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Present: Lyall Grant J.
WIJEYBATNE v. ABDULLA.686—P. C. Kandy, 29,375.
Milk—Possession o] adulterated milk—Owner of tea kiosk—Burdenof proof—Small Towns . Sanitary Ordinance, No. 18 of 1892,Chapter 4, by-law 9.
Where milk was found mixed with water in .the possession of tlieowner of a tea kiosk who was charged with a breach of by-law9 of Chapter 4 of the by-laws framed under the Small TownsSanitary Ordinance,— .
Held, that there must be affirmative proof that the milkwas adulterated for the purpose of augmenting its quantity withinthe meaning of the by-law.
PPEAL from a conviction by the Police Magistrate of Kandy.
H. T. Chinasekere, for appellant.llangakoon, C.C., for the Attorney-General.
December 13, 1929. Lyall Grant J.—
This is an appeal against the conviction of the keeper of a teaidosk and eating-house for keeping adulterated milk on the premisesof his tea kiosk and eating-house. The evidence against the accusedwas that of a Sub-Inspector and a police officer who made a raidon some tea boutiques’one morning.
The Sub-Inspector said that about 7 a.m. when passing theboutique of the accused lie saw a bottle of milk on the counter.This was before any licensed vendor had brought milk to the town.He went into the boutique and examined the bottle of milk and hesaw another tin containing about four bottles of milk on the counter.He asked the accused where he got the milk from and the accusedrefused to give him the name of his vendor. The Sub-Inspector thentook a sample and handed a sample to the accused. He sent thesample to the Government Analyst, whose report he produces, and hecharges the accused with keeping adulterated milk in the boutique.
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This evidence was corroborated by the police officer. No-evidence was called for the defence. The Analysts report showedthat* the milk was grossly adulterated and contained about 50 per■ce-ut. of water.
The argument urged iu appeal against the conviction was that-no breach of by-law 9 of Chapter 4 of the by-laws made under thei^mall Towns Sanitary Ordinance,. No. 18 of 1892, as amended byOrdinance No. 30 of 1923,* published in the Government Gazette-of July 22, 1921, had been proved. In other words, that therewas no evdience that the milk was adulterated milk in the sense ofthat by-law. Beference was made to a judgment of mine in the•case of Wijeraime v. Mamoo.1 In that case .there was an appearancefor the accused-appellant only, whose argument I accepted. The•argument was based on the terms of the proviso in by-law 9,which reads as follows: —
“ No adulterated milk shall be sold or offered or exposed forsale or kept on the premises of any eating house or teaor coffee boutique. For the purpose of this rule adulter-ated milk shall mean milk to which water or any otherliquid or substance has been added for the purpose ofaugmenting its quantity or enhancing its apparent qualityand not for the purpose of preparing tea or coffee of anyother beverage for the immediate . consumption ofcustomers/*
The argument was that as the Sanitary Inspector admittedthat tea was sold in the boutique to customers there was a reasonablepresumption that a small quantity of milk arriving in the morningwas intended for the preparation of tea or coffee, and that if thiswere the case, then the. terms of the proviso make it clear that thismilk was not adulterated milk within the meaning of by-law 9.
I then said that I thought this argument was reasonable andthat the proviso did not, as it might have done, create any presump- *tion that watered milk found hi a tea or coffee boutique is wateredfor the purpose of augmenting its quantity, that two alternativepurposes or intents were mentioned and only if th£ first of thesewere present would the milk be adulterated milk, that it wasimpossible on the evidence to say with which of these purposes orintents the milk was watered, and that in these circumstances the.prosecution had failed to prove beyond a reasonable doubt thatthe milk was adulterated milk within the meaning-of by-law 9.
As the question has come up again and seems to be one of someImportance I have notified the Attorney-General and CrownCounsel has appeared in support of the present conviction. Heargued first that the view of the by-law taken in the previouscase did not give sufficient weight to the words “ for the immediate1 S. C. 539 of 1929. P. *C. Kandy, 29,314.
