034-NLR-NLR-V-44-UMMAR-Appellant-and-RAMBUKWELLA-Respondent.pdf
Urn-mar and Rambukwella.
161
1943
Present: Moseley A.C.Ji
UMMAR, Appellant, and RAMBUKWELLA, Respondent.
956—M. C. Colombo, 1,601.
Control of Prices—Sale of mutton with suet—Control of Prices Ordinance,No. 39 of 1939.
A trader was charged with selling one and a half pounds ■ of mutton,including £ lb. of offal, (.viz., suet). The maximum price .fixed for muttonwithout bones was 75 cents per pound and the price charged by thetrader for the quantity sold, was Re. 1.13.*
Held, that the accused had not offended against the Ordinance.
Suet is either mutton or offal. If it be mutton no offence has been'committed. If it be offal, the price of offal has not been controlled.
• 41 N. L. R. 423.
162•- MOSELEY A.C.J.—Vmmar and Rambukwella.
^^PPEAL from a conviction by the Magistrate of Colombo.
S. Saravanamuttu (with him A. Seyed Ahamed), for the accused,appellant.
A. C. Alles, C.C., for the complainant, respondent.January 28, 1943. Moseley A.C.J.—
Cur. adv. vult.
The appellant was charged (1) with selling “ one and a half pounds ofmutton including i pound of offal (to wit, suet) ” in contravention of anorder dated September 26, 1942, made under the Control of PricesOrdinance (No. 39 of 1939), and (2) with failing to give a receipt incontravention of the said Order. He was convicted on each chargebut appeals against the conviction and sentence on the first charge only.
In order to understand the charge, which appears to have been framedwith very little thought, it is necessary to state shortly the facts. Thecustomer sent his driver to.the appellant’s stall to purchase one and a halfpounds of mutton,' the maximum/ price of which, without bones, is fixedby the Order in question at 75 cents per pound. According to the driverappellant served him with a piece of meat, which is admittedly muttonand subsequently was found to weigh about one and quarter pounds,to which appellant added another .piece which is admittedly suet andweighed quarter pound. For this the purchaser paid Rs. 1.13, whichsum is in accordance with the order, assuming the whole to be mutton.The purchaser objected, but the appellant appears to have stood hisground and, moreover, refused to give a receipt. It appears to havebeen contended on behalf of the accused before the learned Magistrate,as indeed it was before me, that suet is not offal and that it was a partof the meat. This point does not seem to have been directly decidedby the Magistrate beyond his bare observation that “ suet can only beused for frying. It cannot be eaten. ” I am not aware upon whatevidence that conclusion was reached nor do I think that the matter isreally relevant. The Order which forms the basis for this prosecutionfixes the price of mutton, without bones, at 75 cents per pound. Muttonis defined in the Order as meaning the flesh of a sheep or goat and excludesall forms of offal and imported meat. I suppose it cannot be doubtedbut that the exclusion of “imported meat” from the definition of muttonis for the reason that imported meat is more expensive than local meat.In the same way, although there is no evidence on the point, I take itone may use one’s common knowledge that some forms of offal, e.g.,kidneys, are more expensive than their equivalent weight in mutton.It seems to me, therefore, that the mention of “offal” in the definitionof mutton is made not with the intention of excluding offal from themeaning of mutton but with the intention of eliminating from the offalof the sheep or goat the restriction on price which is placed upon otherportions of the carcase. I cannot find that any restriction has elsewherebeen placed'upon the price of such offal.
In order that this prosecution should succeed it would be necessaryto prove that the price of the particular form of offal sold (if indeed suet
Public Service Mutual Provident Association and Abram.
163
may properly be termed offal) was controlled and that the controlledprice was lower than the controlled price of mutton. In that case itwould be clear that a price greater than the controlled price had been,charged for the one and quarter pound of mutton supplied. There wasbrought to my notice the judgment of de Kretser J. in S. C. No. 835/M. C.Colombo No. 451 (S.C. Minutes of Dec. 16.1942) which seems at first glanceto be on all fours with the present case. In that case, however, the“make-weight” which was thrown in was not only not desired by thecustomer but was not fit for human consumption. It can, therefore, be saidto have had no value at all. Suet, on the other hand, if again one may useone’s common knowledge, has a value which as far as this case is concernedhas not been ascertained. The two cases are, therefore, in my view clearlydistinguishable.
The case may be shortly put thus :—-Suet is either mutton or offal.If it be mutton, clearly no offence has been committed. If it be offal,the price of offal is not controlled. Again, therefore, no offence hasbeen committed. In the present case it is true that the customer gotsomething which he did not desire and had not asked for. It was in hispower to have returned the suet to the vendor and demanded a returnof the cash paid for it. If the vendor had declined to comply with thatdemand this prosecution might have succeeded. In any case thecustomer would have had his civil remedy.
I cannot find that the appellant has committed any offence of whichhe might be convicted upon the charge as framed or even if it wereamended to meet the circumstances of the case. I have come to thisconclusion regretfully as I think there is no doubt that the appellant’sintention was to evade the spirit of the law. An Order no doubt couldbe,framed so as to counter such evasive tactics, but in a case of this kindwhere the guilty person merits heavy punishment it is not only desirablebut necessary that the Legislature should make clear its intention.
I allow the appeal and set aside the conviction and sentence;
Set aside.