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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

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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

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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

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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.

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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"

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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.