed to exhibit conspicuously on a notice board the maximumretail price of Nespray. Apart from the fact that tho charge is wronglydrafted in that what it is alleged that he failed to exhibit conspicuous^-is the notice board, I find that the notice board in question has, for somecareless reason, not been produced to enable the Magistrate to' decidewhether what was stated on it was conspicuous or not. I therefore setaside the conviction on this count.
The next question is what the sentence on count 1 should be. As theaccused is a first offender, I do not think a prison sentence is called for.Counsel for the Crown concedes that this is a case in which the right oftho Court to apply the provisions of Section 325 of the Criminal ProcedureCode has not been taken away by law. I set aside the sentence imposedand direct the accused to enter into a bond in Rs. 1,000 (personal) to beof good conduct and to come up for conviction and sentence if called onwithin a period of throe j-ears, and to pay Rs. 1,000 as Crown costswithin one month of entering into the bond. Subject to these variationsaccused’s appeal is dismissed.
Appeal dismissed, subject to certain variations.