1. The two appellants are the proprietor and the salesman of a shop in George Town and they have been convicted on two counts of offences punishable under Section 13(1) of the Hoarding and Profiteering Prevention Ordinance, read with Section 114 of the Indian Penal Code in the case of the second appellant. The proprietor has been fined Rs. 1,500 on each of the two counts while the salesman has been fined Rs. 200 on each count. Confiscation of the stock has also been ordered.
2. The facts so far as they are necessary at this stage are that on 23rd June, 1944, two persons went to the shop, asked to be supplied with Cuticura Toilet powder, Krementz shirt studs, and playing cards. Each of them went independently and each of them received the same reply that no stocks were available. A search made very shortly afterwards by the Special Assistant Commercial Tax Officer showed that there were large stocks of these articles inside the premises to which the salesman had access. The explanation given by the salesman at the time to the searching officer was that he was not aware of the existence of these stocks, and it was only when the case came on for trial that the appellants revealed their defence. Two letters were produced, one purporting to have been written by the salesman to the proprietor as far back as February, 1944, asking for instructions for the disposal of five cases of goods which had arrived from Madura. According to a railway clerk examined as a defence witness these cases contained playing cards, powder, and soap and were despatched on 12th February, 1944, from Madura. According to the appellants these goods had been sent out of Madras in April, 1942, at the time of the invasion scare to Pudukotah and were sent back to Madras in February, 1944, after conditions became more settled. The answer of the proprietor to this enquiry by the clerk was dated 31st March, 1944 and according to it he was to keep the cases unopened until the proprietor's return in three or four weeks' time, after which he would check the contents and deal with them. The learned Magistrate regarded these two letters with considerable suspicion and he declined to accept the defence put forward, largely because the cases had not been kept intact by the salesman as directed by the proprietor; on the contrary, the goods were found open in the rooms where they were kept concealed.
3. On behalf of the appellants Mr. V.V. Srinivasa Ayyangar has pressed this defence; but it is significant that when the shop was raided by the Assistant Commercial Tax Officer no reference was made to the existence of these unopened cases, nor did the salesman suggest that he had stocks which he was unable to sell because they were awaiting unpacking by the proprietor and the fixing of their selling prices. If the salesman had produced this letter from his employer and shown the Assistant Commercial Tax Officer the unopened cases and given him this explanation, it is very doubtful whether this prosecution would have been made. I agree with the learned Magistrate in his rejection of these two letters. There can be no doubt from the evidence that P. Ws. 1 and 2 were deliberately refused the supply of goods by the salesman with full knowledge that he had adequate stocks available. It may be from the way in which P.Ws. 1 and 2 were careful to ask for these particular goods that they had been sent by the officers of the Supplies Department on information received that blackmarket transactions were going on, but this does not in my view affect the guilt of the appellants. On the facts there is no room for interference with the convictions.
4. The salesman has been convicted only of abetment, the learned Magistrate taking the view that he must have received his instructions from his proprietor and that in refusing supplies to purchasers he was acting under those instructions and was therefore guilty of abetment. Whether he was acting on his own initiative or whether he was acting only as an abettor is only of academic interest because the proprietor is in any event liable.
5. Regarding the sentences those imposed on the proprietor are undoubtedly severe but having regard to the offences and the large stocks available I am not prepared to say that they are excessive.
6. Regarding the orders of confiscation they have heen attacked by Mr. Srinivasa Ayyangar on two grounds : firstly that in view of the substantial nature of the fines the confiscation amounts to an excessive punishment; and secondly, on the ground that there is no power to direct confiscation of the entire stock of the goods for which enquiry was made. Mr. Srinivasa Ayyangar's contention is that if confiscation was necessary it can be directed only in respect of one pack of cards, one set of studs, and one tin of toilet powder. If a prospective purchaser were to enter a shop and ask for the sale of a particular article in view on the counter or displayed in the window or show room, there would be room for the argument that the refusal to sell related only to the particular article pointed out by the prospective purchaser and of which the sale was required; but whereas in this case goods are asked for out of the stock believed to exist and the sale is refused on the ground that no stock is available, then I consider that the refusal to sell extends to the entire stock in respect of which the refusal is made. It is in evidence that there were in the shop in this case 67 dozen packs of playing cards and when supplies were refused on the ground that no stock was available, then the refusal extends to each and every pack of cards contained in that entire stock. This contention must be rejected and there remains only the severity of the penalty of confiscation,
7. Mr. Srinivasa Ayyangar has stated that the value of the stock of which confiscation has been ordered is approximately Rs. 8,000. The confiscation of this taken with the fines appears at first sight to be excessive, but there is evidence to show that illicit transactions in this shop were in all probability frequent. In addition to checking the stocks of these particular articles the Assistant Commercial Tax Officer examined other stocks also. He found that the stock books were far from being up to date, that price lists were not exhibited, and that large stocks of table knives, desert knives and other goods had not been brought to account at all. The annual turnover of this business according to the judgment of the learned Magistrate is Rs. 3 1/2 lakhs, so that the fine of Rs. 3,000 is less than 1 per cent, of the annual turnover. This is probably trivial when compared with the profits of all the illicit transactions which probably went on. In this view I am unable to agree that the order of confiscation taken with the fines is an excessive punishment. Severe it undoubtedly is but all the circumstances point to the necessity for a severe sentence. The appeal is accordingly dismissed.