Holding

The Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977, is ultra vires to the extent it applies to tea because tea is not a foodstuff and no delegation of power to the State exists for tea.

Summary

The appellants, tea manufacturers, challenged the constitutional validity of the Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977, which regulated tea as an essential commodity. They argued that tea is not a "foodstuff" under the Essential Commodities Act, 1955, and that the Central Government had not delegated any power to the State to regulate tea. The Supreme Court examined the meaning of "foodstuff" using dictionaries, legal precedents and the purpose of food, concluding that tea is a stimulant beverage with no nutritive value and therefore not a foodstuff. Since the delegation of powers under Section 5 of the Essential Commodities Act was limited to foodstuffs, the State could not lawfully include tea in its order. Consequently, the provisions of the Tamil Nadu order relating to tea were held ultra vires. The Court set aside the Madras High Court judgment and allowed the writ petitions, striking down the order's application to tea.

Issues considered

The meaning of 'foodstuff' under the Essential Commodities Act, 1955 and whether tea falls within that definition.
Whether the Central Government delegated authority to the State Government to regulate tea under Section 5 of the Essential Commodities Act.
Whether the Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977, is constitutionally valid insofar as it applies to tea.

Legislation cited

Constitution of Indias. Schedule VII, List III, Entry 33
Essential Commodities Act, 1955s. 2(a)(v), s. 2(xi), s. 3, s. 5
Tea Act, 1953s. 2

Subjects

Essential commoditiesFoodstuff definitionDelegation of powersTeaUltra viresState control orderConstitutional validityStatutory interpretation

Judgment

S. SAMUEL, M.D., HARRI SONS MALAYALAM AND ANR. A
v.
UNION OF INDIA AND ORS.

NOVEMBER 6, 2003

[R.C. LAHOTI AND ASHOK BHAN, JJ.] B

Essential Commodities Act, 1955-Section 2(a)(v), (xi) 3 and 5-Tamil
Nadu Scheduled Articles (Prescription ofStandards) Order, 1977-Delegation
ofpowers by Central Government under section 5 in favour ofState Government
in relation to foodstuff-State Control Order of 1977 making provisions C
applicable to commodity tea-Constitutional validity of the order-Held: As
tea is not a foodstuff and there is no delegation of powers by Central
Government under section 5 in relation to tea, State could not have promulgated
an order under Section 3 of the 1955 Act making it applicable to tea, thus the
provisions of Order in relation to tea ultra vires the power of the State D
Government-Constitution of India, 1950, Schedule Vil-List III-Entry 33-
Tea Act, 1953-Section 2.

Words and Phrases :

'Food', 'foodstuff, 'tea'-Meaning of-Discussed-Jn the context of
Essential Commodities Act, 1955. E
In exercise of powers conferred by section 5 of the Essential
Commodities Act, 1955 by a notification Central Government dele;,ated
the powers to make orders in regard to certain clauses of sub section 3(2),
in relation to 'food stuffs' in favour of State Government. State of Tamil
Nadu promulgated the Tamil Nadu Scheduled Articles (Prescription of F
Standards Order), 1977 for toning up the supply and availability of certain
dsential articles and also for maintaining and raising the standards of
quality of sale and supply. The order was applicable to several articles in
the schedule including tea. Furthermore the order prohibited supply or
sale of scheduled articles not according to the prescribed standards and G
the competent officers were conferred with the powers of food inspector,
powers of entry, seizure search etc. By a notification the Central
Government declared tea to be an essential commodity. Also a fresh
notification was also issued which also confined to foodstuffs. Thereafter,
by virtue of the Order of 1977 competent officer searched the godown of
295 If
296 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A the appellants and took tea samples. Complaint was lodged against the
appellants alleging that the tea samples were found to contain an
adulterant in violations of the provisions of the Order. Appellants filed
writ petition challenging the constitutional validity of the Order regarding
its applicability to 'tea'. Writ petition was dismissed. Hence the present
B appeals.

Appellants contended that 'tea' is not 'foodstufr; and that the State
could not have, in exercise of the delegated power, issued a Control Order
embracing 'tea' within the sweep of its applicability.

