Cyprus court holds sampling officer purchase constitutes a 'sale' under food safety regulations to protect consumers.

[*87] 1964 June 22

(P. KALLIS,AG.D.J.)

IN THE DISTRICT OCOURT OP NICOSIA

Municipal Corporation.- of Nicosia,

v.

Agamemnon Zachariou and. Sons Ltd. and Others,

Accused.

(Case No. 3660/84).

Sales of foodstuff’s without a label warning of the existence of preservatives - The Sale of Food and Drugs Law, Cap. 26l , as amended by Law 34/67 - The Preservative in Foodstuffs Regulations

1983 - Sections 5,6,11,15 and 18 of the aforesaid law - “Sale” () in Regulation 6(1) of the aforesaid Regulations - “Sell” ( ) in Regulation 2(1)

of the same regulations - Sampling officers took the goods in question (three salamis) and paid their price - Defence that the transaction was not a “sale” because accused knew that the officers were acting in their capacity as inspectors

- The transaction is a “sale” in the sense of the aforesaid Regulations 6(1).

Construction of Statutes - Purposive approach – An interpretation compatible with the general objects of the Statute

- “Sale” in Regulation 6(1) of the Foodstuffs Regulations, 1983.

Words and Phrases: “Sale” in Regulation 6(1) of the Foodstuffs Regulations, 1983.

L. Georghiadou (Mrs.), for the Prosecution.

I. Avraamides with A. Tryfonos (Mrs.) for the Accused. [*88]

JUDGMENT

The following judgment was delivered by:

P.Kallis, Ap.D. J. : Accused No.1 company was charged on a count of the offence of sale of foodstuffs without a label warning of the existence of preservatives contrary

to ss.5,6,11.15 and 18 of the Sale of Food and

Drugs Law, Cap. 261, as amended by Law 34/67 and Regulation 6(1) of the Preservatives in Foodstuffs Regulations 1983 (Notification No. 295

in Supplement No.3 Part I of the Cyprus Gazette No. 1907 dated 29th November, 1983). The particulars of the offence were that on the 9th January, 1984, accused No.1 at Nicosia was found that, being in charge of the grocery shop situated at 4A Pindaros Street, was selling AZTA salami which did not bear a label that it contained preservatives, though after an analysis thereof it was found that it did. Accused No. 3 was charged on a count similar to that on which accused company No.1 was charged, and its particulars were that between January and February, 1984 on a date to the prosecution unknown, he sold AZTA Salami to accused No.1 without a label stating thereon that it contained preservatives, and upon a sample being taken and an analysis by the Government laboratory it was found out that it contained preservatives.

The evidence

P.W. 1 Philippos Petsas, a health inspector of –the Nicosia Municipal Corporation, testified that on the 9th January, 1984, together with his colleague Christakis [*89]

Meitanis (P.W.2), they were involved in the taking of samples of sausages with preservatives for analyses At about

8.30 a.m. he visited the grocery shop of accused No.1 at Nicosia and whilst there accused 3 came with a car and delivered sausages to accused No.1 When he explained to accused No. 3 that they were taking samples of sausages, accused No.3 offered to give one salami for sampling, whereupon the witness indicated to him that he wanted to take a salami from a box on which there was no label that it contained preservatives. The witness took three salamis from the box and one of them he sent it to the Government laboratory; the second one he gave to accused No.1 and the third he kept himself. He wrapped them in the presence of accused 3 and one of the Directors of accused No.1 Yiannakis Zachariou, and he sealed them with sealing wax. He sent one of the samples to the Government laboratory and the reply of the Government analyst which was in the terms of the form prescribed by Cap.261 , was to the effect that the sample of salami contains preservatives. (See exhibit 2).

