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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: VIRKUMAR GULABCHAND SHAH

DATE OF JUDGMENT: 27/05/1952

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID BOSE, VIVIAN

CITATION:  1952 AIR  335            1952 SCR  877  CITATOR INFO :  D          1977 SC1027  (40)  RF         1981 SC1485  (17,18)  D          1982 SC 798  (10)  R          1983 SC1015  (5)  RF         1989 SC 644  (5)

ACT:     Essential  Supplies  (Temporary  Powers)  Act  (XXIV  of 1946),  ss. 2(a), 17(2)--Spices (Forward Contracts  Prohibi- tion)    Order,1946,    cls.   2,    3--Turmeric,    whether "foodstuff"--Meaning of "foodstuff".

HEADNOTE:     The term "foodstuff" is ambiguous.  In one sense it  has a narrow meaning and is limited to articles which are  eaten as  food  for purposes of nutrition and nourishment  and  so would  exclude  condiments and spices such as  yeast,  salt, pepper,  baking  powder and turmeric. In a  wider  sense  it includes  everything that goes toto the preparation of  food proper  (as understood in the narrow sense) to make it  more palatable  and  digestible.  Whether the term is used  in  a particular statute in its wider or narrower sense cannot  be answered in the abstract 878 but  must be answered with due regard to the background  and context.     Turmeric is a "foodstuff" within the meaning of cl.  (3) of the Spices (Forward Contract Prohibition) Order of  1944, read  with  s.2  (a)of the  Essential   Supplies  (Temporary Powers) Act (XXIV of    1946).  The said order of 1944 falls within the purview of s.  5 of Ordinance No. XVIII of  1946, which  was later reenacted  as Act XXIV of 1946, and  it  is equally saved by s. 17 (2) of the Act.  James v. Jones [1894] 1 Q.B. 304, Hinde v. Allmond (87 L.J. K.B. 893), Sainsbury v. Saunders (88 L.J.K.B. 441)  referred to.

JUDGMENT:    CRIMINAL   APPELLATE  JURISDICTION:  Criminal Appeal  No. 26 of 1950.

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   On  appeal by special leave from the judgment and  order dated the 13th November, 1950, of the High Court  of   Judi- cature  at   Bombay  (Bavdekar and Dixit  JJ.)  in  Criminal Appeal  No. 712 of 1950, arising out of judgment  dated  the 14th August, 1950, of the Court of the Sessions Judge, South Satara, SangIi, in Criminal Appeal No. 85 of 1950 and Crimi- nal Case No. 614 of 1950. C.K.  Daphtary,  Solicitor-General  of India (G.  N.  Joshi, with him) for the appellant.     B. Somayya (B. K.V. Naidu, with him)for the respondent.     1952. May 27.  Fazl Ali and Bose JJ. delivered  Judgment as follows:     FAZL ALI J. --I agree that the acquittal of the respond- ent should not be disturbed, and I also agree generally with the  reasoning  of my brother, Bose.  The  question  whether turmeric is  foodstuff is not entirely free from difficulty. In  one sense, everything which enters into the  composition of  food  so  as to make it palatable may  be  described  as ’foodstuff’,  but that word is commonly used with  reference only  to those articles which are eaten for their  nutritive value and which form the principal ingredients of cooked  or uncooked meal, such as wheat, rice, meat, fish, milk, bread, butter,  etc.  It seems to me desirable that the Act  ShoUld be amended so as to expressly include   879 within  the  definition of the somewhat  elastic  expression "foodstuff" turmeric and such other condiments as the Legis- lature  intends  to be treated as’ such  for  achieving  the objects in its view.     BOSE  J.--The question in this case is whether  turmeric is  a  "foodstuff"  within the meaning of clause  3  of  the Spices  (Forward  Contracts Prohibition) Order,  1944,  read with  section  2 (a) of the  Essential  Supplies  (Temporary Powers) Act, 1946, (Act XXIV of 1946).     The  respondent  was  charged  with  having  contravened clause  3  of the Order of 1944 because he  entered  into  a forward contract in turmeric at Sangli on the 18th of March, 1950,  in  contravention of clause 3 of the  Order.  He  was convicted by the trial Court and sentenced to three  months’ simple imprisonment together with a fine of Rs. 1,000 and in default,  a further three months.  But he was  acquitted  on appeal  by the Sessions Court. An appeal to the  High  Court against the acquittal failed.     The State of Bombay appeals here but makes it plain that it  does  not  want to take any further  steps  against  the respondent  in  this  matter but merely wants  to  have  the question  of law decided as a test case as the  judgment  of the Bombay High Court will have far-reaching effects in  the State of Bombay.     It will be necessary to trace the history of this legis- lation.  In  the year 1944 the then  Central  Government  of India  promulgated the Spices (Forward  Contracts  ’Prohibi- tion) Order, 1944, under Rule 81 (2) of the Defence of India Rules.   Clauses  2 and 3 read together  prohibited  forward contracts  in  any of the "spices" specified  in  the  first column  of the schedule to that Order.  Among  the  articles listed  in  the schedule was turmeric.   The  conviction  is under  that Order and it is admitted that if that  Order  is still valid the conviction would be good.     The  Defence of India Act was due to expire on the  30th of  September, 1946, and with it the Spices Order  of  1944. But before it expired an Ordinance called 114 880 the Essential Supplies (Temporary Powers) Ordinance of  1946

