Rex v Ali (Criminal Appeal No. 188 of 1946) [1946] EACA 49 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir G. GRAHAM PAUL, C. J. (Tanganyika) and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent 3Original Respondent/Prosecutor)

$\mathbf{v}$

ALI s/o NAJI, Appellant (Original Appellant Accused)

## Criminal Appeal No. 188 of 1946

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, Regulation 16 (1)—Possession of sugar not obtained by means of coupons—Conviction—Sugar ordered to be forfeited—id Regulation 27 (1) and (2)—Sugar not "of a perishable nature"—Defence Regulations, 1939, Regulation 96—No provision for forfeiture but only for disposal.

The appellant was convicted of being in possession of rationed foodstuffs. to wit 25 bags of sugar which had not been obtained by means of coupons issued by the authority, contrary to Regulation 16 (1) of the Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, 1944. In imposing a fineof Sh. 1,000 with 4 months' simple imprisonment in default the Magistrate ordered in addition that the sugar be forfeited and returned to the Regional Distribution Officer for allocation. The Supreme Court having dismissed the appellant's appeal against the Magistrate's order he appealed to the Court of Appeal for Eastern Africa.

*Held* $(7-11-46)$ .—(1) Sugar is not "of a perishable nature" within the meaning of Regulation 27 (1) and the magistrate's order must have been made under Regulation 27 (2).

(2) Neither in the Regulations under which the charge was brought nor in Regulation 96 of the Defence Regulations which applies in this case is there any provision for "forfeiture" and the use of that word in the magistrate's order was as wrong as it was unnecessary.

(3) As the magistrate had power under Regulation 96 (2) to make an order for the disposal of the sugar there was no need for an order of forfeiture.

(4) The order for the disposal of the sugar by the Regional Distribution Officer was rightly made in the interest of "public safety".

Appeal dismissed—Order of magistrate verbally varied.

Case referred to: King v. The Governor of Wormwood Scrubs Prison 1920 2 K. B. $305$

Appellant absent, unrepresented.

Haughey, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant comes to this Court by way of second appeal, from the Supreme Court of Kenya which upheld the decision of the Resident Magistrate at Kisumu. The charge against the appellant in the Resident Magistrate's Court was "Being in possession of rationed foodstuffs which had not been obtained by means of coupons issued by the authority (section 16 (1) Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, G. N. 886/1944)". The foodstuffs in question were 25 bags of sugar. To that charge the appellant pleaded guilty and he was sentenced to a fine of Sh. 1,000 or in default 4 months' simple imprisonment, "In addition" the Magistrate ordered that the 25 bags of sugar be forfeited and returned to the Regional Distribution Officer for allocation. Against that order of forfeiture the appellant appealed to the Supreme Court of Kenya, and from the Supreme Court's order dismissing his appeal the appellant appeals to this Court.

The appellant's contention before the Supreme Court is sufficiently set out in the judgment of the Supreme Court. It was that sugar was "perishable" and therefore came under section 27 (1) of the Regulations which provides for compensation. So far as that contention is concerned it is enough to say that we agree with the Court below that sugar is not "of a perishable nature" within the meaning of 27 (1) and that the Magistrate's order must have been made under $27(2)$ .

There have been filed in this appeal however "Written Arguments" which we have considered. It is now contended for the first time that even if the order were made under $27(2)$ it is illegal.

27 (2) is in the following terms: $-$

"Where the foodstuff so seized is not of a perishable nature it shall be dealt with in accordance with the provisions of Regulation 96 of the Defence Regulations, 1939."

We must now turn to Regulation 96 of the Defence Regulations, 1939, and in particular to sub-section (2) of Regulation 96.

