1. This is an appeal preferred by the Superintendent and Remembrancer of Legal Affairs on behalf of the State of West Bengal from an order of a learned Sessions Judge allowing an appeal from a learned Magistrate of the 1st Class who had convicted the respondent of an offence under Section 7, Essential Supplies Act, read with the Bengal Foodgrains Control Order, 1945. The appellants contend that the view of the learned Sessions Judge as to the meaning of the word 'foodgrain' in the- Bengal Foodgrains Control Order, 1946, is erroneous and, therefore, the order of acquittal should be set aside.
2. The facts of the case can be very shortly stated as follows : In the very early morning of 29th April 1949, the respondent and others were seen loading a lorry in the village of Borhat near the town of Burdwan, A constables interfered and eventually the produce which was being loaded on to the lorry was seized and it is said that a very large quantity of rice flour and broken rice was taken possession of by the authorities. The respondent and others were then prosecuted in the Court of a learned Magistrate for an offence of being in possession or storing 111 mds. 15 srs. of rice without a permit or license as required by the Bengal Foodgrains Control Order, 1945, and in particular Clause 3 (1), and Clause 10 (1) of that order. Being in possession of this large quantity of rice without a permit was held by the learned Magistrate to be contrary to the order and, therefore, an offence under Section 7, Essential Supplies Act, 1946, had been committed. The respondent was accordingly convicted under that section and sentenced to six months rigorous imprisonment. The rice seized was ordered to be forfeited or confiscated.
3. The respondent preferred an appeal to the Court of the Sessions Judge who held that what was seized by the police was not 'rice' as that terms is used in the Bengal Foodgrains Control Order, 1945. That being so, the order in the opinion of the Sessions Judge did not apply and, therefore, no offence under Section 7, Essential Supplies Act, had been committed, The learned Sessions Judge, therefore, allowed the appeal, set aside the conviction and sentence and acquitted the respondent. It is from that order that the present appeal has been preferred.
4. Mr. Sen, the Deputy Legal Remembrancer, on behalf of the State hag contended that the view of the learned Sessions Judge was clearly erroneous. The learned Judge was of opinion that what the witnesses described as powdered rice was not foodgrain within the Bengal Foodgrains Control Order and therefore no permit was required for its possession. Mr. Sen has contended that powdered rice is clearly rice and therefore this large quantity could not be validly possessed without a permit.
5. 'Foodgrain' is denned in clause 2 (c), Bengal Foodgrains Control Order, 1945, in the following terms :
'Foodgrain means any of the commodities specified in Schedule 1 to this Order or any bye-product thereof and includes any other commodity which the Provincial Government may from time to time declare, by notification in the Official Gazette, to be a commodity to which this order applies.'
6 Schedule l to the Order sets out six commodities which fall within the term 'food, grain' and they are :'(1) Rice in the husk (paddy), (2) Rice husked, (3) Wheat and Wheat Products (including Atta, Maida, Suji, Rawa and Bran), (4) Rahar, (5) Masur, (6) Gram, any variety, Including Mung.'
7. It will be seen that a distinction appears to have been drawn between rice and wheat. Both wheat and wheat products are foodgrain, but only rice in the husk and rice husked are foodgrain. Rice products are not included in the term 'foodgrain'. That seems to have been deliberate.
8. Mr. Sen has contended that what was seized in this lorry which was being loaded at the instance of the respondent was rice husked. But it is clear from the evidence that what was seized was rice which, had been processed, that is, rice which had been powdered deliberately and not accidentally. The most important witness on this aspect of the case is Amulya Bhattacharji, who was an Assistant Sub. Inspector of Police attached to the Burdwan police station. He describes what was seized as a truck load of powdered rice-24 bags containing powdered rice looking like flour and 27 bags containing powdered rice looking like suji. His description makes it clear that all the produce which was seized was powdered rice, though some of it had been reduced to a finer powder than the remainder. The Sub-Inspector uses the terms 'powdered rice,' that is, rice which has been powdered and indeed it seems to have been conceded throughout these proceedings in the Courts below that the rice was rice which had been deliberately powdered and some of it reduced to a fine powder and the remainder to a rougher powder.
9. The question arises whether this rice powder can be regarded as 'foodgrain' as that term is used in the Bengal Foodgrains Control Order. The suggestion is that it is husked rice, but clearly that is not so. What is said to be foodgrain is either unhusked or husked rice. Unhusked rice is of course paddy. Nobody can suggest that this powdered rice can be described as paddy. Husked rice is rice grain after the outer covering has been removed. The term 'husked rice' is used to mean the grains of rice from which the outer covering has been removed and the grain in many cases polished. The term 'husked rice' cannot in my view be appropriately used to describe a powder whether of a fine or of a rougher texture. Husked rice can only mean rice grain from which the outer covering or coverings have been removed.
10. I think it could be truly said that powdered rice is a rice product because it is produced from rice by the simple process of grinding. The schedule, as I have said, includes in the term 'foodgrain' not only wheat but wheat products and the schedules shows that Atta and Suji are wheat products within the meaning of that Order. Atta and Suji are really grains of wheat ground and powdered down and if Atta and Suji cannot be regarded as wheat, but only as wheat products, it appears to me to follow that this powdered rice could not be regarded as husked rice but only as a rice product. Unfortunately however, rice products are not included in the word 'foodgrain' and as I have said earlier it would appear that the omission is deliberate. That being so, it is I thick quite impossible to hold that what was seized was husked rice and therefore covered by the order.
11. Mr. Sen then contended that if what; was seized could not be described as husked rice it could be described as a by-product of rice. As I have said earlier the term 'foodgrain' as used in the Order means not only the commodities specified in Schedule 1, but any by-products of those commodities. Mr. Sen has contended that powdered rice can be rightly regarded as a by-product of husked rice.
