1942 Present: Wijeyewardene J.

PAKIAMPILLAI, Appellant,
and

MERRY, Respondent.

797-M. C. Colombo, 48,633.

Control of prices-Sale of Maldive fish above controlled price-Contract of sale- Control of Prices Ordinance, No. 39 of 1939, s. 3.

Where an accused person is charged with having sold Maldive fish at a price above the maximum price fixed by the Controller of Prices, the prosecution is not bound to prove a contract of sale enforceable by action within the meaning of section 4 of the Sale of Goods Ordinance.

APPEAL from a conviction by the Magistrate of Colombo.

N. Nadarajah, K.C. (with him H. W. Thambiah), for the accused, appellant.

G. E. Chitty, C.C., for the Crown, respondent.

November 10, 1942. WIJEYEWARDENE J.-

The accused-appellant was convicted on a charge of having sold Maldive fish (mixed Kundira and Male) on August 31, 1942, at a price above the maximum price fixed by the Controller of Prices, and sentenced to six months' rigorous imprisonment.

Acting under the powers vested in him by section 3 of the Control of Prices Ordinance, No. 39 of 1939, the Controller of Prices made and signed an order on July 31, 1942, fixing Rs. 57.50 as the maximum " wholesale" price of this particular kind of Maldive fish. The word " wholesale " as used in the Order is so defined in the Order itself as to make a sale of any quantity of Maldive fish for the purpose of resale a sale by wholesale. That Order is published in the Government Gazette No. 8,979 of July 31, 1942, and the prosecution produced at the trial a copy of that Gazette.

The learned Magistrate has recorded his findings of fact after a very careful analysis of the evidence and I accept those findings though, no doubt, there are certain passages in the evidence as pointed out by the Counsel for the appellant which appear to be in conflict with the evidence accepted by the Magistrate. I may add also that no evidence was given on behalf of the accused.

The facts as found by the Magistrate may be summarized as follows: - On August 31 a trader called Herat reported to the Assistant Supertendent of Police, Colombo, that he found it difficult to buy Maldive fish. The Assistant Superintendent gave Herat a list of boutiques dealing in Maldive fish and sent him with Police Constable Rasiah in plain clothes. Herat returned shortly afterwards and informed the Assistant Superintendent of Police that he bought at one of the boutiques a bag of 1 cwt. and 20 1b. for Rs. 92.50. Then the Assistant Superintendent noted down the numbers of 50 two-rupee notes belonging to Herat and handed

back to him 47 of them in one bundle and the remaining three notes separately and asked him to return to the same boutique and buy another bag. A bundle of 47 notes was made separately as it was thought that the second bag would contain the same quantity as the first bag and would cost only Rs. 92.50. Herat went this time with Police Constable Wijeyesinghe in plain clothes while Police Constable Rasiah was sent to report to the Assistant Superintendent when the transaction was completed. Herat went to the boutique and waited until the door was . opened. Herat was then admitted by the accused. Wijesinghe went in, a few minutes later, and said he wanted to buy onions. Wijesinghe was asked to go out and wait outside the boutique as it was said " only one person at a time could be served inside ". Herat opened the bag, examined some pieces of Maldive fish in it and was satisfied with the quality. The accused thereupon got the bag restitched and weighed and found it to contain 1 cwt. and 25 1b. He then kept the bag apart and began to calculate on a piece of paper P 3 the price of the Maldive fish at Rs. 78 per cwt. and got the result as Rs. 95.65. He gave the paper P 3 to Herat, showing the price that had to be paid and Herat then held out to the accused the bundle of notes amounting to Rs. 94 before paying the balance Re. 1