Allowing the appeals, the Court
c HELD : 1.1. 'Foodstufr will not include tea as tea t~ither in the form
of the leaves or in the form of beverage as it does not go into the
preparation of food proper to make it more palatable and digestible. Tea
leaves are not eaten. Tea is a beverage produced by steeping tea leaves or
buds of the tea plants in boiled water. Such 'tea' is consumed hot or cold
D for its flavour, taste and its quality as a stimulant. The stimulating effect
is caused by the presence of caffeine therein. 'Tea' neither nourishes the
body nor sustains or promotes its growth. It does not have a nutritional
value. It does not help in formation of enzymes nor does it enable
anabolism. In common parlance, any one who has taken tea would not
E say that he has taken or eaten food. Thus, 'tea' is not 'food' or 'foodstufr.
Also it is not understood as 'food' or 'foodstufr either in common parlance
or by the opinion of Lexicographers. Furthermore it is a wrong assumption
to say that many a poor man in the country take a cup of tea more as a
food as it keeps them active for some time and enables them to work. High
Court has confused a mere stimulant with an article of food or foodstuffs.
F A drink or beverage which acts merely as a stimulant is not food.
[310-D-F; 312-A-B)

The State of Bombay v. Virkumar Gulabchand Shah, (1952) SCR 877;
K. Janardhan Pillai and Anr. v. Union of India and Ors., 11981) 2 SCC 45
and Collector of Central Excise, Bombay-I and Anr. v. Mis. Parie Exports
G (P) ltd, 11989) 1 sec 345, referred to.

Hinde v. Allmond, (1918) 87 LJKB 893, referred to.

Principles of Statutory Interpretation by Justice G.P. Singh, Eighth Edn
2001, p. 279; Chambers Dictionary; Words and Phrases.. Permanent Edition,
H Vol. 17, pp. 306, 313; The New Oxford Encyclopaedic Dictionary; The New
S. SAMUEL v. U.O.I. 297
Encyclopaedia Britannica 15th Edn Vol. 25, pp. 49, 58 and The New A
Encyclopaedia Britannica 15th Edn Vol. 11, p. 596, referred to.

1.2. The Notification, notifying the delegation of powers by the
Central Government to State Governments, is confined to foodstuffs,
meaning thereby that the said Notification delegated the powers by the
Central Government to the State Governments in regard to certain clauses B
of sub-section (2) of Section 3 of the Essential Commodities Act but only
in relation to 'foodstuffs'. The other Notification specified matters in
relation to which delegation has been made are referable to 'foodstuffs'.
As 'tea' is not a 'foodstuff', the power vesting in the Central Government
in relation to 'tea', cannot be said to have been delegated to any State C
Government. By Notification the Central Government has declared the
commodity 'tea' to be an essential commodity. With effect from the date
of the said Notification, tea becomes an essential commodity by reference
to the power exercised by the Central Government under Section 2(xi) of
the Essential Commodities Act read with Entry 33 in List III in the Seventh
Schedule to the Constitution and Section 2 of the Tea Act, 1953. But then D
there is no delegation of powers by the Central Government under Section
5 of the Act in relation to tea. The other Notification is also confined to
foodstuffs which would not include tea. Thus, the State of Tamil Nadu
could not have promulgated an order under Section 3 of the Essential
Commodities Act, 1955 in the purported exercise of the power delegated E
by the Central Government to make an order applicable to tea, by wrongly
assuming tea to be a foodstuff. The several provisions of the Tamil Nadu
Scheduled Articles (Prescription of Standards) Order, 1977, must be ;_eld
to be ultra vires the power of the State Government to the extent to which
it makes provisions in relation to tea. [311-D-H; 312-8-C)
F
Administrative Law by Wade & Forsyth Eighth Edn 2000 p. 322,
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 12746-12747
of 1996.
G
From the Judgment and Order dated 8.3.96 of the Madras High Court
in W.P. Nos. 1870 and 1871 of 1992.

Altaf Ahmed, Additional Solicitor General, V.R. Reddy, C.N. Sreekumar,
Sunil Murarka, Antony Domnie, Ms. Shyjatha, Ms. Deepa S., Ms. Sangeeta
Manda!, Kapil Chaudhary, Ms. Jayashree Singh, Ms. Vineeta Bhardwaj, H
298 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A Ms. Swati Sinha, A.T.M. Sampath, V. Balaji, Ms. Aarti Radhakrishnan and
P.N. Ramalingam for the appearing parties.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Challenge to the constitutional validity of the Tamil
B Nadu Scheduled Articles (Prescription of Standards) Order, 1977 (hereinafter
referred to as the Order, for short) in its application to 'tea' having failed, the
appellants are in appeal by special leave. The crux of the controversy centers
around the question whether 'tea' can be included within the meaning of
'foodstuffs' listed as sub-clause (v) of clause (a) of Section 2 of the Essential
C Commodities act, 1955 (hereinafter, the EC Act, for short) which defines
"essential commodity".

