Mahida v Rex (Criminal Appeal No. 515 of 1951) [1951] EACA 136 (1 January 1951)

## APPELLATE CRIMINAL

### Before THACKER, J., and WINDHAM, J.

### PRABHAT SINGH M. MAHIDA, Appellant (Original Accused)

# REX, Respondent (Original Prosecutor)

# Criminal Appeal No. 515 of 1951

## (Appeal from decision of 1st Class Magistrate's Court at Kakamega-A. D. Shirreff, Esq.)

Defence (Control of Prices) Regulations, 1945, section 11 (1)—Section 22 (1)— Section 4 (1) and (3)—Meaning of "Production"—Publication of lists in such manner as Price Controller considers necessary—Whether such lists should be exhibited.

The appellant was convicted under section 11 (1), Defence (Control of Prices) Regulations, for selling loaves of bread in excess of maximum permitted selling price. A Price Inspector purported to produce invoices found amongst the appellant's books as well as a controlled price list, but neither were made Court exhibits.

*Held* (3-12-51).—(1) Although section 22 (1) allows an invoice to be prima facie evidence of the price, it does so only upon "production" of the invoice. The word "production" means numbered and exhibited in Court, and as this was not done the "sales" were not proved.

(2) The Court can take judicial notice of lists published in the Gazette, but where lists can be published "in such other manner as the Price Controller may consider necessary to bring them to the notice of the public", such lists (if not gazetted) should be made exhibits in Court.

In the result the appeal succeeded.

Couldrey for appellant.

Boyle, Crown Counsel, for Crown.

JUDGMENT.—Learned Crown Counsel does not support this conviction. The appellant was convicted on six counts of selling loaves of bread in Kisumu, described in the charge sheet as "loaves Nairobi", at a price in excess of the maximum permitted selling price, contrary to regulation 11 (1) of the Defence (Control of Prices) Regulations, 1945. Only one witness was called for the prosecution, a Price Control Inspector. He purported to "produce" a number of invoices found among the appellant's books showing that the loaves had been sold<br>for 57 cents each, and he also purported to "produce" a controlled price list showing that the price of bread at the time was 51 cents per loaf in Kisumu. On this evidence the appellant was convicted. Neither the invoices nor the controlled price list were legally produced, in the sense of being made Court exhibits. Since the Inspector in his evidence stated that he "produced" them, it can only be presumed that he showed them to the learned trial Magistrate and then took them away again. There is nothing to indicate where they are now.

Now a conviction on that kind of evidence cannot possibly stand. It appears to be yet one more instance where fundamental legal principles are being sacrificed to expedition or to administrative convenience. First of all, regulation 22 (1) of the Defence (Control of Prices) Regulations, 1945, which allows an invoice to be prima facie evidence of the sale to which it relates at the price which it sets out, does so only upon "the production" of such invoice by the Price Controller or other specified official. The words "the production" must in our view be taken to mean production in the only manner recognized in legal procedure, that is to say by the invoice being made and numbered as an exhibit in the case and being placed on the case file. This not having been done, section 22 (1) never became applicable at all, and accordingly the sales were not proved and the appeal must succeed on this ground alone.

Secondly, it was likewise necessary that the controlled price list should have been properly produced. For it would appear that such lists are not now published in the form of orders in the Gazette, in which case the Court might perhaps have taken judicial notice of them as being subsidiary legislation upon its attention being drawn to them, but are published "in such other manner as the Price Controller may consider necessary to bring the matter to the notice of the public". Such a form of publication is given legal sanction by regulation 4 (1) and (3) of the Regulations; but where the list is not gazetted (in which case the Court should be referred to it) then it should be made an exhibit; for the Court will not take judicial notice of something which has been published in any other manner, nor accept a Price Inspector's oral evidence as to what its contents are. In the present case, owing to the price control list not being before this Court, it is impossible to know what was the controlled price for the particular kind of bread said to have been sold by the appellant.

For these reasons the appeal is allowed, the convictions on all six counts quashed, the appellant acquitted, and the fines imposed, if paid, will be refunded to him.