068-NLR-NLR-V-75-S.-M.-THASTHAKEER-Appellant-and-P.-J.-N.-JAYASEKERA-Respondent.pdf
Thasihakeer v. Jayaselcera
S5S
1972Present: Rajaratnam, J.S. M. THASTHAKEER, Appellant, and P. J. N. JAYASEKERA,
Respondent
S. C. 253171—.M. C. Colombo South, 16330jB
Food and Drugs Act (Cap. 216)—Section 4 (1)—Charge thereunder against a salesmanin respect of a sale of Orange Jam—Quantum of evidence—Mens rea—Appli-cability of s. 72 of Penal Code to a statutory offence.
RAJAJRATNAM, J.—Thaathakeer e. Jayasckera
889
The accused-appellant, who was a salesman in a shop, was charged withhaving contravened the provisions of soction 4 (1) of the Food and Drugs Actby soiling an article of food (a bottle of Orange Jam) which was not of thesubstance of food demanded by the purchaser. The Government Analystgave'evidence that there was only 8'01%.of orange and 34% of Ash pumpkinin the article sold and that the entire fruit content was separated from therest of the jam which contained sugar, glucose and water.
Held, that, on a consideration of the Analyst's evidence, it was impossibleto arrive at a finding that the article sold was Orange Jam in nature, substance orquality. Nevertheless, the appellant was not liable to be convicted. As amere salesman in a shop far away from the factory, he could not have knownwhat the exact composition was in the bottle of jam. He could not thereforohave had the guilty knowledge or intention to commit the alleged offence.A defence under section 72 of the 1'enal Code is available in statutory offencesalso.
Appeal from a judgment, of the Magistrate's Court, ColomboSouth.
E. Chitty, with M. Wanniappa, for the accused-appellant.
Knralasingham, with U. C. B. Ratnayake, for the complainant-respondent.
Cur. adv. wit.
June 6, 1972. Rajabatnam, J.—
The. accused-appellant was charged with having sold an article offood to wit a bottle of Orange Jam which was not of the substance offood demanded by the purchaser, in breach of Section 4 (1) of the Foodand Drugs Act, and thereby with having committed an offence punishableunder Section 56 (1) of the said Act, Chapter 216 of the LegislativeEnactments.
After the trial the appellant was found guilty and fined Rs. 100/-.The accused was a salesman in a shop and is alleged to have sold thearticle in question to the Food Inspector who was also an authorisedofficer under the Food and Drugs Act. Two points were urged by thelearned Counsel for the appellant in appeal: (1) that the evidence ledby the prosecution does not disclose an offence under the Food andDrugs Act, (2) the accused being a salesman in a shop which was onlyselling what was put into the market by a manufacturer would nothave the knowledge about the exact composition of the jam in the closedbottle. Therefore guilty knowledge or intention cannot be imputedto him. Under Section 72 of the Penal Code he cannot be held guiltyof the offence as he was under the mistaken belief that what was putin the market as Orange Jam was Orange Jam in nature, quality andsubstance. Learned Counsel for the appellant, however, stressed thatthe jam put into the market was not in a breach of Section 4 (1) of theFood and Drugs Act. On the evidence led for the prosecution theGovernment Analyst stated that there was only 8‘01% of orange and34% of Ash pumpkin. The entire fruit content was separated from the
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RAJARATNAM, J.—Thaathalceer v. Jay as tic era
rest of the jam which contained sugar, glucose and water. Ona consideration of the Analyst’s evidence it would have been impossiblefor any Court to arrive at a finding that the article sold to the purchaserwas, in nature, substance or quality—orange jam. I am unable to agreewith the appellant’s Counsel that the particular bottle was orange jamput into the market and it was not in breach of Section 4(1) of the Foodand Drugs Act. Learned Counsel for the appellant vigorously arguedthat the liquid was analysed and a good part of it might have beenorange juice. It is difficult for me to hold that the jam in which thesolid contents had only 8% orange and 34% Ash pumpkins was in nature,substance and quality orange jam on the speculation that the waterfound therein could be orange juice I On the second point, however,it is undisputed that the accused would not have and could not haveknown what the exact composition was in the bottle of jam, being onlya salesman in a shop far from the factory and all the circumstancesprove that the accused believed it was orange jam that was sold andit necessitated the microscopic examination by the Analyst to realisethat his belief was mistaken. It has been held by a Divisional Benchin Perera v. Munaiceera1 56 N. L. R. p. 433 that a defence under Section72 of the Penal Code is available in statutory offences also. I am of theview that guilty knowledge or intention is essential to prove the offencein question. No doubt the defence was not specifically taken at thetrial and such a defence must be proved in law by a preponderance ofprobability by the accused. But where the circumstances in theprosecution case itself by more than a balance of probability provethat the salesman could not have had the guilty knowledge or intentionto commit fhis offence, he cannot be found guilty of the offence. Itis not completely without significance that in the whole proceedingsin Court the manufacturer’s name was not revealed. No doubt all theState’s horses and all the State’s men have concentrated on bringingan innocent salesman to book in this caso but I cannot resist makingthe comment that it might have been more in the interest of the publicif the attention of the authorities held been paid for what it was worthto those responsible for this little false legend on the bottle thatwas Bold.
I set aside the conviction and acquit the accused.
Appeal allowed.
1 {1955) 68 V. L. R. 633.