In cross-examination the witness said: Both accused 3 and Yiannakis Zacharia, Director of accused No.1, knew that he was a health inspector. That accused 3 offered to give the salamis free but he paid for them because this course is demanded by the procedure applicable for sampling purposes; and that when this transaction took place he mentioned to both accused 3 and the director that he was doing it as a purchaser. He also said that the director of accused No. 1 Yiannakis Zacharia, knew that the witness was purchasing [*90] for analysis purposes and that is why accused 3 offered to give the salamis free. When he took the samples for analysis he did not know that they contained preservatives. On the day-that he took the samples accused 3 came with a car of his firm and started delivering sausages to the grocery of accused No. 1 and amongst these sausages there was a plastic box full of salamis without a label for preservatives. The particular type of salami he took for analysis was in a separate plastic box like the one used for perishables and there were therein 30-40 salamis and there was no label for preservatives on the box or the salamis. When put to him that the salamis which were in this plastic box were not brought by accused 3 on the 9th January, but they were there for the purpose of being sliced, the witness stated emphatically that he saw accused No.3 carrying this box with his own hands in the grocery shop.

To the same effect was the evidence of Christakis Meitanis, also a health inspector in the Municipal Corporation. When the accused were called upon to make their defence, accused No. 3 stated on oath that after the enactment of the above regulations a problem was created because they had a stock of covers of sausages which did not have the label which was required by the new legislation and this problem came up for discussion at a meeting of their association with the Foodstuffs Board and the Cyprus Chamber of Commerce and it was intimated to them that the competent authorities will show elasticity in the application of the new legislation, and the reason they raised this problem was that they [*91] would have sustained great financial loss amounting to many thousands of pounds had they applied the provisions of the new legislation. The competent authorities however, as matters have proved by this prosecution, have not exhibited any elasticity. The accused went on to testify that a long time ago and prior to 1984 he printed labels (see exhibits 3 & 4) which he used for the two types of salami he manufactures; and he printed these labels in order to comply with the new legislation. On the 9th January, 1984, from what he remembers, upon entering the shop of accused No. 1 in order to deliver sausages, he noticed that the two prosecution witnesses who were known to him were there. After exchanging greetings, he started delivering sausages, whereupon the two inspectors wanted to take samples for analysis. He offered to give them some of this goods free and they took a type of salami. He thinks that they took it from within the plastic bags which he was delivering on that day. These bags contained 20 salamis each. They were closed and tied and on every plastic bag there was an adhesive label, like exhibit 3 & 4, about preservatives. On that day he did not deliver salamis loose in a plastic box as alleged by the prosecution witnesses. The witnesses took salami extra from the plastic bags which he delivered on that day. But the accused could not remember well whether in fact they took it from the plastic bag because he was busy with the delivery of his goods. He also said that the extra salami is delivered to accused No.1 in two modes of packing. The one is in plastic bags of 20 with adhesive label about preservatives [*92] thereon and the other one by one, and the salamis which are delivered one by one bear a label about preservatives.

In cross-examination he said: In November 1983 he was using the labels exhibits 3 & 4. He did not see from where the inspectors took the salamis for analysis, but he agreed that the salamis they took were the salamis manufactured by his firm.

Ioannis Zacharia, the Director of accused No. 1 testified that they maintain a grocery shop at Nicosia and they deal mainly with the trading of sausages which they dispose of sliced to canteens, schools and to sandwich makers, and accused No.3 is their supplier. The accused No.3 delivers to them salamis in plastic bags of 20 with a label about preservatives thereon and this is done as from the beginning of 1984. Prior to 1984 generally, (os epi to pliston) there was not such a label. On the 9th January, 1984 accused No.3 came to their shop and was delivering sausages but he could not say what he delivered on that particular day, but usually he delivers 5-6 types of sausages. On that day he delivered salamis extra, but he could not say positively how they were packed, as he could not remember. On the 9th January, 1984, when the Inspectors came to his grocery shop they took samples but he could not say whether they took them from the plastic bags or from the plastic boxes whose contents were destined for slicing. Accused 3 offered to give them the salamis free but they wanted to purchase them and they paid to him their value. Ninety percent of the extra salamis which are delivered [*93] to him by accused No.3 are disposed by him sliced and the remaining ten percent are disposed of one by one. He keeps labels in his drawer and when he is about to sell salamis on a retail basis he takes a label and sticks it on the bag of 20 or on the salami. The inspector took the salamis himself, he did not know from where he took it, generally (os epi to pliston) he might have taken it from a bag or from a box.

