1956 Present : Gratiaen, J.

J. H. WANIGASEKARA (Food and Price Control Inspector),.
Appellant, and K. SIMON, Respondent

S. C. 934-M. C. Matugama, 21,356

" Acquittal "-" Discharge "-Right of appeal--Criminal Procedure Code, ss. 2,. 190, 191, 330, 336-Control of Prices Act, No. 29 of 1950, s. 8 (1).

The inadvertent use by a Magistrate of the word " discharge " in describing an acquittal cannot deprive the accused person of the protection of sections 330 and 336 of the Criminal Procedure Code.

A Magistrate may in certain situations enter a verdict of acquittal under section 190 of the Criminal Procedure Code even before the case for the prosecution has been closed-provided that the Magistrate is satisfied that any-further evidence which the complainant proposes to lead would not suffice to establish a prima facie case of guilt against the accused.

The accused was charged with contravening a price order made under the Control of Prices Act. The Magistrate, without calling for a defence and when the case for the prosecution had been virtually closed, upheld wrongly (but within the scope of his jurisdiction) an objection raised by the defence that the price order was bad in law as it had not received the necessary Ministerial approval. Accordingly, he made order " discharging " the accused.

Held, that the Magistrate recorded in fact a verdict of acquittal on the merits. No appeal could therefore be entertained except upon compliance with the requirements of section 336 of the Criminal Procedure Code.

Held further, that if a prosecuting officer, by making incorrect concessions on the law, has contributed towards an erroneous verdict of acquittal, the accused person should not, as a general rule, be placed in jeopardy a second time.

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

A. C. Alles, Crown Counsel, with V.S.A. Pullenayegum, Crown Counsel, for the complainant-appellant.

H. W. Jayewardene, Q.C. with G. P. J. Kurukulasuriya, for the accused-respondent.

Cur. adv. vult.

January 16, 1956. GRATIAEN, J.-

This is an appeal by the complainant (a Pood and Price Control Inspector) against an order purporting to " discharge " the accused Who was tried for an alleged contravention of section 8 (1) of the Control of Prices Act, No. 29 of 1950. Mr. Jayawardene raised a preliminary objection to the maintainability of the appeal, his argument being that the so-called order of " discharge " was in reality " a verdict of acquittal " under section 190 of the Criminal Procedure Code, and that no appeal could be preferred against it except at the instance or with the written sanction of the Attorney-General. The inadvertent use by a Magistrate of the word " discharge " in describing an " acquittal " admittedly cannot deprive an accused person of the protection of section 336.

The charge framed against the accused was to the effect that he had on March 1st, 1955, sold 2 lbs of wheat flour to a bogus customer at a price in excess of the maximum retail price fixed for that commodity in terms of a statutory " price order " applicable to the area in which the transaction took place. This "price order" (P4) had been duly published in the Government Gazette No. 10,510 of 20th March, 1953, and was described in the charge with sufficient particularity to comply with the requirements of Chapter 17 of the Code.

The accused having pleaded not guilty, the prosecution led evidence at the trial to prove the alleged sale (for 56 cents) of 2 lbs. of a commodity which the Government Analyst had certified in his report P6 to be wheat

flour. The controlled price was 48 cents, and all that remained to establish prima facie the commission of the offence was proof that the wheat flour referred to in the Government Analyst's report was the identical sample taken to him for analysis by a Police constable on the orders of the Magistrate. This witness was not available in Court,