Kanji v Rex (Criminal Appeal No. 253 of 1940) [1940] EACA 38 (1 January 1940)

### **CRIMINAL APPEAL**

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

#### ABDULLA KANJI, Appellant

# $\mathbf{v}$

# REX. Respondent

#### Criminal Appeal No. 253 of 1940

Criminal Law-Profiteering-Sale at price greater than maximum controlled price—Regulations 46 (1) (a) (i) and 99—Regulation of prices Order dated 26th October, 1939 (Government Notice No. 814/1939)-Regulation of prices Order dated 12th March, 1940 (Government Notice No. 228/1940)---Publication-Duty to display price list in Mombasa trader's place of business-Power of District Commissioner, to fix a separate maximum controlled price for imported onions as distinct from local onions-Sentence.

By two notices published as Government Notices No. 814/1939 and No. 228/1940 the Supply Board in exercise of the powers conferred upon it by Regulation 46 of the Defence Regulations, 1939. empowered all District Commissioners to fix the maximum prices at which the articles set out in the schedule thereto, which included inter alia "onions", may be sold whether by wholesale or retail, in their respective districts and provided that "a list of such prices shall be displayed in a prominent position at the office of the District Commissioner and at such other places as the District Commissioner may consider necessary, and shall be deemed to have been published when so displayed: provided that, in the case of the Municipality of Mombasa, the list of such prices shall also be displayed in a prominent position in the place of business of every trader who deals in any of such articles". Appellant, a merchant trading in Mombasa there sold 450 bags of imported onions at the rate of Sh. 6 per frasila when the maximum controlled price fixed by the District Commissioner for "imported onions" was Sh. 4 per frasila. The maximum controlled price at that time for "local onions" was Sh. 7/25 per frasila. No list of the controlled prices was displayed anywhere in the appellant's place of business. Appellant was convicted of selling imported onions at a price greater than the maximum controlled price and was fined Sh. 600. Appellant appealed.

Held (6-12-40).—(1) That publication of the list of controlled prices for the Municipality of Mombasa did not depend on the display of the list in the trader's place of business.

(2) That the duty to display the list is cast upon the trader and the display or nondisplay of such list was immaterial to the commission of the offence.

(3) The coming into force of orders made under the Defence Regulations, 1939, does not depend on their publication.

(4) The District Commissioner had the same power as the Supply Board had to fix a maximum controlled price for imported onions as distinct from local onions.

(5) The sentence was inadequate.

Appeal dismissed. Sentence enhanced to a fine of Sh. 2,000 and in default of distress 6 months imprisonment with hard labour.

### A. B. Patel for the appellant.

Spurling for the Crown.

**JUDGMENT.**—The appellant was convicted before the Resident Magistrate.<br>Mombasa, of an offence *contra* Regulation 46 (1) $(a)$ (i), Defence Regulations, 1939, as amended by Government Notice No. 1039/39 in that he on the 27th July, 1940, at Mombasa sold 450 bags of imported onions to Kanji Meghji Shah at 6/50 per frasila whereas the controlled price was Sh. 4 per frasila. He

was fined Sh. 600. Two questions were argued before the learned magistrate the first being in as much as the list of prices fixed by the authorities under the Defence Regulations had not been displayed in a prominent position in the place of business of the trader concerned there had been no publication and a conviction could not be had. In considering this argument it is necessary to set out the Order under the Regulations dated the 4th October, 1939, which appears under Government Notice No. 814 in the Kenya Proclamations, Rules and Regulations, 1939, at p. 718. It is headed Regulation of Prices and in so far as it is material reads "In exercise of the powers conferred upon it by Regulation 46 of the Defence Regulations, 1939, the Supply Board hereby empowers all District Commissioners to fix the maximum prices at which the articles set out in the Schedule hereto may be sold, whether by wholesale or by retail, in their respective districts, and a list of such prices shall be displayed in a prominent position at the office of the District Commissioner and at such other places as the District Commissioner may consider necessary, and shall be deemed to have been published when so displayed". It is also necessary to set out an amending Order dated the 12th March, 1940, which appears under Government Notice 228 in the Kenya Proclamations, Rules and Regulations, 1940, at p. 160. That Order provides that the preceding Order referred to shall be amended by inserting a proviso in the following words "Provided that in the case of the Municipality of Mombasa ... the list of such prices shall also be displayed in a prominent position in the place of business of every trader who deals in any of such articles". This proviso follows the word "displayed" in the notice of the 6th October, 1939, a colon being substituted for the full stop appearing after the word "displayed". It was argued that it was the duty of the Supply Board or the person to whom power to fix prices was delegated (in this case the District Commissioner) to display the price list in the trader's place of business. This argument in our opinion has no merit. Reading the Order of the 6th October, 1939, as amended by the Order of the 12th March, 1940, it is clear that publication does not depend on the list of prices being displayed in the trader's place of business. The controlling words are to be found in the former notice and are unaffected by the amending Order and in saying this it is to our mind immaterial who has to display the list in the trader's shop, though we think it obvious that the duty is cast upon the trader. And finally as Mr. Spurling for the Crown contended the coming into force of Orders made under the Defence Regulations does not depend on their publication (vide Regulation 99 (1)), though one may assume that a prosecution would not take place before an order had been published.

The second point argued before the learned magistrate was that the power delegated by the Supply Board was limited to fixing a maximum price for onions and did not include a power to distinguish between local and imported onions. It has been conceded by Mr. A. B. Patel for the appellant that the Supply Board could have made the distinction. This being so we cannot understand why the District Commissioner does not possess equal power. Had the Supply Board wished to limit the power of the District Commissioner to fixing a maximum price for a particular kind of onions one would expect them to say so. It will be observed in the Schedule to the Order of the 6th October, 1939, that fish, salt and soap appear. Because of this could it be said with any show of reason that the District Commissioner was obliged to fix one maximum price for all fish irrespective of the variety for salt irrespective of whether it was coarse salt or fine salt or for all soap irrespective of whether it was toilet soap or washing soap. We do not find the argument tenable. We dismiss the appeal. At the commencement of the hearing of the appeal we informed Mr. Patel that in the event of the appeal being dismissed we should consider the question of enhancing the sentence. At the hearing before the magistrate it

was agreed by counsel for the appellant that the difference between what the appellant could have received under the controlled price and what he would receive under the contract was Sh. 1,350. If this be so the appellant after paying the fine imposed on him would still have a handsome and illegal super profit of Sh. 750 had he been paid. In his evidence before the magistrate the appellant stated that he understood the price fixed for onions was $Sh$ , $7/25$ . It would be interesting to know how he came into possession of this inaccurate information as the first time, so far as the record discloses, this price for onions was mentioned was when an amended price list was published on the 17th July, 1940, fixing the maximum price of Local Moshi Onions at 7/25. It has to be borne in mind by traders and the serious consideration of magistrates is also invited to the fact, that we are living in unusual times when unusual measures entailing unusual penalties for their breach are necessary in the interests not merely of the public but of national security. These measures are the Defence Regulations and it had better be understood once and for all that profiteering contrary to the provisions thereof will be severely dealt with by this Court. The fine is increased from Sh. 600 to Sh. 2,000 in default of distress 6 months imprisonment with hard labour.