The EC Act was enacted to provide, in the interest of the general
public, for the control of the production, supply and distribution of, and trade
and commerce, in certain commodities. The phrase 'essential commodity' is
D defined by clause (a) of Section 2 of the EC Act as under:
2. Definitions - In this Act, unless the context otherwise requires,

xxx xxx xxx
(a) "essential commodity" means any of the following classes of
E commodities:-
(i) cattle fodder, including oilcakes and other concentrates;

(ii) coal including coke and other derivates;

(iii) component parts and accessories of automobiles;
F
(iv) cotton and woollen textiles;

(iva) drugs;

Explanation - In this sub-clause, "drugs" has the meaning assigned to
it in clause (b) of Section 3 of the Drugs and Cosmetics Act, 1940
G (23 of 1940)

(v) foodstuffs, including edible oilseeds and oils;

(vi) iron and steel, including manufactured products of iron and
steel;
H
S. SAMUEL v. U.0.1. [LAHOTI, J.] 299
(vii)paper, including newsprint, paperboard and straw board; A
(viii) petroleum and petroleum products;

(ix) raw cotton, whether ginned or unginned, and cotton seed;

(x) raw jute;
B
(xi) any other class of commodity which the Central Government
may, by notified order, declare to be an essential commodity
for the purposes of this Act, being accommodity with respect
to which Parliament has power to make laws by virtue of
entry 33 List III in the Seventh Schedule to the Constitution:
c
During the course of this judgment we would be required to concentrate
on sub-clauses (v) and (xi) of the abovesaid definition.

On June 20, 1972 the Central Government issued a notification for
making a delegation of power in favour of the State Governments. The
notification reads as under:- D
Essential Commodities Act section 3 (a) clauses (a) to (/), (h) (i) and
0) - Central Governments ' power to make orders in respect of and
in relation to foodstuffs - State Governments empowered to exercise.

New Delhi the 20th June 1972 E
G.S.R. 316 (E) - In exercise of the powers conferred by section 5 of
the Essential Commodities Act, 1955 (x of 1955) the Central
Government hereby directs that the powers conferred on it by sub-
section ( 1) of section 3 of the said Act to make orders to provide for
the matters specified in clauses (a), (b), (c), (d), (e), (t), (h), (i), (ii) F
and (j) of sub-section (2) thereof shall, in relation to foodstuffs be
exercisable also by a State Government subject to the conditions-

( l) that such powers shall be exercised by a State Government
subject to such directions, if any, as may be issued by the Central
Government in this behalf; G
(2) that before making an order relating to any matter specified
in the said clauses (a), (e) or (t) or in regard to distribution or disposal
of foodstuffs t<J, 9laces outside the State or in regard to regulation of
transport of any foodstuff, under the said clause ( d), the State
Government shall also obtain the prior concurrence of the Central H
300 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A Government; and

(3) that in making an order relating to any of the matters specified
in the said clause G) the State Government shall authorize only an
officer of Government.

B (emphasis supplied)

Exercising the power delegated by the Central Government by the
abovesaid notification, the State of Tamil Nadu promulgated the Tamil nadu
Scheduled Articles (Prescription of Standards Order). 1977, in the inte.rest of
toning up the supply and availability of certain essential articles, as ~lso for
C maintaining and raising the standards of quality of supply and sale of such
articles. The Order embrached within the sweep of its applicability the several
articles specified in Schedule I. Entry 19 in Schedule I is "tea". Some of the
provisions of the order insofar as relevant for the purposes of this judgment
are extracted and reproduced hereunder:-

D The Tamil Nadu Scheduled Articles (Prescription of Standards) Order,
1977

(G.O. Ms.No.180, Food, dated 20th August, 1977)

xxx xxx xxx
E xxx xxx xxx

Now, therefore, in exercise of the power conferred by section 3
of the Essential Commodities Act, I 955 (Central Act I0 of 1955 read
with the Government of India, Ministry of Agriculture (Department of
Food) Order No, GSR 316(£), dated the 20th June, 1972 published
F in the Extraordinary issue of Part-II, Section 3 sub-section (I) of the
Gazette of India, dated the 20th June 1972 the Governor of Tamil
Nadu hereby makes the following order, namely :··

I. Short title, extent and commencement :-

G This Order may be called the Tamil Nadu Scheduled Articles
(Prescription of Standards) Order, 1977,

It extends to the whole of the State of Tamil Nadu.

