142-NLR-NLR-V-45-WAIDYARATNE-Appellant-and-AMBALAVANAR-Respondent.pdf
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Waidyaratne and Ambalavanar.
1954Present: SoeFtsz J.WAIDYARATNE, Appellant, and AMBALAYANAE, Respondent.665——M. C., Colombo, 40,082.
Control of Prices Ordinance—Ordinance No. 39 of 1939—Regulations 2 and 3—Disclosureof stocks—Failureto specifythe place—Order offorfeiture
without notice to show cause.
Where aperson is convictedofa breachof regulations 2 and3 of the
Control of Prices (Supplementary Provisions) Regulations notin respect
of a failure on his part to disclose the stocks of the relevant articles in his-possession or control but in respect of his failure to specify in his returnthat he kept part of his stock in a certain place.
Held, that the articles were not liable to forfeiture.
An order of forfeiture should not be made without giving the personaffected by the order an opportunity of showing cause against it.
A PPEAD from a conviction by the Magistrate of Colombo.
H. V. Perera, K.C. (with him J. E. M. Obeyesekere and D. W. Femando)rfor accused, appellant and petitioner.
W. Jayawardene, C.C., for the Attorney-General.
Cur. adv. vult.(Z930) 31 C. L. J. 975.
(1923) 25 O. L. J. 650.
SOEKTSZ J.—Waidyaratne and Ambalavanar.
519
August 22, 1944. Soertsz J.—
The first matter for consideration is the appeal from the order ofconfiscation of articles to the value of Rs. 18,000 made by the Magistrate,apparently in the exercise of the power conferred upon him by regulationV of the Control of Prices (Supplementary Provisions) Regulations. Thatregulation is in these terms : —
“ The Court which eonvicts any person of an offence under this
Ordinance (i.e., Control of Pirces Ordinance, No. 39 of 1939) may
order the forfeiture of any article in respect of which the offence was
comnutted.
In * this case the eonvietion in consequence of which the orderof confiscation was made was a conviction entered 'against the appellanton his tendering a plea of guilty to charges framed against him asfollows : —
You are hereby charged that you did … at 71, Rosmead
Place, being a person who desired to keep a stock of pricecontrolled articles to wit: -—drugs described in attached list Awhich are controlled by the Controller of Prices (Misc. Articles)[published in Government Gazette No. 9,141 of June 25, 1943,failed to furnish to the Controller of Prices a return specifying-such stock in breaeh of regulation 6 of the schedule ….and thereby committed an offence punishable under section 5of the Control of Priees Ordinance, No. 89 of 1939, as amendedby the Defence (Controller of Prices) (Supplementary Provisions)Regulation 2 (2)….
■(2) As above in xespeet of similar articles described in attached list B.
As above in respeet of similar articles described in attached list C.
On the faets of this case it is obvious that the charges as framed aremisconceived in that the allegation is that they are in breach of regulation'6. That regulation as the use of the words “ every person who desiresshow is merely concerned to inform persons who desire in the future(i.e., after October 9, 1942) to keep a stock of price controlled articlesthat in order to put their desire lawfully into effect they must obtainregistration of themselves and of the places in which they desire to keeptheir stocks by furnishing to the Controller a return specifying all the storesand other places in which they desire to keep their stocks and regulation 4renders them liable in default.
The relevant regulations for the purpose of the charges made againstthe appellant who had been in business before October 9, 1942, areregulations 2 and 3.
This point was not, however, taken either in the Court below or in.appeal and it seems clear that the appellant was well aware of what theactual charges against him were although the wrong regulation wasreferred to in the charges framed. I am therefore dealing with the caseon the footing that the convictions entered against the appellant wereentered as in breach of the proper regulations. Even so it is obviousthat the confiscation of the goods in the list D cannot be supported at all
520
SOERTSZ J.—-Waidyaratne and Ambalavanar.
for the reason that there was not even a charge in regard to those goodsand an order of confiscation may only he made in respect of articles inrespect of which there, has been a conviction.
But in my opinion the order forfeiting the articles in the fists A, B and Creferred to in the charges is also bad. First of all the forfeiture wasordered ag a matter of inevitable course without the appellant beinggiven an opportunity to show cause against it. Such a proceeding is inviolation of the fundamental rule that no order shall be made affectinga person without his being heard. The Magistrate appears to have-wrongly interpreted regulation 7 as if the word “ may " meant “ shalland on that interpretation to have assumed again wrongly that thepetitioner was not entitled to be heard whereas even if the regdlationhad said that “ the court which convicts …. shall order theforfeiture of any articles in respect of which the offence was committedthe appellant was surely entitled to be heard at least on the questionwhether these were such articles; secondly by no legitimate stretch ofinterpretation can it be said that these articles were liable to forfeiture.The convictions entered against the appellant were in respect of his failureto specify in his return that he kept part of his stock at No. 71, EosmeadPlace, and not in respect of failure on his part to disclose the stocks of therelevant articles in his possession or under his control. He had it is-conceded made a full disclosure in that respect. It cannot be said there-fore, that on the charges as framed against him he had committed offencesin respect of the articles enumerated in fists A, B and C. The order of’forfeiture was therefore ultra vires. I ought to say that Crown Counselquite properly did not seriously seek to support that order. I set it aside.
The next matter that arises for consideration arises on the applicationfor revision of the sentence passed on the petitioner for his failure to-specify No. 71, Eosmead Place, as a place in which he kept part of hisstocks. The sentence passed was a fine of Rs. 4,000 the maximum fineprovided being that is to say in the case of a first offender Rs. 7,500.It was contended for the petitioner that his offence was a technical oneinasmuch as he had not only declared his stocks correctly but bad also-supplied in the course of another case the information which led to thediscovery of the fact that he was using 71, Rosmead Place, as anotherplace for keeping a part of his stock. Although I feel disposed to take-those facts into account in mitigation of his offence to some extent,I cannot but take adequate notice of the fact that the petitioner who has-been carrying on business for a long time on a large scale had not on his-own showing taken the trouble which every businessman ought to takein this time of emergency to acquaint himself with the relevant DefenceRules and Regulations. I do not agree that a nominal fine will suffice.It mast- be a fairly substantial fine. I would therefore direct that thepetitioner shall pay a fine of Rs.1,000 in default one month’s
rigorous imprisonment. I hardly think that this ’s a case for awarding,a part of the fine to the Police Reward Fund.
Forfeiture set aside..