Rex v Jesang (Criminal Appeal No. 253 of 1946) [1947] EACA 18 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOSEPH SHERIDAN, C. J. (Kenva), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and HORNE, J. (Kenya)

### REX. Respondent (Original Prosecutor)

#### $\mathbf{v}$

# DHARAMSHI JESANG: Appellant (Original Accused) Criminal Appeal No. 253 of 1946

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

Criminal law—Emergency Legislation—Defence (Control of Prices) Regulations, 1945—Regulations 13 (1), 13 (3)—Responsibility of occupier of premises— Essentials of offence of permitting the storage of rationed articles.

A Price Inspector searched the shop of D. J., a trader dealing in piece goods and native trade goods, and found four bags of sugar in a room at the back of the premises. D. J. had no permission from the Price Controller to have the sugar and his explanation was that it had been left with him for temporary safe keeping by another trader B. B.

D. J. was charged with "being the occupier of premises ... did without the permission of the Price Controller, permit to be stored in his premises four bags of sugar $\ldots$ the property of G. B. $\ldots$ contrary to Regulation 13 (3) of the Defence (Control of Prices) Regulations, 1945.

The Magistrate disbelieved D. J.'s explanation and convicted him.

D. J., having appealed unsuccessfully to the Supreme Court, appealed a second time to the Court of Appeal for Eastern Africa.

Held (4-2-47).—That before a conviction can be had against an accused person as an occupier of premises under Regulation 13 (3) of the Defence (Control of Prices) Regulations, 1945, it must first be proved that an offence has been committed under Regulation 13 (1).

Appeal allowed.

Nazareth for the appellant.

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The accused, Dharamshi Jesang, was charged before the Resident Magistrate, Mombasa, with an offence contra Regulation 13 (3) of the Defence (Control of Prices) Regulations, 1945, Government Notice 109/1945, in the following terms: "Dharamshi Jesang being the occupier of premises in Mombasa on or about the 22nd day of August, 1945, at Mombasa in the Coast Province, did without the permission of the Price Controller permit to be stored in his premises 4 bags of sugar each 224 lb., the property of Gulabkhan Brothers, traders of Kimango".

He was found guilty and sentenced to six months hard labour and a fine of Sh. 2,000 with three months hard labour in default. On appeal to the Supreme Court his appeal was dismissed.

Regulation 13 (3), the section of the relevant Regulations under which the accused was charged and convicted, provides: -

"Where any goods are found on such premises, the person who occupies, or has the right to occupy such premises as well as the trader, manufacturer, commission agent or clearing and forwarding agent who owns, or the person who removed or stored such goods, shall be guilty of an offence and shall be liable on conviction to the penalty prescribed by sub-regulation (1) of this Regulation.":

and Regulation (13) (1) provides—

"Any trader, manufacturer, commission agent, or clearing and forwarding agent who, except with the permission of the Price Controller, stores or permits to be stored in any premises other than the premises on which he carries on business or which are in his occupation or under his control for the purpose of such business any goods or deals in such goods other than in the normal course of business shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 14 years.

In construing Regulation 13 (3) we have no doubt, and learned Crown Counsel agrees, that there cannot be a successful prosecution under Regulation 13 (3) unless it has been proved that an offence has been committed under Regulation 13 (1). In the present case, before the accused charged as an occupier could be convicted it had to be proved not only that goods the property of Gulabkhan Bros were found on his premises but that Gulabkhan Bros, stored or permitted those goods to be stored in contravention of Regulation 13 (1). While we agree that it is not incumbent on the prosecution to bring a case against the owner of goods before prosecuting the person on whose premises they are found, the desirability of doing so is very obvious, seeing the onus the prosecution has to discharge of proving the goods to belong to the alleged owner and that the latter had contravened Regulation 13 (1) before securing a conviction against the occupier. This course was not followed, with the result that the Magistrate failed to appreciate what were the necessary ingredients of the offence with which the prosecution purported to charge the accused.

From the record of the evidence it is clear (the cross-examination at p. $14$ of the typescript) that the prosecutor by his questions was imperilling his own case by trying to extract from the accused that he was not genuinely storing the goods for Gulabkhan Bros., or anyone else, but rather that the goods at the accused's shop were waiting to be transferred to his shop at Majengo. In other words, that the goods in some black market way had been bought or come into the accused's possession for subsequent sale to his customers at Majengo.

Turning to the Magistrate's judgment, it is, as we have stated, clear from the following passages that he misunderstood the case. "Gulabkhan Bros. had a building only 50 yards from the accused's shop. The bags of sugar comprising the lorry load had been stored there prior to the 19th August. Is it credible that after loading the lorry and going 50 yards only that the driver Jamal should then find he was overloaded and decide to leave some bags when Gulabkhan's own building was so close by .... It is significant that accused has another shop in Majengo where he sells foodstuffs and sugar. The Regulations have been framed to safeguard against black marketing. They would be useless if improbable stories such as that put forward by the accused were accepted. I am unable to credit accused's story". The accused's story was that one Jamal, who worked for Gulabkhan Bros., left the sugar with the accused because the lorry was overloaded and this story was rejected by the Magistrate and rightly rejected for it savours of the cock and bull variety. But the rejection of this story implying a finding, as it clearly does, that there was no storing at all but that it was a black market transaction is fatal to a case contra Regulation 13 (3). Far from the Magistrate finding that the goods on the accused's premises belonged to Gulabkhan Bros., as he would have to do before entering a conviction under Regulation 13 (3), he implies by his judgment the contrary conclusion. And even if he had found that the goods belonged to Gulabkhan Bros., it would still be necessary to find that they were found on the accused's premises as a result

of a contravention of Regulation 13 (1) of the Regulations by Gulabkhan Bros. and there was no such finding. In the absence of a finding by the Magistrate that the property at the time it was found was Gulabkhan Bros, and that Gulabkhan Bros. contravened Regulation 13 (1), two essentials for a conviction under Regulation 13 (3), the appeal must be allowed, the conviction and sentence quashed and the accused acquitted.

In the view we take it is unnecessary to deal with any of the other points argued before us, and we leave it to be decided on another occasion, should it become necessary to a decision of the case, the point argued by Mr. Nazareth that the occupier in this case being also a trader, though not trading in sugar, on the wording of Regulation 13 (1) would be entitled to store the goods of another trader carrying on business or which are under his control for the purpose of such business.

The appeal is accordingly allowed and the conviction and sentence quashed. The fine, if paid, is ordered to be refunded.