1929 Present: Lyall Grant J.

WIJEYRATNE v. ABDULLA.

686-P. C. Kandy, 29,375.

Milk-Possession of adulterated milk-Owner of tea kiosk-Burden of proof-Small Towns Sanitary Ordinance, No. 18 of 189S, Chapter 4, by-law 9.

Where milk was found mixed with water in the possession of the owner of a tea kiosk who was charged with a breach of by-law 9 of Chapter 4 of the by-laws framed under the Small Towns Sanitary Ordinance,-

Held, that there must be affirmative proof that the milk was adulterated for the purpose of augmenting its quantity within the meaning of the by-law.

APPEAL from a conviction by the Police Magistrate of Kandy.

E. H. T. Gunasekere, for appellant.

Illangakoon, C.C., for the Attorney-General.

December 13, 1929. LYALL GRANT J.-

This is an appeal against the conviction of the keeper of a tea kiosk and eating-house for keeping adulterated milk on the premises of his tea kiosk and eating-house. The evidence against the accused was that of a Sub-Inspector and a police officer who made a raid on some tea boutiques' one morning.

The Sub-Inspector said that about 7 A.M. when passing the boutique of the accused he 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 he saw another tin containing about four bottles of milk on the counter. He asked the accused where he got the milk from and the accused refused to give him the name of his vendor. The Sub-Inspector then took a sample and handed a sample to the accused. He sent the sample to the Government Analyst, whose report he produces, and he charges the accused with keeping adulterated milk in the boutique.

This evidence was corroborated by the police officer. No 1929 evidence was called for the defence. The Analyst's report showed j that the milk was grossly adulterated and contained about 50 per , J. cent, of water.

The argument urged in appeal against the conviction was that " no breach of by-law 9 of Chapter 4 of the by-laws made under the Small Towns Sanitary Ordinance, No. 18 of 1892, as amended by Ordinance No. 30 of 1923,- published in the Government Gazette of July 22, 1921, had been proved. In other words, that there was no evidence that the milk was adulterated milk in the sense of that by-law. Reference was made to a judgment of mine in the case of Wijeratne v. Mamoo.[1 S. C. 539 of 1929. P. C. Kandy, 29,374.] In that case there was an appearance for 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 for sale or kept on the premises of any eating house or tea or coffee boutique. For the purpose of this rule adulterated milk shall mean milk to which water or any other liquid or substance has been added for the purpose of augmenting its quantity or enhancing its apparent quality and not for the purpose, of preparing tea or coffee or any other beverage for the immediate consumption of customers."

The argument was that as the Sanitary Inspector admitted "that tea was sold in the boutique to customers there was a reasonable presumption that a small quantity of milk arriving in the morning was intended for the preparation of tea or coffee, and that if this were the case, then the. terms of the proviso make it clear that this milk was not adulterated milk within the meaning of by-law 9.

I then said that I thought this argument was reasonable and that the proviso did not, as it might have done, create any presumption that watered milk found in a tea or coffee boutique is watered for the purpose of augmenting its quantity, that two alternative purposes or intents were mentioned and only if the* first of these were present would the milk be adulterated milk, that it was impossible on the evidence to say with which of these p