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1978 DIGILAW 77 (KER)

YOUNUS v. SUB-INSPECTOR OF POLICE

1978-03-09

P.JANAKI AMMA

body1978
Judgment :- 1. The vires and validity of the Kerala Raw Cashewnuts (Movement Control) Order, 1975 (for short 'the Order') are challenged by the petitioner in this petition. 2. The petitioner's case is as follows: On 141977, the petitioner had sent a lorry load of raw cashewnuts from Quilon to his factories at Tamil Nadu. The nuts formed part of the quantity allotted to the petitioner by the Cashew Corporation of India for use of the factories belonging to the petitioner in Tamil Nadu. The lorry was intercepted by the Asst. Superintendent of Police, Neyyattinkara at Amaravila check-post. The nuts were seized. In due course, a case was registered against the petitioner for violation of the Kerala. Raw Cashewnuts (Movement Control) 0.1975 and the Raw Cashewnuts (Marketing and Distribution) Order of 1976. After investigation, C.C.133 of 1977 was registered against the petitioner in the Court of the Sub Divisional Judicial Magistrate, Neyyattinkara for violation of clause (3) of the Order and SRO. No. 785 of 1975 read with R.114 (2) and (3) of the Defence and Internal Security India of Rules, 1971 and a charge was framed against him and the driver of the lorry for the said offences. The present petition is filed under S.482 of the Criminal Procedure Code for quashing the above proceedings. 3. The contention put forward on behalf of the petitioner is that the Kerala Raw Cashewnuts (Movement Control) 0.1975 is beyond the powers of the Government of Kerala and as such no offence has been committed by the petitioner in the instant case. The proceedings against him are, therefore, prima facie unsustainable. 4. The Order was issued in exercise of the powers conferred by sub rules (2) and (3) of R.114 of the Defence and Internal Security of India Rules, 1971. The relevant portions of R.114(2) and (3) of the Defence and Internal Security of India Rules reads: "114.(2). The proceedings against him are, therefore, prima facie unsustainable. 4. The Order was issued in exercise of the powers conferred by sub rules (2) and (3) of R.114 of the Defence and Internal Security of India Rules, 1971. The relevant portions of R.114(2) and (3) of the Defence and Internal Security of India Rules reads: "114.(2). If the Central Government or the State Government is of opinion that it is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the life of the community or for securing equitable distribution and availability of any article or thing at fair prices, it may by order, provide for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or things and trade and commerce therein or for preventing any corrupt practice or abuse of authority in respect of any such matter. (3) Without prejudice to the generality of the powers conferred by sub-rule (2) an order made thereunder may provide for (a) regulating by licences, permits or otherwise, the production, manufacture, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever;" 5. The Order directs that no person shall move or attempt to move or abet the movement of raw cashewnuts from one district to another district in the State or from any place in the State to any place outside the State except under and in accordance with a permit issued in that behalf by the competent authority. 6. The prosecution is launched on the ground that the petitioner herein did not obtain permit for transporting the raw cashewnuts and as such he has contravened the provisions of the Order. The petitioner on the other hand, would contend that raw cashewnuts come under the category of foodstuffs under entry 33 of list III, the Concurrent list in the Seventh Schedule to the Constitution. R.114 of the Defence and Internal Security of India Rules confers power an the State Government to regulate the movements of food-stuffs; but that right is subject to R.114(4) which directs that before any such order is made the prior concurrence of the Central Government should be obtained. R.114(4) reads: "(4). R.114 of the Defence and Internal Security of India Rules confers power an the State Government to regulate the movements of food-stuffs; but that right is subject to R.114(4) which directs that before any such order is made the prior concurrence of the Central Government should be obtained. R.114(4) reads: "(4). Notwithstanding anything contained in sub-rules (2) and (3), an order under these sub-rules for regulating by licences, permits or otherwise the movement or transport of any foodstuffs, including edible oil seeds and edible oils, or for controlling the prices or rates at which any such foodstuffs may be bought or sold shall, not be made by the State Government except with the prior concurrence of the Central Government". There is no case for the State that prior concurrence had been obtained before the Order was issued. The stand taken by the State is that raw cashewnuts do not come under the category of food-stuffs and, therefore, sub-rule (4) of R.114 has no application to the instant case. 7. The word "foodstuffs" has been judicially interpreted in several cases, both by the Supreme Court and the High Courts. In State of Bombay v. Virkumar (AIR. 1952 SC. 335), the question arose as to whether Turmeric was foodstuff coming under the Essential Supplies (Temporary Powers) Act, 1946. In the course of the discussion, reference is made to the meaning given to the word 'foodstuff in the Oxford English Dictionary which reads: "That which is taken into the system to maintain life and growth and to supply waste of tissue." The definition of 'foodstuff given in the Webster's International Dictionary was also taken into account. According to the definition, 'foodstuff' means: "(1) Anything used as food. (2) Any substance of food value as protein, fat, etc. entering into the composition of a food." The Supreme Court observed that the word 'foodstuff' for the purpose of the Act should be construed in a wide sense in order to give full effect to the object of the enactment viz., the safety and preservation of the State. After a discussion of the case-law, it was held that Turmeric was a foodstuff. 