Syed Agil Barakbah J (delivering oral judgment):

This is an appeal against the decision of the learned President of the Sessions Court who convicted the appellant for "failing to affix labels or tags indicating the grades and prices to the following articles offered for sale", to wit, textiles under s. 22(1) of the Price Control Ordinance, No. 26 of 1946. The appellant was sentenced to a fine of $2,000 in default six months' imprisonment and the textiles were ordered to be forfeited.

Mr. Karpal Singh for the appellant submitted a preliminary issue on the point of law pertaining to the charge with a view to asking this Court to exercise its powers of revision under s. 325(i) of the Criminal Procedure Code on the ground that the charge as it stands is defective.

Section 13(1) of the Price Control Ordinance, 1946 (now the Price Control Act, 1946 ) gives power to the Price Controller with the approval of the Minister to make an order published in the Gazette for the purpose of the control of goods or classes of goods, and under sub-section (d) power is given to "prescribe marks or labels to be affixed by retailers to any goods or classes of goods or containers thereof indicating the quality, grade, price or place of origin of the goods." An order was made by the Controller under this section and published in the Gazette, vide PU 271 known as the Price Control (Indication of Grade and Prices) Order, 1967, which came into force on 15 June 1967. The relevant rule, i.e. r. 2(1). states as follows:

Every retailer of the articles mentioned in the Schedule hereto shall affix labels or tags on the bags or containers of such articles offered for sale which are displayed in that part of the premises of the retailer to which the public have access indicating the grade and price of such articles.

Subsequently two further orders were gazetted in which the schedule was amended by adding other goods including textiles and ready-made garments. (PU(A) 512 dated 11 December 1969 and PU(A) 282 dated 7 September 1972).

The first order was referred to in the two subsequent orders as the "Principal Order" which is still in force. Rule 2(1) of the Principal Order on close scrutiny does not require labels or tags to be affixed to the goods or classes of goods but only to bags or containers of articles which are offered for sale and displayed in the premises of the retailer to which the public have access indicating the grade and price of such articles. Although s. 13(1)(d) of the Act gives such power to the Price Controller, it seems to me that such provision does not appear in the said order. There appears to be no subsequent order published in the Gazette for this purpose. The position is that there is no order requiring retailers to affix tags or labels to any goods or classes of goods.

It is conceded by the learned DPP that the charge as it stands is defective. However, he submitted that the appellant has not been misled by such error or omission because he was defended by Counsel in the Court below and no such objection was raised. He urged the Court to take into consideration the provisions of ss. 156 and 422 of the Criminal Procedure Code. He submitted that the appellant was in fact not misled by such error or omission and there was no failure of justice. The charge, he submitted, should be amended to the failure to affix labels or tags to the containers on which the textiles were placed.