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was  issued.   This  was Ordinance No. XVII  of  1946.   The object of the Ordinance, as set out in the preamble, was  to provide for the control of what it called "essential commod- ities".   It  defined  this to  mean,  among  other  things, "foodstuffs",  and by a further definition "foodstuffs"  was defined to include edible oilseeds and oils.  Neither spices in general nor turmeric in particular were mentioned. Section  5 of this Ordinance embodied a saving clause  which saved  certain  Orders which would  otherwise  have  expired along  with the Defence of India Rules.  The section ran  as follows: "Any order  ......  made  ......  under rule 81 (2) of the Defence of India Rules, in respect of any matters  specified in  section  3, which was in force  immediately  before  the commencement  of this Ordinance, shall, notwithstanding  the expiration  of  the said Rules continue in force so  far  as consistent with th.is Ordinance and be deemed to be an order made under section 3."     The Ordinance was later replaced by the Act with  which we  are  now concerned, the  Essential  Supplies  (Temporary Powers) Act, 1946, (Act XXIV of 1946). The Act merely repro- duces the language of the Ordinance in all material particu- lars  and it is conceded that if the matter falls under  the Ordinance it will also fall under the Act.      The appellant’s contention is that turmeric is a  food- stuff,  therefore the Order of 1944 is saved.  The  respond- ent’s  contention  is that turmeric is not a  foodstuff.  He contends  that the Order of 1944 was limited to spices  and. that  turmeric was included in the term by reason of a  spe- cial  definition which specifically included it; and as  the Act  of 1946 and the Ordinance are limited  to  "foodstUffs" the Order of 1944 dealing with turmeric was not  saved.  The question therefore is, is turmeric a "foodstuff"?      Much  learned judicial thought has been  expended  upon this  problem--what is and what is not food and what is  and what is not a foodstuff; and the only conclusion I can  draw from a careful consideration of all   881 the  available  material  is that the  term  "foodstuff"  is ambiguous.   In  one sense it has a narrow  meaning  and  is limited to articles which are eaten as food for purposes  of nutrition  and nourishment and so would  exclude  condiments and   spices such as yeast, salt, pepper, baking powder  and turmeric.   In  a wider sense, it includes  everything  that goes  into the preparation of food proper (as understood  in the narrow sense) to make it more palatable and  digestible. In  my opinion, the problem posed cannot be answered in  the abstract  and must be viewed in relation to its.  background and context. But before I dilate on this, I will examine the dictionary meaning of the words.     The  Oxford  English Dictionary defines  "foodstuff"  as follows:     "that  which is taken into the system to  maintain  life and growth and to supply waste of tissue."     In Webster’s International Dictionary "food" is  defined as:     "nutritive  material absorbed or taken into the body  of an organism which serves for purposes growth, work or repair and for the maintenance of the vital processes." Then follows this explanation:     "Animals  differ greatly from plants in their  nutritive processes  and  require  in addition  to  certain  inorganic substances  (water,  salts etc.) and organic  substances  of unknown  composition  (vitamins) not ordinarily  classed  as foods (though absolutely indispensable to life and contained

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in  greater  or  less quantities in  the  substances  eaten) complex  organic substances which fall into three  principal groups, Proteins, Carbohydrates and Fats.     Next  is given a special definition for legal  purposes, namely--     "As  used in laws prohibiting adulteration etc.,  ’food’ is generally held to mean any article used as food or  drink by  man,  whether simple, mixed or compound,  including  ad- juncts  such as condiments etc., and often  excluding  drugs and natural water." 882  The definition given of "foodstuff" is 1.  Anything used as food. 2.   Any  substance of food value as protein,  fat  etc. entering into the composition of a food."     It will be seen from these definitions that  "foodstuff" has  no  special meaning of its own.  It merely  carries  us back  to  the definition of  "food" because  "foodstuff"  is anything which is used as "food"     So far as "food" is concerned, it can be used in a  wide as  well  as a narrow sense and, in my opinion,   much  must depend  upon  the context and background.Even in  a  popular sense,  when one asks another, "Have you had your food ?  ", one  means the composite preparations which normally  go  to constitute  a  meal--curry and  rice,  sweetmeats,  pudding, cooked  vegetables and so forth. One does not usually  think separately  of the different preparations which  enter  into their  making,  of  the various condiments  and  spices  and vitamins, any more than one would think of separating in his mind  the  purely nutritive elements of what is  eaten  from their non-nutritive adjuncts.    So  also, looked at from another point of view, the  var- ious  adjuncts  of what I may term food proper  which  enter into its preparation for human consumption in order to  make it palatable and nutritive, can hardly be separated from the purely  nutritive  elements if the effect of  their  absence would be to render the particular commodity in its  finished state unsavoury and indigestible to a whole class of persons whose  stomachs  are accustomed to a more  spicely  prepared product.  The  proof of the pudding is, as it were,  in  the eating, and ii the effect of eating what would otherwise  be palatable and digestible and therefore nutritive is to bring on indigestion to a stomach unaccustomed to to such unspiced fare, the answer must, I think, be that however nutritive  a product  may  be in one form it can scarcely be  classed  as nutritive if the only result of eating it is to produce  the opposite effect; and if the essence of the definition is the nutritive element, then the commodity in question must cease 883 to  befood, within the strict meaning of the definition,  to that  particular class of persons,  without the addition  of the spices which make it nutritive." Put more  colloquially, "one  man’s food is another man’s poison."  I refer to  this not  for the sake of splitting hairs but to show  the  unde- sirability of such a mode of approach.  The problem must,  1 think, be solved in a commonsense way.     I  will now refer to the cases which were  cited  before us.   In  The  San  Jose,  Cometa  and  Salerno(1)   sausage skins--the  envelope in which sausage meat is  usually  con- tained---were held to be foodstuffs.  But this was a case of conditional contraband captured during the war in  pursuance of a war-time measure, and the decision was given in accord- ance  with international law. This does not appear from  the judgment  but is plain from an earlier judgment of the  same learned President on which his later decision was based. The

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earlier  judgment  is reported in The Kim(2).   He  explains there at page 27 that the law of contraband is based on "the right of a belligerent to prevent certain goods from  reach- ing  the country of the enemy for his military use," and  he states, also at page 27, that     "International  law,  in order to be  adequate  well  as just,  must  have  regard to the  circumstances  the  times, including  the  circumstances  arising  out  the  particular situation  of the war, or the condition the parties  engaged in it."      One  of  the changing circumstances he felt he  had  to take into consideration is set out at page 29:     "The reason for drawing a distinction between foodstuffs intended  for the civil population and those for  the  armed forces  or enemy Government disappears when the  distinction between  the  civil population and the armed  forces  itself disappears...Experience shows that the power to  requisition will  be  used to the fullest extent in order to  make  sure that the wants of the  military  are supplied, and however much goods may  be  im- ported for civil use it is by the military that (1)  33 T.L.R. 12.              (2)  32 T.L.R. 10, 884 they  will  be consumed if military exigencies  require  it, especially now that the German Government have taken control of all the foodstuffs in the country."     It  is understandable that viewed against  a  background like  that, the word "foodstuffs" would be construed in  its wider  sense  in  order to give full effect  to  the  object behind  the law, namely the safety and preservation  of  the State. It is also perhaps relevant to note that the term which  was under  consideration in those cases occurred in  a  war-time measure,  namely  a Proclamation promulgated on the  4th  of August, 1914, the day on which the first world war  started. There  is  authority for the view  that  war-time  measures, which  often  have  to be enacted hastily to  meet  a  grave pressing  national emergency in which the very existence  of the  State is at stake, should be construed more  liberally. in favour of the Crown or the State than peace-time legisla- tion.   The only assistance I can derive from this  case  is that  the term "foodstuffs" is wide enough to  cover  matter which would not normally fall within the definition of  what I have called food proper.  I do not think it is helpful  in deciding whether the wider or the narrower definition should be  employed here because the circumstances  and  background are so different.     The  next  case  to  which I  will  refer  is  James  v. Jones(1).  That was a case of baking powder and it was  held that baking powder is an article of food within the  meaning of the English Sale of Food and Drugs Act, 1875.  Now it has to  be  observed  here that the object of that  Act  was  to prevent the adulteration of food with ingredients which  are injurious to health. It is evident that the definition would have to be wide so as to include not only foodstuffs strict- ly  so  called but also ingredients which  ultimately  enter into its preparation, otherwise the purpose of the  legisla- tion,  which was to conserve the health of the British  peo- ple, would have been defeated.   (1) [1894] 1 Q,B. 304.     885     Next  comes a case relating to tea in which  a  narrower view was taken: Hinde v. Allmond(1).  The question there was whether  tea was an "article of food" within the meaning  of an  Order designed to prohibit the hoarding of food,  namely

