1949     Present : Gratiaen J.

JAYASENA, Appellant, and DABERA (Sanitary
Inspector), Respondent

S. C. 274-M. M. C. Colombo, 42,238

Milk-Adulterated-Found in possession of servant-Liability of dairyman-Colombo Municipal Council-By-laws-Rules 8 and 5.

A registered dairyman is guilty of an offence under rule 5 of Chapter 14 of the by-laws of the Colombo Municipal Council if adulterated milk is found in the possession of his authorized servant while engaged on his business.

APPEAL from a judgment of the Municipal Magistrate, Colombo.

F. W. Obeyesekere, for accused appellant.

L. G. Weeramantry, for complainant respondent.

Cur. adv. vult.

March 24, 1949. GRATIAEN J.-

The appellant was a dairyman duly registered under the provisions of the Municipal Councils Ordinance (Chapter 193). During the period relevant to these proceedings he employed a man named Velaythen among others to deliver milk to his regular customers and at the appel­lant's request a milk vendor's card had been issued to Velaythen by the Municipal authorities in Colombo.

On September 27, 1948, Sanitary Inspector Dabera of the Colombo Municipal Council met Velaythen who was returning from a bungalow in Karlshrue Place at which he had delivered milk to a customer of the .appellant. Samples of the milk still in Velaythen's possession and intended, presumably, for delivery to other customers were taken by the inspector and, on analysis by the City Analyst, the milk was found to be adulterated to a most scandalous degree. The appellant was charged with the commission of an offence punishable under the Council's by-laws relating to the adulteration of milk. He was found guilty and sentenced to pay a fine of Rs. 500.

No attempt was made on the appellant's behalf either in the Court below or at the hearing of this appeal to contest the position that on the day in question Velaythen was engaged on the appellant's business. It has nevertheless been strenuously argued that the evidence does not establish the commission of any offence. I am glad to find that this is not so.

The relevant by-laws are rules 5 and 8 of Chapter 14 of the by-laws of the Colombo Municipal Council. Rule 8 provides as follows :-

Should any sample of milk taken under the provisions of the preceding by-laws prove to be adulterated, the person in whose possession it is found shall be guilty of an offence. If such person be a vendor of, or a person in the employ of, or acting on behalf of, a dairyman then both such person and the dairyman shall be guilty of an offence.

I agree with learned Counsel that no offence could be committed under rule 8 unless the offending sample of adulterated milk had been taken on an occasion authorized by the by-laws. It is therefore necessary to examine the scope of rule 5 in order to decide whether the sample taken from Velaythen had been lawfully obtained by Inspector Dabera.

Rule 5 empowers Municipal Inspectors and certain other officers to demand and to take for purposes of analysis samples of any milk " which is in possession of a registered dairyman or of any person who is found selling, hawking or