Rex v Produce Dealers and Millers (Criminal Case No. 302 of 1947) [1947] EACA 81 (1 January 1947)

## ORIGINAL CRIMINAL

Before NIHILL, C. J., and BOURKE, J.

## REX, Prosecutor

## PRODUCE DEALERS & MILLERS. Accused

Criminal Case No. 302 of 1947

Criminal Law-Marketing of Native Produce Ordinance, 1935, s. 4 (b)-Purchase of native produce—Constituents of offence.

The Bungoma Flour Mills belonging to the appellants were inspected by a marketing officer on 18th June, 1947. Maize control permits were found on the premises together with a large quantity of maize. The appellants had a licence to purchase maize during 1946 but they failed to produce a licence for 1947. They were charged with "trading without a purchaser's licence (Marketing of Native Produce Ordinance, 1935, s. 4 (b))" and convicted.

They appealed.

Held (26-9-47).—(1) That it is not "trading" that is prohibited by the section but "purchase", under certain conditions, of a specified native produce.

(2) That as there was no evidence of purchase, no offence had been made out.

Appeal allowed.

Holland for the Crown.

Dhanwant Singh for the Accused.

JUDGMENT.—The main ground of this appeal and on which the appellant must succeed is that there is no evidence on the record which discloses an offence to section 4 $(b)$ of the Marketing of Native Produce Ordinance (Ordinance 28 of 1935). Neither the complainant, who is described as a marketing officer, nor the Magistrate appear to have understood the nature of the offence contemplated by the section, since both the complainant and the summons describe the offence as one of trading without a purchaser's licence. Trading is a wide term covering the various operations of the purchase, sale and re-sale of a commodity, but it is not trading that is prohibited by the section but purchase, under certain conditions, of a specified native produce. It was this confusion which I think must have existed in the mind of the Magistrate, that led him into the error of convicting the appellant after he had found, quite properly on the evidence before him, that there was no evidence of purchase. To establish an offence under the section it must be shown: $(a)$ that there was purchase of native produce as defined by section 2 of Ordinance 38 of 1939; (b) that this purchase took place in a declared area within the meaning of section 3 of the Ordinance; (c) that the native produce purchased was of a kind specified in an order made $\frac{1}{2}$ by the Governor under section 3 of the Ordinance; $(d)$ that at the time of the purchase the purchaser was not in possession of a valid licence to purchase.

The prosecution in this case failed to establish $(a)$ , so that $(b)$ , $(c)$ and $(d)$ do. not arise.

One further point remains to be considered. The Magistrate, having found that no purchase had been proved to have taken place on the date mentioned in the Complaint Sheet, called in aid Section 212 (2) of the Criminal Procedure Code. This could have availed had there been evidence of purchase on some other date: The Magistrate was not justified in assuming that because a large quantity of maize was found in the appellants' storing that the firm must have purchased it on a date when they were not in possession of a licence. Indeed, there was evidence that for the year 1946 the appellants possessed a licence. It was encumbent on the prosecution to prove that the maize found was purchased in 1947 and this it failed to do. One witness, it is true, stated that on arriving at the mills he "found them buying native produce" but taking this evidence as a whole it is clear that what he meant was that he inferred that the firm had bought maize because he saw some Maize Control permits to purchase maize. He did not produce the permits or give evidence as to their dates.

As I have clearly indicated, I allow the appeal and direct that the fine, if paid, be remitted.