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the Food Hoarding Order of 1917. The learned Judges held  it was not. But here it is necessary to note the background and at any rate some of the reasons given for  the decision. The prosecution  there   was   directed   against   an  ordinary housewife who had in her  possession a quantity of tea which exceeded  the quantity required for ordinary use  and   con- sumption  in her household. The Food Hoarding Order did  not specify tea or indeed any other article.  It merely  prohib- ited  generally  the hoarding of any "article  of  food"  by requiring  that no person should have in his  possession  or under  his  control at any one time more than  the  quantity required for use and consumption in his household or  estab- lishment.   Shearman J. said that he rested his judgment  on the  "commonsense interpretation of the word ’food’  in  the Order, apart from its meaning in any other statute" and said :--     "I  agree  with my brother Darling that if it  had  been intended  to  include  tea as food, it ought  to  have  been expressly so provided in the Order."     Darling  J.  explained what he meant in this case  in  a later  decision,  Sainsbury v. Saunders(2),  and  said  that there was nothing to prevent the Food Controller from saying that a person should not have, for example, so much wine  in his  possession, provided he did not simply call  it  "food" and  provided also that he let a person who was to  be  pun- ished know what it was  that he was not to do.     I think it is clear that the learned Judges were  influ- enced  in their judgment by the fact that the Order  in  the earlier  case  was one which affected the  ordinary  run  of householders  and housewives who would not have  lawyers  at their  elbows  to  advise them regarding their  day  to  day marketing. In the circumstances, they decided that the  word should be given (1)  87 L.J.K.B. 893.          (2)  88 L.J. K.B. 441. 886 its  ordinary  and  popular  meaning,  otherwise many  inno- cent householders, who had no intention of breaking the law, would  be trapped; and this seems to be the ratio  decidendi in the decision of the Bombay High Court in Hublal Kamtapra- sad  v. Goel Bros. & Co. Ltd. (Appeal No. 14 of 1950)  which is the decision virtually, though not directly, under appeal here, though the learned Judges also take into consideration two  further facts, namely that the law should be  construed in favour of the freedom of contracts and a penal  enactment in favour of the subject.     The  English  decision  about tea just cited  is  to  be contrasted  with another decision, also  about tea, given  a few months later in the same year: Sainsbury v. Saunders(1). Two of the Judges,  Darling  and Avory, JJ. were parties  to the  earlier  decision;  Salter J. was not.   He  held  that though  tea  had been held in the earlier case not to  be  a "food"  for the purpose of the Food Hoarding Order of  1917, it  was a "food" within the meaning of the expressions  used in  certain Defence of the Realm Regulations read  with  the New Ministries and Secretaries Act of ,1916 which  empowered the  Food  Controller to regulate "the food  supply  of  the country"  and the "supply and consumption and production  of food."  Avory J. also considered that tea was an article  of food  for the purposes of these laws though Darling J.  pre- ferred to adhere to his earlier view. All three Judges  also held that the provisions were wide enough to enable the Food Controller  to hit at articles which were not food  at  all, such as sacks and tin containers (Darling J.) so long as  he was  able  by these means even indirectly  to  regulate  the supply of "food",-but that portion of the decision does  not

