Fiji Commerce Commission v Devi [2012] FJMC 127; Criminal Case 198.2012 (1 June 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 198/2012

FIJI COMMERCE COMMISSION

-v-

ANILA DEVI

Mr. Lagilagi for the Prosecution.
Accused in person.

Sentence

1] The Accused Ms. Anila Devi is charged with following offence.

CHARGE:

Statement of Offence [a]

Offered for Sale Price Control Items at Excessive Price: Contrary to Paragraph 6(1) a & b of the Commerce (Price Control) (Percentage Control of Prices for Food Items) (No. 1) Order, 2010 (Legal Notice No. 101) and Section 44(1), (2) a & b, 52(a), 132(1) (2) and Section 129 (1A) of the Commerce Commission Decree No. 49, 2010.

Particulars of Offence [b]

Anila Devi t/a A.D Dairy Shop being a trader of Lot 41 Nidrau Road, Naulu, Nausori in the Central Division did on the 27th day of September 2011. Offered for sale certain price controlled items at a price exceeding the maximum retail price allowed for such items, namely: 5 tins of 425g Reshma Mackerel in Tomato Sauce offered at $3.45 instead of $3.40 excess of 5c per 425g tin.

3] Facts of the case are as follows. On 27/9/11 at about 11.08am a routine inspection was carried out by the Commission Inspectors at A D Dairy Shop situated at Lot 41 Nidrau Road, Naulu. They were met by the shop owner Mrs. Anila Devi and after introducing themselves commenced with the inspection. During the inspection it was revealed that the trader was breaching certain regulations of the Commerce Commission Decree 20112, by offering for sale certain price controlled items at an excessive price, the items were namely:-5 tins of 425g Reshma Mackerel in Tomato Sauce offered at $3.45 instead of $3.40 excess of 5c per 425g tin. The owner Anila Devi was then warned and summoned to appear in Court.

4] On 11th April 2012 the accused pleaded guilty to the charge and file written mitigation.

5] The maximum fine under Section 129 (1A) of the Commerce Commission Decree, 2010 is $5,000.00 for the first offence.

6] I reproduce penal section for clarity. It says;

"129.-(1) 1) Subject to subsections (2) and (3), a person who-

(a) contravenes;

(b) aids, abets, counsels or procures a person to contravene;

(c) induces, or attempts to induce, a person whether by threats or promises or otherwise, to contravene;

(d) is in anyway, directly or indirectly, knowingly concerned in, or party to the contravention by a person of; or

(e) conspires with others to contravene, a provision of Part 6, other than section 67,

is guilty of an offence punishable on conviction by a fine not exceeding $10,000."

(1A) Subject to subsections (2) and (3), a person found guilty of an offence under this Decree for which no other penalty is provided is punishable on conviction by a fine not exceeding $5,000 for a first offence and $10,000 for a second or subsequent offence.'".

7] The accused is a first offender. But she was warned by the prosecution on 29th August 2011 in writing. Despite that warning the accused had done this offence within a month.

8] The accused had explained the circumstance of the offending. She said the products were bought from third party and they told the current selling price was $3.45 in the market. The product was out of stock and she purchased it from black market and never meant to sell higher price. She never intentionally sold this product at a higher price.

9] In her written mitigation, she further says her main source of income is this and she pays electricity bills, water bills and buying groceries. She said she has clear record sought leniency and minimal fine.

10] The accused was warned before this incident. She did not care of the law enforcing authority's letter. Her explanation that she has no intention to sell the product at a higher price and she was misled by salesperson cannot be accepted. The conduct of the accused attracts considerable higher sentence. In considering all circumstances, since still she is a first offender, the accused shall pay fine of $500 for this offence. In default 50 days imprisonment Prosecution is asking for $34.50 cost and The Accused should pay that cost too. Therefore total amount should be paid by the accused is $534.50.

11] Copy of this sentencing judgment is given to the accused and the accused shall pay this fine before next review date.

12] 28 day to appeal

On 01 of June 2012, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu