The State Of Bombay vs Virkumar Gulabchand Shah

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 26 of 1950

Decision Date: 27 May 1952

Coram: Saiyid Fazal Ali, Vivian Bose

In this matter, the Supreme Court of India rendered its judgment on the twenty-seventh day of May, 1952. The case was titled The State of Bombay versus Virkumar Gulabchand Shah. The bench consisted of Justice Saiyid Fazal Ali and Justice Vivian Bose. The State of Bombay appeared as petitioner and Virkumar Gulabchand Shah was the respondent. The decision is reported in the 1952 volume of the All India Reporter at page 335 and in the 1952 Supreme Court Reports at page 877. The legal question concerned the interpretation of the term “foodstuff” under the Essential Supplies (Temporary Powers) Act, year XXIV of 1946, sections 2(a) and 17(2), and its relation to the Spices (Forward Contracts Prohibition) Order, 1946, clauses 2 and 3, particularly whether turmeric fell within the meaning of that term. The headnote explained that “foodstuff” may be understood narrowly, limited to items eaten for nutrition such as wheat, rice, meat, fish, milk, bread and butter, thereby excluding condiments and spices like yeast, salt, pepper, baking powder and turmeric. In a broader sense, however, the term can include everything used to prepare food in order to make it more palatable and digestible. The judgment emphasized that the meaning of “foodstuff” in any statute must be determined by considering the surrounding context and legislative intent, not in the abstract. Applying this approach, the Court concluded that turmeric qualifies as a “foodstuff” within clause 3 of the Spices (Forward Contracts Prohibition) Order, 1944, when read together with section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946. The order of 1944 was held to fall within the scope of section 5 of Ordinance No. XVIII of 1946, later re-enacted as the 1946 Act, and it was also saved by section 17(2) of the same Act. The judgment referred to earlier cases such as James v. Jones [1894] 1 Q.B. 304, Hinde v. Allmond (87 L.J. K.B. 893) and Sainsbury v. Saunders (88 L.J. K.B. 441) for support.

The appeal arose in criminal appellate jurisdiction and was designated as Criminal Appeal No. 26 of 1950. It was brought on special leave from a judgment and order dated the thirteenth of November, 1950, pronounced by the High Court of Judicature at Bombay, whose bench comprised Justices Bavdekar and Dixit, in Criminal Appeal No. 712 of 1950. That High Court decision itself stemmed from a judgment dated the fourteenth of August, 1950, delivered by the Court of the Sessions Judge, South Satara, Sangli, in Criminal Appeal No. 85 of 1950 and Criminal Case No. 614 of 1950. For the appellant, the Government’s Solicitor-General appeared, assisted by counsel, while for the respondent, counsel appeared with a junior. The Supreme Court bench consisting of Justices Fazl Ali and Bose delivered the judgment on the twenty-seventh of May, 1952.

Justice Fazl Ali wrote that he concurred with the view that the respondent’s acquittal should not be disturbed and he agreed in general with the reasoning of his colleague, Justice Bose. He noted that the question of whether turmeric is a “foodstuff” was not entirely free from difficulty. He observed that, in a broad sense, everything that enters the composition of food to make it palatable may be described as “foodstuff,” but that the term is commonly used only for articles eaten for their nutritive value and forming the principal ingredients of a meal, such as wheat, rice, meat, fish, milk, bread and butter. He expressed the desirability of amending the Act to expressly include turmeric and similar condiments within the definition of “foodstuff” whenever the Legislature intends to treat them as such for achieving the statutory objectives.

Justice Fazl Ali observed that the term “foodstuff” is ordinarily applied only to articles that are eaten for their nutritional value and that constitute the main components of a cooked or uncooked meal, such as wheat, rice, meat, fish, milk, bread and butter. He noted that while the broader sense of foodstuff could include any ingredient that makes food palatable, the ordinary usage restricts the term to those principal items. Consequently, he expressed the view that it would be desirable for the legislature to amend the Act so that the somewhat elastic expression “foodstuff” would expressly encompass turmeric and other condiments that the legislature intends to treat as foodstuff for the purpose of achieving its policy objectives.

