113-NLR-NLR-V-47-WICKREMESINGHE-Appellant-and-PEIRIS-Respondent.pdf
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DE SILVA J.—Kathirgamar v. Iyer.
1946Present: Howard C.J.
WICKREMESENGHE, Appellant, and PEIRIS, Respondent.1,448—M. C. Kandy, 6,627.
Mens rea—Employer's criminal liability for employee's offence—Purchase ofpoison by pharmacist—Liability for abetment of sale of poison—Poisons,Opium and Dangerous Drugs Ordinance {Cap. 172), s. 17a. (1) and (2)The mere fact that a person is the Managing Director of a firm doesnot involve him in any general criminal liability for what is done byother members of the firm.
HOWARD C. J.—Wiekremesinghe v. Peirxs.
327
A pharmacist cannot be convicted, nnder section 17a (1) of the Poisons,Opium and Dangerous Drugs Ordinance, of aiding and abetting theselling of poison without the authority of a prescription given by amedical practitioner if there is no proof that he knew that the personfrom whom he bought the poison was not a wholesale druggist.
^ PPRAT, against a conviction from the Magistrate’s Court, Kandy.
H. V. Perera, K.C. (with him H. W■ Jayewardene), for the accused,appellant.
T. K. Curtis, C.C., for the Attorney-General.
June 21, 1946. Howard C.J.—
In this case the appellant was charged, firstly, that he, being theManaging Director of the Premier Pharmacy, Kandy, aided and abettedthe selling by Messrs. D’Cruz and Co., of Bayards Broadway, Colombo, of3,000 sulphapyridine M & B 693 Tablets for Rs. 975, aprice in excess of themaximum controlled price in contravention of an Order made by theDeputy Controller of Prices (Miscellaneous Articles), published in Govern-ment Gazette No. 9,181 of October 15, 1943, and, secondly, that at thesame time and place he aided and abetted Messrs. D’Cruz and Co. tosell to him 3,000 sulphapyridine M & B 693 tablets for Rs. 975, he beinga person without the authority of a prescription given by a medicalpractitioner in breach of section 17a (1) of the Poisons, Opium andDangerous Drugs Ordinance I have come to the conclusion that fora variety of reasons the conviction of the appellant on these two chargescannot be supported.
It was proved in evidence that the appellant was the Managing Directorof the Premier Pharmacy, Kandy, at the time when this order wasgiven. It was also proved that the Premier Pharmacy did in factpurchase from Messrs. D’Cruz & Co. 3,000 M. & B tablets at a price inexcess of the maximum controlled price. It was not, however, provedthat the appellant actually gave this order for these 3,000 M. & B tablets.It was, however, proved that subsequently he gave an order to Messrs.D’Cruz & Co. for 2,000 tablets. It was also proved that he had protestedagainst the action of the authorities in connection with the sale of drugs.That, in my opinion, however, does not prove that he gave this particularorder for 3,000 tablets. It may possibly have been some other employeeof the firm who gave the order. The mere fact that he was the ManagingDirector of the Premier Pharmacy at the time didnot entitle theMagistrateto infer that he gave this particular order. Nor does the fact that he wasthe Managing Director involve him in any general criminal liability forwhat was done by other members of the firm. So for the same reasonsthe prosecution must fail on the second charge.
There are also other reasons why the prosecution cannot succeed.The appellant was charged with aiding and abetting an unlawful act,that is to say, the selling by Messrs. D’Cruz and Co. of 3,000 M & B tablets.
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HOWARD C.J.— Wiokremesinghe v. Peiria.
Now, section. 100 ot the Penal Code defines what abetment is accordingto our law. This section reads :—
“ A person abets the doing of a thing who—
Firstly.—Instigates any person to do that thing ; orSecondly.—Engages in any conspiracy for the doing of that thing ;or
Thirdly.—Intentionally adds, by any act or illegal omission, thedoing of that thing.”
Now, with regard to the first part of this section, viz^, that the appellantinstigated Messrs. D’Cruz &• Co. to commit this illegal act, the order ofthe Pharmacy for these drugs has hot been produced in evidence. There-fore, there is no evidence to suggest that the appellant has instigatedMessrs. D’Cruz and Co. to sell these 3,000 M & B tablets. The secondpart of the definition reads—“ Engages in any conspiracy for the doing ofthat thing ” Well, there is no evidence that the appellant engagedin any conspiracy with Messrs. D’Cruz & Co. to commit this offence.The third part of the definition reads—“ Intentionally aids, by any actor illegal omission, the doing of that thing ”. Explanation 3 illustrateswhat is meant by the third part of the definition. The explanation isworded as follows:—“ Whoever, either prior to or at the time of thecommission of an act, does anything in order to facilitate the commissionof that act, and thereby facilitates the commission thereof, is said toaid the doing of that act ”. The unlawful act was completed when the3,000 tablets were sent to the Premier Pharmacy, and therefore whateverthe appellant had done was not done prior to or at the time of thecommission of the act. Therefore, he cannot be found guilty under thethird part of the definition. The charge of aiding and abetting in thefirst charge cannot be sustained.
With regard to the second charge, the appellant is charged with aidingand abetting the selling of these drugs without the authority of a pre-scription given by a medical practitioner in breach of section 17a (1) of thePoisons, Opium and Dangerous Drugs Ordinance. Now, this sectionprovides first of all in sub-section l that no person shall sell any poisonexcept on or in accordance with a prescription given by a medicalpractitioner. On the other hand, sub-section 2 provides for the sale ofpoisons to a pharmacist by a wholesale druggist in the ordinary course ofwholesale dealing. There is no evidence to prove that the appellantknew that Messrs. D’Cruz were not wholesale druggists doing the businessof wholesale dealing. It would appear that Messrs. D’Cruz & Co. hadno licence from the Municipality and therefore were not wholesaledruggists. There was no proof that the appellant was aware of thatfact. The element of mens rea was therefore absent. For that reasonthe appellant cannot be convicted under charge 2.
For these reasons the appeal is allowed and the conviction set aside.
Appeal allowed.