Rex v Shah and Another (Criminal Appeals Nos. 308 and 309 of 1948 consolidated) [1948] EACA 67 (1 January 1948)

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J., and DE LESTANG, J.

#### REX, Respondent (Original Prosecutor)

(1) GULABCHAND M. SHAH AND (2) NEMCHAND MOTICHAND SHAH,

Appellants (Original Accused Nos. 1 and 2 respectively)

# Criminal Appeals Nos. 308 and 309 of 1948 consolidated

- Criminal law—Storing, without the permission in writing of the Price Controller, goods in premises other than the premises in which business is carried on-Defence (Control of Prices) Regulations, 1945, regulation 13 (1)-What must be proved before conviction can be had—Practice—Defective charge. - Held (28-6-48).—(1) That before a conviction can be had under regulation 13 (1) of the Defence (Control of Prices) Regulations, 1945, it is not sufficient to prove that the goods were stored in premises other than those on which the accused carries on business. It is also necessary to establish that such premises were not in occupation of the accused or under his control for the purpose of his business. - (2) That the charge was defective in that it did not aver that the premises on which the goods were found were not in occupation of the appellants under their control for the purpose of business.

Appeals allowed—convictions quashed and sentences set aside.

### O'Brien Kelly for the Appellants.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—The appellants were convicted of an offence contrary to regulation 13 (1) of the Defence (Control of Prices) Regulations, 1945, on a charge which reads as follows: $-$

"Storing, without the permission in writing of the Price Controller, goods in a premises other than the premises in which business is carried on: Contra Regulation 13 (1) of the Defence (Control of Prices) Regulations, 1945 (Government Notice No. 109 of 1945) which Regulations have effect by virtue of the Supplies and Services (Transitional Powers No. 2) Order, 1945 (Government Notice No. 185 of 1946).

That you, GULABCHAND MOTICHAND SHAH, sole proprietor of the business styled Gulabchand M. Shah of Shimanzi, Mombasa, in the Coast Province, Kenya Colony, and you, NEMCHAND MOTICHAND<br>SHAH, being the person in charge of the premises of Messrs. Gulabchand M. Shah did, on 13-2-48 store or permit to be stored, goods, to wit, approximately 389 yards of Khaki Drill, in and on a cupboard in a bedroom of such premises, which bedroom is apart from the premises where the business is carried on and did thereby commit an offence *contra* Regulation 13 (1) of the said Regulations."

Regulation 13 $(1)$ as far as material for the purpose of this appeal provides that "any trader . . . 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 . . . shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding fourteen years".

Mr. Kelly, on behalf of the appellants, has taken the point that the charge was defective in that it did not aver that the premises on which the goods were found were not in the occupation of the appellants under their control for the purpose of the business. With this submission we are in entire agreement. It is perfectly clear from the wording of regulation 13 (1) that before a conviction can be had on a charge of this nature under that regulation it is not sufficient to prove that the goods were stored in premises other than the premises on which

the accused carries on business but it is also necessary to establish that such premises were not in the occupation of the accused, or under his control for the purpose of its business. Conversely a finding by a Court that the place where the goods were stored were not "premises other than those on which business was carried on" would be insufficient to maintain a conviction under the regulation in question because notwithstanding such a finding such premises might very well be premises in the occupation or under the control of an accused person for the purpose of his business in which cases no offence would be committed by storing goods in them.

The present case proceeded to trial on the basis that the room in question was not part of the premises on which the appellants carried on business and while we think that the learned Magistrate was right in the conclusion she reached on this point, we are unable to find any conclusive indication either on the record or in the ruling and judgment that she ever addressed her mind to the question whether the premises were in the occupation or under the control of the appellants for the purpose of their business. On the contrary the expressions used in the ruling and judgment tend to show that this all-important question was lost sight of completely, e.g., paragraph 2 of ruling "The broad purpose of regulation 13 (1) is to prevent the concealment of goods illicitly acquired, by prohibiting their storage in premises which are not those on which business is normally carried on".

Paragraph 3 of ruling:—"In all the circumstances it is my opinion that the back bedroom in which the material was alleged to have been found is a separate premises from that of the front portion of the building within the meaning of regulation 13 $(1)$ ".

Paragraph 5 of judgment "no sufficient evidence has been disclosed to persuade me to alter the opinion already expressed in my ruling that the back premises in question are separate premises within the meaning of regulation 13 (1)".

The two back-quoted passages are somewhat ambiguous lest any doubt as to their real meaning is immediately dispelled by the following passages from the ruling and judgment respectively:-

"Advocate for the accused has submitted that neither accused has a case to answer on count 1 of the charge on the ground that the place where the goods were stored cannot be held to be premises 'other than those on which business was carried on' within the meaning of Regulation 13 (1) in that the room in question is under the same roof and in the same building as the shop and store."

"Accused No. 1 has admitted that the material in question was found in the back bedroom as stated by the prosecution, so this point is not in issue. Advocate for Accused has repeated the submission he made at the end of the case for the Prosecution that Accused should be acquitted on the ground that the bedroom in question cannot be held to be premises 'other than those on which business is carried on' within the meaning of Regulation 13 (1) of the Defence (Control of Prices) Regulations, 1945."

We have considered whether, notwithstanding the learned Magistrate's failure to consider the question whether the room where the goods were stored were occupied by or under the control of the appellants for the purpose of the business, this Court should not uphold the convictions on the ground that the evidence supports the convictions. We have come to the conclusion, however, that although there was evidence on which the learned Magistrate might have answered the question in the negative and unfavourably to the appellants we are unable to say that had she addressed her mind to it she would necessarily have come to that conclusion. In the circumstances we have no alternative but to allow the appeals, quash the convictions and set aside the sentences.