Gulamali Bhaloo v. R. Crim. App. 822-D-69; 18/2/70; Georges C. J.

Gulamali Bhaloo v. R. Crim. App. 822-D-69; 18/2/70; Georges C. J.

The appellant in this matter was charged with and convicted of two offences with respect to breaches of an order made by the National Agricultural Products Board under section 6 of the National Agricultural Products Board Act, Cap. 567. The order was published as Government Notice 328 of 1968. section 2 provides:- “Every dealing in , barter, offer for sale, sale purchase, or hire of any of the agricultural products specified in the Schedule hereto or their derivatives is hereby prohibited except where such dealing in, barter, offer for sale, sale, purchase or hire is by the Board, its agents or persons licence by it, or in the case of an offer for sale or sale by a producer of such product. Provided that nothing in this paragraph shall apply to the retail sale or offer for sale of the processed derivatives of any of the agricultural products specified in the Schedule hereto for the consumption or use of the purchaser, his household or persons under his care.” The Schedule lists the following: - Maize, maize flour, paddy, rice, wheat, wheat flour, cashew nuts. The facts are not basically disputed. On 25^th May, 1969 A.S.P. Pattani went to the Dodoma Railway Station where he saw a consignment of 13 tons of rice “addressed to the accused”. On enquiries he “discovered that the accused was provided with the Arrival Advice Slip of this consignment and also the invoice”. The appellant did not apparently call at the Railway to collect the rice and on 28^th May, 1969 A. s. P. Pattani visited the appellant “at his shop”. The appellant said that he would not collect the rice and eventually the A. S. P. paid the demurrage charges due on the rice and seized it. Mr. Pattani asked the appellant to hand him the documents in connection with the rice shipment. The appellant replied that they were with his lawyer. On this and other documentary evidence the appellant was convicted.

            Held: (1) “[The appellant’s counsel’s] first contention was that the section did not prohibit purchase of the scheduled products from licenced persons if the products purchased were intended for retail. In effect he was contending that a retailer of these products did not have to be an agent of the Board or licensed by the Board. Unless, therefore, it could be shown that the appellant intended to sell wholesale there could be no offence. The section appears to me to be much wider in its scope than [would concede. It seems quite clearly to ban all dealings in the scheduled products by any person other than the agents of the Board or their licencess. The proviso excepts only retail sale for the consumption or use of the purchaser, his household and persons under his care. I would hold that every shopkeeper who retails any of the scheduled products must be an agent of the Board of its licence to enable him in the first place lawfully to purchase the products which he will in turn retail. The customer purchasing from him is exempted under the proviso, but no other dealing is exempted. It is true that the term “retail sale” has not been defined but clearly a consignment of 13 tons of rice could not possibly be thought  of as a “retail sale” “for the consumption or use of the purchase his household or persons under his care.” The dealing in these two consignments of rice would, therefore, be in breach of the order unless both parties were the agents or licensees of the Board.” (2) “The second major contention deals with the usually difficult question of burden of proof [appellant’s counsel] contended that the prosecution had failed to establish that the appellant was not an agent of licencee of the Board and that the burden was on them to do so. [Counsel for prosecution]

Contended that the prosecution did not need to do more than prove that there had been dealing and immediately the burden shifted to the appellant to show that he had the appropriate authority. In support he quoted the Evidence Act 1967 section 114 which states that the burden is on the person accused of an offence to prove “the existence of circumstances is bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged.” The burden is also placed on the accused person of proving on “fact especially within (his) knowledge”. Neither side quoted any authority on the point. I have not been able to find any direct East African authority but the position is well defined by English authority. In R. v. Oliver (1943) 2 All E. R. 800 the matter was thoroughly reviewed and the Court of Criminal Appeal held that where a person was charged with having sold sugar as a wholesaler without the necessary licence the onus of proving that he had a licence lay on him because it was a fact peculiarly within his own knowledge. Authorities were cited ranging from Hawkins’ Pleas of the crown to Williams v. Russell (1933) 149 L.T. 190 to support the proposition, More recently in Johns v. Humphreys (1955) 1 All E.R. 793 Lord Goddard C. J. stated that the onus lay upon the person charged with driving a motor car without a licence to prove that he had a licence …… these decisions appear to me sound in principal. Applied to this case they mean that once there was proof of dealing in rice in wholesale quantities it was up to the appellant to prove that he was an agent or licencee of the Board. He has failed to do this.” (3) On these and other grounds, appeal dismissed.