Section 39

No person shall hawk, sell or expose for sale any cooked or uncooked food, drink or goods of any kind in any street or part thereof which is prohibited for that purpose by the Commissioner or in any place, other than a shop, within 46 metres of a market, school, hospital, Government dispensary or clinic, place of worship, police station or such other place as may be determined by the Minister from time to time.

Any person who contravenes subsection (1) shall be guilty of an offence and may be arrested without warrant by any police officer or by any public officer authorised in writing in that behalf by the Commissioner and taken before a Magistrate’s Court and shall be liable on conviction to a fine not exceeding $500, and in the case of a second or subsequent conviction to a fine not exceeding $2,000.

Notwithstanding subsection (2) or any other written law, any police officer or any public officer, who having effected an arrest in accordance with this section, is satisfied as to the identity, name and place of residence of the person arrested, may, in his discretion, instead of taking the person before a Court or to a police station serve upon the person a notice, in such form as may be prescribed under section 144, requiring him to attend at the Court described at the hour and on the date specified in the notice.

For the purpose of satisfying himself as to the identity of the person arrested, such police officer or public officer may require the person arrested to furnish such evidence of identity as he may consider necessary.

A duplicate of the notice referred to in subsection (3) shall be prepared by the police officer or public officer, as the case may be, and by him, if so required by a Court, produced to the Court.

On an accused person appearing before a Court in pursuance of such a notice, the Court shall take cognizance of the offence alleged and shall proceed as though he were produced before it in pursuance of subsection (2).

If a person upon whom such a notice has been served as aforesaid fails to appear before a Court in accordance therewith, the Court shall thereupon issue a warrant for the arrest of that person.

Upon a person arrested in pursuance of a warrant issued under subsection (7) being produced before it, a Court shall proceed as though he were produced before it in pursuance of subsection (2) and shall at the conclusion of the proceedings call upon him to show cause why he should not be punished for failing to attend in compliance with the notice served upon him and if cause is not shown may order him to pay such penalty not exceeding $2,000 as the Court thinks fit or may commit him to prison for a term not exceeding 2 months.

Any stall, table, showboard, vehicle or receptacle together with any appliances and utensils relating thereto and the food, drink or goods intended or exposed for sale, whether they appear to be abandoned or not, belonging or appearing to belong to or in possession of a person appearing to be committing or to have committed an offence under subsection (2) may be seized by any police officer or public officer authorised as aforesaid and removed to and detained at any police station or Government depot or such other place as may be approved by the Commissioner, at the risk of the owner, to abide the directions of a Magistrate’s Court:Provided that any perishable articles likely to decay so seized and removed may be disposed of forthwith.

If any abandoned articles so seized and detained, other than perishable articles already disposed of, are claimed within 48 hours after such seizure by the owner thereof, being a person licensed or otherwise lawfully entitled to set up or sell such articles at the place at which they were seized, the abandoned articles shall be returned to the owner.

Every such seizure shall, except when the articles seized have been returned to the owner, be reported to a Magistrate’s Court.

The Magistrate’s Court shall, on convicting any person of an offence under subsection (2) or on receiving a report in respect of any abandoned articles which were apparently being used in connection with the sale of food, drink or goods, order the property seized under subsection (9) to be forfeited and to be disposed of in such manner as the Court thinks fit:Provided that if the Court directs the sale of such articles, the proceeds thereof shall be paid into the Consolidated Fund.

The Magistrate’s Court may, on convicting a person of an offence under subsection (2) or on receiving a report in respect of any abandoned articles which were not apparently being used in connection with the sale of food, drink or goods, order the property seized under subsection (9) to be forfeited and to be disposed of in such manner as the Court thinks fit:Provided that if the Court directs the sale of such articles, the proceeds or such part thereof as the Court thinks fit shall be paid into the Consolidated Fund and the balance, if any, paid to the owner.

The Magistrate’s Court may, on convicting any person under subsection (2), order his photograph to be taken by a police photographer or other photographer. Any such photograph may be preserved and may be produced to any Court for the purpose of establishing identity on a subsequent conviction.[40