# Fazl Ali/. 1952. May, 27. ·1952 'The Stat< of 'Bom'bay v. 'Virkumar ·Gulabchaml Shah

- **Citation:** [1952] 1 S.C.R. 877
- **Court:** Supreme Court of India
- **Decided:** 1950-11-13
- **Case number:** CRIMINAL APPELLATE JuRiso1cr10N : Criminal Appeal No. 26 of 1950
- **Bench:** SAIYID FAzL Au, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fazl-ali-1952-may-27-1952-the-stat-of-bom-bay-v-virkumar-gulabchaml-shah-74
- **Pages:** 13

## Headnote

Essential Supplies (Temporary Powers) Act (XX/V of 1946),
. ss. 2(a), 17(2)-Spices (Forward Contracts Prohibition) Order, 1946,
· els. 2, 3-Turmeric, whether "foodstuff"-Meaning of "foodstuff".
~
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
• excl?de
condiments and
spices
such
as yeast, salt,
pepper,
bakmg powder and turmeric. In a wider sense it includes every-
. thing that goes into the preparation of food proper
(as under-
~ · stood in the narrow sense) to make it more
palatable
and
· digestible.
Whether the term is used in a particular statute in
i its wider or narrower sense cannot be answered in the abstract
1952
Gur Narain Das
and Anothdv.
Gur Tahal Das
and Others.
Fazl Ali/.
1952.
May, 27.
·1952
'The Stat< of
'Bom'bay
v.
'Virkumar
·Gulabchaml
Shah.
878
SUW'REME COURT XE.PORTS
[1952]
but must .be answered with due r<;garil to the .backgromnd and
context.
'';furmeric :is a "food-stuff" within the meaning of·cl. (3) .of the
Spices tForward ·Contract P.rohibition) ·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
re-enacted as Act
XXIV ·of 1946, and it is equally saved
by
s. 17(2) of ·the Act.
James v. Jones [1894] I Q. B. 304, Hinde v. Allmond (87 L.J.
K.B. 893), Sainsbury v, Saunders (88 L.J.K.B. 441) roferred to.
CRIMINAL
APPELLATE
JuRiso1cr10N :
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
Judicature
at
Bonibay
(Bavdeknr
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, Sangli, in
Criminal Appeal
No. 35 of 1950
and Criminal Case
No. 614 of 1950.
·C. K.
Daphtary,
Solicitor-General of
India
( G~
N. Joshi, with him) for the appeHant.
B.
Somayya
(B. K. V. Naidu, with him) for the·
respondent.
1952. May 27. Faz! 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 brQl:her,
Bose.
The question whether 'turmeric is 'foodstrtff' is not entirely free from
difficulty.
fo one
sense,
everything
which .emer.s into ·the composition of llood 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
·uncooketl •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 irrClu&:
-
\
\
~-)
S.C.R.
SUPREME COURT REPORTS
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 1t
plain that it does not want to take any further steps
aga

