[1943] EACA 46

## APPELLATE CRIMINAL

BEFORE SIR JOSEPH SHERIDAN, C. J., AND LUCIE-SMITH, J.

## REX. Respondent

$\mathbf{v}$

## (1) BHAGWANLAL LALJI GANDHI, (2) SHIVABHAI UMEDBHAI AMIN, each a partner in the firm of GANDHI & CO., Appellants

Criminal Appeals Nos. 184 and 185 of 1942

Defence Regulations-Control of Prices-Refusal to supply or sell goods-Regulation 15 (1) Defence (Control of Prices) Regulations-Various types of packing.

The facts appear sufficiently from the judgment.

$\therefore$ A. B. Patel for appellants.

$\chi_{\rm{A}}\sim 10^{-11}$

Dennison, Crown Counsel, for the Crown.

$\mathbb{S} \times \mathbb{R}$ JUDGMENT (15-1-43).—The two accused, who are described as general merchants and commission agents, were charged before the Resident Magistrate, Nairobi, in the following terms: $-$ .

"Refusing to supply, or sell goods, without permission of the Price Controller, in reasonable quantities upon tender of immediate payment of the fixed permitted selling price fixed therefor, contra Regulation 15 (1) Defence (Control of Prices) Regulations—G. N. 478/42."

They were found guilty and fined Sh. 500 each. They have appealed to this Court from the convictions and sentences.

It is conceded by the Crown that the complainant, Hussein Rahmtulla Gwadhri, required and asked the accused for three 200 lb. bags of National Flour and that at all material times the accused did not have in his possession National Flour so packed, but that he did have National Flour packed in bags of 10 lb. each. It is also conceded that for the flour packed in bags of 10 lb. each the vendor is permitted to charge the larger price of Sh. 76 per 400 lb. as distinct from Sh. 68 per 400 lb. for the flour packed in 200 lb. bags. The evidence of Gwadhri at pages 2 and 3 of the typescript is significant; it reads: $\rightarrow$

"Unga Ltd. supply National Flour in packages of 200 lb. There are different prices according to the different packings. That is why I wanted my flour in 200 lb. I paid Sh. 102 for three 200 lb. bags. The price is higher for the smaller packings. The accused did not tell me he could supply the flour in 10 lb. packing if I would pay the difference".

From this evidence it is clear that the complainant required the flour packed in three bags of 200 lb. each, that flour so packed cost less than flour packed in 10 lb. bags, and that he paid the prescribed price therefor. On the facts it was held that there was a refusal to sell by the accused, the learned Magistrate's finding being: "I find as a fact that the accused did not disclose to Gwadhri that after 11th September they had a stock of National Flour in 10 lb. bags and I am of the opinion that in failing to do so they committed an offence". In our view, though this finding of fact may be correct, the deduction therefrom that the accused committed an offence contra Regulation 15 is incorrect. It would be doing

violence to the clear language of the Regulation to hold that there had been a refusal to sell by the accused. The complainant wanted National Flour at Sh. 68 per 400 lb., a stock of which the accused had not in his possession, although he had a stock of National Flour at Sh. 76 per 400 lb.

To clarify the position as we see it; suppose a person up-country having $a$ deposit account with a merchant in Nairobi writes to the merchant and tells him to send 400 lb. of National Flour at Sh. 17 per 100 lb. and the merchant writes back regretting that he has no flour in stock at Sh. 17 per 100 lb., can it be said that an offence *contra* Regulation 15 has been committed by failing to say that he had National Flour at Sh. 19 per 100 lb.? We think not. The appeals are allowed, the accused acquitted and the fines (which we would have reduced as excessive had the convictions been allowed to stand) are directed to be refunded.

$\overline{a}$