1. This revision is directed against the order passed by the learned Judicial First Class Magistrate, Kadiri in Crl.M.P. No. 215 of 1980 in C.C. No. 295 of 1979 on the file of his Court. The petitioner, M/s. S.M.T. Private Limited, Subash Road, Jogeswari Street, Bombay, represented by its Managing Director, is the third accused in the case. The State filed a case against M/s. Kisan Fertilisers, Kadiri, M/s. S.M.T. Private Limited, Nellore and M/s. S.M.T. Private Limited, Subash road, Jogeswari Street, Bombay, as the 1st, 2nd and 3rd accused respectively, for an offence punishable under Section 29(1)(a) ofthe Insecticides Act, 1968 (which will hereinafter be referred to as the Act). The Insecticides in question is Malstan EC 50 and a sample of it was seized from the 1st accused, who is the stockist and seller. When the sample was sent to the Insecticides Analyst, he reported, after due analysis, that it was misbranded. A copy of the report of the Analyst was served on the 1st accused on 6-1-1979. Copies of the Analyst's report were served on the 2nd accused, who is a distributor of the Insecticide, and the 3rd accused, who is a manufacturer of the insecticide, on 8-1-1979. The 1st accused from whom the sample was taken, did not notify within 28 days of the receipt of the copy of the Analyst's report that he intended to adduce evidence in controversion of the report as required in sub-section (3) of Section 24 of the Act. The second accused evidence in controversion of the report. The third accused who is the manufacturer of the insecticide, filed a petition under Section 24(4) of the Act in the Court, before which the case in respect of the sample is pending on 11-3-1980. Under the petition, which was registered by the Court as Crl. Miscellaneous Petition Number 215/80, the 3rd accused wanted the sample to be analysed by the Director of Central Insecticides Laboratory stating that the opinion of the Insecticides Analyst is erroneous. The Magistrate dismissed the application, which was opposed by the State on the ground that the intention to adduce evidence in controversion of the report of the Insecticides Analyst was not notified in writing before the Court within the period prescribed in sub-section (3) of Section 24 of the Act. The 3rd accused came up in revision to this Court against the order of the Magistrate dismissing his application for sending the sample to the Central Insecticides Laboratory.
2. Sri O. Adinarayana Reddy, the learned Counsel for the petitioner, contends that the period of 28 days prescribed in sub-section (3) of Section 24 covers only the case of a person from whom the sample was actually taken and not others from whom the sample was not taken, if such persons are impleaded as accused in the case and are thus interested in adducing evidence contrary to the report of the Insecticide Analyst. The two relevant sub-secs (3) and (4) of Section 24 of the Act are as follows :
'(3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report notified in writing the Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of the Insecticide Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the Insecticide produced before the Magistrate under sub-section (6) of Section 22 to be sent for test or analysis to the said laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein'.
3. No doubt, as contended by the petitioner's learned Counsel, while a period of 28 days is prescribed in sub-section (3), no particular period is prescribed in sub-section (4) and while sub-section (3) deals only with the notification of the intention to adduce evidence in controversion of the report by the person from whom the sample was taken sub-section (4) takes in its ambit action by the Court on its own motion or at the request either of the complainant or of the accused in the case. It should however be noticed that, in sending the sample for test or analysis to the Central Insecticides Laboratory under sub-section (4) either of its own motion or at the request either of the complainant or of the accused, the Court has to act 'in its discretion'. While discretion means the power or privilege of the Court to act unhampered by legal rule, the discretion to be exercised by a Court cannot be arbitrary, capricious or unrestrained; it should be an exercise of judicial prudence, circumspection and wariness based on facts and guided by law. The exercise of discretion by Court cannot be in accordance with the whim or fancy of the presiding Judge; but it should be in such manner as to attain the will of the Law. Lord Coke defines judicial discretion to be 'discernere per legem quid sit justum' to see what would be just according to the laws in the premises. If a statute authorises a Court to act in its discretion, the Court has to act in such way as to attain the purpose and object of the Act.
