1. Appellant 1 has been convicted under Section 13 of Ordinance 35 of 1943, the Hoarding and Profiteering Prevention Ordinance and appellant 2 of abetment of that offence. The former has been sentenced to a fine of Rs. 100 or simple imprisonment for one month and the latter to a fine of Rupees 500 or rigorous imprisonment for three months. The offence which appellant 1 is said to have committed was the sale of a Peerless fountain pen for Rs. 10-2-6 against the controlled price of Rs. 4-3.0. Appellant 2 is said to have abetted this offence, because he marked the price on the pen. The only evidence adduced in the lower Court consisted in the statement of P. W. 1 who purchased the pen and was granted a cash memo receipt and P. W. 2, the investigating officer, who made a statement that appellant 2 was in charge of the stationery section and fixed the prices. On this evidence, the learned Additional Presidency Magistrate framed a charge of contravention of Section 4 (c) of the Ordinance and called on the accused for their defence. The witnesses were not cross-examined, but appellant 1 Miss Heape pleaded not guilty saying that she was not aware of the controlled price and that she was only a sales girl. Appellant 2, Mr. Clay, is said to have pleaded guilty but he filed a statement from which it appears that the sale of the fountain pen in question at the price of Rs. 10-2-6 was due to a misunderstanding of the notification issued in which without specifying the price of Peerless fountain pens the price of other U. S. A. pens was fixed at Rs. 4.3-0. In spite of the nature of the evidence adduced and the statements of the accused the Magistrate convicted them as already stated.
2. On behalf of the appellants it is contended in the first place that no contravention of Section 4 (c) has been proved since that section relates only to dealers or producers, and it is claimed that neither Miss Heape nor Mr. Clay are dealers of producers as defined in the Ordinance. For the Crown, Mr. Ahmad has contended that the definition of dealer in Section 2 (b), namely, 'a person carrying on the business of selling any article, whether wholesale or retail' is sufficiently wide to include a salesman or a manager. 'We think, on the whole, his contention should be accepted. Clearly, the Ordinance is intended to penalise the sale of articles of which a maximum price has been fixed at any higher price and it would be absurd to suppose that persons actually in charge of sales should be excluded from the definition of dealers.
3. It has next been contended that so far as Mr. Clay is concerned, there is no evidence on which a charge could have been framed or in regard to which he could have been called on for defence. On behalf of the Crown, Mr. Ahmad has submitted that as P. W. 2, the investigating officer, was not cross-examined his evidence that Mr. Clay was in charge of the stationery section and fixed the prices should be accepted. We do not think this argument to be sound. P. W. 2 was the officer in charge of investigating the case. He clearly has no personal knowledge of the conduct of business of Messrs. Thacker Spink & Co., and any statement which he has made must have been the result of information collected by him in the course of his investigation. If the prosecution had wished to adduce evidence to incriminate Mr. Clay they could easily have cited witnesses belonging to the firm of Messrs. Thacker Spink & Co., who could have given positive evidence on this matter. The position is therefore that there is no evidence against Mr. Clay, on which a charge could be framed or in regard to which he could be asked to plead, and his statement which in effect does not strictly amount to a plea of guilty cannot therefore be utilised for the purpose of his conviction.
4. With regard to Miss Heape, in the view we take that she is a dealer within the meaning of the Ordinance, it appears that a technical offence has been committed. In view, however, of the affidavit which has been filed by the Manager of Messrs. Thacker Spink & Co., which the learned Deputy Legal Remembrancer is prepared to accept as correct or at least is not prepared to controvert, it is clear that this is not a case in which there is any mala fide practice and we are therefore of opinion that a nominal sentence will suffice. The appeal is allowed so far as appellant 2 is concerned. His conviction and sentence are set aside and the fine, if paid, will be refunded. In the case of appellant 1, Miss Heape, the fine is reduced to one of rupees ten; in default, one week's simple imprisonment.
5. I agree and only desire to add this: Even if we were to accept Mr. Mukherji's interpretation of the word 'dealer' appellant 1 would, at any rate, be guilty of abetment.