## Text

I -'
:S.C.R.
SUPREME COURT REPORTS
877
11. That this defendant has nothing to do with
·the eight annas interest in the properties given in
· schedule under than C and D relating to jagir and
kasht lands, which rightfully belonged to Nandkishore
. Das and has no concern with the properties noted in
those schedules."
Paragraph 11 is rather ambiguously worded, but it
was conceded before us by the counsel for defendant
· No. 5 that the latter had no claim to any interest in
the properties set out in schedules other than schedules
· C and D.
Such being the purport of paragraphs 8
. and
11, the decree should provide that defendant
-No. 5 will be entided only to a share in the properties
set out in schedules C and D and will have no
. share in the properties set out in the other schedules.
· Subject to this
modification, the decree
of the High
·Court is affirmed, and this appeal is dismissed. There
·:will be no order as to costs.
Appeal. dismissed.
Agent for the appellants: Naunit Lal.
Agent for the legal representative of 4th respondent:
_ R. N. Sachthey.
THE STATE OF BOMBAY
ti.
VIRKUMAR GULABCHAND SHAH
[SAIYID FAzL Au and VIVIAN BosE JJ.]
Essential Supplies (Temporary Powers) Act (XX/V of 1946),
. ss. 2(a), 17(2)-Spices (Forward Contracts Prohibition) Order, 1946,
· els. 2, 3-Turmeric, whether "foodstuff"-Meaning of "foodstuff".
~
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
• excl?de
condiments and
spices
such
as yeast, salt,
pepper,
bakmg powder and turmeric. In a wider sense it includes every-
. thing that goes into the preparation of food proper
(as under-
~ · stood in the narrow sense) to make it more
palatable
and
· digestible.
Whether the term is used in a particular statute in
i its wider or narrower sense cannot be answered in the abstract
1952
Gur Narain Das
and Anothdv.
Gur Tahal Das
and Others.
Fazl Ali/.
1952.
May, 27.
·1952
'The Stat< of
'Bom'bay
v.
'Virkumar
·Gulabchaml
Shah.
878
SUW'REME COURT XE.PORTS
[1952]
but must .be answered with due r<;garil to the .backgromnd and
context.
'';furmeric :is a "food-stuff" within the meaning of·cl. (3) .of the
Spices tForward ·Contract P.rohibition) ·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
re-enacted as Act
XXIV ·of 1946, and it is equally saved
by
s. 17(2) of ·the Act.
James v. Jones [1894] I Q. B. 304, Hinde v. Allmond (87 L.J.
K.B. 893), Sainsbury v, Saunders (88 L.J.K.B. 441) roferred to.
CRIMINAL
APPELLATE
JuRiso1cr10N :
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
Judicature
at
Bonibay
(Bavdeknr
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, Sangli, in
Criminal Appeal
No. 35 of 1950
and Criminal Case
No. 614 of 1950.
·C. K.
Daphtary,
Solicitor-General of
India
( G~
N. Joshi, with him) for the appeHant.
B.
Somayya
(B. K. V. Naidu, with him) for the·
respondent.
1952. May 27. Faz! 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 brQl:her,
Bose.
The question whether 'turmeric is 'foodstrtff' is not entirely free from
difficulty.
fo one
sense,
everything
which .emer.s into ·the composition of llood 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
·uncooketl •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 irrClu&:
-
\
\
~-)
S.C.R.
SUPREME COURT REPORTS
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 1t
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 cdlumn of the schedule
to
that Order. Among the
artides 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
1952
T /11: State of
BOflfb11y
v.
Virk_umar
Gulabclm•I
S1'tr1'.
Bose /.
1952
'The State of.
Bombay
v.
Virkumar
Gulabchand
Shah.
. Bose/.
880
. SUPREME COURT REPORTS
[1952]
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
m
general
nor turmeric in particular were mentioned.
Section 5 of this Ordinance embodied a •aving
clause which saved ,ertain Orders which would other ..
wise have expired along with the Defence of India v .
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, shaH, not-
' -
withstanding 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 reproduces the language of the Ordi,
nance 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
•-..t
-.
-
l
-
.1
S.C.R.
SUPREME COURT REPORTS
881
the available material is
that the t'erm
"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, backing 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 exa1nine 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 of
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."
Ne.xt 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."
1952
The State of
Bombay
v.
Virkumar
Gulabchand
Shah.
Bose f.
1952
The State of
Bombay
v.
Virkumar
Gulabchand
Shah.
Bose /.
882
SUPREME COURT REPORTS
The definition given of "foodstuff" is-
"1. Anything used as food.
[1952]
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 "food
stuff" 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
wlde as well a narrow sense and,
,1n
my opm10n,
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 preparaticms which enter into
