[1947] EACA 37

### COURT OF APPEAL FOR EASTERN AFRICA

# Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

## REX (PRICE CONTROLLER), Respondent (Original Prosecutor)

## RATILAL HEMRAJ, Appellant (Original Accused) Criminal Appeal No. 112 of 1947

#### (Appeal from decision of H. M. Supreme Court of Kenya)

Criminal law—Emergency legislation—The Defence (Control of Prices) Regulations, 1945, Regs. 19 (2) (a), $21-G. N. 342/44$ —Failure to comply with an order of the Price Controller—Insufficiency of evidence.

The appellant was convicted of an offence against the Price Control Regulations on the sole evidence of a price inspector whom the learned Magistrate believed. At the trial this witness made certain admissions which must have weakened his evidence, but the learned Magistrate was influenced by a statement of the witness to the effect that he had made notes at the time on a piece of paper. This piece of paper was not, however, called for or produced, The appellant having appealed unsuccessfully to the Supreme Court, appealed, second time, to the Court of Appeal for Eastern Africa.

Held (7-8-47).—As the magistrate relied on the contents of a document which was not produced and as but for this evidence he would not necessarily have convicted the appellant, the conviction could not stand.

Kelly for the appellant.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—This is an appeal from a judgment of the Supreme Court of Kenya in its appellate capacity dismissing an appeal from a judgment of the learned Resident Magistrate of Mombasa, who had convicted the present appellant of the offence of failing to comply with an order issued by the Price Controller on 20th April, 1944 (Government Notice No. 342/44), in that he had not marked in plain figures in English the prices at which he was prepared to sell goods exposed by him for sale, to wit, soap, tea, fruit, cigarettes and tinned milk, contrary to Regulations 19 (2) (a) and 21 of the Defence (Control of Prices) Regulations, 1945, and the Supplies and Services (Transitional Powers No. 2) Order, 1946.

At the hearing of this appeal learned Crown Counsel (Mr. Holland) informed us that he was unable to support the conviction; nevertheless, we thought it advisable to take time in order to set out at length our reasons for allowing this appeal. On appeal to the Supreme Court of Kenya many points were taken; but before us only three matters were argued, namely, insufficiency of evidence, the effect of a certain piece of paper to which we shall later refer, and the failure of the learned Magistrate to record the result of an inspection of the locus in quo. namely, the shop premises.

The first two grounds may be conveniently taken together. The sole evidence for the prosecution was that of Mr. Adams, a price inspector attached to the Price Control Department, Mombasa. He deposed that on 1st February, 1947, he visited nine or ten shops, one of which was that of the appellant. This witness

made certain admissions, all of which must of necessity be regarded as weakening the prosecution case. He admitted that, at the time of giving evidence, he did not know where the accused's shop was; that he could not identify the accused's shop with certainty, all the nine or ten shops visited by him on 1st February being so alike; that he did not remember how many containers of tea, whether ten or a hundred, he found, nor whether there were ten or a hundred bars of soap or whether there were three or ten shelves. He also admitted that his evesight was not good, although he wore eyeglasses to bring his eyesight "up to normal<br>standard". He also admitted that on 31st January, 1947, he inspected the shop of a certain Indian and thereafter made a report to the Price Controller which was subsequently found to be inaccurate so far as the goods mentioned and the name of the shopowner were concerned. The most important admission, however, was that the witness, who stayed only five minutes in the appellant's shop, recorded on a piece of paper in the accused's presence a list of commodities which seemed to him to have no price labels.

This being a second appeal it can be only on law and not on fact, and we only deal with the evidence at length to show that it is a fair inference that it was that piece of paper which the witness sent to the Price Controller and upon which the prosecution was founded and with the aid of which the charge itself was framed. Now, that piece of paper was not produced at the trial so<br>that the defence had no opportunity of commenting on it or of cross-examining Mr. Adams upon it. The vital significance, however, of this piece of paper for the purpose of this appeal lies in the following portion of the learned Magistrate's judgment: "As I accept Mr. Adams' statement that he took a note of the goods on a piece of paper it seems to me that the likelihood of a mistake is very remote." It is implicit from that statement that, if it had not been for this piece of paper, the Magistrate would not necessarily have convicted solely on Mr. Adams' verbal recollection on 10th March (the date of his giving evidence) of what he saw on 1st February. It would, indeed, have been surprising had the Magistrate done so, keeping in view all the admissions made by Mr. Adams, including the admission that the appellant's shop was only one of nine or ten similar shops visited by him on the same morning.

The learned Judge of the Supreme Court, in dealing with the piece of paper already referred to, said in his judgment: "Mr. Kelly stressed the fifth ground of appeal that the Magistrate erred in relying on the evidence of a document which was not produced before the Court. During the course of his re-examination dealing with the possibility of a mistake having been made it was elicited from the Price Inspector that he had recorded the name of the accused and a list of the commodities which were not priced at the time of his visit. The learned Magistrate in his judgment said: 'As I accept Mr. Adams' statement that he took a note of the goods on a piece of paper it seems to me that the<br>likelihood of a mistake is very remote. Mr. Kelly submitted that, as the paper was not produced in evidence and as it was relied upon, the conviction must be set aside. In my view, that document could not have been put in evidence under section 157 of the Evidence Act, as Mr. Kelly submitted. In examination-inchief the witness could have been allowed to read it to refresh his memory had that been necessary in which case the defence would have been entitled to pursue it and cross-examine the witness upon it."

We would observe, however, that this piece of paper was not only a note made at the time which could only have been used by the witness to refresh his memory, but it was in fact the actually written record which he sent in to his superior officer (the Price Controller, Mombasa) on which the criminal proceedings were, in fact, instituted.

The Price Controller was not called as a witness, nor was the piece of paper produced. As the Magistrate relied upon this piece of paper as corroborating

the evidence of Mr. Adams we think that the second ground of appeal succeeds. The second ground of appeal is in the following terms: "The learned Judge of Appeal failed to appreciate that the learned trial Magistrate, in fact, considered the evidence of the contents of a piece of paper which was not produced before the Court and that, whether or not such piece of paper or the contents thereof were admissible, the fact remains that the Magistrate relied upon it as corroborating the evidence of the prosecution witness."

As the Magistrate seems to have relied on the contents of that piece of paper, and as that piece of paper was never produced in Court, it follows that the conviction cannot stand. We therefore deem it unnecessary to deal with the third ground of appeal relating to the visit to, and inspection of, the shop by the Magistrate and to the case of $R$ . $v$ . Sahib Singh and Others, 18 K. L. R. 145. For the foregoing reasons we set aside the judgments of both Courts below, quash the conviction and order that the fine of Sh. 300 (if paid) be refunded to the appellant.