[1947] EACA 79

## APPELLATE CRIMINAL

### Before HORNE and BOURKE, JJ.

### REX, Respondent (Original Prosecutor)

# (1) JIVIBEN D/O MEPA, (2) MOTIBEN D/O SURA W/O PREMCHAND, (3) DEVCHAND LAKHTIR, Appellants (Original Accused)

### Criminal Appeals Nos. 376, 377 and 378 of 1946 (Consolidated)

Criminal law—Emergency legislation—The Defence (Price Control) Regulations, 1945, reg. 11 (1)—Responsibility of partners for act of employee—Reg. 25 (6) -No evidence of partnership-Admission by advocate-S. 58. Indian Evidence Act.

D. L., an employee of the firm of J. H. Shah, was charged with overcharging on a sale of 2 lb. of sugar contrary to regulation 11 (1) of the Defence (Control of Prices) Regulations, 1945. J. M. and M. S. were also charged jointly of the same offence with D. L. as being partners in the firm of J. H. Shah under regulation 25 (6). The personal attendance of J. M. and M. S. was excused at the trial and they were both represented by the same advocate who pleaded "Not guilty" on their behalf.

No evidence was led at the trial to prove that J. M. and M. S. were partners in the firm of J. M. Shah, but their advocate admitted that they were.

All three accused were convicted and appealed. At the appeal the Crown sought to have the case remitted to the trial Court for the purpose of taking additional evidence.

Held $(14-1-47)$ —(1) That in criminal proceedings an accused person—and a fortiori his advocate—can make no admissions either before or at the trial so as to dispense with proof.

(2) That an order for additional evidence should not be made on appeal to fill up gaps in the prosecution case.

Appeals of J. M. and M. S. allowed. Appeal of D. L. dismissed.

Malik (Mandavia with him), for the Appellants.

Lowe, Crown Counsel, for the Crown.

JUDGMENT.—The appellant Devchand Lakhtir was convicted of overcharging on a sale of 2 lb. of sugar and selling the sugar without coupons. The appellants Jiviben d/o Mepa and Motiben d/o Sura were convicted of overcharging. They were, with Devchand, jointly charged with the overcharging in one charge sheet, the two female accused being described as partners in the firm of J. M. Shah, traders, and the male accused as employee of J. M. Shah, traders, and Devchand was separately charged with selling without coupons.

The case was a trap case. Mr. Schwartze had instructed two African office boys to go to the shop of "J. H. Shah" and attempt to purchase butter or sugar without coupons and had given one of them two one shilling notes, the numbers having been taken. In ten minutes the boys had obtained 2 lb. of sugar for Sh. 1/80 and produced 20 cents change to Mr. Schwartze, and directly afterwards Devchand made a statement to Mr. Schwartze, through an Indian clerk, admitting that he had sold the sugar to the African for Sh. 1/80 and also admitting at first that he had sold it without coupons, but on further cautioning he denied the sale was without coupons.

Mr. Malik for the appellants has subjected the evidence to a close and lengthy scrutiny, but we find ourselves unable to say with regard to Devchand that the magistrate is wrong in any of his findings of fact.

The argument that the statement made by Devchand to Mr. Schwartze is a confession obtained by inducement has no basis in the evidence. Mr. Schwartze

and Ahamed Gulamali, his interpreter, were both closely cross-examined by Mr. Mandavia and although Devchand declared that Ahamed had told him "you should tell the truth. It is in your interest", we think the magistrate was justified in accepting the evidence of Mr. Schwartze and Ahamed as to the voluntariness of the statement of Devchand. Further, having regard to the trap evidence and the admission of Devchand, the magistrate was also justified in rejecting the defence evidence. This evidence was an attempt to show that it was possible for Schwartze's two Africans, in a very short space of time after being searched by Mr. Schwartze, to have obtained a five shilling note and two sugar coupons, bought 2 lb. of sugar for 54 cents, received Sh. 4/46 in change, then to have given over the two marked shillings in a separate purchase of tea costing Sh. $1/80$ , received the tea and 20 cents change and to have disposed of the tea before reporting back to Mr. Schwartze. Although the times of the departure of the Africans and the return of one of them to Mr. Schwartze was not noted by Mr. Schwartze, the nearness of his office to the "J. H. Shah" shop makes it reasonable to believe him when he says that the African returned in a few minutes. Consequently, there was nothing unreasonable in the magistrate rejecting the evidence tendered by Devchand and his witnesses and accepting that given by Mr. Schwartze and his assistants. We think Devchand was rightly convicted and dismiss his appeal.

With regard to the two alleged employers, the two female appellants, it has been argued that there was no evidence to support their conviction. In short that, it has not been proved they were the employers of Devchand. It was proved that the sale took place at the shop of J. H. Shah, that Devchand is an employee of J. H. Shah, but there is no proof that the two female appellants are the partners. Mr. Lowe now submits that as the two female appellants were excused from personal appearance at the trial, certain words uttered by Mr. Mandavia in his address to the magistrate on their behalf must be taken as an admission. Mr. Mandavia had already addressed the magistrate on the trap evidence and the prosecution had replied. He is then recorded as having said: "Nothing to say re accused one and two except that they exercise no control over the business-it is only in their names. Jiviben Mepa Shah; accused No. 2, wife of Manager Premchand".

These two appellants were charged as owners of the shop and therefore as employers of Devchand in order to make them answerable for his acts under regulation 25 (6) of the Defence (Control of Prices) Regulations. This is not a negative averment, and the burden of proof that they were the employers of Devchand was upon the prosecution. Section 105 of the Evidence Act has been cited to us by Mr. Lowe, but it has no application to the matter. All that the prosecution can bring forward is this admission made by Mr. Mandavia. It is submitted that, as the personal attendance of the two appellants was dispensed with, this admission is sufficient evidence to support the conviction. The advocate, however, had pleaded not guilty. Section 58 of the Evidence Act in substance provides that facts admitted need not be proved, but that section is particularly adapted to civil proceedings. Article 63 of Stephen's Digest is in substance the same as section 58, but the learned author adds the proviso "that in criminal cases the accused can make no admissions either before or at the trial so as to dispense with proof". Of course, such proof may consist of a confession duly given in evidence. It has also been submitted on behalf of the prosecution that the case be now remitted to the magistrate for further evidence to be taken under section 357. We are unable to order further evidence simply to fill up an omission of the prosecution. It was the duty of the prosecution to prove the charge that the appellants were the responsible employers of Devchand. They failed to offer any evidence at all and now seek to fall back upon an admission made by the appellants' advocate. But if the accused can make no admission so as to dispense with proof obviously his advocate cannot, and as no evidence was given before conviction in proof of the appellants being employers of Devchand there is no evidence to support the conviction and the appeal must be allowed, and the conviction of the two female appellants must be quashed.