Fazl Ali, J.
1. I agree that the acquittal of the respondent should not be disturbed and I also agree generally with the reasoning of my brother Bose, The Question whether turmeric is 'foodstuff' is not entirely free from difficulty. In one sense, everything which enters in to the composition of food so as to the make it palatable may be described as 'foodstuff' but that word is commonly used with reference only to the those articles which are eaten for their nutritive value and which from the principal ingredients of cooked or uncooked meal, such as wheat, rice, meat, fish, milk, brad, butter, etc. It seems to me desirable that the Act should be amended so as to expressly include 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.
2. The question in this case is whether turmeric is a 'Foodstuff' within the meaning of the 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).
3. The respondent was charged with having contravened clause 3 of the Order of 1944 because he entered into the forward contract in the turmeric at Sangli on the 18th March, 1950, in contravention of clause 3 of the Order. He was convicted by the trial court and sentenced to three month's 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 Courts. An appeal to the High Court against the acquittal failed.
4. 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.
5. It will be necessary to trace the history of this legislation. In the year 1944 the then Central Government of Indian promulgated the Spices (Forward Contracts Prohibition) Order, 1944 under Rules 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 convictions is under that the Order and it is admitted that it if that Order is still valid the conviction would be good.
6. The Defence of India Act was due to expire on the 30th of September, 1946, and the with it the Spices Order of 1944. But before the its expired an Ordinance called 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 the provide for the control of what it called 'Essential commodities' It defined this to mean, among other things, ' foodstuffs' and by a further definition 'foodstuffs' was defined to include edible oilseeds and oils. Neither spices in general nor turmeric in particular were mentioned.
7. Section 5 of this Ordinance embodied a saving clause which saved certain Orders which would other wise 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 the any matters specified in section 3 which was in force immediately before the commencement of this Ordinance, shall, 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 the section 3.'
8. The Ordinance was alter replaced by the Act with which we are now concerned the Essential Supplies (Temporary Powers) Act, 1946, (Act XXIV of 1946). The Act merely reproduces the language of the Ordinance in all material particulars and it is conceded that if the matter falls under the Ordinance it will also fall under the Act.
9. The appellant's Contention is that turmeric is a foodstuff, therefore, the Order of 1944 is saved. The respondent's contention is that the turmeric is not a foodstuff. He contention is that the Order of 1944 was limited to spices and that the turmeric was includes in the terms by reason of a special definition which specifically included it; and as the Act of the 1946 and the Ordinance are limited to 'Foodstuffs' the Order of 1944 dealing with the turmeric was not saved. The question therefore is, is turmeric a 'foodstuff'?
10. 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 the a careful consideration of all the available material is that the terms' 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 in to the preparation of food proper (as understood in the narrow sense) to make it more palatable and digestible In my opinion the problems 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.
11. The Oxford English Dictionary defines 'foodstuff' as follows :
'That which is taken in to the system to maintain life and growth and to supply waste of tissue.'
12. 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 the growth work or repair and for the maintenance of the vital processes.'
13. Then follows this explanation :
'Animals differ greatly from the plants in their nutritive processes and require in addition to certain inorganic substances (water, salt's 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.'
14. Next is given a special definition for the 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 natural water.'
15. The definition given of 'foodstuff' is -
'1. Anything used as food.
2. Any substance of food value as protein, fat etc. entering into the composition of a food.'
16. 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 the 'food' because 'foodstuff' is anything which is used as 'food.'
17. 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.
18. So also, looked at from another point of view, the various adjuncts of what I may terms food proper which enter into the 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 unsavory and indigestible to a whole class of persons whose stomachs are accustomed to a more spicily 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 nutritive is to bring on indigestion to a stomach unaccustomed 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 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 the splitting hairs but to show the undesirability of such a mode of approach., The problem must, I think, be solved in a commonsense way.
19. I will now refer to the cases which were cited before us. In The San Jose, Cometa and Salerno 33 T.L.R 12 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 32 T.LR. 10. He plains there at page 27 that the law of contraband is based on 'the right of a belligerent to prevent certain goods from the 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.'
20. 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 forced itself disappears...... Experience shows that the power to requisition will be used to the fullest extent in order to make sure that the wants of the military are supplied and however much goods may be imported for the civil use it is by the military that they will be consumed if military exigencies requires it, especially now that the German Government have taken control of all the foodstuffs in the country.
21. It is understandable that viewed against a back ground like that, the word 'foodstuff' 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.
22. 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 the war-time measures, which often have to be enacted hastily to meet a grave pressing national emergency in the 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 the whether the wider or the narrower definition should be employed here because the circumstances and background are so different.
