[1943] EACA 51

# APPELLATE CRIMINAL

#### BEFORE SIR JOSEPH SHERIDAN, C. J., AND HAYDEN, J.

## KARIMBHAI ABDULHUSSEIN, Appellant

# PRICE CONTROLLER, Respondent Criminal Appeal No. 19 of 1943

Prosecution for failure to furnish information relating to a business upon demand.

being made contrary to Regulation 21 of the Defence (Control of Prices) Regulations, 1942.

The form which was served upon the Appellant and which he was called upon to complete purported to be issued pursuant to the powers conferred by Regulation 19 (1) (c) of said Regulations which empowered the Price Controller, any Deputy Price Controller, &c., to require any trader, &c., to furnish verbally or in writing, and in such form as may be required, any information in relation to his trade or business.

The information asked for in the form did not relate exclusively to imported goods, but also required information with regard to goods purchased locally.

Held (2-3-43).—It would be unreasonable, oppresive and unauthorized to require a trader to furnish information which was demanded under a penalty in respect of goods locally purchased by him, goods with which he had nothing to do prior to their purchase by him and therefore that such information had no relation to his trade or business.

Held further that as the form in question contained a requirement for information<br>which was not authorized together with a requirement for information which was<br>authorized the whole of the form was invalid and that accordi proceeded against for a refusal to furnish any of the information asked for in the form.

Dyson v. Attorney General (1912) 1 Ch. 158 followed.

Atkinson, Figgis, $K. C.,$ and $A. B.$ Patel, for the appellant.

Brown, Solicitor General, for the Crown.

JUDGMENT.—At the hearing of this appeal the following additional ground of appeal was argued:-

"In view of the fact that the form contains a requirement for information which is not authorized, the form is invalid and the request for information is also invalid."

If it can be shown that the form in question, Exhibit 1, in this case can be brought within this ground, its invalidity is established and the appeal must succeed.

In arguing the proposition contained in this ground of appeal, Mr. Atkinson referred us to the case of Dyson v. Attorney General (1912) 1 Ch. 158 (Cozens-Hardy, M. R., Fletcher Moulton, L. J., Farwell, L. J.) and the case is clearly a strong authority in favour of the proposition. At p. 171 Farwell, L. J., says: "The next contention is that the insertion of this unauthorized requisition makes the whole demand unauthorized and relieves the owner from any obligation to answer, and I am of opinion that this is so. The duty imposed by the Act on owners is to make such a return as is required by the Commissioners under a penalty of £50. The duty and the penalty for disobedience are both one and indivisible and are co-extensive, and if the Commissioners frame their requisition with so little care as to exceed their powers, the whole demand and not merely the *ultra vires* portion becomes unenforceable". The learned Solicitor General. after hearing the submission on this point, conceded that the form, Exhibit 1, was one and indivisible and that if it contained unauthorized requests the appeal must succeed. He contended, however, that, it contained no unauthorized requests.

To appreciate what the form did require we set it out here. Ref. No. E. $5/42/6$ .

### EXHIBIT No. 1

## PRICE CONTROL OFFICE.

P. O. Box 678. MOMBASA.

#### 1st July. 1942.

#### To Messrs. Tayebali Abdulhusein & Co., Mombasa.

Under the powers conferred upon me by Regulation 19 (1) (c) of the Defence (Control of Prices) Regulations, 1942, you are hereby required to furnish me,<br>on or before the 21st day of July, 1942; with information in writing as set out in the form hereunder, relating to all your transactions in grey unbleached cotton<br>piece goods from the 1st day of January, 1941, up to and including the day immediately prior to the day on which you furnish this information.

Your attention is drawn to Regulation 25 (1) of the Defence (Price of Goods) Regulations, 1942, where a penalty of £500 or a term of imprisonment not exceeding two years is provided for non-compliance with any demand issued under these Regulations.

| ARTICLE | | |----------------------------------------------------------------------------------------------------------------------------|--| | Inward Invoice No. | | | Date Arrival $\ldots$ | | | Marks | | | Package Numbers | | | Contents per Package | | | $\textbf{C.i.f. Value} \quad \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \$ | | | <b>Import Duty </b> | | | Handling Wharf. | | | <table> Total Landed Cost </table> | | | Total Landed Cost per Unit | | | $SIZE \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots$ | | | <table> REMARKS </table> | | | Buyer | | | Outward Invoice No. $\ldots$ | | | Date | | | Package No. | | | Contents | | | Selling Price | | | Total | | | | |