their making,
of the various condiments
and spices
and vitamins,
any mme than one woukl 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
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 i:n 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 if the effect of eating what would otherwise be
palatable and digestible
and therefore nutrhive 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 nutiitive if the only result
of eating it is to produce the opposite effect; and if
the essense of the definition is
the nutritive element, then the commodity in. question. must cease
I
-
,,
....
_, r
-
-
~ .
.\.
S.C.R.
SUPREME COURT REPORTS
883
to be food, 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, I think, be
solved in a commonsense way.
I will now refer to the cases which were cited before
us. In The Sun 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
as
well as just, must have regard to the circumstances of
the times, including the circumstances arising out of
the particular situation of the war, or the condition of
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 re~n 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 s.ure 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.
1952
T lie Stt1te crf
Bomb•y
v.
Virkumar
Gulabchand
Shah.
Bose].
1952
The State of
Bombay
v.
Virkumar
Gulabchand
Shah.
Bose /.
884
SUPREME COURT REPORTS
[19521
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 fill 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
different.
.
The next case to which I will refer is James v ..
Jones('). 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 indude 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.
·
(!) [1894] 1 Q.B. 304.
I
I
~
·l..
...
\
i
)
S.C.R.
SUPREME COURT REPORTS
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 posses.sion a
quantity
of tea which exceeded
the
quantity
required for ordinary used and consumption in her
household. The Food Hoanling Order <lid 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.
8-9 S.c. India/71
(2) 88 L. J. K. B. 441.
1952
The State of
Bombay
v.
Virkumar
Gulabchand
Shah.
Bose/.
1952
The State of
Bombay
v.
Virkumar
G:<labchand
Shah.
llose f.
886
SUPREME COURT REPORTS
[1952]
its
o.rdinary
and
popular
meaning,
otherwise
many mnocent 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 Hub/al 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 same year:
Sainsbury
v.
Saunders('). Two of the
Judges,
Darling
and
Avary, 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." Avary J. also considered that tea
was an article of food for the purposes of rhese 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 hen; 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
(!) 88 L. J. K. B. 441.
J.
-
i
•
S.C.R.
SUPREME COURT REPORTS
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 "food-
~tuffs" can be used in both a wide and a narrow sense
and that the circumstanct:l\ 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 dis;.
closed 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 tCJ be
a commodity essential to the life of the community,
that is to say, it wa& 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"
1952
The State of
Born bay
v.
Virkumar
Gula be hand
Shah.
Bose f.
1952
Th< Stat< of
Bombay
·V.
Virkumal"
Gula be hand
Shah.
Bou/.
888
SUPREME COURT REPORTS
[1952]
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 oontracts in "foddstuffs" 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 oomplain
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 if it is saved by thait, i!t 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 ob;erve that the attitude of
'r -
-
-
•
..
S.C.R.
SUPREME COURT REPORTS
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 themsleves 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 it stands.
·.
\
Order accordingly.
Agent for the appellant: P. A. Mehta.
Agent for the respondent : M. S. K. Sastri.
THE STATE OF BIHAR
fl.
'
MAHARAJADHIRAJA SIR KAMESHW AR SINGH
OF DARBHANGA AND OTHERS
(CASES Nos. 305 TO 348 OF 1951 AND PETITION No. 612 OF 1951)
[PATANJALI
SASTRI c. J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA AIYAR JJ.]
Bihar Land Reforms Act (XXX of 1950)-Law for abolition of
zamindaries-Validity-Necessity to provide for compensation
and
of public purpose-Jurisdiction of Court to enquire into validityDelegation of legislative powers-Fraud on the Constitution-Constitution of India, 1950-Constitution (First Amendment) Act, 1951Arts. 31, 31-A, 31-B, 362, 363-Sch. VII,
List II, entries 18, 36
and List Ill, entry 42-Construction-Spirit of the ConstitutionRight of eminent domain-"Law", "Legislature", "Public purpose",
meanings of-Convent
of
merger-Compulsory
acquisition
of
private property of Ruler-Acquisition of arrears of rent payinl
50%-Deduction for cost of works-Legality.
115
1952
The State of
Bombay
v.
Virkumar
Gulabchand
Shah.
Bose /.
1952
May 2, 5.
•