WIJEYEWARDENE J.—Ratnayake v. de Silva.
1941Present: Wijeyewardene J.
RATNAYAKE v. DE SILVA.
401—M. M. C. Galle, 28,784.
Shops—Keeping it open after hours—Serving of customers—Essential ingre-dient of offence—Shops Regulation Ordinance, No. 66 of 1938, s. 18.
It is an essential ingredient of an offence created by section 18 of theShops Regulation Ordinance and by paragraph 2 of the closing orderpublished in Government Gazette No. 3,642 that the shop must be keptopen for the serving of customers. It is not an offence under the sectionto permit a customer to enter a shop before the hour fixed for the openingof the shop.
A PPEAL from a conviction by the Municipal Magistrate of Galle.
E. B. Wickremanayake (with him Rajendram), for accused, appellant.
H. W. R. Weerasuriya, C.C., for complainant, respondent.
Cur. adv. vuIt.
July 25, 1941. Wijeyewardene J.—
This is a case under the Shops Regulation Ordinance, No. 66 of 1938.
The charge against the accused reads as follows : —
On Monday the 16th day of November, 1940,you, being
, occupier of a shop other than a shop to which the
WIJEYEWARDENE J.—Ratnayake v. de Silva.
provisions of paragraphs 3, 5 and 6 of a closing Order
published in the Government Gazette No. 8,642 Of July 26, 1940,—
in contravention of the provisions of paragraph 2 of the said order,did—
in a case to which the provisions of section 29 (2) of the Ordinance
and of paragraph 4 of the said Order do not apply, keep thesaid shop open at 7.45 a.m. and did thereby commit an offencepunishable under section 23 (1) read with section 18 of theOrdinance.
in a case to which the provisions of paragraph 4 of the said Order
do not apply, permit a customer to enter the said shop before
9 a.m. on and did thereby- commit an offence
punishable undeT section 23 (1) read with section 18 of theiOrdinance.
The Magistrate convicted the accused and in the course of his orderstated—“ The second count takes up the first count. I discharge theaccused with a warning on the first count and sentence him to pay a fineof Rs. 10 on the second count ”.
The accused has appealed against that conviction and sentence and hasalso filed papers in revision.
The closing order referred to in the charge is an Order made undersection 15 of the Ordinance. Paragraph 2 of the Order provides inter aliathat shops other than those mentioned in paragraph 3 “ shall be closedfor the serving of customers ” on Mondays except between the hours of9 a.m. and 6 p.m. Paragaph 4 provides for the relaxation of the provi-sions of paragraph 2 during certain periods preceeding the Christmasday, &c., and paragraph 5 empowers the Controller of Labour to relaxthese provisions during other periods subject to certain conditions.
Tt is now necessary to examine the counts (a) and (b) in the charge.The material part of the count (a) is that the accused kept open his shopat 7.45 a.m. Neither paragraph 2 of the Order nor section 18 of theOrdinance makes it an offence to keep a shop open (I do not refer tosection 23 which is merely the penal section). An essential ingredient ofthe offence created by them is that the shop must have been kept open“ for the serving of customers ”. Count (a) is therefore clearly defective.Count (b) charges the accused with having permitted a customer to enterhis shop before 9 a.m. There is no reference to such an offence in para-graph 2 of the Order and the only reference in section 18 of the Ordinanceto a customer entering a shop is as follows : —“ No customer shall on anyday be permitted to enter any shop after the hours specified in any suchorder as the hour at and after which that shall be closed on that day ”.The charge on count (b) must, therefore, necessarily fail.
The evidence for the prosecution was given by an Inspector of Labourand one Madasamy, the alleged customer. The Inspector stated that hesaw some poonac on the scales and a salesman standing by the scaleswhile Madasamy was also “ near the scales ”. Madasamy stated that hewent that morning to buy two pounds of poonac and two measures ofpaddy and he was asked by the salesman to wait as “ there was time
DE KRETSER J.—Velasipillai v. Kanapathipillai.
more He said that he was standing on the public verandah adjoiningthe boutique when the Inspector questioned him and he replied that hehad come to buy poonac.
I am not prepared to hold on this evidence that the shop was kept openfor the serving, of customers. There was no sale. The customer wasin fact asked by the salesman to wait till 9 a.m.—the hour for openingthe shop for sales. Even if there was poonac in the scales—a fact deniedby Madasamy—it does not follow that the poonac was being weighedfor a sale to Madasamy before 9 a.m. or it was weighed for any sale at all.
I set aside the conviction and acquit the accused.
RATNAYAKE v. DE SILVA