In cross-examination he said that he sold on that day three salamis to the inspectors P.W. 1 & 2 which did not bear a label about preservatives and he agreed that these three salamis were sold to him by accused No.3. He also said that these three salamis were purchased by the inspectors from his shop and they were not given to them by him.

Having given a summary of the evidence, I deem this a convenient stage to make my findings on the credibility of the witnesses whom I had the occasion, in the course of the trial, to watch carefully whilst testifying before me; and having done so I have no hesitation whatsoever to accept in toto the testimony of both the prosecution witnesses. I adopt this course because they both gave their testimony in a most straightforward, natural and positive manner and clearly left me with the impression that they are witnesses of truth. Regarding the evidence of accused No.3 and that of the Director of accused No.1 company, same will not be accepted because I prefer to accept and rely on [*94] the evidence of P.W, 1 and 2 who made a better impression to me as witnesses. This is so because both accused. No 3 and the said Director were evasive on a number of important and substantive issues on which both P.Ws gave positive and clear evidence. These issues were:(a) the mode of packing of the salamis which were delivered on

9.1.84 by accused No.3 to accused No.1 and (b) the place from where the samples were taken. On issue (a) we have the evidence of the Director who said that he could not say how they were packed and on issue (b) his evidence that he did not know whether the samples were taken from the plastic box or the plastic bag of 20 even though they were taken in his presence. On issue (a) accused No.3 said that he did not deliver loose salamis in a plastic box and on issue (b) that he could not say from where the samples were taken. Also, accused 3 alleged that since November, 1983 he has been using the labels, exhibits 3 and

4. Since these labels were-in conformity with the requirements of the Regulations, and since the Regulations were published in November, 1983, I am-left to wonder why accused 3 was expecting elasticity in the application of the 1983 Regulations since immediately after their enactment he acted in full compliance with them.

On the basis of my findings as to credibility, I find that on 9.1 84 accused No. 3 delivered to accused No.1, on payment, a plastic box of salamis containing preservatives and there was no label either on the salamis or on the box stating that the salamis contained preservatives. [*95] I further find that on the same day P.W.

1 took from the above plastic box, which was in the shop of accused No.1, three salamis, and paid their price to accused No. 1 These salamis contained preservatives but there was no label stating so on the box or on the salamis.

Learned counsel for the accused submitted that the transaction which took place on 9.1.84 was not a sale within the meaning of the relevant statute because there did not take place an agreement for the sale of goods; and this is so because both accused knew that the P.W.s were there in their capacity as inspectors. He further submitted that even if the transaction which took place amounts to a sale then the salamis which were taken as samples were packed in plastic bags of 20 which bore a label, and were destined for slicing and would have reached the consumer in slices.

Regarding the last submission, I have already rejected the version of accused. The answer to the first submission depends on the construction of the word “sale” (“polisis”) in the relevant Regulation 6(1) of the 1983 Regulations.

Regulation 6(1) reads as follows:-

"6(

1 ) Εκτός ως εν τοις εφεξής προβλέπεται, απαγορεύεται η υπό παντός προσώπου

πώλησις, αποστολή, παράδοσις ή εισαγωγή εντός της Δημοκρατίας οιουδήποτε

τροφίμου περιέχοντος πρόσθετον επιτρεπόμενον συντηρητικόν εκτός εάν τούτο

περιέχεται εντός δοχείου φέροντος[*96] έτι κ έτταν πληρούσαν τας απαιτήσεις αίτινες καθορίζοντο εις το Τρίτον Παράρτημα των παρόντων Κανονισμών

Relevant also are Regulations 6(2) and (3) which provide as follows:

(2) Εν τη περιπτώσει ειδών τροφίμων πωλουμένων εξ ουχί

εσφραγισμένων δοχείων, αι διατάξεις της προηγουμένης παραγράφου θα θεωρώνται

ότι πληρούνται εάν αναρτώνται επί η πλησίον του εμπορεύματος ειδικαί πινακίδες,

ευκρινώς οραταί εις τον αγοραστήν, εκθέτουσαι δι' ευκρινώς ορατών και ευαναγνώστων χαρακτήρων -

(ι) την ονομασίαν του είδους του τροφίμου· και

(ιι) δήλωσιν ότι τούτο περιέχει πρόσθετον επιτρεπόμενον συντηρητικόν.