8. In Tika Ramji v. State of U.P. (AIR. 1956 SC. 676) the question involved was whether Sugarcane was foodstuff under entry 33 of List III of the Constitution. The Supreme Court answered in the affirmative. After a discussion of the case-law, it was held that Turmeric was a foodstuff. 8. In Tika Ramji v. State of U.P. (AIR. 1956 SC. 676) the question involved was whether Sugarcane was foodstuff under entry 33 of List III of the Constitution. The Supreme Court answered in the affirmative. The above decision was relied upon and followed in A K Jain v. Union of India (AIR. 1970 SC. 267). 9. Before this court, the question arose in Janardhanan v. Salestax Officer, Calicut (1966 KLT.175) as to whether ghee came under the definition of 'foodstuff' for the purpose of General Sales Tax Act, 1125. It was held that it is not possible to define the ambit and scope of the word "foodstuff" and limit its meaning by holding that it will apply only to such articles which are eaten for their nutritive value and which form the principal ingredients of cooked and uncooked meals. Reference was made to the passage is the Roland Burrow's "Words and Phrases Judicially Defined", Vol. II: 'We do not, however, in anything we have said intended to convey it as our opinion that nothing can be deemed to be an article of food unless it be made up into an eatable or drinkable form and fit for immediate use, for we have no doubt that the substantial and requisite materials for making, and which are to form part of the unadulterated article when made e.g. flour, butter, salt, mustard, pepper, etc. are articles of food," Ghee was held to be foodstuff for the purpose of the General Sales Tax Act, 1125. 10. In Nathuni Lal v. State (AIR. 1964 Calcutta 279) the question arose as to whether wheat and wheat products are food and as such an essential commodity within R.35(5) of the Defence of India Rules, 1962. Mitter, J. observed as follows: "We are not concerned with the actual decision in these cases which only go to show that a thing may be a food or foodstuff even if not directly consumed and has no nutritive value but is only used for culinary purposes in the preparation of food. Mitter, J. observed as follows: "We are not concerned with the actual decision in these cases which only go to show that a thing may be a food or foodstuff even if not directly consumed and has no nutritive value but is only used for culinary purposes in the preparation of food. So far as wheat and wheat products are concerned, in my opinion, there is no room for doubt that they are food even if they are not consumed as they are but have to be cooked or have to undergo some mechanical process before the same are ready for consumption." 11. In Bijoy Kumar v. State (AIR. 1976 Orissa 138) the question that arose was as to whether paddy was food-stuff coming under the Essential Commodities Act. The argument put forward was against the contention. The court referred to the decision in State of Bombay v. Virkumar (AIR 1952 S. C. 335) and Sujan Singh v. State of Haryana (1968 Punjab and Haryana 363) and held that paddy was foodstuff. 12. The reasoning adopted for holding that wheat and paddy are foodstuffs applies with equal force in the case of cashewnuts. There is no scope for doubt that cashew kernel is an eatable commodity both in its raw form and also when fried. It is taken in as part of the food and is also used in the preparation of food. That its kernel should be separated from the shell or outer covering or that it should by processed before use does not make raw cashewnuts any-the-less" foodstuff." 13. This means any Order under R.114 (2) or 114 (3) of the Defence and Internal Security of India Rules regulating the movements of raw cashewnuts could have been made only after obtaining the prior concurrence of the Central Government as directed in R.114(4). In the absence of such concurrence violation of the provisions of the Kerala Raw Cashewnuts (Movement Control) Order, 1975 does not create an offence. It follows, therefore, that the charge framed against the petitioner does not disclose an offence. It is now settled law that when the allegations in the first information report, charge or complaint even if they are taken in their face value and accepted in their entirety do not constitute the offence alleged, the High Court can exercise its inherent jurisdiction to quash the proceedings. It is now settled law that when the allegations in the first information report, charge or complaint even if they are taken in their face value and accepted in their entirety do not constitute the offence alleged, the High Court can exercise its inherent jurisdiction to quash the proceedings. (See R. P. Kapur v. State of Punjab (AIR. 1960 SC. 866) and Sharda Parsad v. State of Bihar (AIR. 1977 SC. 1754). The petition is accordingly allowed. The proceedings in C. C. 133 of 1977 before the Sub Divisional Judicial Magistrate, Neyyattinkara will stand quashed. Allowed.