Wekunagoda v. De Alwis.
1946Present: Dias 3.
WEKUNAGODA, Appellant, and DE AX.VV1S, Respondent.960—M. C., Galle, 648.
Food Control—Regulation 11 (6 ) in Part III of the Food Control Regulations—•
Meaning of “ forthwith
By regulation 11 (6) in Part 111 of the Food Control Regulations“ Every authorised, distributor, wholesale dealer or importer shallkeep such books or registers and make such entries therein as the FoodController may require, and shall forthwith produce such books or regis-ters for inspection on demand made by the Food Controller or by anyperson authorised by him for the purpose.”
Held, that the word “ forthwith ” in the Regulation means “in areasonable time What is “ reasonable ” must depend on thecircumstances of each case. The word “ reasonable ” is- to be inter-preted, not as meaning reasonable from the point of view of its effect uponthe person to whom or in relation to whom the act is done, but reason -able from the point of view of the person who is called upon to do i-t.
’ (1X14) 174 English Reports 052.
DIAS .T.—Wekunagoda v. de Aluris.
^ PPRAT. against a conviction from the Magistrate’s Court, Galle.
N. E. Weeraeooria, K.C. (with him H. Wanigatunga and B. O. S.David) for the accused, appellant.
A. C. M. Ameer, <7.(7., for the complainant, respondent.
Cur. adv. vuU.
October 25, 1946. Dias J.—
There is no dispute on the facts of this case. The only question iswhether the facts prove the offence charged.
Regulation 11 (6) in Part HI. of the Food Control Regulationsprovides:—
“ Every authorised distributor, wholesale dealer or importer shallkeep such books or registers and make such entries therein as theFood Controller may require, and shall forthwith produce such booksor registers for inspection on demand made by the Food Controller orby any person authorised by him for the purpose.”
Five accused were charged with committing a breach of this rule which ispunishable under section 6 of the Food Control Ordinance (Cap. 132).The second to the fifth accused have been acquitted. The first accusedwas convicted and fined a sum of Rs. 100. He appeals against thatconviction and sentence.
What happened was this. On Saturday, February 9, 1946, PriceControl Inspector Weerakoon armed with the letter P 5 signed by theAssistant Government Agent, Galle, who is also the Deputy FoodController, went to the wholesale establishment of Messrs. Wekunagoda& Co. of which the appellant is the manager, and asked that the “ FlourRegister ” should be handed to him for removal for inspection. Thiswas at noon. The inspector was told that as the first accused wasabsent at the time, the request could not be complied with until hereturned. The first accused returned at about 1 p.m. which would beabout the time the shop would cease work for the day. After the letterP 5 had been explained to him, the first accused pointed out that this wasa Saturday and that the time was 1 p.m. and that great inconveniencewould be caused if the register was removed, particularly as the “ FlourReturn ” had to be made on the Monday without which the firm couldnot obtain its supply of flour.
It was pointed out that on Monday morning the register would in thenormal course be sent to the Kachcheri when the inspector could obtainit from the Kachcheri. It was also pointed out that a temporary registercould not be kept as that would only show the flour issue from 1 P.M.onwards, whereas the return would have to show a full account of allthe flour issued.
DXA.S J.—• Wakuuagoda v. de Alioia.
Without conceding the reasonableness of this request, or initiallingthe register so that it could not be tampered with between Saturdayand Monday, or without asking for a copy or inspecting the register atonce, the inspector obtained the statement P 6 from the first accusedand reported the matter to the authorities, who instituted thisprosecution.
It was argued that Regulation 11 (6) only authorised the inspectionof registers in the shop or place of business and that it was illegal todemand its removal from the shop. This contention has been rightlydropped.
The Regulation requires that the distributor, dealer or importershould “ forthwith ” produce the register for inspection. In the circum-stances of this case, can it be said that the first accused failed “ forthwith ”to produce the register t
This word has been interpreted in a series of eases. In Soysa v. Anglo-Ceylon <k General Estates Co.,' it was construed to mean not “ withina period reasonable in the circumstances ”, but “ without any delaythat can possibly be avoided ”. In Fernando v. Nikvlan Appu 2, on theother hand, it was held to mean “in a reasonable time ”. What is“ reasonable ” must depend on the circumstances of each case. The word“ reasonable ” is to be interpreted, not as meaning reasonable from thepoint of view of its effect upon the person to whom or in relation to whomthe act is done, but reasonable from the point of view of the personwho is called upon to do it. The person who is to do the act must do itas soon as he reasonably can. When the act is one which in its naturecan be done without any delay at all, and there are no special circum-stances occasioning delay, the act must be done at once. In such acase, all that it is necessary to inquire is whether the act was done withoutany delay that could possibly be avoided.
In Gunasehera v. Arsecularalne 3 a search warrant directed the officer towhom it was directed to enter “ forthwith ” and searoh a certain house.The search, however, was not carried out until nearly a month later.Ennis J., said ‘ Then again Soysa v. Anglo-Ceylon & General Estates Co.was cited to show that the word “ forthwith ” should be construed asmeaning “ without any delay that can possibly be avoided ” and it wasurged that in this case there was a delay which could not be said
to be unavoidableI have considered this question closely
and I have come to the conclusion that the warrant was still valid andthat the Magistrate by specifying the time within which the warrantshould be returned, had considered what the warrant meant in directingan act to be carried out forthwith.” In de Silva v. Seenathumma4 inconstruing the word “forthwith ” in section 756-of the Civil ProcedureCode which requires that an appellant shall “ forthwith ” give notice tothe respondent, it was held that the notice of security must be tendered orfiled on the day on which the petition of appeal is received by the Court,and the case of Fernando v. Nikvlan Appu (supra) was cited with approval.
(1916) 19 N. L. It. 374.(1920) 22 N. I,. R. 1.
(1924) 26 N. L. R. atp. 68.
(1940) 41 N. L. R. 241 (Five Judges).
CANEKERATNE J.—Dhanapala v. D. R. O., Vavu:,iya.
I am of opinion that the word “forthwith” as used in Regulation11 (6) is used in the sense in which it was interpreted to mean in Fernandov. Nikvlan Appu (supra), that is to say, when the act is one which canbe done without any delay at all, and there are no special circumstancesoccasioning delay, documents, must be made available for inspectionat once. This is a question of fact. As I have said before, there is nodispute on the facts which show that there were circumstances whichoccasioned delay. The accused therefore performed the act as soon ashe reasonably could be expected to comply with the order. Thereforethe provisions of Regulation 11 (6) have been complied with.
I therefore quash the conviction and acquit the accused.
WEKUNAGODA , Appellant, and DE ALWIS, Respondent