WUE YEWARDENE J.—Wanigasekere v. Mustapha.
1938Present: Wijeyewardene J.
WANIGASEKERE v. MUSTAPHA.
215—P. C. Kurunegala, 56,144.
Milk—Adulterated milk kept on premises—Proof of exposure for sale—Essential,for prosecution—Small Towns Sanitary Ordinance, No. 18 of 1892,s. 9e (2).
Where the accused was charged with exposing for sale or keeping onthe premises of bis tea boutique adulterated milk in breach of a by-lawframed under section 9e (2) of the Small Towns Sanitary Ordinance,'which was as follows: —
“No adulterated milk should be sold or offered or exposed for sale-orkept on the premises of any eating-house or tea or coffee boutique.For the purposes of this rule adulterated milk shall mean milk to whichwater or any other foreign liquid or substance has been added forthe purpose of augmenting its quantity or enhancing*its apparent-quality ”,
Held, that the prosecution was bound to- prove that the adulteratedmilk was kept on the premises for purposes of sale.
Wijeyratne v. Abdulla (31 N. L. R. 310) referred to.
PPEAL against an acquittal with the sanction of the Attorney-GeneraL
C. W. VanGeyzel, for complainant, appellant.Cyril E. S. Perera, for accused, respondent.
November 3, 1938. Wijeyewardene J.—
Cur. adv. vult.
This appeal is preferred with the sanction of the Attorney-Generalagainst an order of acquittal. The charge against the accused was that“he did expose for sale or keep on the premises of his tea boutiqueadulterated milk in breach of chapter iv, section D (9)…. of the
WIJEYEWARDENE J.—Wanigasekere v. Mustapha.
by-laws framed …. under section 9e (2) and 5a of OrdinanceNo. 18 of 1892 and published in Government Gazette No. 7,142 of November19, 1920, as amended by deletion No. V 119/31, published in GovernmentGazette No. 7,851 of April 30, 1931 ”.
The by-law as published in the Government Gazette No. 7,142 reads : —
“No adulterated milk should be sold or offered or exposed for saleor kept on the premises of any eating-house or tea or coffee boutique.
“ For the purposes of this rule adulterated milk shall mean milk towhich water or any other foreign liquid or substance has been addedfor the purpose of augmenting its quantity or enhancing its apparentquality and not for the purpose of preparing tea or coffee or any otherbeverage for the immediate consumption of customers ”.
The amendment appearing in the Government Gazette No. 7,851 deletesthe following words at the end of the by-law-: —
“ and not for the purpose of preparing tea or coffee or any otherbeverage for the immediate consumption of customers ”.
On a survey of the evidence led by the prosecution and the defence theMagistrate has held the following facts to be proved —About 8 bottlesof unboiled milk were found by the complainant in a pot kept on a tablein accused’s tea boutique along with other articles exposed for sale. Theaccused had bought the milk from a milk vendor. The milk contained60 per cent, of water. It was used by the accused in the preparation oftea or coffee for customers and was never sold as plain milk.
The Magistrate held that the accused had not committed a breach ofthe by-law referred to in the charge and acquitted the accused.
The Counsel for the complainant-appellant contends that the accusedshould have been convicted in view of the finding by the Magistrate—
that water had been added to the milk, and
that such milk to which water had been added was kept on the
premises of the accused’s tea boutique.
It is desirable that I should examine an earlier , decision of this Courtbefore I consider this argument. In Wijeratne v. Abdulla1 Lyall-Grant J.construed the by-law in question as published in the Gazette No. 7,142before it was amended. In that case the prosecution proved that fourbottles of milk to which water had been added were found in the accused’stea boulique. The defence called no evidence and the Magistrate con-victed the accused. On an appeal by the accused the learned CrownCounsel appearing for the Attorney-General sought to support theconviction on the ground that when the prosecution proved that waterhad been added to the milk, the Court was justified in presuming undersection 114 of the Evidence Ordinance that such addition had been madefor the purpose of augmentation and the burden was shifted to theaccused to prove that the addition was made for the purpose of preparinga beverage for the consumption of customers. In support of thatargument reference was made to section 105 of the Evidence Ordinance
1 (1929) 31 N. L. R. 310.
WUEYEWARDENE J.—Wanigasekere v. Mustapha,
which provides that “ when a person is accused of any offence, the burdenof proving the existence of circumstances bringing the case within . .
any special exception or proviso contained inany law defining the offence is upon him and the Court shall presumethe absence of such circumstances In rejecting this argumentLyall-Grant J. stated :— ..
“ The by-law forbids the sale of adulterated milk and the second partof the by-law consists of a definition of adulterated milk when (interalia). water has been added to it for a certain purpose and not foranother purpose. This is not a case of a general rule and an exception,but is a case of two alternatives, and the prosecution must prove .thatthe water was added for the purpose of augmenting the quantity ofmilk”
The amendment of the by-law appearing in the Gazette No. 7,851 wasapparently intended to meet the difficult situation created by this decision.The amendment enables a complainant to prove merely that water hasbeen added to the milk and establish by means of presumptions permissibleunder section 114 of the Evidence Ordinance that the water was addedfor the purpose of augmenting the quantity of milk. It is no longernecessary for a complainant to prove by direct evidence that the accusedadded water for such a purpose. The amendment does not however takeaway from the accused the right to negative such a presumption byleading evidence to show that the purpose of adding water was not theaugmentation of a quantity of milk but the preparation of a beveragefor his customers. If the Legislature intended to take away such adefence I have no doubt the draftsman would have enlarged the ambit -of his amendmeht by deleting also the words “ for the purpose of aug-menting its quantity or enhancing its apparent quality I think the.only effect of the amendment is to shift the burden Qf proof from thecomplainant to the accused with regard to the purpose for which wateror any other liquid or substance is added to the milk and thus to givelegislative sanction to the argument put forward unsuccessfully on behalfof-the Crown in Wijeratne v. Abdulla (supra).
Another point that has to be considered in testing the soundness of theargument of the learned Counsel for the complainant-appellant is whetherthe by-law makes the mere keeping of adulterated milk an offence orwhether it requires that the adulterated milk should have been kept forpurposes of sale. The passage that has to be construed reads:—“No,adulterated milk shall be sold or offered or exposed for sale or kept on thepremises It will be noted that the words “ for sale ” do not follow theword “kept ” and it is on this fact that the learned Counsel bases hisargument that the by-law penalizes the mere keeping of adulterated milk.
I am unable to accept this argument. If the Legislature intended to.penalize a man for keeping on his premises milk to which water is addedeven though such milk was not kept for sale as milk, I cannot understandwhy the Legislature should have inserted in the by-law the words “ exposedfor sale ”. The words “ no adulterated milk shall be sold or offered orkept on the premises” wouid have been quite sufficient to penalize allthe acts which according to the learned Counsel are now’ made offences40/13
Gunatileke v. Lipton, Limited.
by the by-law. I think the word “ kept ” in the by-law should be readas “ kept for sale!’. The by-law in question is a penal enactment andwhere there is a doubt as to its meaning, the meaning beneficial to theaccused should be favoured.
In view of the Magistrate’s finding on the facts I hold that the accusedwas entitled to an acquittal and dismiss the appeal.
WANIGASEKERE v. MUSTAPHA