12. The word 'by-product' is a common English word and is defined in Murray's English Dictionary as 'a secondary product; a substance of more or less value obtained in the course of a specific process, though not its primary object.' If what is obtained in a process is the primary object it is a product. If what is obtained is subsidiary to the commodity which is the primary object of the process, then what is obtained is a by-product. For example, coal tar is obtained in the manufacture of coal gas; the primary object of the activities of a gas works company is the production of coal gas for lighting and heating. But in producing the coal gas large quantities of coal tar are produced. It is produced incidentally to the manufacture of the main object of the enterprise; and that being so, it is known as a by-product. Similarly, in the manufacture of petrol from crude oil a number of other very useful commodities are produced. Their production is subsidiary to the main object of the process, namely, the production of petrol and that being so, they are rightly referred to as by-products.
13. Can it be said that powdered rice, whether the powder be of a very fine or a rougher texture, is a by-product of husked rice This powdered rice is not produced incidentally in the production or manufacture of something else. It is produced by grinding grains of husked rice. It could, I think, well be described as a product of rice, but it could not be described as a by-product; that is, as a secondary product produced in the course of the production of some other commodity which is the primary object of the process or manufacture. It seems to me quite clear that the word 'by-product' is quite inappropriate to describe what is only rice powdered or crushed and reduced into the form of fine or rougher flour.
14. Mr. Sen has pointed out that 'by-product' is used in a very wide sense. On 1st February 1960, an amendment of the definition of the word 'foodgrain' in the Bengal Foodgrains Control Order, 1915, was notified in the gazette. The notification is in these terms :
'In clause (c) of Para 2 of the said order after the words 'any by-product thereof insert the words and brackets (SIC)epting muri and chira)'.
15. The effect of this amendment was to exclude muri and chira from the meaning of the word 'by-product' and Mr. Sen has rightly pointed out that neither muri nor chira complies with the definition of the word 'by-product'. Muri is nothing more than fried or baked rice and chira is rice crushed and fried. Neither muri nor chira is produced incidentally in the Bourse of the production of some primary commodity. Muri and chira are made by frying or crushing and frying rice. They may well be products of rice or husked rice, but they can never be regarded as by-products. It seems to me quite clear that whoever drafted this amendment bad not a clear idea of the dictionary meaning, and indeed, the ordinary accepted meaning of the word 'by-product.' Nobody ordinarily would describe muri and chira as by-products of rice; nevertheless in the amendment the suggestion is that they are. Mr. Sen has contended that as the draftsman of this amend. meat appeared to think that muri and chira were by-products of rice, we ought to hold that what was meant in clause (c) of para. 2, Bengal Foodgrains Control Order, 1945, was not a by-product but a product. In short, we ought to road the definition of 'foodgrain' as meaning 'any of the commodities specified in schedule 1 to this order or any products thereof.'
16. The Court must presume that words used in a statute or an order made under a statute are used in their ordinary sense, and it is very rarely a Court will hold that a word in a statute is used as meaning something entirely different from its ordinary grammatical meaning. We should be very loath to construe the word 'byproduct' as meaning only 'product'. But it seems to me that the order itself makes it quite impossible for any Court to construe the word 'by-product' as meaning 'product' only. As I have said earlier, the commodities specified in Schedule 1 as being 'foodgrain' are not only rice but wheat and wheat products. It is therefore clear that wheat products are treated as something entirely different from by-products of wheat. If the word 'by-product' in clause 2 (c) of the Order simply meant products, then the words 'and wheat products (including Atta, Maida, Suji Rawa and Bran)' would have found no place in Schedule 1 of the order. The draftsman of the order clearly drew a sharp distinction between products and by-products and we cannot give the word 'by-product' in the order a different meaning because it appears to have been misunderstood by the draftsman of the amendment. In my view by-products are something quite different from products and whatever we regard powdered rice to be, we can never regard it as a by-product of rice. To be a by-product of rice it would have to be produced, incidentally to the manufacture of some other commodity, from rice, the manufacture of which other commodity was the primary object of the process. In my view this powdered rice cannot be regarded as a by-product of either hut-ked or unhusked rice.
17. As this powdered rice is neither unhusked or husked rice nor a by-product of either of them the commodity does not come within the definition of the word 'foodgrain' in clause 2 (c) of the Bengal Foodgrains Control Order, 1945, and therefore no permit for possession of the large quantity seized was necessary. The view of the learned Sessions Judge that no offence was committed was right and therefore the appeal must fail.
18. It was suggested by my learned brother in argument that the respondent could be convicted if it was established that he ground the rice into powder because his .possession before the grinding would be possession of husked rice; unfortunately, however, there is no evidence upon which we could hold that he produced the rice powder. There was evidence that there was some machinery on the respondents premises but no evidence that it was machinery for grinding rice. Further no one spoke to grinding operations by the respondent. That being so, we cannot hold that the respondent was in possession of husked rice before grinding.
19. I appreciate that the view that we are bound to take is technical. There seems to be no reason at all why powdered rice which is food just as much as husked rice should not come within the order. However, the order creates criminal offences and before a man can be convicted it must be clearly shown that his conduct amounts to an offence under the statute or order under which he is prosecuted. As, by what would appear to be an error of drafting, the order was-not drafted in such a manner as to cover powdered rice, the possession of the same cannot be an offence. That being so, the respondent could not be convicted. The remedy lies in an amendment of the definition of the word 'foodgrain' in Schedule 1, but with that we are not concerned.
20. In the result this appeal is dismissed and the order of acquittal is confirmed. The powdered rice seized must be returned to the res. pendent forthwith.
21. The respondent will be discharged from his bail and his bail bond is cancelled.