4. As can be seen from the preamble of the Act of 1968, the Parliament enacted the Act 'to regulate the import, manufacture, sale, transport, distribution and use of Insecticides with a view to prevent risk to human beings or animals, and for matters connected therewith'. The purpose of the Act is to prohibit the import and manufacture of certain insecticides and also the selling, stocking or exhibition for sale or distribution or transport of any insecticide which is not registered under the Act or the sale of which is expressly prohibited under Section 27 of the Act. The Act also prohibits the sale of any insecticide in controversion of any of the provisions of the Act or the Rules made under the Act. Section 29 provides for the punishment of any violation of the prohibition under the Act. Sub-clause (a) of Clause (1) of Section 29 provides for the punishment of persons who import, manufacture, sell, stock or exhibit for sale or distribute any insecticide deemed to be misbranded under sub-clause (i) or sub-clause (iii) or sub-clause (viii) of clause (k) of Section 3. As per the three sub-clauses of clause (k) of S. 3, an insecticide shall be deemed to be misbranded under the Act - (i) if its label contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular, or if its package is otherwise deceptive in respect of its contents; or (iii) if its label does not contain a warning or caution which may be necessary and sufficient, if complied with, to prevent risk to human beings or animals; or (viii) if the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to after its nature or quality or contains any substance which is not included in the registration. Whether an insecticide is misbranded or not can be tested and analysed by an Insecticide Analyst, who is appointed as such under Section 19 of the Act. The report of the Analyst is made conclusive of the facts stated therein under sub-section (3) of Section 24 and it can be superseded only by the Central Insecticides Laboratory established under Section 16 of the Act or any authoritative institution duty specified under the same section.
5. While exercising discretion under a particular enactment, the Court will have to bear in mind that the discretion will have to be exercised so as not to defeat the very intendment or purpose of the Act. The Court should advance the remedy and suppress the evil as envisioned by the Legislature under the particular enactment. Section 22(6) provides that, where a sample of insecticide is taken and divided into three portions or the sample is taken in three containers of small volume, one portion or container should forthwith be sent to the Insecticide Analyst for test or analysis. It is statutorily provided that the sample should be sent to the Analyst 'forthwith' that is to say, there should not be any avoidable delay. Section 24(1) provides that 'the Insecticide Analyst to whom a sample of any Insecticide has been submitted for test or analysis under sub-section (6) of Section 22, shall, within period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form'. Sub-section (2) of Section 24 further provides that the Insecticides Inspector, on receipt of the report of the Analyst, shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample. It is then provided in sub-section (3) that, within 28 days after the receipt of a copy of the report of the Analyst, the person from whom the sample was taken should notify his intention to adduce evidence in controversion of the report. Test or analysis of an insecticide cannot be made after unduly long time or after the prescribed period of efficacy of the insecticide.
6. Even though the sample was not taken in the instant case from the petitioner, who is the manufacturer, and, therefore, the period of of 28 days prescribed in sub-section (3) of Section 24 does not govern his case, it cannot be said that the can file an application signifying his intention to adduce evidence in controversion of the report of the Insecticide Analyst after an unduly long period by which time it might not be possible to make a correct test or analysis. Admittedly, the petitioner, who is the manufacturer of the impugned insecticide, received a copy of the Analyst on 8-1-1979. On the accusation that he is the manufacturer of a misbranded insecticide, he was prosecuted in the Court along with the 1st accused in the year 1979 itself. Having been apprised of the fact that the Insecticide Inspector (Analyst ?) opined that the insecticide was misbranded as early as on 8-1-1979 and facing a prosecution in the Court soon thereafter, the petitioner did not think it necessary to notify his intention to adduce evidence in controversion of the report of the Analyst except after a lapse of 14 months. He filed the application under section 24(4) for the first time on 11-3-1980. The petitioner does not even state, as pointed out by the learned trial Magistrate, any special reasons for the inordinate delay. His long silence for more than year and then filing an application under Section 24(4) requesting the Court to use its discretion unmistakably indicates an attempt on his part to protract the proceedings. The order of the learned Magistrate dismissing the petitioner's application is eminently justified and does not call for any interference. The revision is therefore, dismissed.
7. Revision dismissed.