S M P PRIVATE LIMITED Vs. STATE

JUDGEMENT

(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) of the 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 stockiest 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 Analysts 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 Analysts 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.) No doubt, as contended by the petitioners 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.