1. This is an appeal by the Government of Bombay against the order passed by the Presidency Magistrate, Second Court, Mazagaon, acquitting the accused, who was being prosecuted for preparing, or causing to be prepared or selling or distributing ice-cream in contravention of a notification issued by the Government of Bombay on 24-1-1947. By this notification, the Government of Bombay directed that within the limits of the Greater Bombay, no person shall except under and in accordance with the conditions of the licence granted by the Director of Civil Supplies or the Milk Commissioner, Bombay,
(a) use milk, cream, skimmed milk, dried milk, milk powder or any milk product (including curds and mawa) for the preparation of ice-cream (including Kulfimalai) or
(b) distribute in a public place or sell at any place ice-cream (including Kulfimalai) for the preparation of which milk, cream, skimmed milk, dried milk, milk powder, or any milk product (including curds and mawa) has been used.
2. This notification was issued under Clause (d) of Sub-section (2) of Section 3, Essential Supplies (Temporary Powers) Act, 1946, which empowers the Central Government to make orders for regulating by licences, permits or otherwise, the distribution, use or consumption of any essential commodity. The word 'essential commodity' is defined in Section 2 of the Act as including foodstuffs. The word 'foodstuffs is separately defined, in the same section as including edible oilseeds and oils. Section 4 of the Act empowers the Central Government to direct that the power to make orders under Section 3 shall be exercisable by such Provincial Government as may be specified in the direction. Under this section, an order was issued by the Central Government on 21-10-1946, by which the powers conferred on it by Section 3 of the Act in relation to foodstuffs were also made exercisable by any Provincial Government, subject to the condition that before making any order relating to any matter specified in Clause (d) of Sub-section (2), the Provincial Government obtained the concurrence of the Central Government.
3. On 8-10-1948, witness Marshall gave a party at 'All Bless Baug' in Bombay in order to celebrate the thread ceremony of his son. He engaged the accused as a caterer. Ice-cream and cold-drinks were served at this party. The report of the Chemical Analyser to Government shows that the ice-cream served at this party contained milk fat and lactose, both milk products. The accused had not obtained a licence either from the Director of Civil Supplies or from the Milk Commissioner, as required by the notification referred to above. He was, therefore, prosecuted. He was charged with preparing or causing to be prepared or distributing or selling ice-cream by using milk, cream, skim-milk, dried milk, milk powder or any milk product in contravention of the notification. He pleaded not guilty to the charge. He admitted that he had been asked by Marshall to make arrangements for supplying ice-cream, but hastated that he had told Marshall that he himself did not possess a licence and that he would arrange with a licensed contractor who would supply and serve ice-cream. Accordingly he placed an order for ice-cream with one Nasarwanji Vachha, who possessed a licence, and it was this Vachha who, according to the accused, brought the icecream and served it at the party. Marshall states in his evidence that although he had placed an order for catering with the accused and had told him that it was his business to arrange for ice-cream, the ice-cream was actually brought by some person other than the accused. In view of this evidence, the learned Magistrate held that the charge against the accused had not been proved. He also came to the conclusion that the notification issued by the Bombay Government was ultra vires, as milk was separately specified as an essential commodity in the Bombay Essential Commodities and Cattle (Control) Act, 1946, passed by the Bombay Legislature shortly after the Essential Supplies (Temporary Powers) Act had been passed by the Central Legislature. According to him, orders in regard to milk could only be issued under the Bombay Act. The learned Magistrate, therefore, acquitted the accused. Being dissatisfied with that order, the Government of Bombay have come in appeal.
4. The first question which arises for determination in this appeal is whether the notification issued by the Government of Bombay is ultra, vires. It has been urged that the word 'foodstuffs' does not include milk and that consequently the Bombay Government was not competent to make any order with regard to milk under the powers delegated to it by the Central Government under Section 4, Essential Supplies (Temporary Powers) Act, 1946. The word 'foodstuffs' is defined in Webster's Dictionary as 'anything used a3 food.' In Muray's Dictionary it is defined as 'anything fit for use as food.' Any article of food will therefore, be included in the term 'foodstuffs.' In Webster's Dictionary 'food' is defined as meaning any nutritive material absorbed or taken into the body of an organism for purposes of growth or repair or for the maintenance of the vital processes. Another meaning of food given in the same dictionary is nutriment in solid form as opposed to drink. According to Ballentine's Dictionary, 'food' means all that is eaten for the nourishment of the body. The word is, therefore, sometimes used to mean what one eats as opposed to what one drinks. Mr. Ghaswalla has urged that as we are now interpreting a penal statute, it should be construed strictly and that the word 'foodstuffs' used in the Essential Commodities (Temporary Powers) Act should be held to include only solid foods, which can be eaten. As pointed out in Emperor v. Hormazadyar Irani 60 Bom. L R. 163 : A. I. R. 1948 Bom. 260 : 49 Cri. L. J. 362 and in Maxwell on Interpretation of Statutes, 9th, Edn. p. 267, the rule which requires that penal and some other statutes should be construed strictly has lost much of its force in recent times and it is now recognised that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object. In Newly v. Sims (1894) 1 Q. B. 478: 63 L. J. M. C. 228, Day J. observed (p. 480):
'I do not in any way yield to Mr. Strachan's argument that the statutes are penal, and ought therefore to be construed strictly. In my opinion, we ought only to apply to these Acts such strictness as ought to be applied to all statutes.'
