KETTNEBTAlf S.P.J.—-Goonetileke v. Government Agent, Gatte.
1946Present: Dias J.
MARTKAR, Appellant, and PONNUDURAI (INSPECTOROF POLICE), Respondent.
966—M. G. Colombo, 16,979.
Defence (Control of Textiles) Regulations, 1945, Regulation 51—Master andservant—Inability of master for act of servant—Mens rea.
By Regulation 51 of- the Defence (Control of Textiles) Regulations,1945, “ where any servant or agent of a dealer does or omits to do anyact or thing which, if done or omitted to be done by such dealer, wouldconstitute a contravention of any provision of these regulations,the dealer shall be deemed to have acted in contravention of theseprovisions.”
Held, that under Regulation 51 before a master can be made criminallyresponsible for an act or omission of his servant, the prosecution, inaddition to proving the ingredients of the offence charged, must go .further and establish beyond all reasonable doubt that (o) at the timethe offence was committed, the actual offender was acting as the servantor agent of the master, and (6) if the offence had been done or omittedby the master such act or omission would constitute an offence underthe Regulations.
PPEAL against a conviction from the Magistrate’s Court, Colombo.
L. A. Rajapakse, K.C. (with him Seyed Ahamed), for the 1st accused,appellant.
A. G. M. Ameer, C.G., for the respondent.
Cur. adv. vult.
1 (1945) 46 N. L- It. 237.
DIAS J.— Marikar V. Ponnudvrai (Inspector of Police).
October 28, 1946. Dias J.—
The appellant (the master) and one Abdul Cader (the servant) werejointly charged that on May 4, 1946, (a) they sold to one Jayasunderatwo yards of poplin at Us. 4 per yard when the controlled price wasRe. 1 "37 per yard in breach of Regulation 22 (1) of the Defence (Controlof Textiles) Regulations published in the Government Gazette No. 9,388dated March 28, 1945 ; (6) they being dealers sold the said two yardsto Jayasundera without the appropriate number of coupons beingsurrendered in breach of Regulation 40 (1), and (c) being licensed dealersin textiles failing to give Jayasundera a receipt-or invoice in breach ofRegulation 31 (1). Abdul Cader has been acquitted, while the appellantwas convicted on all three charges and sentenced in the aggregate to afine of Rs. 1,500 or in default to undergo three months’ rigorousimprisonment.
The facts establish that the appellant is the owner of a boutique atWelikada, where he carries on trade as a licensed dealer in textiles.Abdul Cader at the material date was his servant. On May 1, 1946, theappellant left his boutique and went to his village at Beruwala and wasabsent from Colombo until May 8, 1946. It will be recalled that thealleged offence was committed on May 4, 1946. i.e., in the absence of theappellant.
On information received Police Sergeant Salih of the Welikada Policetogether with Fonseka, a Textile Control Inspector, decided to raid theappellant’s boutique at about 12.30 p.m. after shop hours. They sentthe decoy Jayasundera with a ten-rupee note, the number of which hadbeen noted with instructions to buy cloth and to insist on being givena receipt.
There is no reason to doubt that the 2nd accused Abdul Cader whowas in the shop which was closed, except for two planks which were open,sold two yards of poplin to Jayasundera. The rest of the roll was onthe counter with the controlled price of Re. 1‘37 per yard marked on it.The decoy had Rs. 2 in his hand while the ten-rupee note PI wastaken out of a card board box by the 2nd accused and handed to theinspector. No receipt was given to Jayasundera, and there was noentry of this transaction in the bill book or any other book of the shop.
It is common ground that the Regulations as framed contain no provi-sion under which the 2nd accused could be convicted. He was thereforeacquitted. The appellant is sought vicariously to be made criminallyliable under section 51 of the Regulations which reads as follows :—
“ Where any servant or agent of a dealer does or omits to do anyact or thing which, if done or omitted to be done' by such dealer, wouldconstitute a contravention of any provision of these Regulations,the dealer shall be deemed to have acted in contravention of thoseprovisions.”
Under that Regulation before a master can be made criminally respon-sible for an act or omission of his servant, the prosecution in addition toproving the ingredients of the offence charged, must go further and
DIAS J.—Marikar v. Ponnudwrai (Inspeotnr of Polios).
establish beyond all reasonable doubt that (a) at the time the offence wascommitted, the actual offender was acting as the servant or agent of themaster, and (6) if the offence had been done or omitted by the mastersuch act or omission would constitute an offence under the Regulations.
What evidence is there that at the time of this sale by the 2nd accused,he was acting as the servant or agent of the absent appellant ? Theappellant gave evidence on his own behalf stating that when he left forBeruwala, the roll of poplin was not in his boutique ; that while his othertextiles are entered in his books this roll is not, that he did not direct orauthorize his servant to buy and sell this cloth in his boutique, and thathe was no party to this transaction. As corroboration of the evidenceof the appellant, Mr. Rajapakse has pointed to the following circumstancesproved by the prosecution—that the ten-rupee note was taken from acard board box which has not been proved to be the appellant’s till,that the appellant was admittedly absent from the shop which had beenclosed and shuttered and that no entry of the transaction appears inany of the books of the appellant. It is submitted that Abdul Cader inthe absence of the appellant procured this roll of cloth and sold part ofit not for the benefit of the appellant, or as the appellant’s servant, butfor his own personal gain.
It is submitted that this inference fairly flows from the facts of thecase for the prosecution, and that in the absence of proof that theappellant had any mens rea, or knowledge of what his servant was up to,his conviction cannot stand.
In Herft v. Northway1 it was held that “ A man may be civilly responsi-ble for a misfeasance of his servant done in the course of his employment;but to render the master criminally, responsible you must show themans rea on his part, unless the Legislature has thought proper to enactthat the master shall be criminally responsible even without mens rea.”
In. the present case Regulation 51 does provide for such a vicariouscriminal liability ; but its provisions must be construed strictly. Inmy opinion, the facts established do not prove beyond reasonable doubtthat Abdul Cader was acting as the servant or agent of the appellant atthe time he sold this cloth.
The Magistrate has failed to grasp that although Abdul Cader wasthe servant of the appellant, it was incumbent on the prosecution toestablish beyond reasonable doubt that at the time of this sale AbdulCader was acting as the servant of the appellant, and not for his ownpersonal benefit. The judgment of the Magistrate also may have beenclouded by the fact that under these Regulations the salesman cannotbe held liable ; but that is no reason why the law should find a victim,or that a penal regulation should not be strictly construed.
I hold that although there may be elements of suspicion against theappellant, the proof falls short of that standard which is required forestablishing the guilt of the appellant. I therefore allow the appeal andacquit him.
1 (1890) I Cey. Law Reports 27 ; 9 S.C.C. 142.