1946 Present : Dias J.

MARIKAR, Appellant, and PONNUDURAI (INSPECTOR
OF POLICE), Respondent.

96-M. C. Colombo, 16,979.

Defence (Control of Textiles) Regulations, 1945, Regulation 51-Master and servant-Liability of master for act of servant ?Mens rea.

By Regulation 51 of the Defence (Control of Textiles ) Regulations, 1945, ?where any servant or agent of a dealer does or omits to do any act or thing which, if done or omitted to be done by such dealer, would  constitute a contravention of any provision of these regulations, the dealer shall be deemed to have acted in contravention of these provisions.?

Held, that under Regulations 51 before a master can be made criminally responsible for an act or omission of his servant, the prosecution, in addition to proving the ingredients of the offence charged, must go  further and establish beyond all reasonable doubt that (a) at the time the offence was committed, the actual offender was acting as the servant or agent of the master, and (b) if the offence had been done or omitted by the master such act of omission would constitute an offence under the Regulations.

APPEAL against a conviction from the Magistrate?s Court, Colombo.

          L.A. Rajapakse, K.C. (with him Seyed Ahamed ), for the 1st accused, appellant.

          A. C. M. Ameer, C.C., for the respondent.

Cur. adv. vult.

October 28, 1946. DIAS J.-
   
The appellant ( the master) and one Abdul Cader ( the servant) were jointly charged that on May 4, 1946, (a) they sold to one Jayasundera  two yards of poplin at Rs. 4 per yard when the controlled price was  Rs. 1.37 per yard in breach of Regulation 22 (1) of the Defence ( Control of Textiles) Regulations published in the Government Gazette No.9, 388 dated March 28, 1945; (b) they being dealers sold that said two yards to Jayasundera without the appropriate number of coupons being surrendered in breach of Regulation 40 (1), and (c) being licensed dealers in textiles failing to give Jayasundera a receipt or invoice in breach of  Regulation 31 (1) .Abdul Cader had been acquitted, while the appellant was convicted on all three charges and sentenced in the aggregate to a fine of Rs.1,50 or in default to undergo three months rigorous imprisonment.

   
The facts establish that the appellant is owner of a boutique at Welikada, where he carries on trade as a licensed dealer in textiles. Abdul Cader at the material date was his servant. On May 1,1946, the  appellant left his boutique and went to his village at Beruwala and was  absent from Colombo until May 8, 1946. It will be recalled that the  alleged offence was committed on May 4, 1946, i.e., in the absence of the  appellant.

On information received Police Sergeant Salih of the Welikada Police together with Fonseka, a Textile Control Inspector, decided to raid the appellant?s boutique at about 12.30 P.M. after shop hours. They sent the decoy Jayasundera with a ten- rupee note, the number of which had been noted with instructions to buy cloth and to insist on being given a receipt.

There is no reason to doubt that the 2nd accused Abdul Cader who was in the shop which was closed, except for two planks which were open, sold two yards of poplin to Jayasundera. The rest of the roll was on the counter with the controlled price of Re. 1.37 per yard marked on it. The decoy had Rs. 2 in his hand while the ten- rupee not P1 was  taken out of a card box by the 2nd accused and handed to the inspector. No receipt was given to Jayasundera, and there was no entry of this transaction in the bill book or any other book of the shop.

It is common ground that the Regulations as framed contain no provision under which the 2nd accused could be convicted. He was therefore acquitted. The appellant is sought vicariously to be made criminally liable under section 51 of the Regulations which reads as follows:-

?where any servant or agent of a dealer does or omits to