5. In The Sydland and The Indianic. (1917) P. 161n, the Prize Court decided that 'coffee' was food and was included in the term 'foodstuffs' in the Proclamation of 4th August 1914, which stated the articles which were to be regarded as absolute and conditional contraband. In Hinde v. Allmond (1918) 118 L. T. 417 : 87 L. J. K. B. 893, the accused was charged with contravening the Fool Hoarding Order, 1927, by acquiring a quantity of tea exceeding the quantity required for ordinary use and consumption in her household. Article 5 of this Order provided :
'For the purpose of this Order, the expression article of food shall include every article which is used for food by man, or which ordinarily enters into the composition or preparation of human food.'
6. It was urged that tea was not an article of food, because it was a drink and also because it had no nourishment in it and was merely a stimulant. It was held that as tea does not provide nourishment, it was not food. In his judgment Avory J. observed (p. 448) :
'. . .1 do not assent to the proposition that in order to be 'food' within the order an article must be something that is eaten as opposed to something that people drink. I am not prepared to hold that things consumed by drinking rather than by eating may not be 'food' within the order. The word 'food' must be interpreted in its primary sense--namely, something taken into the system for nonriahment and not merely as a stimulant. I prefer to base my judgment on that ground. Tea is not taken for nourishment, which is the primary meaning of 'food' according to the dictionaries.'
This case was referred to in Sainsbury v. Saunders (1918) 88 L. J. K. b. 441: 120 L. T. 120 in which Darling J. observed (p. 445) :
'I have pointed out in the course of the argument, and I desire to repeat It, that tea is not in itself a food in the sense that it is not nutritious, that you cannot live on it, that it will not increase the amount of tissue in a person as the drinking of milk would--food may be solid food or liquid food--It is not simply because it is a drink that tea is not a food ; that is an entire mistake--supposing tea were capable of adding to the tissues as milk will do, then it would be quite right to call it simply a food. Tea appears to be nothing in the world but a stimulant.'
7. The primary meaning of the word food is something that nourishes and it may, as pointed out in the above cases, be solid or liquid. Milk is nutritious and a person can sustain life on it. In fact, it is the only article which is taken for nourishment by infants and many invalids. Milk is, therefore, food and will come within the term 'foodstuffs' used in the Act.
8. Mr. Ghaswalla has argued that by defining 'foodstuffs' as including edible oil seeds and oils, the Legislature has shown an intention to exclude liquid foods from the purview of the Act. Oilseeds would not normally be regarded as 'food', and it is possible to argue at least in the case of some edible oils that they are not 'food', as they do not provide nourishment. These articles therefore appear to have been specifically mentioned in the definition in order to remove any doubt on the point. The inclusion of these articles in the definition of the 'foodstuffs' would not therefore show that the Legislature wanted to give a restricted meaning to this word and to make the Act applicable only to solid foods.
9. The learned Magistrate was of the opinion that as in the Bombay Essential Commodities and Cattle (Control) Act, 1946, milk is separately specified as being an essential commodity, the word 'foodstuffs' used in the Essential Supplies (Temporary Powers) Act cannot be held to include milk. The Bombay Act came into force on 30-9-1946, i. e. after the Central Act had been passed. We are unable to understand how an enactment can be construed by reference to a later enactment passed by a different Legislature. At the most, it might be argued that the Bombay Legislature specified milk separately in its Act because it entertained some doubt in the matter. But this would not show that the Central Legislature intended to exclude milk from the purview of the Act passed by it.
10. Mr. Ghaswalla has also contended that the notification issued by the Bombay Government is bad, as the prosecution have not led evidence to show that the Bombay Government had obtained the concurrence of the Central Government before issuing it, as was required by the notification issued by the Central Government on 21-10-1946, by which it delegated its powers to the Provincial Governments. This point was not taken in the lower Court. The notification states specifically that the previous concurrence of the Central Government had been obtained. There is also a presumption under Section 114, Evidence Act, that all official acts have been duly performed. We, therefore, see no reason why we should not accept the statement in the notification, which was signed by a Secretary to the Government of Bombay, that the concurrence of the Central Government to the issue of this notification had been obtained.
11. We are, therefore, of the opinion that the Bombay Government was competent to issue the above notification and that it is not ultra vires. [After dealing with points not material to this report the judgment concluded.]
12. The order passed by the Magistrate acquitting the accused is, therefore, set aside andhe is convicted under Section 7, Essential Supplies(Temporary Powers) Act, 1946, read with Section 2,Bombay Essential Supplies (Temporary Powers)and the Essential Commodities and Cattle(Control) (Enhancement of Penalties) Act of 1946.As regards the sentence, the learned Advocate-General has stated that this appeal was filed bythe Bombay Government mainly in order toobtain a decision on the question whether it was competent to make an order with regard to milkunder the powers of the Central Governmentdelegated to it under Section 4, Essential Supplies(Temporary Powers) Act, 1946. This case has,therefore, been fought more or less as a testcase. In view of this fact and having regardalso to the nature of the offence, we do not propose to send the accused to jail. As, however,Section 2 of the above Bombay Act XXXVI  of1947 makes it obligatory to award a sentence ofimprisonment, we sentence the accused to oneday's simple imprisonment and a fine of Rs. 200or in default 2 weeks' rigorous imprisonment.The fine to be paid in this Court.