WEERASEKERE, Appellant, and SUBRAMANIAM, Respondent

142-NLR-NLR-V-44-WEERASEKERE-Appellant-and-SUBRAMANIAM-Respondent.pdf


WIJEYEWARDENE J.—Weerasekere and Subramaniam.545
1943Present: Wijeyewardene J.WEERASEKERE, Appellant, and SUBRAMANIAM, Respondent.541—M. C. Matale, 771.
Control of Prices—Control of Sulphapyridine tablets—Sale of single tabletsand not a bottle—Control of Prices Ordinance, No. 39 of 1939, s. 3.
Where the accused was charged with the sale of 8 Sulphapyridinetablets at 50 cents a tablet, a price in excess of the maximum price,in breach of an order made under section 3 of the Control of PricesOrdinance,—
Held, that the accused had not offended against the provisions of theorder as the article controlled was a bottle of tablets and not singletablets.
field, further, that the obligation to issue a receipt arose only inrespect of a controlled article.
Section 340 (2) of the Criminal Procedure Code is applicable only tocases in which a party has no right of appeal except bn a point of law.Solicitor-General v. Perera (17 N.L.R. 413) followed.
PPEAL from a conviction by the Magistrate of Matale.
S. Nadesan, for petitioner.
E. H. T. Gunasekera, C.C.; for the Attorney-General.
Cur. adv. vult.
October 8, 1943. Wijeyewardene J.—
The accused was charged on two counts'
that, in breach of the order made under section 3 of the Control of
Prices Ordinance, No. 39 of 1939, and published in GazetteNo. 9,103 of March 26, 1943, he sold .8 Sulphapyridine tablets(M & B 693) each of .5 gramme in weight at 50 cents a tablet,a price in excess of the maximum price which was 21 cents pertablet.
that he failed to give a receipt to the purchaser as required by the
Order (clause vi.) published in Gazette No. 9,096 of March12, 1943.
The prosecution led evidence to show that one Weerakkody asked forand purchased eight tablets from the accused and that the accusedcharged Weerakkody fifty.cents for each tablet and did not give him areceipt. The Magistrate convicted the accused on that evidence andfined him Rs. 300 on the first count and Rs. 50 on the second count.The accused has appealed against the conviction.
I see no reason for interfering with the Magistrate’s findings ori thefacts. The appellant’s Counsel argued that even on the facts as acceptedby the Magistrate, the conviction was bad in law. He submitted that the
546
WIJEYEWARDENE J.—Weerasekere and Sv.brama.niam.
Order in Gazette No. 9,103 controlled the price of a bottle of 25 tablets andnot the price of single tablets and that, therefore, in selling eight loosetablets as ordered by the purchaser the accused was not dealing in anarticle where maximum price had been fixed by the Order. The CrownCounsel contended on the other hand that the controlled article was atablet and that the Order stated the price of a bottle of 25 tabletsmerely for the purpose of assisting a person to ascertain the price of anynumber of tablets. For a proper appreciation of the argument it ishelpful to examine in some detail some of the provisions of the Control ofPrices Ordinance, No. 39 of 1939, and the two Orders mentioned in thecharge.
Section 3 of the Control of Prices Ordinance empowered the Controllerto make an order (a) fixing the maximum price of an article and' (b)prescribing the quantity and quality of the article to be sold. It was byvirtue of the power vested in him by this Ordinance and certain DefenceRegulations that the Controller made the two Orders.
The Order in Gazette No. 9,096 referred to in the second count contains,inter alia, the following clauses : —
Clause (ii.) “ The prices specified in column 2 of the schedule (shall)be the maximum price above which drugs of the description mentionedin the corresponding entries in column 1 of the schedule shall not besold ”.
Clause (vii.) “ Every person who sells any drugs of the descriptionmentioned in column 1 of the schedule shall give the purchaser of thatdrug a receipt in which there shall be set out—
the date of sale,
the description of .the drugs sold,
the quantity of drugs sold, and
the price paid ”.
The schedule mentioned in the Order refers to about 50 kinds of drugsand reads—(
Column 1.Column 2.
Description.. Maximum Price.
Rs. c.
Quinine Hydroehlor 2 grain tablets per bottle of 25Quinine Hydroehlor 2 grain tablets per bottle of 100
1 15
3 75
Sulphapyridine Tablets 0 •5grm (M & B 693)per bottle of 25Sulphapyridine Tablets 0 5 grm (M & B 693) per bottle of 100
4 015 0
If this Order fixed the maximum price of one Sulphapyridine tablet,as argued by Crown Counsel, is the price so fixed l/25th of Rs. 4 or
WIJEYEWARDENE J.—Weerasekere and Subramaniam.
