005-NLR-NLR-V-49-MAMMASALIE-Appellant-and-THE-INSPECTOR-OF-POLICE-KANDY-Respondent.pdf
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Mammasalie v. The Inspector of Police, Kandy.
1947Present: Wijeyewardene, J.
MAMMASALIE, Appellant, and THE INSPECTOR OF POLICE,KANDY, Respondent.S. C. 1,044—M. 0. Kandy, 25,217 ■
Food Control—Order made under section 4 (1) (a) of Food Control Ordinance (Cap.
132)—Valid only for two months—Conviction under Defence (Mircsllansous)
Regulation 52 (I)—Order of confircation illegal.
Where the accused was charges, under Food Control Order No. 109, withtransporting flour without a permit—
Hsld, that a conviction foT the contravention of an Order made by a Ministerunder the Food Control Ordinance is illegal if the Order has, by virtue ofsection 4 (5) of the Food Control Ordinance, already ceased to be in forceafter a period of two months.
Held, further, that the Defence (Miscellaneous) Regulation 52 (1) does notenable a Magistrate to make an order of confiscation.
» 11.106) R. <k R. 103.
WIJEYEWARDENE J.—Marnmasalie v. The Inspector of Police, Kandy 1ft
^lPPEAL from a judgment of the Magistrate, Kandy.•S. R. TV ijayalilake, for the accused, appeallant-
C. F. Jayaratne, C.C., for the respondent.
Cur. adv. vv.lt.
October 28, 1947. Wijeyewabdeue, J.—
The appellant and a woman called Ahmed Bee were charged withtransporting a bag of 150 lbs of flour od August 19, 1946, without apermit “ as required by Order No. 109 of the Minister of Agriculture andLands dated March 12, 1946, published in Government Gazette No. 9,530of March 12, 1946, and thereby committed an ofFence punishable underDefence (Miscellaneous) Regulations 52 (1)”.
The Magistrate acquitted Ahamed Bee and convicted the appellant.He sentenced the appellant to pay a fine of Rs. 25 and ordered the bagof flour to be confiscated.
One Weerasekere, the proprietor of “ Brownrigg Hotel ”, gave evidencefor the defence.' He held a permit D 1 for the purchase of 440 lbs offlour a week. On August 17, 1946, he purchased 289 lbs. on a receiptD 2. He used to get Aharfied Bee to make the string hoppers whichhe sold at his hotel. Ahamed lived ^within a quarter of a mile ofthe hotel. The appellant .was carrying the bag in question for AhamedBee along a lane which/connected “ Brownrigg Hotel ” with AhamedBee’s boutique. Weerasekere stated in Court that he did not sell anyflour to Ahamed Bee but he used to give her flour and pay her at the rateof Rs. 2 per 100 string hoppers made by her. The police sergenat whogave evidence for the prosecution said that, shortly after the appellantwas arrested, Weerasekere told him that he supplied flour to Ahamed Beeat controlled rates and paid her at the ra te of Re. 1 per 100 strmg hoppers.The sergeant, however, added that, when he read the statement recordedby him, Weerasekere wanted him to add the following word, to thestatement :•—“I did not sell but gave it over to this woman for makingstring hoppers. The value of the bag viz , Rs. 25-50 is being deducted■n instalments of Rs. 5 a day. I pay a string hopper at the rate of 1 centeach hopper ”.
If the .Order referred to in the charge applied to the accused, the
appellant has acted in contravention of the Order. The question is
whether the Order applied to the accused.
o
Order No. 109 was made by the Minister of Agriculture and Lands byvirtue of the powers vested in him “ by section 4 (1) (a) of the FoodControl Ordinance (Chapter 132 , read with the Defence (Food ariPrice Control) (Transfer of Powers) Regulations, 1942, and with theSupplies and Services (Transitional Powers) Order, 1946 ” (see GazetteNo. 9,530 of March 12, 1946).
The reference to the Defence (Food and Price Control) (Transfer ofPowers) Regulations, 1942, in the Gazette was necessary because theOrder was made by the Minister of Agriculture and Lands and not the
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Ango Nona v. Mitthihirttlnppa Pillai.
Minister of Labour, Industry and Commerce, mentioned in the Ordinance.Now an Order made by the Minister under the Food Control Ordinancecontinues in operation only “ for a period of two month's commencingon the date of the publication ” in the Gazette, even when the Order hasbeen confirmed by the Board of Ministers and approved by the Council( Vide section 4 (5). Even if I assume that Order No. 109 mentionedin the charge has been so confirmed and approved; yet it could not havebeen in force after May 11, 1946. It is, therefore, not possible to saythat the accused has contravened Order No. 109 by an act done by himon August 19, 1946. It may be that the Police who instituted theproceedings and the Magistrate who heard the case made a mistake inreferring to Order No. 109 and-there was another Order made at a laterdate which was in force- at the date of the alleged offence. But thisCourt cannot be expected to r fer to various Gazette to see if there wassuch an Order. Those responsible for the institution of proceedingshould take care to see that the proper Ord-r is mentioned in the charge.If the Magistrate who tried the case referred to the Food Control Ordi-nance, he would have seen the error made by the Police and would havetried to ascertain if there- was a subsequent Order and made thenecessary alteration in the-charge.
There is another difficulty I experience in sustaining the order of theMagistrate. The accused is said to have committed an offence punishableunder the Defence (Miscellaneous) Regulation 52 (1). Now that Regu-lation does not enable the Magistrate to make an Order of confiscation.Such an order could, no doubt, be made under section 6 (1) of the FoodControl Ordinance amended by Ordinance N<5. 40 of 1939. But it is not,to say the least, fair to an accused to say that he -committed an offencepunishable under a Regulation which does not provide for a confiscationof the goods and then proceed to confiscate the goods at the end of thetrial. The accused could not have thought that such an order would bemade and he would not, therefore, have attempted to bring to the noticeof the Magistrate any fact against the making of such an order.
would set aside the conviction and the order of confiscation andacquit the aceuesd.
Appeal allowed.