The State of Bombay Vs. Virkumar
Gulabchand Shah  INSC 40 (27 May 1952)
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)
Essential Supplies (Temporary Powers) Act
(XXIV of 1946), ss. 2(a), 17(2)--Spices (Forward Contracts Prohibition)
Order,1946, cls. 2, 3--Turmeric, whether "foodstuff"--Meaning of
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 to 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  1 Q.B. 304, Hinde v.
Allmond (87 L.J.
K.B. 893), Sainsbury v. Saunders (88 L.J.K.B.
441) referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
26 of 1950.
On appeal by special leave from the judgment
and order dated the 13th November, 1950, of the High Court of Judicature 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 Criminal 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
1952. May 27. Fazl Ali and Bose JJ. delivered
Judgment as follows:
FAZL ALI J. --I agree that the acquittal of
the respondent 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 Legislature
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 legislation. In the year 1944 the then Central Government of India
promulgated the Spices (Forward Contracts 'Prohibition) 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 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
commodities". 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 reproduces the language of the
Ordinance in all material particulars 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 foodstuff, therefore the Order of 1944 is saved. The respondent'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 special 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 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
"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 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 adjuncts 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,
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
So also, looked at from another point of
view, the various 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 undesirability 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 contained---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 accordance
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 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 reaching 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 imported
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 legislation. 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
The next case to which I will refer is James
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 strictly so called
but also ingredients which ultimately enter into its preparation, otherwise the
purpose of the legislation, which was to conserve the health of the British people,
would have been defeated.
(1)  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 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 consumption in her household. The Food Hoarding Order did not specify
tea or indeed any other article. It merely prohibited 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 establishment. 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 punished know what it was that he was
not to do.
I think it is clear that the learned Judges
were influenced 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 innocent 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 Kamtaprasad 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. preferred 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
concern us here because the laws they were interpreting were more widely
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, however 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
community." 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 repromulgated 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 considered
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 validity 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 "foodstuffs", 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
Agent for the appellant: P.A. Mehta.
Agent for the respondent: M.S.K. Sastri.