PICK N BUY LIMITED v THE MIRBBTRY OF HEALTH AND QUALITY OF LIFE ANOR 2017 SCJ 156 Record No. 8872 COURT OF MAURITIUS In the matter of:- Buy Limited Appellant v Health and Quality of Life uritius, Respondents JUDGMENT The appellant was prosecuted 27 February 2015 unlawfully sold on date of expiry had lapsed in breach of with sections 16(2)(g) and 17 of the Fof fore the District Court of Curepipe for having on icket of sliced cheese “La Vache Qui Rit” after its ulation 9(a) of the Food Regulations 1999 coupled ct The appellant pleaded not guilty the charge and was represented by Counsel. After hearing evidence, the | the appellant and sentenced itto pay 1d Magistrate found the charged proved, convicted Je of Rs 5,000. Feeling aggrieved by the ju essentially on the grounds that the leaf findings of facts are flawed. ent, the appellant now appeals against same Magistrate's assessment of the evidence and her The prosecution case rested sister Mrs Thoplan, production of a pl ithe testimony of Mrs Chinasamy and that of her py of a receipt witnessing sale of a packet of “La Vache Qui Rit’ cheese by Winnfl on 27 February 2015 and production of the impugned cheese. According to Mrdfehinasamy, she went to Winner's Supermarket at \Vacoas on 27 February 2015 and bouglt for her sister, amongst other articles, a packet of “La Vache Qui Rit” cheese which was @™promotion. On the next day, she complained to theManager of the supermarket, one Visf lapsed and produced to him the che \Vacoas Health Office Moothen, that the expiry date of the cheese had land her receipt She then reported the matter to IMrs Thoplan confirmed that h packet of “Le Vache Qui Rit” cheese her parents and herself consumed ‘She checked the expiry date on the next day, she accompanied her sist “management” and produced her medi ister had on 27 February 2015 bought for her a finner's Supermarket at Vacoas. She added that }e of it on the same evening and they fell sick fet of cheese and saw that ithad lapsed. On the fo Winner's Supermarket and complained to the bill and her receipt witnessing the purchase of the cheese. The defence adduced evident ‘Supermarket, Vacoas, and Mr Ramehf of “La Vache Qui Rit" cheese to Wint receipt of Mrs Thoplan, Winner's sid 2015. He also did not deny that he re that Winner's had sold a packet of "L lapsed. He, however, denied that Wint cheese where the expiry date had la salesman from Innodis Ltd would r¢ ascertain that no cheese products calling Mr Moothen, the Manager of Winner's 4 representative from Innodis Ltd, the distributor Mr Moothen did not deny that according to the .cket of ‘La Vache Qui Rit” cheese on 27 February ived complaints on 28 February 2015 to the effect iche Qui Rit” cheese where the date of expiry had 's would have displayed for sale "La Vache Qui Rit” He stated that this was an impossibility since a larly check the shelves of the supermarket and displayed for sale beyond their expiry date Furthermore. Winner's has its own syfem of monitoring food products displayed for sale which consists in keeping an ‘expiry are removed from the shelves one dal the shelves om the very day that he rei (0 follow up their expiry date. Also, food products fore their expiry date. He added that he verified 1 the complaints and found them empty Mr Ramchum, for his part, ex Promoting the sale of "La Vache Q the expiry date of that cheese once a 18 pieces of the cheese where the ex Jned to the trial Court that he was responsible for it” cheese at Winner's and personally monitored He went there on 20 February 2018 and saw date was 22 June 2015 displayed on the shelves. He went there again either on 27 or February 2015 and noted that "La Vache qui Rit cheese was out of stock, as he could nigfind any on the shelves. The learned Magistrate recite referred to Regulation 9(a) of the Fo defence’s version that Winner's couk t length the evidence adduced before her. She Regulations and its objectives. She rejected the jot have on 27 February 2015 sold 2 packet ofLa Vache Qui Rit” cheese where it@expiry date had lapsed. She also rejected the testimony of witnesses Moothen and fimchur on the ground that their version was not supported by documentary evidence, prosecution case that the expiry date Winner's on 27 February 2015 was 23} 1e found that the appellant had failed to rebut the |the packet of “La Vache Qui Rit” cheese sold by bruary 2015. She concluded that she could safely act on the evidence of the prosecutiofifivitnesses to find the charge against the appellant proved. We bear in mind the case la interfere and reverse a finding of a tr the effect that an appellate Court will not lightly ‘ourt on a question of fact unless such finding of facts is based on a clear misapprehgsion of the facts, is perverse, unreasonable and unwarranted (vide Mootaloo v The Qien [1958 MR 333] and Lalldeosing v The State [2008 SCJ 151 We have given due consider appellant in support of the grounds Magistrate evidence that on 27 Febru: 1 to the arguments of leaned Counsel for the peal. There was adduced before the leamed 2018 Winner's sold a packet of ‘La Vache Qui Rit cheese. There was however no cffffrete evidence apart from the ipse dixit of Mrs Chinasamy that the expiry date of t February 2015 was 23 February 2019 witness is within the sole province jacket of cheese sold to her by Winner's on 27 Tue it is that the assessment of the credibility of a trial Court. However, where there is evidence sa different light on the prosecution case such as bility of the evidence adduced by the prosecution, of that doubt. forthcoming from the defence which tl to raise a reasonable doubt as to the the accused party is entitied to the ben| Had the leamed Magistrate ad before her by the prosecution, she wo sed her mind to documents D, G and K1 produced have entertained a serious doubt in her mind as to whether the prosecution had discharg@ the burden of proving the guilt of the appellant to nt D is an email from Mr Kaudeer, the Sales & to Winner's. That email dated 17 March 2015 was 2014 a batch of “La Vache Qui Rit’ cheese with to Winner's and in December 2014 another batch 14. ;Document G is a statement dated 14 May 2015 iat in August 2014 there was delivery of a batch of fe of which was 23 February 2015. Evidence that "cheese on 13 December 2014 was supported by the required criminal standard. Doct Marketing Manager at Innodis, address to the effect that from July to Septer expiry date of March 2015 was delive of cheese expiring July 2015 was deli given by Mr Kaudeer wherein he stat ‘La Vache Qui Rit” cheese the expiry there was a delivery of "La Vache Qui document K1. In view of (a) the testim@™y of the representative of Innodis, (b) documents D.G and K1, and (c) evidence that ‘La have been perfectly legitimate for the ‘he Qui Rit” cheese is a chilled product, it would ied Magistrate to entertain a reasonable doubt in her mind as to whether the expiry date the cheese sold by Winner's on 27 February 2015 to Mrs Chinasamy was indeed 23 Febray 2015. We therefore agree with the sul the state of the evidence adduced bef ssions of learned Counsel for the appellant that on the learned Magistrate, this is an eminently fit case for this Court to interfere with the finding of fact of the learned Magistrate. We accordingly allow the appeglind quash the appellant's conviction and sentence. The appellant having been successful iis appeal, we make no order as to costs. N. Devat Judge N.F. Oh San-Bellepeau Judge 10 May 2017 Judgment delivered by Hon. N. Dev: For Appellant: MrT. Koeni For Respondents : Ms K. Parson, Ms N.R. Patten, Attorney ite Counsel