23. The next case to which I will refer is James v. Jones (1894) 1 Q.B. 304. 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 the food with ingredients which are injurious to health. It is evident that the definition would have to be wide so as to include not only foodstuffs strictly so called but also ingredients which ultimately enter into its preparation, otherwise the purpose of the legislation which was to conserve the health of the British people, would have been defeated.
24. Next comes a case relating to tea in which a narrower view was taken : Hinde v. Allmond 87 L.J. K.B. 893. The question there was whether tea was an 'Article of food' with in the meaning of an Order designed 'to prohibit the hoarding of food namely the Food Hoarding Order of 1947. The learned Judges held it was not. But here it is necessary to note the background and at any rate some of the reason given for the decision. The prosecution there was directed against an Ordinary housewife who had in her possession a quantity of tea which exceeded the quantity required for ordinary use and consumption in her household. The Food Hoarding Order did not specify tea or indeed any other article. It merely prohibited generally the hoarding of any 'Article of food' by requiring that no person should have in his possession or under his control at any one time more than the quantity required for sue and consumption in his household or establishment. Shearman J. Said that the he rested his judgment on the 'commonsense interpretation of the word 'food' in the Order apart, from its meaning in any other statue' 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.'
25. Darling J. explained what he meant in this case in the a later decision, Sainsbury v. Saunders 88 L.J.K.B. 441 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.
26. 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 words should be given its ordinary and popular meaning, otherwise many innocent householders, who had no intention of the breaking the law, would be trapped ; and this seems to be the ratio decidendi in the decision of the Bombay High Court in Hublal Kamtaprasad v. Goel Bros. & Co. Ltd. (Appeal No. 14 of 1950) which is the decision virtually though not directly, under appeal here, though the learned Judges also take into consideration two further facts, namely that the law should be construed in favour of the freedom of contracts and a penal enactment in favour of the subject.
27. The English decision about tea just cited is to be contrasted with another decision, also about tea, given a few months later in the same year : Sainsbury v. Saunders 88 L.J.K.B. 441. Two of the Judges Darling and Avory, JJ. were parties to the earlier decisions; Salter J. was not, He held that though tea had been held in the earlier case not to be a 'food' for the purpose of the Food Hoarding Order of 1917, it was a 'food' within the meaning of the expressions used in certain Defence of the Realm Regulations read with the New Ministries and Secretaries Act of 1916 which empowered the Food Controller to regulate 'the food supply of the country' and the 'supply and consumption and production of food.' Avory J. also considered that tea was an article of food for the purposes of these laws though Darling J. preferred to adhere to his earlier view. All three Judges also held that the provisions were wide enough to enable the Food Controller to hit at articles which were not food at all, such as sacks and tin containers (Darling J) so long as he was able by these means even indirectly to regulate the supply of 'food' but that the portion of the decision does not concern us here because the laws they were interpreting were more widely phrased.
28. 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 the me and must interpret its provisions uninfluenced by expressions, however similar, used in other Acts. I have referred to the cases discussed above, not for purposes of comparison but to show that the terms 'Food' and 'foodstuffs ' can be used in both a wide and a narrow sense and that the circumstances and background can alone determine which is proper in any given case.
29. 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 the one of the purposes of the Order. As disclosed in its preamble, was to 'maintain supplies essential to the life of the community'. As turmeric was specifically included with certain other spices, it is clear that turmeric was then considered to be a commodity essential to the life of the community that is to say, it was considered an essential commodity and not merely a luxury which at a time of austerity could be dispensed with.
30. 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.....'
31. 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 provided for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein.'
32. The Ordinance is in the same terms.
33. 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' and 'foodstuffs' given in a dictionary of international standing as well as in several English decision. 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 the article like turmeric cannot fall within the wider meaning of the terms 'Foodstuffs.' Had the Order of 1944 not specified turmeric and had it merely prohibited for ward contracts in 'Foodstuffs' I would have held, in line with the earlier tea case, that that is not a proper way of penalising a man for trading in an article which would not ordinarily be considered as a foodstuff. But in the face of the order of 1944 which specifically includes turmeric, no one can complain that his attention was not drawn to the prohibition of the trading in this particular commodity and if in spite of that he chooses to the 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 though 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 re-promulgated 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.
34. I have already set out section 5 of the Ordinance In may opinion, the Order of 1944 falls within its purview, and if 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.'
35. In my opinion, the conviction was goods and the High Court was wrong, in the setting it aside, but though the matter has no relevance here because of the under taking given by the learned Solicitor - General not to against the respondent any further in this matter, I think it right to observe that the attitude of the learned English Judges in the first tea case would not without relevance on the question of sent 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 clature and limited themselves to 'foodstuffs' terms which on a narrow view, would not includes condiments and spices. However these observations are not relevant here because we are not asked to testore either the conviction or the sentence. In view that there will be no further order and the acquittal will be left as it stands.
36. Order accordingly.