Gur Narain Das v. Gur Tahal Das

The respondent was charged with having contra- vened 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 sen- imprisonment together tenced to three months' simple with a fine of Rs. 1,000 and in default, a further three months. But he was acquitted on appeal by Sessions Court. An appeal 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 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. respondent the history of It will be necessary legislation. In the year 1944 the then Central Govern- ment of India promulgated the Spices (Forward Con- tracts Prohibition) Order, 1944, under Rule 81(2) of the Defence of India Rules. Clauses 2 and 3 read to- forward contracts gether prohibited in the first cdlumn of the schedule "spices" specified the artides schedule was turmeric. The conviction that if that Order is still it is admitted Order and valid the conviction would be good. that Order. Among listed is under in any of 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 'The State of. Bombay v. Virkumar Gulabchand Shah. . Bose/. 880 . SUPREME COURT REPORTS [1952] (Temporary Powers) Ordinance the Essential Supplies of 1946 was issued. This was Ordinance No. XVII of the Ordinance, as set out in the 1946. The· object of preamble, was to provide for the control of what it called It defined mean, things, "foodstuffs", and by a "foodstuffs" was defined to include further definition edible oilseeds and oils. Neither spices m general nor turmeric in particular were mentioned. "essential commodities". among other Section 5 of clause which saved wise have expired along with Rules. The section ran as follows: this Ordinance embodied a •aving ,ertain Orders which would other .. the Defence of "Any order ...... made ...... under rule 81(2) of the in respect of any matters Defence of India Rules, specified in section 3, which was in force immediately before the commencement of this Ordinance, shaH, not- the expiration of the said Rules con- withstanding this Ordinance tinue in force so far as consistent with 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 language of the Ordi, The Act merely reproduces 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 the Order of 1944 is a turmeric foodstuff, therefore is saved. The turmeric is not a food- respondent's contention is that stuff. He contends that the Order of 1944 was limited to spices and that turmeric was included in the term in- by reason of a special definition which specifically cluded 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 con- Clusion I can draw from a careful · consideration of all India v . · ~ .. _ .. ' - •-..t -. - l - .1 S.C.R. SUPREME COURT REPORTS 881 limited to articles which are eaten as food "foodstuff" is that the t'erm the available material is In one sense it has a narrow meaning and ambiguous. for pur- poses of nutrition and nourishment and so would ex- clude condiments salt, spices as yeast, turmeric. In a wider pepper, backing powder and sense, it includes everything the pre- paration of food proper (as understood in the narrow In sense) it more palatable and digestible. the problem posed cannot be answered in my opinion, 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. that goes to make The Oxford English Dictionary defines "foodstuff" as follows: 1952 The State of Bombay v. Virkumar Gulabchand Shah. Bose f. "that which is taken into the system life and growth and to supply waste of tissue." to maintain In Webster's International Dictionary "food" defined as: "nutritive material absorbed or 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 nutri- require in addition to certain inor- tive processes and ganic substances (water, salts etc.) and organic sub- stances of unknown composition (vitamins) not ordi narily classed as foods indispens able to life and contained in greater or less quantities the substances eaten) complex organic substances three principal groups, Proteins, Carbohydrates and Fats." (though absolutely Ne.xt is given a special definition for legal purposes, namely- " As used laws prohibiting adulteration etc., 'food' is generally held to mean any article used as food or drink by man, whether simple, mixed or com- pound, including adjuncts such as condiments etc., and often excluding drugs and natural water." 1952 The State of Bombay v. Virkumar Gulabchand Shah. Bose /. 882 SUPREME COURT REPORTS [1952] The definition given of "foodstuff" is- "1. Anything used as food.

