Misbranding can occur even if the article is wholesome, and no specific intention is required under S.2(ix)(c) of the Prevention of Food Adulteration Act.

1. Petitioner was found guilty of offences under S.2(ix)(c) and S.7(2) read with S.16(1)(a)(1) of the Prevention of Food Adulteration Act. On 19-2-81, at or about 1.15p.m. Pw.4 visited the shop of the petitioner, and after disclosing his identity, demanded 375 grams of groundnut oil and purchased it. It was duly sampled and analysed. Ext. P2 report of the Analyst shows that the sample analysed was of palmolein oil, and not groundnut oil. Acting on this evidence, the Magistrate below found that the article sold was misbranded and the offence proved. Appeal was unsuccessful.

2. Learned counsel for petitioner submitted that the Food Inspector pointed out at a tin and asked for the sample, presuming it to be groundnut oil and that the petitioner did not sell palmolein for groundnut oil. There is difficulty in accepting the submission because, the evidence of Pw.4 is that he asked for groundnut oil. though he says he pointed at a tin. This is made clear in answer to a question in cross-examination. It cannot be said that concurrent finding made by the courts below on this aspect is vitiated by any illegality or impropriety.

3. Learned counsel contended that this is not a case of misbranding because, what was sold was also a wholesome article of food. Notwithstanding the fact that an article or food is wholesome, misbranding can arise having regard to the language of S.2(ix)(c). S.2(ix)(a) requires intention to deceive and S.2(ix)(b) requires a false statement regarding the product if the section is to be attracted. But, S.2(ix)(c) under which the petitioner is found guilty is attracted if the article is sold by a name, which belongs to another article of food. No particular intention is required to invite the offence under S.2(ix)(c). It is not possible to read the element of intention into the section

4. The legislation is under Entry 18 in List.3 of Schedule.7. That Entry enables the legislature to legislate touching upon matters relating to "Adultration of food stuffs and other goods". Intention of the legislature is to ensure purity of articles sold to the public for consumption and to prevent offences against public health. But the scheme of the Act and the definitions reveal that even what is wholesome can invite penal provisions, under certain circumstances. The definition under S.2(IX)(and 2(1a) bear this out. This is a matter of legislative policy and a deeming device is not unknown. Since legislative competence is not challenged, I am not called upon to decide the question with reference to wholesomeness or unwholesomeness of the article involved.

5. Learned counsel for petitioner referred to the decision in Ganesh-mal Jashraj v. Government of Gujarat and another 1980 (1) SCC 364: AIR 1980 SC 264) to contend that the department should not remain content to enforce the laws against small tradesman and that a lenient view should therefore be taken in the case of small tradesman like the petitioner. Reference was then made to Easwardas v. State of Punjab (1973 (2) SCC 65). That was a case where applicability of Probation of Offenders Act was considered This too cannot help the petitioner having regard to the subsequent amendment to the Act excluding the operation of the Probation of Offenders Act in case of persons above the age of 18. Municipal Corporation of Delhi v. Kacheroo mal ((1976)1 SCC 412) was also cited The decision turned on the meaning of S.2(1)(f) of the Act referring to articles for which standards were not prescribed. This cannot advance the case of the petitioner for exoneration. Kisan Trimbak Kothu and others v. State of Maharashtra (1977 (1) SCC 300) was also relied on. That was a case where there was no proof regarding commission of the offence. The accused was in possession of milk and this was bought from the bazaar by a servant in the shop. On the facts of the case, while confirming the conviction the court left it to the State Government to consider whether power of clemency should be exercise