008-NLR-NLR-V-72-T.-SIVASUPRAMANIAM-Appellant-and-C.-P.-DABARE-Instructor-of-Food-and-Drugs-.pdf
Sivasupramaniarn v. babari
22
1969Present: de Krelser, J.
T.SIVASUPRAMANIAM, Appellant, ami C. P. DABARE(Inspector of Food and Drugs), Respondent
S. C. 96GJ6S—M. M. C. Maligahmda, 30094
Food and Drugs Act (Cap. 216)—Section 4—Sale of food not oj the nature, substanceor quality demanded—Quantum oj evidence.
A soilor doos not contravono tho provisions r»f section -1 (1) of tho Food andDrugs Act if tho purchaser lias notice at the timo of sale that tho article sold tohim is not- of tho nature, substance and quality of tho article which ho demands.1 (1054) 56 N. L. R. 243 at p. 244.
DE KRETSER, J.—Sivasupratnaniam v. Dabare
23
.^^.PPEAL from a judgment of the Municipal Magistrate’s Court,Maligakanda.
K.C. Kamalanalhan, for the accused-appellant.
J.W. Subasiughe, for the complainant-respondent.
Cur. adv. vult.
March 5, 1969. db Kretser, J.—
In this case the Municipal Magistrate (Mr. Walgampaya) convicted theaccused of selling—according to his judgment—“ Butter which Avas notof the quality of Butter demanded by the customer to the customer’sprejudice in breach of section I (1) and (2) of the Food and Drugs Act(Cap. 216 L. E. C.) ”. He fined him Rs. 75. The accused hasappealed.
The charge as it Avas first framed on 14.6.67 Avas that he sold "
to the prejudice of the purchaser an article of food to Avit, Butter AvhichAvas not of the nature of the article to Avit Butter demanded by the
purchaser” This Avas amended on 21.2.68 and then read "An
article of food to wit ‘AUora Pure Creamery Buttrin ’ Avhich Avas not of thenature of the article of food to Avit Butter demanded by the purchaser. . ”.
It Avill be obser-ed that this amended charge does not set out that itAA'as as Butter that “ Allora Pure Creamery Buttrin ” was sold to thecustomer. It AA'as on this A-cry point that there AA'as a clash of evidenceat the trial, for Avhile it is common ground that Dabare did go to thisshop and ask for a half pound of Butter and that accused sold to himhalf a pound of “ Allora Pure Creamery Buttrin ” there is dispute as toAvhat happened betAveen these tAA'o incidents. It is accused’s version thathe happened to sell the Buttrin in the folloAving circumstances :—
“ On this day I sold ‘ Allora Buttrin ’ to the prosecution Avitness
Dabare. He came to the shop and spoke to me. He came and asked
me for Butter. I did not have Butter in my shop at the time.
Q.So what-did you tell him ?
I told him there avrs no Butter.
Q.Thereafter Avhat happened ?
Then he looked in the refrigerator.
Q.What AA as in the refrigerator ?
There Avas Allora Buttrin in it.
Q.After that what did the Inspector do ?
A. He asked me for Allora Buttrin and I then gave him a packetof Allora Buttrin.
The-Inspector under XXII denies that he Avas told when he asked forButter that no Butter AA'as available and claims “I was given thissubstance as Butter”. The Magistrate says of this evidence of the
2-4DJD KRETSER, J,—Sivasupramaniani t Dabare
accused “ That evidence is clearly unacceptable and I reject it.” It isunfortunate that tho Magistrate has apparently lost sight that the mattermight not be as clear to others, and that tho giving of reasons for afinding is for the purpose of assistance to a Court that has to review hisorder. Apart from this there is no analysis of the evidence, and noconsideration of the case from the aspect as to whether there wasprejudice caused to the purchaser by this sale. Examining the evidencoon tho basis of probability I am by no means satisfied that the versiongiven by the accused is not the correct one.
In the instant case tho Inspector in consequence of knowledge receivedfrom other cases, hearsay and complaints was aware that “ AlloraButtrin ” was not Butter so that when he bought it—quite irrespectiveof what accused sold it as—he was aware it was not Butter. But thetest is whether tho sale would have been to the prejudice of a purchaserwho did not have that special knowledge, and with that end in view toconsider what the position of an ordinary person purchasing would be.The long line of cases to be found in the commentary oil this section ofthe Food and Drugs Act by Bell establishes that a purchaser cannot beprejudiced when lie has notice at the time of sale that the article sold isnot of the nature, substance and quality of the article lie demands.
That notice can be had from information given by the seller, by thenature of the article itself, or b3r what passed at the time of purchase. Inthis instance the package had clearly marked on the label that anypurchaser had necessarily to see that " Allora is better than Butter forvim, vigour and vitality ”, and also gave the information that it wasmanufactured from Pure Cow Cream, emulsified gingelly and coconutcream.
In regard to this label tho Inspector was asked :
Q.So does it not make quito clear that this substance is certainlynot Butter ?
A. Yes. It also claims to be better than Butter.
In my view any ordinary purchaser would know that it could not beButter if it was set out as being “ Better than Butter I do not think .that there is any ordinary person who docs not know that gingeLly oiland emulsified coconut arc not components of Butter. It appears to metherefore that the nature of the article was sufficiently brought to thenotice of tho purchaser and if he thereafter chose to buy it he cannotclaim to havo been prejudiced. Tho conviction and sentence arc setaside and the appeal is allowed.
Appeal allowed.