**FORM**

F. J. LATTIN. Deputy Price Controller, Mombasa.

It will be seen at once that some of the information required in the form refers to locally purchased goods as well as goods imported by the accused. On the evidence the accused was not only an importer but also purchased locally. The Deputy Price Controller said in his evidence that "The form Exhibit 1, was prepared by me copied from another source. 1st column, 'Inward Invoice No.', does not necessarily refer to imported goods. It can refer also to the invoice received on local purchases of goods. 'Date of Arrival' includes arrival of imported goods or arrival at trader's premises of goods purchased locally. Column 3. 'Marks'. I cannot say if the marks were entered in the books of the accused as I didn't see the books. Same remarks apply to Columns 4 and 5. The invoices given for local purchases would show ordinarily the value per piece and the total charges and some description of the goods and local transport charges. Seller would not show in that local invoice the c.i.f. values. Such invoice would not show the import duty paid by the seller. It would not show handling and wharfage charges paid by the seller. It will not show the landed cost to the seller. It will not show the total landed cost per unit to the seller. Trader who purchases locally would not know the answer to the queries in Columns 6, 7, 8, 9 and 10. He would probably know the answer to the queries in Columns 1, 2, 3, 4 and 5. Most invoices for local sales did not contain particulars required in Columns 3 and 4. If the accused states with reference to locally purchased goods that there is no record of marks and package numbers either in the invoices received by the accused firm or in the books kept by accused firm I am not in a position to contradict that statement. Any importer should be able to give information in reply to request in Columns 1-10 inclusive. Importer should also have a record of invoices for imported goods. I do not agree that the first 10 columns apply only to imported goods. O. by Court: I agree that there is room for misunderstanding as to the meaning of Exhibit 1, that is whether it relates only to imported goods, but taken with the demand for information with regard to 'all your transactions' there is not much room, in my opinion, for a misunderstanding. XXd. Patel (Contd.)—Columns 11–17 inclusive require information as to the disposal of the goods referred to in Columns 1-10 inclusive. For goods locally purchased as well as for imported goods I wanted information as to each bale or unit-from source of supply to final disposal. If the accused says he is not in a position to give the connected information asked for I am not in a position at the moment to contradict that".

The charge against the accused is as follows: $-$

"Refusing to furnish information relating to a business upon demand being made by the Deputy Price Controller contrary to Regulation 21 of the Defence (Control of Prices) Regulations, 1942, in that on or before the 21st day of July, 1942, you did refuse to furnish information relating to your business in respect of importations, costs and sales of grey unbleached cotton piece goods for the period from 1st day of January, 1941, up to and including the 30th day of June, 1942, upon demand in writing dated 1st July, 1942, being made by the Deputy Price Controller to furnish such information."

Here it will be seen that importations are referred to and the learned Solicitor General, in arguing that the Deputy Price Controller was entitled to ask for information in respect of both imported and locally purchased cotton piece goods, said that all the accused had to do in respect of any information he did not possess concerning locally purchased cotton was to state so in the appropriate column of the form. He continued that the request for all the information was *intra vires* the Regulations. The relevant Regulation is 19 (1) (c) of the Defence (Control of Prices) Regulations, 1942, and it provides: $-$

"19. (1) The Price Controller, any Deputy Price Controller, and any Police Officer of or above the rank of Assistant Inspector, any District Commissioner, or any person authorized in writing by any of them, is hereby empowered—

$\ldots$ (c) to require any trader, manufacturer, producer, or commission agent to furnish verbally or in writing, and in such form as may be required, any information in relation to his trade or business;".

The contention for the Crown was that all the information, however difficult or impossible it might be for the accused to furnish some of it, was in relation to his trade or business and that thus was the case differentiated from $D'yson's$ case.

The words of the Regulation must be construed reasonably and not oppressively (and here we may say that we do not understand what the learned Magistrate means by an "indulgent interpretation") and to our minds it would be unreasonable, oppressive and unauthorized to require a trader to furnish some of the information which was demanded under penalty in respect of cotton locally purchased by him, cotton with which he had nothing to do prior to its purchase by him and which therefore we do not consider had relation to his trade or business. The words of a Statute or Regulation whatever may be its nature must be reasonably susceptible of the meaning put upon them. It may be that the Deputy Price Controller would have been satisfied had he been furnished with information in respect of cotton imported by the accused, but that is not the<br>point. Where there is, as Mr. Akinson said, "jumbled up" authorized and unauthorized requirements in the one and indivisible form the trader on the authority of *Dyson's case* cannot be proceeded against for a refusal to furnish any of the information asked for in the form.

The appeal is allowed, the accused acquitted and the fine, if paid, is directed to be refunded.

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