109-NLR-NLR-V-69-S.-MALLAWAARACHCHI-Appallant-and-L.-C.-WEWALA-S.-I.-Police-Respondent.pdf
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ALICES, J.—Mullawaarachchi v. Wewala
1966
Present: Alles, J.
S.MALLAWAARACHCHI, Appellant and L. C. WEWALA (S. I. Police),
Respondent
S. G. 112811966— M. C. Gampaha, 4951/A
Charge of contravening a Price Control Order—Alleged offence committed on the date ofpublication of the Order—Burden of proof—Control of Prices Act, se. 4, 8 (2).
When on offence is alleged to have been committed in contravention of aPrice Control Order on the very day whon the Order was published, it isincumbent on the prosecution to establish that tho Order was in operationbefore the detection of the offence.
.A.PPEAL from a judgment of the Magistrate's Court, Gampaha.A. Mahendrarwjah, for the Accused-Appellant.
IP. K. Premamtne. Crown Counsel, for the Attorney-General.
Cvr. adv. vvlt.
November 12, 1966. AhLES, J.—
The short point raised in this appeal is whether the law under whichthe accused-appellant was convicted was in operation at the time he isalleged to have committed the offence. The accused was charged withhaving refused to sell a Berec dry cell battery to one Fernando on 27thNovember, 1965 in contravention of Price Order No. 1 of 1965 made by thoController of Prices under section 4 of the Control of Prices Act andpublished in Government Gazette No. 14,571 of 27th November, 1965 andthereby committed an offence punishable under section 8 (2) of the saidAct. Neither Fernando nor the prosecuting officer nor the accused wasaware of the existence of Price Order No. 1 of 1965 at the time of thealleged offence, which according to the evidence occurred at about 10.45a.m. on the 27th November at the Gampaha Bazaar. The GovernmentGazette containing the relevant Order has been produced and marked P3and Counsel for the appellant draws attention to the fact that unlikecertain other Price Orders (vide Price Order published in GovernmentGazette No. 14,558 of the 13th November, 1965 and Price Order published
ALLES, J.—MaUawaarachchi v. Wewala
503
in Government Gazette No. 14,653 of the 17th November, 1965) the timeat which the Controller made and signed the Order has not been mentioned.In the absence of the time in the present Order, Counsel submits that hisclient is entitled to an acquittal because it was incumbent on the prose-cution to establish by other evidence that the Price Order in question wasin existence before the detection of the offence. This same point wasraised at the trial but the learned Magistrate, not being impressed byCounsel’s submissions, convicted the accused and confiscated the unsoldbatteries.
Our Interpretation Act defines – written law ’ to mean and include • allOrdinances and Acts of Parliament and all orders, proclamations, letterspatent, rules, by-laws, regulations, warrants and process of every kindmade or issued by any body or person having authority under anystatutory or other enactment to make or issue the same ….’
‘ Written law ’ falls broadly into three different categories :
(а)Ordinances and Acts of Parliament (Enactments)
(б)Rules, regulations or by-laws made under Ordinances for general
or special purposes
Proclamations, orders or notifications made under any enactments.
‘ Commencement ’ with reference to an enactment means the day on whichthe enactment comes into force. Therefore at whatever time an enact-ment receives the assent of the Governor-General, after having passedthrough both Houses of Parliament, the enactment would come into forceafter midnight of the previous day. The reason for this is obvious. AnAct of Parliament receives considerable publicity during its passage inParliament and the Governor-General’s assent is only the formal approvalnecessary to bring the law into operation. A Price Control Order wouldfall into the third category of ‘ written law ’ and the time at which suchan order comes into operation would have to be established by evidenceand one form in which this could be done is by the production of therelevant Gazette containing the Price Order. No difficulty arises in a casewhere the offence is alleged to have been committed on a day subsequentto the day when the Order is published, but a difficulty does arise when theoffence is alleged to have been committed on the same day that the PriceOrder is published in the Gazette. In such a case the prosecution mustestablish by satisfactory evidence that the Order was in operation at thetime of the alleged offence. Presumably that is the reason why some PriceControl Orders state the time at which the Order was made and signed.In England the position is somewhat different . Under Section 36 (2) ofthe Interpretation Act of 1889—
“ Where an Act passed after the commencement of the Act or anyorder in council, order, warrant, scheme, letters patent, rules, regu-lations or by-laws, made, granted, or issued, under a power conferredby any such Act is expressed to come into operation on a particularday, the same shall be construed as coming into operation immediatelyon the expiration of the previous day. ”
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504ALLES, J.—Mullauaarachchi v. Wewulu
Under section 4 (4) of the Control of Prices Act every Price Control Ordershall come into operation when such Order is made and signed by theController and under sub-section 4 of the same section after the Order issigned public notice thereof shall forthwith be given in the manner laiddown in either (a), (6) or (c) of the sub-section : (6) refers to the publicationin the Gazette. Therefore the publication in the Gazette is only one methodby which the public are notified of the existence of a Price Control Orderwhich has already the sanction of law when the Controller made andsigned the Order under section 4 (3) of the Act. One can understand thenecessity for not publicising a proposed promulgation of a Price ControlOrder before publication because if these Orders are to be effective at all,it is essential that they should not be known before they are published.Nevertheless, when an offence is alleged to have been committed incontravention of a Price Control Order on the very day when theOrder is published, it must surely be established that the Order was inoperation at the time of the alleged offence. In this case, it has not beenestablished in evidence that Price Control Order No. 1 of 1965 was inoperation at about 10.45 a.m. on 27th November, 1965. In the absence ofsuch evidence it is open to the accused to plead that he lias not.contravened the provisions of the Price Control Order and his appeal istherefore entitled to succeed. The appeal is allowed and the convictionquashed. The confiscated batteries should be returned to the accused.
Appeal allowed.