Justice Bose addressed the central issue of whether turmeric falls within the meaning of “foodstuff” under clause 3 of the Spices (Forward Contracts Prohibition) Order, 1944, read with section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946. The respondent had been charged with violating clause 3 of the 1944 Order by entering into a forward contract for turmeric in Sangli on 18 March 1950. The trial court convicted him, sentencing him to three months’ simple imprisonment and a fine of Rs 1,000, with a further three-month term in default of fine payment. The Sessions Court later acquitted him, and the High Court upheld that acquittal. The State of Bombay appealed, stating that it did not seek further punitive action against the respondent but wished to obtain a definitive legal ruling, as the High Court’s decision would have far-reaching consequences throughout the State. The Court then traced the legislative history: in 1944 the Central Government issued the Spices (Forward Contracts Prohibition) Order, 1944, under Rule 81(2) of the Defence of India Rules, prohibiting forward contracts in any spice listed in the schedule, which included turmeric. The Defence of India Act and the Spices Order were set to expire on 30 September 1946, but before that date the Essential Supplies (Temporary Powers) Ordinance, 1946 (Ordinance No XVII of 1946) was promulgated. Its preamble defined “essential commodities” and, by a subsidiary definition, included “foodstuffs”, specifying edible oilseeds and oils but mentioning neither spices generally nor turmeric specifically. Section 5 of the Ordinance contained a saving clause preserving certain orders that would otherwise have lapsed with the Defence of India Rules, stating that any order made under Rule 81(2) concerning matters specified in section 3, and in force immediately before the Ordinance commenced, would continue to operate insofar as it is consistent with the Ordinance and would be deemed made under section 3. This Ordinance was later replaced by the Essential Supplies (Temporary Powers) Act, 1946, which reproduced the Ordinance’s language in all material respects. The appellant argued that turmeric qualifies as a foodstuff, thereby invoking the saving clause to sustain the 1944 Order, while the respondent contended that turmeric is not a foodstuff and that the 1944 Order was limited to spices, with turmeric included only by a special definition.

The Court quoted the saving provision that read: “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.” After stating this provision, the Court observed that the Essential Supplies (Temporary Powers) Ordinance of 1946 was later superseded by the Essential Supplies (Temporary Powers) Act, 1946 (Act XXIV of 1946). The Court noted that the Act reproduced the language of the Ordinance in all material particulars and that it was conceded that any matter falling within the scope of the Ordinance would likewise fall within the scope of the Act. The appellant argued that turmeric should be classified as a “foodstuff,” and therefore the 1944 Order would be saved by the saving clause. The respondent counter-argued that turmeric was not a “foodstuff.” The respondent maintained that the 1944 Order was limited to spices and that turmeric was included only because of a special definition that expressly named it; consequently, because the 1946 Act and the Ordinance were limited to “foodstuffs,” the Order dealing with turmeric was not saved. The Court identified the central question as whether turmeric qualifies as a “foodstuff.” It observed that substantial judicial consideration has been given to the problem of defining what is and what is not a food or a foodstuff, and that the term “foodstuff” is ambiguous. In a narrow sense, the Court explained, “foodstuff” refers only to articles eaten for nutrition and nourishment, which would exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric. In a broader sense, the term encompasses everything that is added to the preparation of food proper—understood in the narrow sense—to make the food more palatable or digestible. The Court stressed that the issue cannot be resolved in the abstract and must be examined in its factual background and context. Before proceeding further, the Court turned to dictionary definitions. It cited the Oxford English Dictionary, which defines “foodstuff” as “that which is taken into the system to maintain life and growth and to supply waste of tissue.” It also quoted Webster’s International Dictionary, which defines “food” 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.” The Court then reproduced the explanatory passage from the same source, noting that animals differ from plants in their nutritive processes and require, in addition to inorganic substances such as water and salts, organic substances of unknown composition such as vitamins, which are not ordinarily classed as foods although they are indispensable to life and are present in varying quantities in the substances eaten. The passage further stated that complex organic substances fall into three principal groups—proteins, carbohydrates and fats. A special definition of “foodstuff” was then indicated as forthcoming.

For legal purposes, the term “food” as employed in statutes prohibiting adulteration is generally understood to mean any article used as food or drink by a person, whether it is simple, mixed or compound, and it includes adjuncts such as condiments, while often excluding medicines and natural water. The definition that has been given of “foodstuff” comprises two parts: first, anything used as food, and second, any substance of nutritional value such as protein, fat, etc., that forms part of a food’s composition. From these definitions it follows that “foodstuff” possesses no independent meaning of its own; it merely refers back to the definition of “food” because a foodstuff is simply anything that is used as food.

The word “food” may be employed in either a wide or a narrow sense, and, in my opinion, much depends upon the context and background. Even in everyday language, when one asks another, “Have you had your food?” the reference is to the composite preparations that normally constitute a meal—curry and rice, sweetmeats, pudding, cooked vegetables and the like. People do not ordinarily think separately of the various preparations that go into making those dishes, nor of the different condiments, spices and vitamins, just as they do not separate in their mind the purely nutritive elements of what is eaten from the non-nutritive adjuncts.

