[1944] EACA 3

## APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and BARTLEY, J.

REX, Appellant (Original Prosecutor)

## J. H. GIDOOMAL, Respondent (Original Accused) Criminal Appeal No. 156 of 1944 (Case Stated)

Defence Regulations—Defence (Control of Prices) Regulations, 1943, Regulations 8, 20—"Like or similar goods"—Absence of relevant evidence rebutting Price Controller's certificate.

The facts appear fully from the case stated.

Held (11-10-44),—That although the expression "like or similar goods" does not mean<br>"identical" it must not be given too wide a meaning and that a shirt costing Sh. 9/45 cannot reasonably be said to be "like or similar" to a shirt costing Sh. $2/48$ .

Case stated by the Resident Magistrate, Mombasa, on the application of the Honourable Attorney General.

The accused was charged with an offence against Regulation 8 of the Defence (Control of Prices) Regulations, 1943, in that on or about the 6th September, 1943, at Mombasa, he sold four khaki Van Heusen shirts for Sh. 120, a price which exceeded the maximum permitted price therefor by Sh. $36/68$ .

At the hearing it was proved: $-$

- (a) That the accused sold on 6th September, 1943, four khaki Van Heusen shirts at Sh. 30 each. - (b) That (on a certificate of the Price Controller which is prima facie evidence) the pre-war cost and selling prices of a Van Heusen shirt in Mombasa were Sh. $9/45$ and Sh. $15/50$ respectively. - (c) That the accused was not before the war an importer of Van Heusen shirts but that he imported shirts of American, English and Japanese manufacture. - (d) That the cost and selling prices of Japanese manufactured shirts imported by the accused were Sh. $1/42$ and Sh. $8/50$ respectively. - (e) That the cost and selling prices of American and English manufactured shirts imported by the accused were Sh. 2/48 and Sh. 7 respectively. - (f) That the cost and selling prices set out in $(d)$ and $(e)$ were normal and not exceptional prices.

On behalf of the prosecution it was contended that the accused was not entitled to base his percentage of profit on the cost of English or American shirts imported by him pre-war and that as he had not produced figures showing the pre-war cost and selling prices of goods identical to the goods sold there was no relevant evidence rebutting the prima facie evidence of the Price Controller's Certificate.

On behalf of the accused it was contended that the Van Heusen shirts which formed the subject matter of the charge were "like or similar" to the pre-war American and English shirts imported by the accused and that he was consequently entitled to the same percentage of profit.

The learned Magistrate held that the words "like or similar" did not mean "identical" and that the Van Heusen shirts sold by the accused were "like or similar" to the English and American shirts imported and sold by him before the war. He, consequently, dismissed the information.

The question submitted for the opinion of the Supreme Court was the following:

"Was the Magistrate correct in law in finding that the evidence provided by the certificate of the Price Controller, which is exhibited in this case. was rebutted by the evidence for the defence?

It is submitted by the Attorney General that there was no relevant evidence on which the Magistrate could come to a finding as to what was the pre-war percentage of profit ordinarily taken on like or similar goods except the evidence provided by the aforesaid certificate, inasmuch as the evidence for the defence did not prove what was the profit ordinarily taken nor did it prove what was the profit taken on like or similar goods."

Spurling, Crown Counsel, for the Crown.

Archer (Khanna with him) for Respondent.

JUDGMENT.—The question to be answered in this Case Stated relates to the sale at Mombasa of Van Heusen shirts which the Price Controller certified to have been sold at a price in contravention of Regulation 8 of the Defence (Control of Prices) Regulations, 1943. The Regulation reads as follows:

"Any person who, without the permission in writing of the Price Controller, sells other goods at a price in excess of the lawful cost price of such goods to the seller, plus a percentage of such cost price determined by multiplying the percentage of the gross profit in relation to cost price ordinarily taken on like or similar goods sold in similar quantities, in wholesale or retail, as the case may be, during the six months ended the 26th day of August, 1939, by the appropriate factor prescribed in the First Schedule to these Regulations, shall be guilty of an offence.

Provided that where there has been no increase in the cost price of such goods to the seller as compared with the cost of like or similar goods on or before the 26th day of August, 1939, the seller may take the same percentage of profit as he took during the six months ended the 26th day of August, 1939."

The question is what meaning is to be given to the words "like or similar goods" on the facts of this case.

The pre-war cost price of Van Heusen shirts in the district of Mombasa was Sh. 8/45 cash and the pre-war selling price Sh. 15/50 each. This is according to the certificate of the Price Controller which is prima facie evidence of what is stated therein. The respondent did not import Van Heusen shirts prior to the war but did import Japanese and English shirts. The pre-war cost to the respondent of a Japanese shirt was Sh. 1/42 and the selling price Sh. 8/42 and for an English shirt the pre-war cost price and selling prices respectively were Sh. 2/48 and Sh. 7. The learned Magistrate while holding that the Japanese shirt imported by the respondent prior to the war could not be regarded as a basis on which the respondent would be entitled to base the percentage of profit which he was entitled to charge in respect of a Van Heusen shirt, held that an English shirt such as the respondent imported before the war being like or similar to a Van Heusen shirt, such English shirt could be regarded as a basis on which the respondent would be entitled to base the percentage of profit which he was entitled to charge in respect of a Van Heusen shirt. In our opinion the cheap pre-war English shirt, which incidentally was not produced, probably for the very good reason that there was not one in stock, cannot reasonably be said to be similar or like the pre-war Van Heusen shirt. To hold the contrary would be to disregard the very important difference in the price of the two articles and the difference in the price between two shirts manufactured in the same country negatives the shirts being like or similar to each other, implying as it does that the quality of the two shirts must have been substantially dissimilar. How it may be asked can a shirt which cost the seller Sh. $2/48$ be regarded as like or similar to a shirt which cost him 9/45? One main characteristic, that of quality, must be substantially different.

It was contended by the prosecutor before the Magistrate that like or similar meant identical. With that submission, of course, we do not agree, but on the question submitted for our decision we hold that the Magistrate misinterpreted the words like or similar and gave them too wide a meaning. There was no more reason for holding that the cheap English shirt was like or similar to the expensive Van Heusen shirt than there would have been for such a finding in the case of the Japanese shirt. We agree with Crown Counsel's submission that there was no relevant evidence adduced to rebut the Price Controller's certificate. The offence charged was committed and we refer the case to the Magistrate to record a conviction and pass such sentence as in his discretion may seem fit.

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