2. Definitions :- In this Order unless the context otherwise requires,
H
S. SAMUEL v. U.0.1. [LAHOTI, J.] 301
(a) xxx xxx xxx A
(b) xxx xxx xxx

(c) "dealer" means any person engaged in the business of purchase,
movement, sale, supply, distribution or storage for sale of any
scheduled article directly or otherwise including (i) casual traders (ii) B
commission agents, (iii) brokers or auctioneers or any other mercantile
agents engaged in such business and also persons engaged in house-
boiling to process paddy but does not include a person who stores for
sale of paddy or rice any other scheduled article in a village or town
as the case may be, produced by personal cultivation on land owned
by him or held on lease. C
(d) "foreign matter" means any extraneous matter other than food
grain and shall comprise organic or inorganic matter;

(e) "Inorganic matter" includes gravel, dirt, pebble, stone jum of earth,
~m~; D
(f) "Organic matter" includes chaff, straw, weed, seed, inedible grain
or oilseed;
(g) "scheduled articles" means, an article specified in schedule-I, to
this Order.
E
xxx xxx xxx

xxx xxx xxx

Schedule-I
(See Clause 2(g) F
(1 to 18) xxx xxx

19. Tea
(20 to 28) xxx xxx

Schedule-II G
(See Clause 3)

(1 to 5) xxx xxx
6. Tea means tea derived exclusively from the leaves, buds and tender
stems of plants of the Cameilla genus and the species. It shall conform H
302 SUPREME COURT IlEPORTS (2003) SUPP. 5 S.C.R.

A to the following specifications :-

(a) Total ash detennined on tea dried to a constant weight at
IOO"C-5.0 to 8.0 per cent.

(b) Total ash soluble in boiling distilled water-Not less than 40.00
B per cent of total ash.

(c) Ash insoluble in HCL~Not more than 1.0 per cent.

(d) Extract obtained by boiling dry tea (dried to constant weight
at IOO"C) with I00 parts of distilled water for one hour under reflux-
Not less than 32 per cent.
c
(e) Alkalinity of soluble ash-Not less than 1.0 per cent and not
more than 2.2. per cent expressed as K.O.

(t) Crude Fibre detennined on tea dried to a constant weight at
IOO"C Not more than 18%.
D
It shall not contain any added colouring matter.

(7 to 15) xxx xxx

(underlining by us)

E The Order makes provisions for the prohibition of supply or sale of
scheduled articles not according to the prescribed standards, prohibition from
possession of adulterants, attempts to contravene the Order and forfeiture of
offending scheduled article or adulterant. The competent officers under the
Order are conferred with the powers of Food Inspector, powers of entry,
F seizure, search etc. and so on.
On June 9, 1978 the Central government superseded the notification
dated June 20, 1972 and a instead issued a fresh notification which reads as
under :-

"Ministry of Agriculture and Irrigation (Department of Food), Noti.
G No. G.S.R. 800, dated June 9, 1978, published in Gazette of India,
Part II, Section 3(i), dated 17th June, 1978, p.1437. [NO. 3 (GENL)
(i)/78-D & R(i)-59}

In exercise of the powers conferred by Section 5 of the Essential
Commodities Act, 1955 (10of1955), and in supersession of the Order
H
S. SAMUEL v. U.0.1. [LAHOTI, J.] 303
of the Government of India in the late Ministry of Agriculture A
(Department of Food), No. GSR 316 (E), dated June 20, 1972, the
Central Government hereby directs that the powers conferred on it by
sub-section (I) of Section 3 of the said Act to make orders to provide
for the matters specified in clauses (a), (b), (c), (d), (e), (f), (h), (i)
(ii) and (j) of sub-section (2) thereof shall, in relation to foodstuffs be B
exercisable also by a State Government subject to the conditions-

(1) that such powers shall be exercised by a State Government
subject to such directions, if any, as may be issued by the Central
Government in this behalf; '

(2) that before making an order relating to any matter specified C
·in the said clauses (a), (c) or (f) or in regard to distribution or disposal
of foodstuffs to places outside the State or in regard to regulation of
transport of any foodstuff, under the said clause ( d), the State
Government shall also obtain the prior concurrence of the Central
Government; and
D
(3) that iQ making an order relating to any of the matters specified
in the said clause G) the State Government shall authorize only an
officer of government."

