N Criminal Appeal No 26 of 1950
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
CK Daphtary Solicitor General of India G N Joshi with him for the appellant
B Somayya B KV Naidu with himfor 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 1000 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 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 this 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 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
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 Salerno1 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 earlier judgment is reported in The Kim2
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 2  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 vs Jones1
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
1 885 Next comes a case relating to tea in which a narrower view was taken Hinde vs Allmond1
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 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 vs Saunders2 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 2 886 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 vs 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 vs Saunders1
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 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 1 887 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 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


Summary:
By an order passed under section 4 A of the Central Provinces and Berar Goondas Act 1946 X of 1946 as amended by the Madhya Pradesh Act XLIX of 950 the State of Madhya Pradesh directed the respondent to leave the district of Chhindwara which had been specified as a proclaimed area under the Act and the District Magistrate by another order communicated the same to the respondent
The respondent challenged the said orders under article 226 of the Constitution on the ground that the Act violated his fundamental rights under article i9id and e of the Constitution and was therefore invalidated by article 13 Of the Constitution
The High Court held that sections 4 and 4 A of the impugned Act were invalid and since they were the 971 main operative provisions of the Act the whole Act was in valid
Held that when a statute authorises preventive action against the citizens it is essential that it must expressly provide that the specified authorities should satisfy themselves that the conditions precedent laid down by the statute existed before they acted thereunder
If the statute fails to do so in respect of any such condition precedent that is an infirmity sufficient to take the statute out of article 195 Of the Constitution
Although there can be no doubt that sections 4 and 4 A of the impugned Act clearly contemplated as the primary condition precedent to any action thereunder that the person sought to be proceeded against must be a goonda they fail to provide that the District Magistrate should first find that the person sought to be proceeded against was a goonda or provide any guidance whatsoever in that regard or afford any opportunity to the person proceeded against to show that he was not a goonda
The definition of a goonda laid down by the Act which is of an inclusive character indicated no tests for deciding whether the person fell within the first part of the definition
Gurbachan Singh vs The State of Bombay   Bhagubhai Dullabhabhai Bhandari vs The District  Magistrate Thana  and Hari Khenu Gawali vs The Deputy Commissioner of Police Bombay   referred to
Although the object of the impugned Act was beyond reproach and might well attract article 195 of the Constitution since the Act itself failed to provide sufficient safeguards for the protection of the fundamental rights and the operative sections were thus rendered invalid the entire Act must fail