1938 Present: Wijeyewardene J.

WANIGASEKERE v. MUSTAPHA.

215-P. C. Kurunegala, 56,144.

Milk-Adulterated milk kept on premises-Proof of exposure for sale-Essential for prosecution-Small Towns Sanitary Ordinance, No. 18 of 1892, s. 9E (2).

Where the accused was charged with exposing for sale or keeping on the premises of his tea boutique adulterated milk in breach of a by-law framed under section 9E (2) of the Small Towns Sanitary Ordinance, which was as follows : -

"No adulterated milk should be sold or offered or exposed for sale or kept on the premises of any eating-house or tea or coffee boutique.

For the purposes of this rule adulterated milk shall mean milk to which water or any other foreign liquid or substance has been added for the purpose of augmenting its quantity or enhancing its apparent quality?.

Held, that the prosecution was bound to prove that the adulterated milk was kept on the premises for purposes of sale.

Wijeyratne v. Abdulla (31 N. L. R. 310) referred to.

APPEAL against an acquittal with the sanction of the Attorney-General.

F. C. W. VanGeyzel, for complainant, appellant.

Cyril E. S. Perera, for accused, respondent.

Cur. adv. vult.

November 3, 1938. WIJEYEWARDENE J. -

This appeal is preferred with the sanction of the Attorney-General against an order of acquittal. The charge against the accused was that ?he did expose for sale or keep on the premises of his tea boutique adulterated milk in breach of chapter iv, section D (9).... of the

by-laws framed ....under section 9E (2) and 5A of Ordinance No. 18 of 1892 and published in Government Gazette No. 7,142 of November 19, 1920, as amended by deletion No. V 119/31, published in Government Gazette No. 7,851 of April 30, 1931".

The by-law as published in the Government Gazette No. 7,142 reads : -

"No adulterated milk should be sold or offered or exposed for sale or kept on the premises of any eating-house or tea or coffee boutique.

?For the purposes of this rule adulterated milk shall mean milk to which water or any other foreign 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 amendment appearing in the Government Gazette No. 7,851 deletes the following words at the end of the by-law : -

?and not for the purpose of preparing tea or coffee or any other beverage for the immediate consumption of customers?.

On a survey of the evidence led by the prosecution and the defence the Magistrate has held the following facts to be proved: -About 8 bottles of unboiled milk were found by the complainant in a pot kept on a table in accused's tea boutique along with other articles exposed for sale. The accused had bought the milk from a milk vendor. The milk contained 60 per cent, of water. It was used by the accused in the preparation of tea or coffee for customers and was never sold as plain milk.

The Magistrate held that the accused had not committed a breach of the by-law referred to in the charge and acquitted the accused.

The Counsel for the complainant-appellant contends that the accused should have been convicted in view of the finding by the Magistrate-

(a) that water had been added to the milk, and

(b) that such milk to which water had been added was kept on the premises of the accused's tea boutique.

It is desirable that I should examine an earlier decision of this Court before I consider this argument. In Wijeratne v. Abdulla [1 (1929) 31 N. L. R. 310.] Lyall-Grant J. construed the by-law in question as published in the Gazette No. 7,142 before it was amended. In that case the prosecution proved that four bottles of milk to which water had been added were found in the accused's tea boutique. The defence called no evidence and the Magistrate convicted the accused. On an ap