Viewed from another angle, the various adjuncts that I may term food proper, which are added during preparation to make a product palatable and nutritionally adequate, can hardly be separated from the purely nutritive elements when their absence would render the finished commodity unsavoury or indigestible to a class of persons whose stomachs are accustomed to a more heavily spiced preparation. The proof of the pudding, as the saying goes, lies in its consumption; if a product that would otherwise be palatable and digestible causes indigestion in a stomach unaccustomed to an unspiced version, then, in my view, a substance that may be nutritive in one form can scarcely be classed as nutritive if the result of eating it is the opposite effect. If the essence of the definition is the nutritive element, then the commodity in question must cease to be food, within the strict meaning of the definition, for that particular class of persons, unless the spices that make it nutritive are added. Put more colloquially, one man’s food is another man’s poison. I refer to this not to split hairs but to show the undesirability of such a nuanced approach. The problem, I think, should be solved in a commonsense way.

I will now refer to the cases that were cited before us. In The San Jose, Cometa and Salerno, sausage skins—the casings in which sausage meat is usually contained—were held to be

In the earlier authority, foodstuffs were considered in a case involving conditional contraband captured during war under a wartime measure, and the decision was given in accordance with international law. That judgment does not state this explicitly, but the point is clear from an earlier judgment of the same learned President, reported in The Kim. At page twenty-seven, he explained that the law of contraband rests on the right of a belligerent to prevent certain goods from reaching the enemy country for military use. He also observed at the same page that international law must take into account the circumstances of the times, including the particular situation of war and the condition of the parties engaged in it. On page twenty-nine he identified a further changing circumstance, namely that the distinction between foodstuffs intended for the civilian population and those for the armed forces or enemy government disappears. Thus, when the categories of civilian and military persons merge, the previous separation of foodstuffs no longer applies. He further noted that experience shows requisition power will be employed to its fullest to satisfy military wants. He added that even goods imported for civil use will be consumed by the military if exigencies require, especially now that the German Government has taken control of all foodstuffs in the country. Given this backdrop, it is understandable that the term ‘foodstuffs’ may be interpreted in its wider sense to give full effect to the purpose of the law, namely the safety and preservation of the State. It is also relevant that the expression was used in a wartime proclamation dated 4 August 1914, the day the First World War began. Authority holds that wartime measures, often enacted hastily to meet a grave national emergency threatening the very existence of the State, should be construed more liberally in favour of the Crown or State. This approach is deemed appropriate because the urgency and existential stakes of war demand a broader interpretation of governmental powers compared with ordinary peacetime statutes. The only assistance I can draw from this case is that the term ‘foodstuffs’ is wide enough to include material that would not normally fall within the definition of food proper. I do not think it helps to decide 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 refer is James v. Jones, in which baking powder was held to be an article of

The Court referred to the decision that classified baking powder as food within the meaning of the English Sale of Food and Drugs Act, 1875. It observed that the purpose of that Act was to prevent the adulteration of food by substances that could be harmful to health. In order to achieve that purpose, the Court noted that the definition of “food” under the Act had to be interpreted broadly so as to cover not only items that are strictly described as foodstuffs but also the ingredients that eventually become part of the final product. The Court explained that a narrow definition would defeat the legislative intent, which was to safeguard the health of the British people. The citation for this principle was given as (1) [1894] 1 Q,B. 304.

Turning to a later case concerning tea, the Court examined Hinde v. Allmond, where the issue was whether tea qualified as an “article of food” under the Food Hoarding Order of 1917, an order intended to prohibit the hoarding of food. The learned Judges in that case held that tea was not an article of food for the purposes of the Order. The Court explained the factual background: the prosecution was against an ordinary housewife who possessed a quantity of tea exceeding what would normally be required for her household’s ordinary use and consumption. The Food Hoarding Order did not name tea or any specific article; it generally prohibited the hoarding of any “article of food” by requiring that no person keep more than the quantity needed for use and consumption in his household or establishment at any one time. Shearman J. based his judgment on a “commonsense interpretation of the word ‘food’ in the Order, apart from its meaning in any other statute,” adding that he agreed with his 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., in a later decision, Sainsbury v. Saunders (2), clarified that the Food Controller could, for example, restrict a person’s possession of wine provided that the regulation did not simply label wine as “food” and that the person was clearly informed of the prohibited conduct. The Court observed that the judges were influenced by the fact that the Order affected ordinary householders and housewives who would not have legal counsel to advise them on day-to-day matters. Consequently, the judges decided that the word should be given its ordinary and popular meaning, because otherwise many innocent householders, who had no intention of breaking the law, would be trapped. The Court identified this reasoning as the ratio decidendi. The relevant citations were (1) 87 L.J.K.B. 893 and (2) 88 L.J. K.B. 441.