#2. Any substance of food value etc. entering into the composition of a food." It will be seen from these definitions stuff" has no special meaning of its own. carries us back "foodstuff" is anything which is used as "food". that "food It merely the definition of "food" because as protein, fat sense and, So far as "food" is concerned, it can be used in a ,1n my opm10n, wlde as well a narrow 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 prepa- rations 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 vitamins, and spices any mme than one woukl think of separating in his nutritive elements of what is eaten mind the purely 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 order to make it palatable and nutritive, can hardly the purely nutritive elements if the be separated from effect of their absence would' be to render the parti- cular commodity i:n its finished state unsavoury and indigestible to a whole class of persons whose stomachs to a more spicely prepared product. are accustomed 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 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 the nutritive ele- the essense of in. question. must cease ment, to produce the opposite effect; and the definition indigestion to a stomach unaccustomed the commodity - I ,, .... _ , r - - S.C.R. SUPREME COURT REPORTS 883 the strict meaning of the spices which make it nutritive. · the defini- that particular class of persons, without to be food, within tion, the addition of Put more colloquially, "one man's food is another man's poison." 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 refer 1952 T lie Stt1te crf Bomb•y v. Virkumar Gulabchand Shah. Bose]. foodstuffs. But I will now refer to the cases which were cited before In The Sun Jose, Cometa and Salerno(1) sausage us. is usually skins-the envelope in which sausage meat contained-were held to be this was a case of conditional contraband captured during war in pursuance of a war-time measure, and the deci- sion was given international law. in accordance with This does not appear from the judgment but is plain from an earlier judgment of the same learned Presi- later decision was based. The dent on which . his earlier judgment is reported in The Kim(2). He ex- plains there at page 27 that 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- the law of contraband "International law, in order to be adequate as well as just, must have regard to the circumstances of including the circumstances arising out of the times, 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 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 that the wants of the military are supplied, and however much goods may be imported for civil use to make s.ure the military it is by (1) 33 T.L.R. 12. (2) 32 T.L.R. 10. ~ . .\. ~ .... , 884 SUPREME COURT REPORTS [19521 1952 The State of Bombay v. Virkumar Gulabchand Shah. Bose /. they will be consumed require it, especially now that the German Government have· if military exigencies • taken control of all the foodstuffs in the country." It is understandable that viewed against a back- ground like that, the word "foodstuffs" would be con- strued in its wider sense fill order to give full effect to the object behind the law, namely the safety and pre- servation of the State. relevant It is also perhaps to note that the term which was under consideration those cases occurred in a war-time measure, namely a Proclamation promul- the day on which gated on the 4th of August, 1914, the first world war started. There is authority for 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 the State than peace-time legisla- tion. 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 defi- nition 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 be- different. circumstances and the Crown or background . that Act was 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 to prevent the adulteration of object 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 its prepa- also ingredients which ultimately enter into ration,. 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.. ... \ 1952 The State of Bombay v. Virkumar Gulabchand Shah. Bose/. i ) S.C.R. SUPREME COURT REPORTS 885 reasons given Next comes a case relating to tea in which a nar- : Hinde v. Allmond(1). The rower view was 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 the decision. some of directed The prosecution against there was in her posses.sion a ordinary housewife who had quantity of re- the quantity quired for ordinary used and consumption in her household. The Food Hoanling Order <lid not specify tea or indeed any other article. It merely prohibited the hoarding of any "article of food" by generally requiring that no person should have in his possession or under his control at any one time more quantity in his household or establishment. Shearman he rested his inter- pretation of the word 'food' in the Order, apart from its meaning in any other statute" and said :- the "commonsense for use and consumption tea which exceeded judgment on required J. "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 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 exam- ple, 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. think it is clear that I the learned Judges were judgment by influenced 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 circum- they decided that the word should be given stances, the fact (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 