(underlining by us)
·- E
It appears that on September 26, 1990, the Competent Officer under the
Order visited the godown of the petitioners at Vedapatty in Coimbatore and
took 13 samples of tea. The samples were subjected to laboratory test by the
Public Analyst, based on whose report a complaint was filed before the
Special Judge for Essential Commodities Act Cases at Coimbatore, Tamil F
Nadu, against the petitioners. The principal allegation against the petitioners
is that the samples taken were found to contain an adulterant in violation of
the provisions of the Order. Though the petitioners have offered an explanation
and have disputed the correctness of the allegation so made, however, it is
not necessary for us to advert to that aspect of the case. On the prosecution
having been filed the petitioners filed a writ petition laying challenge to the G
constitutional validity of the Order insofar as its applicability to 'tea' is
concerned. Several other writ petitions by other tea manufacturers/dealers
were filed laying a similar challenge. All the writ petitions were heard together
and disposed of by a common judgment turning down the challenge, which
judgment is impugned herein by the appellants only.
H
304 SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A We have heard Shri V.R. Reddy, the learned senior counsel for the
appellants, Shri Altaf Ahmed, the learned ASG for the Union of India, Shri
A.T.M. Sampth, the learned counsel for the State of Tamil Nadu and other
counsel appearing in the matter. The principal submission of Shri Reddy has
been that 'tea' is not 'foodstuf and that the State of tamil Nadu could not
have, in exercise of the delegated power, issued a Control Order embracing
B 'tea' within the sweep of its applicability. The details of the submission and
merits thereof are dealt with hereunder.

The EC AcJ defmes 'essential commodity' and one of the meanings is
"foodstuffs, including edible oil seeds and oils." The terms 'essential
C commodity' and 'foodstuffs' are by themselves ambiguous ti:rms. Clause (a)
of the Interpretation Clause of EC Act defines 'essential commodity' by listing
I 0 commodities thereunder as included within the meaning of 'essential
commodity'. Sub-clause (xi) of the definition of 'essential commodity' is a
residuary sub-clause which confers power on the Central government to declare
by notification any other class of commodity to be an 'essential commodity',
D though not specifically included within the preceding list of essential
commodities in clause (a) abovesaid. To declare by notified Order any
commodity to be an 'essential commodity' for the purposes of this Act, is a
power conferred on the Central Government which is very wide, and is
available to be exercised in respect of any commodities which cannot be
E exhaustively catalogued. The only rider on the power of the Central
Government to make such notification is that the commodity with respect to
which the power is sought to be exercised must be one with respect to which
the Parliament has power to make laws by virtue of Entry 33 in List III in
the Seventh Schedule of the Constitution, which Entry reads as under :

p 33. Trade and commerce in, and the production, supply and distribution
of,

(a) the products of any industry where the control of such industry
by the Union is declared by Parliament by law to be expedient in the
public interest, and imported goods of the same kind as such products;
G (b) foodstuffs, including edible oilseeds and oils;

(c) cattle fodder, including oilcakes and other concentrates;

(d) raw cotton, whether gunned or unginned, and cotton seed; and

H (e) raw jute.
S. SAMUEL v. U.0.1. [LAHOTI, J.] 305
Needless to say, clause (b) of Entry 33 abovesaid is the same as sub- A
clause (v) of the List included within the definition of'essential commodity',
and, therefore if a commodity falls within the meaning of 'foodstuff, it would
be included within the meaning of 'essential commodity' even otherwise, and
it would not be necessary for the Central Government to exercise its power
under sub-clause (xi) of the definition of 'essential commodity'. In other B
words, a commodity which is a 'foodstuff, need not be declared to be an
'essential commodity' by an Order notified by the Central Government as it
is even otherwise an 'essential commodity', 'Tea' cannot be included in clauses
(c), (d) and (e) of Entry 33. It can be covered under clause (a). The declaration
contemplated by clause (a) is available as made by Section 2 of the Tea Act,
1953 (No. 29of1953) which came into force on !st April, 1964. It provides, C
"it is hereby declared that it is expedient in the public interest that the Union
should take under its control the tea industry."

We would frrst examine whether 'tea' is a 'foodstuff. The term 'foodstuff
(including edible oilseeds and oils) is not defined by the EC Act. Resort shall
have to be had to the meaning of the term 'foodstuff in common parlance, D
in the commercial world and amongst the consumers-where tea is sold,
purchased and consumed. 'Food stuffs' and 'tea' are commonly sold and
bought in the market and are consumer items. We will have to see whether
'tea' is considered a 'foodstuff in the market frequented by its dealers and
consumers. E
Let us first have the opinion of lexicographers. "When a work is not
defined in the Act itself, it is permissible to refer to dictionaries to find out
the general sense in which that word is understood in common parlance.
However, in selecting one out of the various meanings of a word, regard
must always be had to the context as it is a fundamental rule that 'the meaning F
of words and expressions used in an Act must take their colour from the
context in which they appear'." (Principles of Statutory Interpretation by
Justice G.P. Singh, Eighth Edition, 2001, page 279). 'Foodstuff, according to
the Chambers Dictionary means a substance used as food, according to Words
and Phrases, Permanent Edition (Vol. 17 page 313) 'foodstuffs' means food G
which has been subjected to "canning" or similar "preparation". The New
oxford Encyclopaedic Dictionary defines 'foodstuff as material for food and
'foodstuffs' as articles of food in bulk. So, we should proceed to ascertain
what 'food' is.

