017-NLR-NLR-V-70-THE-ATTORNEY-GENERAL-Appellant-and-T.-G.-GUNAWARDENE-Respondent.pdf
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ALLES, J.—Attorney-General v. Gunawardene
1967Present :Alles, J.
THE ATTORNEY-GENERAL, Appellant, and T. G. GUNAWARDENE
Respondent
S. C. 44J1967—M. C. Moneragala, 5468
Offence of selling an article in excess of controlled price—Sentence of imprisonmentobligatory—Control of Prices Act {Cap. 173), as amended by Act No. 44 of 1957and Act No. 16 of 1966, s. 8 (6)—Criminal Procedure Code, s. 15B.
Where a person contravenes any provision of the Control of Prices Act,section 8 (6) of that Act, as amended by Act No. 16 of 1966, makes the impositionof a term of imprisonment obligatory even in the case of a first offender. Anorder of detention till rising of Court, under section 15b of the CriminalProcedure Code, cannot be substituted in place of a sentence of imprisonment.
-A. P P E A L from an order of the Magistrate’s Court, Moneragala.
B. T. Premaratne, Senior Crown Counsel, for the Attorney-General..
Nihal Jayawickrema, for the accused-respondent.
Cur. adv. vutt:
May 21, 1967. Alles, J.—
The Attorney-General appeals from the sentence imposed on theaccused-respondent who was convicted on his own plea with having solda pound of onions in excess of the controlled price in contravention ofSection 8 (1) of the Control of Prices Act (Chapter 173). The penalprovision is contained in Section 8 (6) of the aforesaid Act as amendedby Section 6 (3) of the Control of Prices (Amendment) Act No. 44 of 1957'and as further amended by Section 2 (1) of the Control of Prices (Amend-ment) Act No. 16 of 1966.
When the accused pleaded guilty to the charge the Magistrate made-the following observations :—
“The accused owns a small boutique with a stock-in-hand of lessthan Rs. 400. I convict the accused and fine him Rs. 100. He is alsodetained till rising of Court.”
It is the contention of the Attorney-General i^iat the learned Magistratehas misdirected himself in law in not imposing a sentence of imprisonmenton the accused-respondent.
ALLES, J.—Attorney-General v. Qttnawardene
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The Control of Prices Act which was enacted in 1950, in Section 8 (6)declared that every person who contravenes any provision of the Actshall on conviction for the first offence be liable to a fine not exceedingRs. 7,500 or imprisonment, for a term not exceeding 6 months or to bothsuch fine and imprisonment. In 1957, the penal provisions were amendedand it became obligatory to sentence an offender to a term of imprisonmentnot exceeding 6 months and also to the imposition of a fine. In 1966, thelaw was further amended requiring an offender to be punished with aterm of imprisonment of not less than 4 weeks and not exceeding 6 months.
The various amendments to the penal provisions of the Act from 1950to 1966 indicate that the legislature took a serious view of the contraven-tion of the provisions of the Act and thought it necessary that deterrentpunishment amounting to the imposition of a term of imprisonmentwas obligatory even in the case of a first offender.
It would appear from the learned Magistrate’s order that he has failed toconsider the amendments to the law. In detaining the accused-respondentuntil the rising of the Court he seems to have acted under Section15b of the Criminal Procedure Code which section empowers a Magistrateto detain an offender in Court in lieu of a term of imprisonment. CrownCounsel submits that Section 15b has no application to the instant casesince under the amended Act of 1966 the Court is not “ empowered ”to act under its provisions in view of the imperative provisions of theamending Act. There is no conflict between Section 15b of the CriminalProcedure Code and Section 8 (6) of the Control of Prices Act as amendedby the Act of 1966. The particular intention expressed in the amendingAct would be in the nature of an exception to the general intentionexpressed in Section 15b of the Criminal Procedure Code (vide Maxweon Interpretation of Statutes (11th Edition) pages 164—165). Craies onlyStatute Law (6th Edition) pages 373-374 expresses the same view underthe heading “ Curtailment without Repeal ” when the author says that“ if a subsequent Statute merely creates an exemption or exception fromits operation by the inclusion of a condition, the previous Statute is notnecessarily repealed and prior enactments may be rendered inoperativewithout being actually repealed. … In other words, a generalenactment is pro tanto avoided by an express enactment entirelyinconsistent with it.” In this case the general intention expressed inSection 15b of the Criminal Procedure Code is pro tanto avoided by theexpress enactment of Section 2 (1) of the amending Act of 1966.
Learned counsel for the accused-respondent submitted that thiswas a case in which the appropriate order that should be made is oneunder Section 325 of the Criminal Procedure Code and cited in supportthe order of my brother Manicavasagar, J. in S. C. 58/6?—M. C. Colombo
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ALLES, J.—Attorney-General v. Qunawardene •
36484/A (Supreme Court Minutes of 20.3.67) where in similar circum-stances the accused was dealt with under Section 325 of the CriminalProcedure Code. It does not appear that my brother Manieavasagar, J.had the advantage of a full argument on the question of law that wasraised in the case — the amending Act of 1966 was not brought to hisnotice when the matter was first argued before him and he appears tohave been convinced on the facts of the case that it wras eminently acase in w7hich the accused should be dealt under Section 325 of theCriminal Procedure Code regardless of the imperative provisions of theamending Act. With all respect to my brother Manieavasagar, J.,I regret I am unable to say that the order made by him in the casebefore him w'as legally correct.
Counsel for the respondent also submitted that the amending Actof 1966 wras ultra vires because it purported to interfere with the exerciseof judicial power and cited in support the judgment of the Privy Councilin Queen v. Liyanage 1. In Liyanage's case the Privy Council had occasionto consider the validity of two particular pieces of legislation — TheCriminal Law (Special Provisions) Acts of 1962 which, according toLord Pearce w7as “ a legislative plan ex post facto to secure the convictionand enhance the punishment of particular individuals ”. The Acts, hesaid, “ constituted a grave and deliberate incursion into the judicialsphere”, but Lord Pearce did not state that this precluded the legislaturefrom legislating on any matter that was necessary for the good govern-ment of the country. At page 283 he said :“It goes without saying
that the legislature may legislate, for the generality of its subjects, bythe creation of crimes and penalties or by enact mg rules relating toevidence ”.
The amendments to the Control of Prices Act effected in 1957 and 1966wrere considered necessary by the State to halt the growing prevalenceof a type of offence wdiich undermined the social structure of the countryand seriously affected its subjects and wrhich the State considered shouldbe suppressed by the imposition of a deterrent punishment. Such anattitude on the part of the legislature in no way affects the exercise ofjudicial power.
therefore, allow7 the appeal of the Attorney-General and impose onthe accused-respondent a sentence of 4 wreeks rigorous imprisonment inaddition to the fine of Rs. 100 already imposed on him.
Appeal allowed.
1 (1965) N. L. R. 265 at 285.