In the Bombay High Court decision in Hublal Kamtaprasad v. Goel Bros. & Co. Ltd., Appeal No. 14 of 1950, which is essentially the decision that is being examined in this appeal, the learned judges also considered two additional considerations: that the law ought to be interpreted to support the freedom of contract and that a penal statute should be read in favour of the individual subject. The English case concerning tea that was previously mentioned is juxtaposed with another tea-related judgment delivered a few months later in the same year, namely Sainsbury v. Saunders (1). In the earlier case, Judges Darling and Avory participated, whereas Judge Salter did not. Judge Salter ruled that, although tea had been deemed not to be “food” for the purposes of the Food Hoarding Order of 1917, it was a “food” within the meaning of provisions contained in certain Defence of the Realm Regulations read together with the New Ministries and Secretaries Act of 1916, which authorised the Food Controller to control “the food supply of the country” and the “supply and consumption and production of food.” Judge Avory likewise held that tea qualified as an article of food for those statutes, although Judge Darling preferred to maintain his earlier position. All three judges agreed that the statutory language was sufficiently broad to allow the Food Controller to target items that were not food per se, such as sacks and tin containers, provided that such regulation indirectly affected the supply of food; that particular passage of the decision is not relevant here because the statutes they interpreted were phrased more expansively. The Court cautioned that comparing one Act with another can be hazardous, especially when the comparator is an English wartime measure, and the Court declined to make such a comparison. The focus, therefore, is on the Act presently before the Court, which must be interpreted without being swayed by similar wording found in other statutes, as noted in the citation 88 L.J.K.B. 441. The earlier cases were cited not for direct comparison but to illustrate that the terms “food” and “foodstuffs” may be employed either broadly or narrowly, depending on the surrounding circumstances and background. Turning to the statute under consideration, it is necessary to revisit its legislative history. Rule 81(2) was comprehensive, and the 1944 Order clearly fell within its scope. Moreover, the preamble of that Order reveals that one of its objectives was to “maintain supplies essential to the life of the community.” Since turmeric was specifically listed alongside other spices, it is evident that turmeric was then regarded as a commodity essential to community life, rather than a mere luxury that could be omitted during times of austerity.

In the judgment it was observed that turmeric was regarded not as a mere luxury that could be omitted during periods of austerity, but as an essential commodity necessary for the community. When the Court turned to the Ordinance and the Act of 1946 it noted that the preamble of those statutes declared that the legislature considered it 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 reinforced this purpose by providing that the Central Government, if it deemed it necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing equitable distribution and fair-price availability, could by a notified order regulate or prohibit the production, supply, distribution and trade of such commodity. The Ordinance used identical language. The Court expressed no doubt that, had the Central Government re-promulgated the Order of 1944 after the enactment of either the Ordinance or the Act of 1946, the Order would have remained valid. It pointed out that turmeric falls within the broader definition of “food” and “foodstuffs” found in an internationally recognised dictionary and affirmed by several English decisions, and that turmeric is as much a “foodstuff” in the wider sense as items such as sausage, skins, baking powder and tea. Consequently the Court found it difficult to hold that turmeric could be excluded from the broader meaning of “foodstuffs”. The Court added that if the Order of 1944 had omitted any specific reference to turmeric and had only prohibited forward contracts in “foodstuffs”, then, following the earlier tea case, it would have been improper to penalise a trader for dealing in an article not ordinarily regarded as a foodstuff. However, because the 1944 Order expressly listed turmeric, the Court held that no person could claim he was unaware of the prohibition on trading that particular commodity. Anyone who deliberately ignored the Order and challenged its validity in court could not complain of being trapped or taken unawares, as the specific inclusion of turmeric placed him on notice. The test, according to the Court, was whether the 1944 Order would have been a proper order if it had been re-promulgated after the 1946 Ordinance. The Court concluded that it would have been proper, and therefore the Order was protected by the saving clauses of both the Ordinance and the Act. Having previously set out section 5 of the Ordinance, the Court affirmed that the Order of 1944 fell within the scope of that section and, being saved there, was equally saved by section 17(2) of the Act, which provides that any order deemed to have been made under the Ordinance and in force immediately before the commencement of the Act shall continue in force and be deemed an order under the Act.

The Court quoted the provision that stated, “the commencement of this Act shall continue in force and be deemed to be an order made under this Act.” The Court then expressed the view that the conviction was proper and that the High Court had erred in overturning it. However, the Court noted that the issue was no longer relevant because the Solicitor-General had given an undertaking not to pursue any further action against the respondent in this matter. The Court considered it appropriate to remark that the attitude of the English judges in the first tea case would still have relevance to the question of sentencing in many similar cases. The Court observed that businessmen who are not lawyers might be misled into thinking that the Ordinance and the Act did not intend to preserve the Order of 1944, since that Order dealt with specific spices while the later statutes used the term “food-stuffs,” which on a narrow interpretation might be seen as excluding condiments and spices. The Court stressed that these observations were not material to the present proceedings because the parties were not seeking to revive either the conviction or the sentence. Consequently, the Court declared that no further order would be made and that the acquittal would remain as it stood. The order was accordingly recorded, and the agents for the parties were identified as P.A. Mehta for the appellant and M.S.K. Sastri for the respondent.