547
l/100th of Rs. 15 ? Could a purchaser ask to be supplied with 4 bottlesof 25 Sulphapyridine tablets for Rs. 15 which is the price fixed for 100tablets ? These are some of the problems that have to be faced if thatOrder is considered as fixing the price of each tablet. Again, whatshould be the receipt given to a purchaser of 2 bottles of 100 tablets each ?If the controlled article is a tablet, it would be quite in order if theparticulars required to be given by clause (vii.) under the heads (b), (c),and (d) were stated as follows in the receipt: —
Description of the Drug sold : Sulphapyridine Tablet 0.5 grm
(M & B 693).
Quantity of drugs sold : 200 tablets.
Price paid : Rs. 32.
This would enable the druggist to sell 2 bottles of 100 each for Rs. 32though according to the schedule he should have sold them for Rs. 30only. The same questions would arise under this Order with regard toQuinine Hydrochlor 2 grain tablets.
The Order in Gazette No. 9,103 revoked the maximum prices of some13 drugs including Sulphapyridine tablets and gave a new scheduleof prices. It also provided that clauses (iii.) to (vii.) of the old Ordershould be considered as a part of the new Order. The schedule to theOrder in Gazette No. 9,103, so far as it is relevant, reads—
Column I.Column 2.
Maximum
Description.Price.
Rs. c.
Sulphapyridine tablets 0.5 grm. (M & B 693) per bottleof 255 75
As this schedule does not make any reference to bottles of 100Sulphapyridine tablets, the difficulties that arise under the previousOrder would not appear to arise under this Order if only the case ofSulphapyridine tablets is considered. But when the Order is consideredwith respect to Quinine Hydrochlor tablets the same difficulties haveto be faced under this Order as under the old Order if the article controlledis regarded as a single Quinine Hydrochlor tablet. If, therefore, these diffi-culties compel one to regard the new schedule also as controlling the pricesof a bottle of 25 Quinine Hydrochlor tablets and a bottle of 100 QuinineHydrochlor tablets and not of single tablets, it is not possible to say that inthe case of Sulphapyridine tablets the article controlled is a single tabletand not a bottle of 25 tablets.
Moreover the Order read with, the schedule shows that the articlewhose price is controlled is the article described in Column 1 of theschedule and that Column 1 does not claim to give anything more thanthe description of the article. The words “ Sulphapyridine Tablets 0.5grm (M & B 693) per bottle of 25 ” are used to describe the article whoseprice is controlled and the words “ bottle of 25 ” are a part of that
548WIJEYEWARDENE J.—Weerasekere and Subramaniam.
description and are not intended merely to afford a basis for the calculationof the price of a single tablet. The position is made clearer by a study ofsome other Orders made under the Control of Prices Ordinance. Forinstance, the Order published in Gazette No. 9,061 of January 4, 1943,fixed “ the price specified in Column 2 of the Schedule hereto to be themaximum retail price per pound above which coconut poonac of thedescription and grade mentioned in Column 1 of the Schedule shall not besold ” and the Schedule reads—
Column 1.Column 2.
Maximum
Description and Grade.Retail Price.
Per Pound.
Rs. c.
Coconut Mill Poonac■..05
Here clearly the article controlled is coconut mill poonac and not a poundof coconut mill poonac and it should not be sold by retail at more thanfive cents per pound.,
Then there is another Order published in Gazette No. 9,103 of March 26,1942, fixing the price in Column 3 of the Schedule to that Order as themaximum retail price per pound above which dried chillies should not besold. The schedule does not contain a column giving a description ofthe controlled chillies, as obviously the Order controls the price of alldried chillies ; but even then care "has been taken to provide by clause3 (g) of the Order that the maximum retail price for any quantity of driedchillies less than one pound “ shall be reckoned from the price per pound ”,thus making it clear that ,the Order controlled the price of any quantityof chillies.
For the reasons given above I conclude that the article controlled bythe Order referred to in the first count is a bottle of 25 Sulphapyridine
-tablets and not single tablets. I hold therefore that the accused cannot
be convicted on the first count. As the obligation to issue a receiptarises under the Order in Gazette No. 8,096 only in respect of a controlledarticle, the conviction on the second count too cannot be sustained. .
I permitted Counsel to argue this point of law, though it was not raisedin the petition of appeal, as this argument dealt merely with the construc-
tion of the Orders. Moreover, I think that section 340 (2) of the CriminalProcedure Code is applicable only to cases in which a party has no rightof appeal except on a point of law (vide The Solicitor-General v.Perera )
I allow the appeal and acquit the accused.
* 17 N. L. R. 413.
Set. aside.