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concern us here because the laws they were interpreting were more widely phrased.     Now the comparison of one Act with another is dangerous, especially  when the Act used for comparison is  an  English Act  and  a  war-time measure, and I have  no  intention  of falling  into that error.  I am concerned here with the  Act before me and must (1) 88 L.J.K.B. 441.   887 interpret its provisions uninfluenced by expressions, howev- er similar, used in other Acts. I have referred to the cases discussed above, not for purposes of comparison but to  show that the terms "food" and "foodstuffs" can be used in both a wide  and  a  narrow sense and that  the  circumstances  and background can alone determine which is proper in any  given case.     Turning to the Act with which we are concerned, it  will be necessary again to advert to its history. Rule 81 (2) was wide  and all embracing and the Order of 1944  clearly  fell within  its ambit.  It is also relevant to note that one  of the purposes of the Order, as disclosed in its preamble, was to "maintain supplies essential to the life of the  communi- ty."   As  turmeric was specifically included  with  certain other spices, it is clear that turmeric was then  considered to  be a commodity essential to the life of  the  community, that is to say. it was considered an essential commodity and not  merely a luxury which at a time of austerity  could  be dispensed with.     Then, when we turn to the Ordinance and the Act of 1946, we  find from the preamble that the  legislature  considered that   it   was  still  necessary--"to   provide   for   the continuance   ......  of powers to control  the  production, supply  and  distribution  of, and trade  and  commerce  in, foodstuffs..."Section 3 (1) of the Act continues this theme:     "The  Central Government, so far as it appears to it  to be  necessary  or expedient for  maintaining  or  increasing supplies  of any essential commodity, or for securing  their equitable distribution and availability at fair prices,  may by notified order provide for regulating or prohibiting  the production,  supply and distribution thereof and  trade  and commerce therein." The Ordinance is in the same terms.     Now I have no doubt that had the Central Government  re- promulgated  the Order of 1944 in 1946 after the passing  of either  the  Ordinance of the Act of 1946, the  Order  would have  been good. As we have seen, turmeric falls within  the wider definition of "food" 1142 888 and  "foodstuffs"  given in a  dictionary  of  international standing  as well as in several English decisions. It is,  I think,  as  much  a "foodstuff", in its  wider  meaning,  as sausage,  skins and baking powder and tea.  In the  face  of all that I. would find it difficult to hold that an  article like  turmeric cannot fall within the wider meaning  of  the term  "foodstuffs".  Had  the Order of  1944  not  specified turmeric  and had it merely prohibited forward contracts  in "foodstuffs" I would have held, in line with the earlier tea case, that that is not a proper way of penalising a man  for trading in an article which would not ordinarily be  consid- ered as a foodstuff.  But in the face of the order of  1944, which  specifically includes turmeric, no one  can  complain that  his  attention  was not drawn to  the  prohibition  of trading  in  this particular commodity and if, in  spite  of that, he chooses to disregard the Order and test its validi-

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ty  in  a court of law, he can hardly complain that  he  was trapped  or taken unawares; whatever he may have thought  he was at any rate placed on his guard.  As I see it, the  test here  is  whether the Order of 1944 would have been  a  good order had it been repromulgated after the Ordinance of 1946. In my opinion, it would, and from that it follows that it is saved by the saving clauses of the Ordinance and the Act.     I have already set out section 5 of the Ordinance. In my opinion, the Order of 1944 falls within its purview, and  ii it  is saved by that, it is equally saved by section 17  (2) of the Act.  The section is in these terms:     "Any order  .........  deemed to be made under the  said Ordinance  and in force immediately before the  commencement of  this Act shall continue in force and be deemed to be  an order made under this Act."     In  my  opinion, the conviction was good  and  the  High Court  was wrong in setting it aside, but though the  matter has  no relevance here because of the undertaking  given  by the  learned  Solicitor-General not to proceed  against  the respondent  any further in this matter, I think it right  to observe that.  the attitude of   889 the  learned English Judges in the first tea case would  not be  without relevance on the question of sentence  in  many, cases  of this kind.  There can, I think, be no  doubt  that businessmen  who are not lawyers might well be  misled  into thinking  that the Ordinance and the Act did not  intend  to keep  the Order of 1944 alive because the Order  related  to certain  specified  spices while the Ordinance and  the  Act changed  the nomenclature and limited themselves  to  "food- stuffs",  a term which, on a narrow view, would not  include condiments and spices.  However, these observations are  not relevant here because we are not asked to restore either the conviction  or the sentence. In view of that, there will  be no  further  order and the acquittal will be  left  as  it’- stands. Order accordingly: Agent for the appellant: P.A. Mehta. Agent for the respondent: M.S.K. Sastri.