WIJETBWAEDENE J.—Thampillai and Motor a Police.
1944Present: Wijeyewardene J.
THAMPILLAI et al., Appellant, and MATARA POLICE, Respondent.
623-625—M. C. Matara, 51,777.
<Control of Prices Ordinance, No. 39 of 1939, s. 5(8)—Employee convicted of
offence—Liability of employer.
A charge cannot be framed against an employer under section 5 (8) ofthe Control of Prices Ordinance in respect of anything done by anemployee in contravention of the provisions of the Ordinance until theemployee has been convicted of the offence. Xt would then be opento the employer to plead by way of defence that the offence was com-mitted without his knowledge and that he exercised all due diligence toprevent the commission of the offence.
A PPEAL against a conviction by the Magistrate of Matara.
H. V. Perera, K.G. (with him H. W. Thambiah), for the accused,
H. W. R. Weerasooriya, O.C., for the complainant, respondent.
Cur. adv. vult.
October 3, 1944. Wijeyewardene J.—
The charge against the three accused was that they—
“ did on or about the 4th day of November, 1943, at Kotuwegodain breach of the Orders made under section 3 of the Controlof Prices Ordinance, No. 39 of 1939, and published in the GovernmentGazette …. sell to one A. G. Wilson ….96J pounds
of Red Onions for Rs. 41.75, a price in excess of the maximum wholesale
1 14 N. L. R. 417.
WIJEXEWAKDEJ'TE J.—Thampillai and Matara Police.
price which was Rs. 13.99 and thereby committed an offence punishableunder Regulation 2 (2)(6)(A) of the Defence (Control of Prices)
(Supplementary Provisions) Regulations.”
It would have been more correct to refer to the penal provision assection 5 (6) (a) of the Control of Prices Ordinance, No. 39 of 1939, asamended by the Defence (Control of Prices) (Supplementary Provisions)Regulations.
The Magistrate convicted the accused and sentenced each of themto pay a fine of Rs. 750.‘
The prosecution called three witnesses Wilson, Police ConstableSamarawickrema and Inspector Badurdeen. Wilson stated ttat hecomplained to the Inspector that the first accused refused to sell himred onions at the control price and the Inspector thereupon gave himRs. 45 in five 5-rupee and two 10-rupee currency notes after noting downtheir numbers and asked him to purchase a bag of onions. The Inspectorsent Samarawickrema in plain clothes to watch the transaction and givep. signal to him when the transaction was complete. Wilson went to theboutique as arranged and found the first and second accused and someothers. Wilson bought a bag of onions from the first accused forRs. 41.75 and tendered to him the seven, currency notes given by theInspector and received from the first accused the balance Rs. 3.25.The first accused placed three of the 5-rupee notes in a drawer andhanded the remaining four notes to the second accused who then left theboutique. Samarawickrema who witnessed the transaction from theroad corroborated Wilson. The Inspector came to the boutique onreceiving the signal and found the three 5-rupee notes in the drawer.He searched Wilson and did not find the remaining notes on him..Shortly afterwards the second accused returned to the boutique andthe Inspector searched him in, view of the information given to him byWilson and Samarawickrema but found none of the missing notes onhim. The first and second accused gave evidence. The first accusedstated that he sold the bag for Rs. 11.75 and Wilson gave him three5-rupee notes and received from him the balance Rs. 3.25. The secondaccused denied having received Rs. 30 from the first accused onthat day.
The provision which makes it an offence to sell an article above thecontrolled price is section 5 (1) of the Control of Prices Ordinance, No. 39of 1939, as amended by the Defence Regulations. It reads—
‘ ‘ Any person who acts in contravention of any Order made underthis Ordinance, or of any regulation made or deemed to have beenmade thereunder, shall be guilty of an offence under this Ordinance.”The Magistrate has accepted the evidence of Wilson with regard to thesale and I see no reason to interfere with the conviction of the first accused.I dismiss his appeal.
So far as the second accused is concerned the evidence of Wilson andSamarawickrema shows only that the second accused was present in theboutique at the time of the transaction and that he received Rs. 30
WIJEYEWARDENE J.—Thampillai and Matara Police.
out of the purchase price from the first accused. This does not provethat the second accused had anything to do with the sale. I allow hisappeal and acquit him.
The evidence of the Inspector who was the last witness called for theprosecution shows that the third accused was charged merely becausehe happened to be the proprietor of the boutique. He did not take anypart in the sale of the onions and he was not even present at the time ofthe transaction. If section 5 (1) stood by itself the prosecution mighthc^ve justified the joint trial of the accused and the conviction of thethird accused on the ground that the Legislature has created in thatsection ah exception to the general principle of Criminal Law that a manis not criminally liable for an offence committed by his servants -withouthis knowledge, and that therefore the third accused could be chargedtogether with the other accused for a sale above the controlled price.But that section has to be read in the light of section 5 (8) of theOrdinance as amended by the Defence Regulations. The section reads: —
“ Where any person, who is employed by any other person, (herein-after referred to as “ the employer ”) to sell articles in the course of anybusiness carried on by the employer at any premises, is, by reason ofanything done or omitted to be done at those premises, convicted of theoffence of contravening any provision of any Order, then the employeror where the employer is out of the Island, the person for the time beingacting a® manager or having control of the business, shall also be guiltyof that offence unless he proves to the satisfaction of the Court that theoffence was committed without his knowledge and that he exercisedall due diligence to prevent the commission of the offence.
Now that section shows clearly that where an employer is chargedas such it should be proved that the employee was convicted of " theoffence of contravening any provision of any Order ” and -.that it is thenopen to the employer to plead by way of defence “ that the offence wascommitted without his knowledge and that he exercised all due diligenceto prevent the commission of the offence.”
A charge could not have been framed, therefore, against the thirdaccused until the conviction of the first accused. In this case all theaccused were charged together and the Magistrate called upon all theaccused including the third accused for their defence, at the close of thecase for the prosecution. In other words the third accused was asked toplead his defence before the first accused was convicted and at that stagethere could not have been any valid charge against the third accused.JFor this reason it is not possible to sustain the conviction of the thirdaccused. I quash his conviction and leave it open to the prosecution toinstitute fresh proceedings against him if it is thought desirable to do so.
Conviction of 1st accused affirmed.
Conviction of 2nd accused set aside.
Conviction of 3rd accused quashed.
THAMPILLAI et al., Appellant, and MATARA POLICE, Respondent