G:<labchand Shah. llose f. 886 SUPREME COURT REPORTS [1952] o.rdinary popular meaning, law, would be trapped; and otherwise many mnocent householders), who had no intention of breaking 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 deci- though not directly, under appeal here, sion virtually, learned Judges also take into consideration though the two further facts, namely that the law should be con- freedom of contracts ·and a strued in favour of penal enactment in favour of the subject. a also about The English decision about tea just cited is to be tea, contrasted with another decision, 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 empower- ed 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 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 (Darling J.) so long as he was able and tin containers by these means even indirectly to regulate the supply of "food", but that portion of the decision does not inter- concern us hen; because preting were more widely phrased. they were the laws Now the comparison of one Act with another is com- dangerous, especially when the Act used is an English Act and a war-time measure, parison 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. - 1952 The State of Born bay v. Virkumar Gula be hand Shah. Bose f. i S.C.R. SUPREME COURT REPORTS 887 its provisions uninfluenced by expressions, interpret however similar, used in other Acts. I have referred to the cases discussed above, not for purposes of com- parison 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. It is also its ambit. fell within Turning to the Act with which we are concerned, will be necessary again to advert to its history. Rule 81 (2) was wide and all embracing and the Order of 1944 clearly relevant to note that one of the purposes of the Order, as dis;. to "maintain supplies closed essential to turmeric spices, it is clear that turmeric was tCJ be the community, a commodity essential to the life of that is an essential com- modity and not merely a luxury which at a time of austerity could be dispensed with. its preamble, was the life of the community." As included with certain other then considered it wa& considered specifically to say, • Then, when we turn to the Ordinance and the Act from the preamble that the legislature of 1946, we find considered that it was still necessary- "to provide for the continuance . ....... of powers- to con- trol 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 Govern- ment re-promulgated 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" the Order of 1944 1952 Th< Stat< of Bombay ·V. Virkumal" Gula be hand Shah. Bou/. 888 SUPREME COURT REPORTS [1952] In fall within turmeric cannot turmeric and had in line with the earlier tea case, and "foodstuffs" given in a dictionary of international standing as well as in several English decisions. It is, in its wider meaning, I think, as much a "foodstuff'', as sausage, skins and baking powder and tea. face of all that I would find it difficult to hold that, an article the wider meaning of the term "foodstuffs". Had the Order of 1944 not specified it merely pro- hibited forward oontracts in "foddstuffs" I would have held, 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 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 law, he can hardly complain that he was •trapped or taken unawares; whatever he thought he was at any rate placed on his may have guard. As I see it, the test here is whether the Order of 1944 would have been a good order had it been re- the Ordinance of 1946. In my promulgated after opinion, it would, and from that it follows that it is saved by the saving clauses of· the Ordinance and the Act. turmeric, no one in a court of includes I have already set out section 5 of the Ordinance. In my opinion, ·the Order of 1944 falls within its pur- i!t is equally saved view, and if it is saved by thait, The section is in these by section 17 (2) of the Act. terms: "Any order . . . . . . . . . . deemed to be made under the said Ordinance and in commencement of this Act shall continue in force and be deemed to be an order made under this Act." immediately before 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 under- the learned Solicitor-General not to taking given by in this proceed against that the attitude of matter, respondent any to ob; erve I think it right further '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 the Order related to certain specified spices because while the Ordinance and the Act changed the .nomen- clature and limited themsleves to "foodstuffs", a term which, on a narrow view, would not include con- diments and spices. However, these observations are not relevant here because we are not asked to restore In view of that, either the conviction or the sentence. the acquittal there will be no will be left as it stands. further order and ·. \ Order accordingly. Agent for the appellant: P. A. Mehta. Agent for the respondent : M. S. K. Sastri. - 1952 The State of Bombay v. Virkumar Gulabchand Shah. Bose /. 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.] 1952 May 2, 5. • 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 validity Delegation of legislative powers-Fraud on the Constitution-Consti tution of India, 1950-Constitution (First Amendment) Act, 1951- Arts. 31, 31-A, 31-B, 362, 363-Sch. VII, List II, entries 18, 36 and List Ill, entry 42-Construction-Spirit of the Constitution Right 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