021-NLR-NLR-V-19-SANGARALINGAM-v.-MOHAMMED-ALLY.pdf
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1915.
Present : Wood Benton C.J.
SANGARALINGAM v. MOfiAMMED ALW.
1,782—P. C. Matale, 4,708.
Purchase of cacao by unlicensed persons—Attempt to purchase—When is
purchase complete?—Cacao Thefts Prevention Ordinance, 1904, s. 4.
The accused (a boutique keeper), who had no -licence to deal incacao,calledintohisverandah N, who hadbrought with him a
quantity ofcacaofromhisvillage, and, aftersomehaggling, fixed
the price at 31 cents per pound. The accused began to weigh thecacaoso asto ascertain itstotal quantity, andhadactually weighed
the greater portion of it when his operations were interrupted bythe appearance of a police' constable, who charged accused undersection 4 of the Cacao Thefts Prevention Ordinance, 1904.
The Police Magistrate held the sale was not complete, and acquitted theaccused.
Held, that there was a purchase of cacao by the accused.
TheLegislaturehasnotpenalized any attemptto commit the
offence under section 4 of the Cacao Thefts Prevention Ordinance.
rp HJ2 .facts are set out in the judgment.
Garvin, S.-O., for the Crown, appellant.
tVadmoorth, for the respondent.
December 21, 1915. Wood Renton C.J.—
This is an appeal by the Solicitor-General against the acquittalof the respondent, on what purported to be a charge under section4 of the Cacao Thefts Prevention Ordinance, 1904.1 That sectionprohibits in effect the “ purchase ” of cacao by unlicensed persons.The respondent was charged with an attempt to commit the offencewhich it created. It is clear that the Legislature has not, either-inthe Ordinance of 1904 or elsewhere, penalized any attempt of thischaracter, and the accused would be entitled to be acquitted on thecharge in the record as it stands. The case involves, however,a point of law of great public interest and importance, which wasargued and decided by the Police Magistrate at the trial, andcounsel for the appellant and the respondent alike agree that – Ishould amend the charge into one of a purchase prohibited by thesection, and not merely an attempt to make such a purchase, inorder to give a ruling on the main issue. When the appeal was firstargued before me, I thought-it desirable to send the case back so
i No. 8 of 1904.
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fes to enable the prosecution, and, if needbe, the defence,to put all1915.
the available evidence before the Court.The record hasnow beenwood
returned, and the evidence must be regarded as complete. The Bknton Cjr,accused is a boutique keeper. He has no licence to deal in cacao. Sangara-On the day of the alleged commission of the offence he called into lingam v.his verandah a man, Naida, who had brought with him a certain Mof^^ned..quantity of cacao from his village, andasked the pricefor which
' Naida was prepared to sell it. Aftersome hagglingthe price
was fixed at 31 cents per pound. The accused began to weigh—the cacao so as to ascertain its total quantity, and had actuallyweighed the greater portion of it, when his operations were inter-rupted by the appearance of a police constable, who promptly. charged him with an offence under the Ordinance of 1904. The•Learned Police Magistrate held that the action of the police constable:had been premature, inasmuch as the sale was not complete, andhe forthwith acquitted the accused. Against that acquittal -the^Solicitor-General, as I have already mentioned, appeals. I havevno doubt but that there was in the present case a " purchase ’’ ofcacao by the accused in the ordinary sense of the term. The partieswere agreed as to the subject-matter, namely,'the whole of the cacaowhich Naida had with him for sale, and as to the price. The onlypoint that remained undetermined was to ascertain by measurementof how many pounds the purchase was to consist. The contentionhowever, of counsel for the accused is that the term " purchasein section 4 of the Ordinance of 1904 must be determined withreference to the provisions of the Sale of Goods Ordinance, 1896,1that there was here merely an agreement to sell, and that thetransaction would become a sale and a purchase only when therewas a transfer of the property within the meaning of the rulesembodied in section 18 of the latter Ordinance. It is obvious thatif section 4 of the Ordinance of 1904 is to be construed in this senseit will practically become a dead letter. It would be all but^impossible for any officer of police to ascertain, in the case of‘.transactions-of this kind, the intention of the parties as to the pointof time at which the actual property was to be transferred. He.would always be liable to be met. with the objection that he had
intervened at too eai*ly a stage in the negotiations, and it wouldbe difficult, if not impracticable, to rebut this defence. In thesecircumstances, I am glad to be able to come to the conclusion thatthe provisions of section 4 of the Cacao Thefts Prevention Ordinance,
are to be construed without reference to the technical rulesprescribed by the Sale of Goods Ordinance, 1896,1 for the purposeof determining the rights of parties in civil cases. The object of
the former Ordinance was to provide a summary and effective
for an offence which is equally common and mischievous.
.The term " purchase " in that section is, in my opinion, satisfiedi No. 11 of 1896.s No. 8 of 1904.
1915.
Wop©Renton C.J
Sangara-Ungam v.MohammedAlly
where the ordinary elements of the contract of sale are present,that is to say,, where the parties are at one as to the subject-matterand the price. I am confirmed in this view of the law by theinterpretation placed by the King's Bench Division on an enactment'of a similar character, section 13 of the Markets and Fairs GlausesAct, 1847,1 in the case of Lambert v. Powe.2 I set aside the acquittalof the accused, and convict him under the amended charge, andsend the case back to the Police Court in order that the learned:Police Magistrate may impose the penalty for which, in his opinion,the circumstances call.
Set aside.