As per Words and Phrases (Permanent Edition, Vol. 17, at page 306) H
306 SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A 'food', in the general sense of the tenn, is that which is eaten or drunk for
nourishment. It is a nutritive material taken into the body for the purpose of
growth, repair or maintenance; that which is eaten or drunk for nourishment;
whatever supplies nourishment to organic bodies. It is a general term applicable
to all that is eaten for the nourishment, any substance that is taken in the
B body which serves, through organic action, to build-up nonnal structure or
supply the waste of tissue, and includes confectione(Y. At page 310, a
distinction is drawn between 'food' and 'drink'. It is stated -' "Food" is a
nutritive material absorbed or taken into the body of an organism for purposes
of growth or repair and for the maintenance of the vital processes, and, while
. the works "food" and "drink" are, in common usage and understanding,
C complementary and associate terms, they are far from synonymous, and import
a plain and fundamental distinction. Purchaser of beverage in which there
was wonn could not base action on statutory implied contract that "food" is
wholesome, since ''.food" does not include beverage."

It is ~us clear that in common parlance 'food' is something that is
D eaten. In a wider sense 'food' may include not only solid substances but also
a drink. Still the fact remains that whether a solid or a liquid, the substance
called 'food' should possess the quality to maintain life and its growth; it
must have nutritive or nourishing value so as to enable the growth, repair or
maintenance of the body.
E
The New ~ncyclopaedia Britannica (15th Edition, Vol. 25, page 49)
states the function of 'food' as under:-

Functions of Food

Food serves three functions in most living organisms. First, it
F
provides materials that are metabolized either by oxidative or by
fermentative processes to supply the energy required for the absorption
and translocation of nutrients, for the synthesis of cell materials, for
motility and locomotion, for excretion of waste products, and for all
other activities of the organism. Second, food supplies the electron
G donors (reducing agents) required for the formation of the reduced
coenzymes (enzyme components) necessary for the synthetic processes
that occur within the cell. Third, food prov,ides the materials from
which all of the structural and catalytic components of the living cell
can be assembled by processes sometimes called anabolism. The three
H roles of food are not mutually exclusive; energy-yielding substances
S. SAMUEL v. U.0.1. [LAHOTI, J.) 307
in many organisms may function in all three ways, and essential A
nutrients, if present in excess, may frequently be metabolized to supply
energy.

The essential precursors (i.e., the substances from which other
substances are formed) of cell materials can be divided into two
groups - nonessential nutrients, which can be synthesized by the cell B
from other materials, and essential nutrients, which, because they
cannot be synthesized by the cell, must be supplied in foods. All of
the inorganic materials required for growth, together with an assortment
of organic compounds whose number may vary from one to 30 or
more, depending on the organism, fall into the latter category. Although C
organisms are able to synthesize nonessential nutrients, such nutrients
are frequently utilized directly if present in food, thereby saving the
organism the need to expend the energy required to synthesize them."

Having so understood the meaning of 'food', let us now see what is
'tea' and how it is understood in common parlance and by its consumers. The D
New Encyclopaedia Britannica (15th Edition, Vol. 11, page 596) states that
'tea' is a beverage produced by steeping top leaves and buds of the tea plant
(Camellia sinensis of the family Theaceae) in freshly boiled water. 'Tea' is
consumed as either a hot or a cold beverage by about one-half of the world's
population. 'Tea' contains only four calories per cup when consumed without
added ingredients but is a source of several B-complex vitamins, including E
B2 and. incotinic acid. Caffeine is responsible for tea's stimulating effect.
Flavour is produced by volatile oils, and astringency and colour by tannin.
Astringency and favour development increase with length .of· the steeping
period. Although some varieties produce colour quickly, satisfactory flavour
developipent requires three to five minutes of steeping to achieve the desired F
maximum caffeine extraction and moderate amount of tannin. Dealing with
'beverages', the New Encyclopaedia Britannica (15th Edition, Vol. 25, page
58) states-"Beverages. Although most adults drink one to two litres (about
one to two quarts) of water a day, much of this is in the form of liquids such
as coffee, tea, fruit juice, soft drinks, beer, wines, or spirits. In general, these
are appreciated more for their taste or for their effect than for their nutritive G
value. Fruit juices are, of course, useful for their vitamin C content and good
sources of potassium while low in sodium. Coffee and tea by themselves are
of no nutritive value, except that coffee contains some niacin and tea contains
fluoride and manganese, but they may be a vehicle for intakes of sugar, milk,
or lemon."
H
308 SCPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

