1955 Present: Gratiaen J., Swan J., de Silva J., Sansoni J.
and Fernando J.

E. L. PERERA,

Appellant, and C. W. MUNAWEERA
(Food and Price Control Inspector),
 Respondent

S. C. 1,176-M. C. Colombo, 57,397

Mens rea-Applicability to statutory offences-Mistake of fact-Validity of such defence-Penal Code, ss. 38 (2), 72- Control of Prices Act, No. 29 of 1950, s. 8 (1) and (b).

Section 72 of the Penal Code which enacts that " nothing is an offence which is done by any person . . . who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it" applies to all offences alike, including every statutory offence whose definition does not contain a particular state of mind or knowledge as one of its elements. In the latter case the accused will be entitled to an acquittal if he can prove on a balance of probability that by reason of a mistake of fact, and not by reason of a mistake of law, he had in good faith believed himself to be doing something which was not prohibited by law.

The appellant was charged with having sold a loaf of bread weighing 15 1/4 ounces at a price fixed for a 16 ounce loaf; this sale at a price beyond the controlled price constituted, it was alleged, a contravention of section 8(1) of the Control of Prices Act. The appellant gave evidence to the effect that he himself believed that the weight of the offending loaf was in fact 16 ounces and that in demanding and receiving 26 cents for its sale, he acted in good faith and intended to charge only what was in truth the controlled price fixed for a 16 ounce loaf.

Held, that it was not open to the trial Court to convict the appellant unless it rejected the appellant's evidence that he believed in good faith, and by reason of a mistake of fact, that he was justified in law in charging 26 cents for a loaf of bread which he honestly but erroneously believed to be 16 ounces in weight.

APPEAL from a judgment of the Magistrate's Court, Colombo.

This appeal was reserved for the decision of a Bench of five Judges upon a reference by Rose C.J. in the following terms :-

" The appellant in this case was convicted of selling a loaf of bread which purported to be a pound loaf and which actually weighed only 15J ounces, for 26 cents which would have been the appropriate price under the relevant order for a one pound loaf of bread.

" The appellant suggests that no moral turpitude attaches to him in this matter in view of the fact that several hundreds of loaves of bread were baked on this particular morning, and that had the remainder of these loaves been weighed it would have been found

that all except a negligible quantity would have weighed either the required 16 ounces or slightly more. Evidence was adduced in support of this position and the present appeal was argued on the basis that that evidence should be accepted for the reason that the learned Magistrate in his order appears to have acted on. the basis that the factual position as presented by the appellant was correct but that his liability in law was absolute, irrespective of ' mens rea'.

" It is of course quite possible to advance a valid argument in support of either view, and it appears that there are conflicting authorities of this court. Soertsz J. appears to have come to opposite conclusions on the point of the principle involved in two cases, in both of which he was sitting alone. In Gunasekere v. Dias Bandaranaike (39 N. L. R. .17) he held that Section 72 of the Penal Code could be availed of by the appellant, whereas in Perumal v. Arumugam (40 N. L. R. 532) he held that in relation to a charge under section 28 of the Poisons, Opium, and Dangerous Drugs Ordinance the existence of mens rea was not an essential element of the offence.

" The view expressed in the former case would seem to derive support from a Full Bench decision that was decided as long ago a