Sub-section (2) is in the following terms: $-$

"Where proceedings are taken in respect of a war offence, being proceedings in which a retained article is, or can properly be, adduced in evidence, the court by or before which the alleged offender is tried may make an order-

(a) authorizing the destruction or disposal of the article; or $\frac{1}{2}$

(b) authorizing the further retention of the article until such date as may be specified in the order:

and any such order authorizing the destruction of a document may be made so as to extend to all copies of that document which at the time of the making of the order are in, or which subsequently come into, the possession of an executive authority in any part of the Colony."

The contention for the respondent is that by virtue of Regulation 96 $(2)$ $(a)$ the Magistrate could, and rightly did, order forfeiture of the sugar—that is to say his order of forfeiture was an order for the "disposal of the article". This contention requires examination.

In the Regulations under which the charge was brought there is a special Regulation setting out the penalties for offences and there is no provision for "forfeiture" (which is of course a "penalty") and which might have been expressly included in the penalty provisions, if it were intended that forfeiture should be a penalty for any offence under the Regulations.

Nor is there anywhere in the Defence Regulations, 1939, any express provision for "forfeiture" of any article seized, or otherwise in the hands of the executive authority as evidence of a war offence. From the absence of any express reference to forfeiture it is contended that the Defence Regulations did not provide for, or intend, forfeiture as a punishment of any offence. As it appears to us, that is a sound interpretation of the intention of the Defence Regulations as they stood at the dates of the offence and conviction in this case, and in our opinion the use of the word "forfeited" in the Magistrate's order was as wrong as it was unnecessary in this case.

The real legal position may be very shortly stated. The 25 bags of sugar were in the hands of the executive authority. They had been seized and retained as evidence of a "war crime". The Magistrate therefore had power under Regulation 96 (2) to make orders for their destruction or disposal or for their retention by the executive authority. The appellant having been convicted of being in possession of the 25 bags of sugar illegally and criminally obviously had no legal right to them. There was therefore no need for an order of forfeiture against the appellant; all that was required was an order for the disposal of the 25 bags. The order of the Magistrate as regards disposal of the sugar ought therefore to have been as follows: -

"The 25 bags of sugar being in the hands of the executive authority and no one having any legal right to the 25 bags it is ordered that the 25 bags of sugar be handed over to the Regional Distribution Officer for allocation. This order is made under Regulation 27 (2) and no compensation is payable to Ali bin Naji."

The Magistrate's order is altered accordingly as regards disposal of the sugar but the alteration is only academic in effect.

In the "Written Arguments" it is also contended that this order should not have been made because of the terms of sub-section (4) of Regulation 96 which are as follows:-

"A Court shall not make an order under this Regulation unless the Court is satisfied that it is necessary so to do in the interest of public safety, defence or the efficient prosecution of the war."

There is no substance in this contention. In the first place there is a sugar shortage due to the war, and sugar is therefore rationed under the Defence Regulations. The "public safety" does demand that supplies of sugar in the hands of the executive authority should not either be destroyed or retained by the executive authority but that it should be used in accordance with the machinery devised *ad hoc* for the public safety, namely the Regional Distribution Office, and the order made was therefore in conformity with sub-section (4).

Furthermore the appellant having no right to the sugar has no locus standi to object to the order of the Magistrate as to the disposal of it.

It has been suggested that the war is now over and that therefore no question of "public safety" can arise. It is true that the war is for particular purposes over, in so far as invasion or attack by the enemy is concerned. But the war necessitated the Defence Regulations not only to combat enemy invasion or attack but to safeguard the food supplies of the people and to ensure a fair distribution of the available supplies. The material Defence Regulations are still in force and until peace treaties are concluded with the enemies with whom we were at war, it is for the Executive to decide when and in what respects the Defence Regulations should be revoked. (See the King v. The Governor of Wormwood Scrubs Prison-1920 2 K. B. 305.) Such revocation will ensue only when the Executive decides that the "public safety" permits. That time has apparently not yet arrived, and the Courts must continue to enforce the Defence Regulations, as they still subsist.

Apart from the academic alteration in the Magistrate's order, for the reasons we have given, the appeal is dismissed.