A It will be useful to make a reference to some decided cases brought to
our notice. The most appropriate case in point is a King's Bench decision in
Hinde v. Allmond, [1,918] 87 LJKB 893. The accused was charged and
convicted for possessing in her dwelling house considerable quantities of tea
in violation of the Food Hoarding Order, 1917. The judgment of conviction
appealed against held that tea was a food. Darling, J. opined that food is
B ordinarily understood as something which is eaten as distinguished from
s~mething which is drunk. The Food Hoarding Order did not contain any
reference to drink. The Order defined the expression 'article of food' to
include every article which is used for food by man, or which ordinarily
enters into the composition or preparation of human food. The accused was
C in possession of dried leaves from which a drink can be made. No one sits
down to eat tea, and it is not accurate to say that any one drinks tea. What
one drinks is, not the tea, but the water which is passed through the tea-leaves
so as to make a infusion which is known as tea. His Lordship opined that tea
is not at all a food and one would have to strain the meaning of the word
'food' to make it apply to tea. Avory, J. agreed with Darling, J. in holding
D that tea is not food but opined - partially .dissenting - and held that things
consumed by drinking may be food. However, the word 'food' must be
interpreted in its primary sense - namely, as something taken into they system
as nourishment, and not merely as a stimulant. 'Tea' Is not taken for
nourishment, but is taken as a stimulant and is therefore not food. Sherman,
E J. was of the same opinion. His Lordship rested his judgment on thl\ common
sense interpretation of the word 'food' and opined that tea-leaves are not
used for food by man. Tea is not taken for the purpose of nourishment and
therefore cannot be included in the term 'food'.

The above noted decision in Hinde v. Allmond (supra) was cited before
F this Court in the The State of Bombay v. Virkumar Gulabchand Shah, [1952]
SCR 877. Therein also the term "foodstuff' came up for interpretation by the
Court though in a different context. Their Lordship held that - the term
"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
G 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
into the preparation of food proper (as understood in the narrow sense) to
make it more palatable and digestible. Two dictionaries were cited with
approval before their Lordships, as under:-

"The Oxford English Dictionary defines "foodstuff' as follows:
H
S. SAMUEL v. U.0.1. [LAHOTI, J.] 309
"that which is taken into the system to maintain life and growth A
and to supply waste of tissue."

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 growth, work or repair and for the B
maintenance of the vital processes."

Then follows this explanation:

"Animals differ greatly form plants in their nutritive processes
and require in addition to certa_in inorganic substances (water, salts
etc.) and organic substances of unknown composition (vitamins) not C
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."

Next is given a special definition for legal purposes, namely -
D

"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 and natW'al water."
E
The definition given of "foodstuff" is -

"I. Anything used as food.

2. Any substance of food value as protein, fat etc. entering into
the composition of a food." F
The decision in Virkumar Gulabchand Shah's case (supra) was followed
in K. Janardhan Pillai and Anr. v. Union of India and Ors., [1981] 2 SCC
45.

In Collector ofCentral Excise, Bombay-I and Anr. v. Mis. Parle Exports G
(P) Ltd, [1989] I SCC 345 the question for consideration before this Court
was whether non-alcoholic beverage base is either 'food product' or 'food
preparation'. Their Lordships noticed with approval a decision by the Andhra
Pradesh High Court in Brooks Bond (India) Limitedv. Union ofIndia, [1980]
6 ELT 65 (A.P) wherein answering the question whether coffee/chicory blend
was a food product, a learned judge of the High Court had held that coffee/ H
310 SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A chicory blend was neither food nor food preparation. This view of the learned
Single Judge was upheld by the Division Bench of Andhra Pradesh High
Court reported as (1984) 15 ELT 32 (A.P.). Virkumar Gulabchand Shah's
case (supra) was referred to by the Division Bench. Thereafter, this Court has
observed that the word 'food' has no definition of universal application and
B it varied from statute to statute. Where the statutory definition is not available,
the word should be understood in the same way in which it is understood
in ordinary parlance in the area in which the law is in force or by the people
who ordinarily deal with the concerned commodity. The Court concluded
that non-alcoholic beverage bases in India cannot be treated or understood as
any "nutritive material absorbed or taken into the body of an organism which
C serves, for purposes of growth, work or repair and for the maintenance of the
vital processes" and an average Indian will not treat non-alcoholic beverage
bases as 'food products' or 'food preparations' in that light.