(3) Αι διατάξεις της παραγράφου (1)του παρόντος Κανονισμού δεν

τυγχάνουν εφαρμογής επί της πωλήσεως είδους τινός τροφίμου οσάκις τούτο

προσφέρεται εις τον πελάτην

ξενοδοχείου, εστιατορίου ή ετέρου καταστήματος τροφοδοσίας δια

κατανάλωσιν επί τόπου, νοουμένου ότι το εν λόγω τρόφιμον δεν προσφέρεται εν τω αρχικώ τούτου δοχείω.

Reference should also be made to the definition of the word “sell” (“polo”) in the definition section 2(1) of the 1983 Regulations which provides as follows :-

'πωλώ'

ενέχει και την σημασίαν του προσφέρω ή εκθέτω προς πώλησιν, ή έχω εν τη κατοχή

μου προς πώλησιν* η δε πώλησις δέον όπως τυγχάνη αναλόγου ερμηνείας"[*97]

Now as to the meaning of the word “sale” it has been held that “in general implies an exchange for money” (per Wills J. in Coats v. Inland R venue Commissioners, (1987) 2 Q.B 423; and that “a sale implies that there shall be one who sells and another who buys”. (per Cockburn C.J. King v. England,33 L.J. Q.B. 145). Having regard to my findings regarding what took place between accused No.1 and 3 I conclude that such a transaction is a sale within the meaning of Regulation 6(1) and since all the other ingredients of the offence are present, accused 3 is guilty as charged. Regarding the transaction between accused No.1 and the P.W.s, apart from the fact that same includes all the characteristics, of a sale as stated in the above authorities, I would add that in construing the above Regulations we can, in conformity with accepted principles of construction consider the aim, scope and object of the relevant statute (see Krasismenos v. Hjichanni , (1963) 2 C.L.R. 448). This approach is in line with the modern method of statutory interpretation which favour what is known as the purposive approach, which is an interpretation that is compatible with the general objects of the

statute (see Marathovouniotis v. Theodotou (1982) 1 C.L.R. 35J Kammins Ballrooms v. Zenith Investments, (1970) 2 All E.R. 871 at

p. 893 (H.L.).Now what are the general objects of the statute? These are definitely the protection of the consumer; and to accede to the submission of learned counsel would be tantamount to give an interpretation that utterly defeats the very objects and purposes for which the relevant [*98] statute exist.”Further, I would, add that the legislature* in order to give effect to its purpose has enacted specific provisions thereby endowing transactions by sampling officers with the characteristics of a sale. These are to be found in sections k(3) and 12 of Cap, 261 which read as follows:

“4(3) In any prosecution under “this section’’ , it “shall be no defence to allege that the purchaser, “having bought only for analysis, is not prejudiced”.

“12(1 ) The sampling officer or other person “purchasing a sample of eny article with the intention “of submitting it to analysis shall • • • • • “

So we find that the legislation itself names the transact tion “purchasing”.

In the light of the above legal position and particularly having regard to the meaning of the word “sale” as above stated, the meaning of the word “sell11 in regulation 2(1), the objects of the relevant legislation, and the fact that regulation 6(3) is not applicable, in view of my above findings, I hold that the transaction which took place between accused No. 1 and the P;Ws constituted a sale within the meaning of the main regulation 6(1); and as all the remaining ingredients of the offence charged ar© present accused No.1 is, also, guilty as charged.

Accused found guilty as charged.