Judgment

FAZL ALI J.- 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 into the composition of food so as to make it palatable may be described as foodstuff , but that word is commonly used with reference only to those articles which are eaten of their nutritive value and which form the principal ingredients of cooked or uncooked meal, such as wheat, rice, meat, fish, milk ,bread, 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 as such other condiments as the Legislature intends to be treated as such for achieving the object in its view.

2. BOSE J.- The question in this case is whether turmeric is a "foodstuff" within the meaning of 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 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 sentenced to three months simple imprisonment together with a fine of Rs. 1000 and in default, a further three months. But he was acquitted on appeal by the Sessions Court. 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 India promulgated the Spices (Forward Contracts Prohibition) Order, 1944 under Rule 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 conviction is under that Order and it is admitted that 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 with it the Spices Order of 1944. But before it expired an Ordinance called the Essential Supplies (Temporary Powers) Ordinance of 1946 was issued. This was Ordinance No. XVIII of 1946. The object of the Ordinance, as set out in the preamble, was to 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 the Ordinance embodied a saving clause which saved certain Orders which would otherwise 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 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."

8. 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 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 appe