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consumption of customers.” Secondly, that the second alternativein the proviso was one the burden of proving which lay upon theaccused, and he referred to sections 105 and 106 of the EvidenceOrdinance. Thirdly, that the facts in this case were different fromthose of the former case inasmuch as here a much larger quantityof milk had been found, viz., about five bottles.
It seems to me that the. words used in the by-law are notsufficiently definite to compel the meaning, that the addition ofwater to the milk must take, place immediately before consumption.The words can quite- reasonably be read as meaning milk to whichwater has been added at any time for the purpose, of preparingtea or coffee, the tea or coffee to be for the immediate consumptionof customers; that is to say, the word ‘‘ immediate ” refers to theconsumption of the tea or coffee after the milk has been added to it.
I have given this by-law a great deal of attention and I am boundto say tha-t I have considerable difficulty in understanding exactlywhat it means. It might, I think, be read as covering milk whichwas watered at any time, so long as that milk was intended for thepurpose of preparing tea or coffee for the consumption of customerson the premises.
As regards the second argument, section 105 of the EvidenceOrdinance provides that when % person is accused of any offencethe burden of proving the existence of circumstances bringing theaccused within …. any special exception or provisocontained in …. any law defining the offence is uponhim and the Court shall presume the absence of any such circum-stances, and section 106 provides that when any fact is especiallywithin the knowledge of any person the burden of proving that,fact is upon him. I am doubtful whether section 105 can applyto the present case.
The by-law forbids the sale of adulterated milk, and the secondpart of the by-law consists of a definition of adulterated milk nsbeing milk when (inter alia) water has been added to it for a certainpurpose and not for another purpose.
This is not a case of a general rule and an exception, but is acase of two alternatives, and the prosecution must prove that thewater was added for the purpose of augmenting the quantity ofthe milk.
It may be argued that where water is added to milk, it must havethe effect of augmenting its quantity and that consequently it isfor the accused to show that this augmentation was for the purposeof preparing tea or coffee, that is to say, that the burden of proofis necessarily upon the accused. There seems to be considerableforce in this argument, but it is subject to the presumption createdby section 114, to which I shall presently refer.
( sis jI do not think section 106 is applicable to the. facts of this case.The effect of the evidence is that the milk was adulterated beforeit came to the boutique and it- was seized shortly afterwards.There is no proof that the fact of the adulteration was speciallywithin the knowledge of the accused.
On behalf of the accused, reference was made to the presumptioncreated by section 114 of the Evidence Ordinance, which providesthat the Court may presume the existence of any facts which itthinks likely to have happened, regard being had to the commoncourse of natural events, human conduct, and public and privatebusiness in their relation to the facts of the particular case. It wasargued that in all probability the presence of milk in a tea boutiquewas for the purpose of preparing tea, and that therefore the pre-sumption arises that this milk was intended for that purpose.In this argument too there seems to be considerable force, moreespecially as there is no evidence that milk is separately consumednr sold in the boutique.
I do not think that this is a case in which one can give abenevolent or extended interpretation to the by-law. It is a penaland restrictive enactment, and according to the ordinary rules ofconstruction it must receive a restrictive interpretation, that . isto say, where there is a doubt as to its meaning, the accused musthave that doubt resolved in his favour. The meaning of theby-law, as I have already said, is by no means clear, and it is opento the authorities, if the intention is to throw the onus of proofon the defence that any milk .containing water found in a teaor coffee boutique is there for any other purpose than that ofpreparing tea or coffee, to say so in clear language.
I have not been convinced that the conclusion I came to in theprevious case was wrong.
It was further argued for the Crown that the facts in this casewere different from those of the former case inasmuch as a muchlarger quantity of milk was found in the boutique, in this caseabout five bottles.
We are, however, not told how much trade was usually donein the boutique during the day, and in the absence of evidenceon the subject, I am not prepared to hod that five bottles ofmilk were more than would be required during the day for the'preparation of tea.
The appeal is allowed and the conviction quashed.