As an upshot of the above discussion, also keeping in view the judicial
exposition of the terms 'foodstuffs' and 'tea', we are definitely of the opinion
D that tea is not foodstuff. Even in a wider sense as dealt with in Virkumar
Gulabchand Shah's case (supra) "foodstuffs" will not include tea as tea either
in the from' of the leaves or in the form of beverage does not go into the
preparation of food proper to make it more palatable and digestible. Tea
leaves are not eaten. Tea is a beverage produced by steeping tea leaves or
buds of the tea plants in boiled water. Such 'tea' is consumed hot or cold for
E its flavour, taste and its quality as a stimulant. The stimulating effect is cause
by the presence of caffeine therein. 'Tea' neither nourishes the body nor
sustains or promotes its growth. It does not have a nutritional value. It does
not help formation of enzymes nor does it enable anabolism. Tea or its
beverage does not go into the preparation of any foodstuff. In common
F parlance, any one who has taken tea would not say that he has taken or eaten
food. Thus, 'tea' is not 'food'. It is not understood as 'food' or 'foodstuff either
in common parlance or by the opinion of Lexicographers.

The Central Government can delegate any of its statutory power to the
State Governments, if permitted by law. Three things should be clearly
G understood, as stated by Wade &.Forsyth in Administrative Law (Eighth
Edition, 2000 at page 322): (i) Since in practice government demands a great
deal of delegation, this has to be authorized by statute, either expressly or
impliedly; (ii) A statutory power to delegate functions, even if expressed in
wide general terms will not necessarily extend to everything; and (iii) Implied
H power to delegate is not commonly found in peacetime legislation.
S. SAMUEL v. U.0.1. [LAHOTI, J.] 311

Section 5 of the EC Act provides as under:- A
"5. delegation ofpowers-The Central Government may, by notified
order, direct that the power to make orders or issue notifications
under Section 3 shall, in relation to such matters and subject to
such conditions, if any, as may be specified in the direction, be
exercisable also by - B
(a) such officer or authority subordinate to the Central Government;
or

(b) such State Government or such officer or such authority
subordinate to a State Government; as may be specified in the C
direction."

The delegation by the Central Government can be in relation to 'such
matter' etc. as may be specified.

The Notification dated June 20, 1972 notifying the delegation of powers
by the Central Government to State Governments, is confined to foodstuffs, D
meaning thereby that the said Notification delegated the powers by the Central
Government to the State Governments in regard to certain clauses of sub-
section (2) of Section 3 of the E.C. Act but only in relation to 'foodstuffs'.
In the Notifications dated June 20, 1972 and June 9, 1978 the specified
matters in relation to which delegation has been made are referable to E
'foodstuffs'. As 'tea,' is not a 'foodstuff, the power in the Central Government
in relation to 'tea, cannot be said to have been delegated to any State
Government. By Notification dated February 10, 1978, the Central Gover..ment
has declared the commodity 'tea' to be an essential commodity. With effect
from the date of the said Notification, tea becomes an essential commodity
by reference to the power exercised by the Central Government under Section F
2(xi) of the E.C. Act read with Entry 33 in List III in the Seventh Schedule
to the Constitution and Section 2 of the Tea Ac~, 1953. But then there is no
delegation of powers by the·Central Government under Section 5 of the E.C.
Act in relation to tea. The Notification dated June 9, 1978, is also confined
to foodstuffs which would not include tea, as already stated. Thus, it cannot G
be held that the State of Tamil Nadu had any power conferred upon it by the
Central Government to issue any order applicable to tea under Section 3 of
the E.C. Act.

A perusal of the judgment of the High Court shows that the Division
Bench was of the opinion, as recorded vide para 16 of the impugned judgment, H
312 SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A that - in this country it is too well known that many a poor man who live
under the poverty line take a cup of tea more as a food as it keeps them active
for some time and enables them to work. We cannot agree. It is a wrong
assumption to say that. many a poor man in the country take a cup of tea more
as a food. The High Court has confused a mere stimulant with an article of
B food or foodstuffs. We have already dealt with in detail the issue that a drink
or beverage which acts merely as a stimulant is not food.

As we have held that the State oftamil Nadu could not have promulgated
an order under Section 3 of the E.C. Act in the purp?rted exercise of the
power delegated by the Central Government to make an order applicable to
C tea, by wrongly assuming tea to be a foodstuff, the several provisions of the
Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977, must
be held to be ultra vires the power of the State Government to the extent to
which it makes provisions in relation to tea. The said .order cannot apply to
tea.

D In view of the above said finding, it is not necessary to deal with the
other contention raised on behalf of the ap;: ellant viz. that the order is invalid
and ineffective as it is not accompanied by the previous concurrence of the
Central Government.

The appeals are allowed. The impugned judgment of the High Court is
E" set aside. The writ petition, filed by the appellants as writ petitioners in the
High Court, shall stand allowed.

N.J. Appeals allowed.