J.G. Wooddroffe, J.

1. This matter has been referred to me on a difference ofopinion between my brothers Chitty, J. and Smither, J. It is to be observedthat there were before them three revision cases and one appeal. Strictly therevision cases and the appeal should have been dealt with separately. If thishad been done, then in the appeal the matter would have stood in this way. Thetrial from which the appeal arises, was heard ex parte. There was then in thiscase only the prosecution evidence and no cross-examination, It is doubtfulwhether under these circumstances the appeal, in which the facts were open, couldsucceed unless a retrial was ordered. And it was doubtless for this reason thatthe accused asked for a retrial in the event of the Court holding that a primafacie case had been made oat. Again in the revision cases the Court would notordinarily interfere* on a question of fact. However, the cases were orderedto be heard together and apparently the evidence taken in one trial was usedwithout objection. Whether this could be done even with consent, I need notenquire because I am going to order a retrial in all the cases. I mention thematter only to show that such an order is possibly more favourable to theaccused than that which might have been made if the revision cases and theappeal had been heard separately. As matters now stand, the accused has reliedon evidence given in other trials to make out a case on the appeal on thefacts. The matter being heard in this way, the conclusions at which the learnedJudges arrived, were these:

2. Smither, J., thought that the accused should beacquitted, Chitty, J., disagreed and was of opinion that a new trial should bedirected because the investigation in these cases had not been altogethersatisfactory and that as the cases stand, he did not feel himself able to saypositively that the analyst was wrong and yet he had doubts of his being right.

3. Both the learned Judges were thus of opinion that thefacts as they stood, were not such as to justify a conviction. They were not,however, agreed that the accused should be acquitted: Chitty, J., being ofopinion that there should be a retrial. It has consequently been argued thatthe only question before me is whether the accused should be acquitted orretried. Without deciding that the word "ease" does not include thewhole case it is plain that a third Judge would not differ upon a point onwhich both the referring Judges were agreed unless there were strong groundsfor doing so. I am not going to do so here. It is then urged that I shouldacquit the accused on grounds stated in Smither, J.s judgment and that Chitty,J., having held that the matter should be determined by quantitative analysis(which I understand from the prosecution is not here possible) no usefulpurpose would be served by a retrial. Exception has been taken to theconclusion of Smither, J.s judgment on the ground that it is largely based onpassages from technical treatises on analysis some of which were not put to theexpert witness for the prosecution and to which the prosecution was entitled(particularly in a technical matter of this kind) to offer its explanation,that the learned Judge has failed to distinguish between cow ghee and buffaloghee with which we are here concerned and that neither the scientific processnor the books in which it is described and the results are recorded, justifyhis conclusions, which, if adopted, would, it is contended, render anyprosecution for adulteration in future impossible.

4. Objection was taken to the use to which the scientifictreatises were put. I am not prepared, on the materials before me, to say thatthis objection is sustained. It seems to me, however, clear that the use ofscientific treatises may lead to error if either those who so use them, arethemselves not expert in the matter dealt with or are assisted by experts towhom passages relied upon may be put. At any rate, having no expert knowledgemyself I am not prepared to decide this matter on conclusions drawn from thebooks without the assistance of expert evidence.

5. It is said for the defence that the matters on which theyrely, were substantially put to the prosecution but the Advocate-General saysthat in eleven instances this was not done and in part at least this isadmitted. Not only should such passages be put to the prosecution expert but heshould be given notice by cross-examination of the deductions which the defenceseek to draw from them so that he may give an answer if he can.

6. The cases under consideration, are samples of buffaloghee, such ghee being practically peculiar to India. For the accused it is notadmitted that they are samples of pure buffalo ghee and it is suggested that itis possible that they may be pure buffalo ghee and cow ghee mixed; a mixturewhich it is said, is sold in the market. It is said that there are few recordedexperiences as to its composition and nearly all European authorities on theanalysis of butter fat are silent about it. The R.W. figure for pure buffaloghee is 30 and for pure cow ghee 25.

7. It is said that the experience of the Corporationlaboratory is based on the analysis of 200 known genuine samples and 6,000commercial samples of buffalo ghee. This they desire to prove on retrial.

8. It is contended that the learned Judge has not correctlyunderstood the opinions of the authors given in these books and has, inparticular, failed to distinguish between cow and buffalo ghee. This isadmitted as to some passages in the judgment though it is said that theconclusions refer to figures for Indian buffalo. Thus he cites Richmond andsays that "all the samples in the present cases are between these limitsand (sic) the upper than the lower limit". Richmond, however, speaks ofcow ghee and not of buffalo ghee and it would seem that he does not speak ofthe minimum limit of cow ghee.

9. It is argued that the judgment of Smither, J., relies ona standard based chiefly on analysis of one sample from one individual buffalowhich not only the author himself but other authorities considered as too lowfor buffalo ghee.

10. I refer to the figure obtained by K. Menon one ofLewkowitsch who analysed only one sample of buffalo ghee sent from India, somereferences do not make it clear if they deal with Indian buffalo. The R.M.value of this buffalo product seems, according to the other figures, abnormallylow and would, it is said if accepted, lead to the passing of a considerableamount of adulterated ghee as pure. It may be stated that samples made in thelaboratory from the milt of single animals may be pure and yet show low R.W.values: but it does not follow that such values are to be considered normal. Itmay be observed also that buffalo ghee being peculiar to India there is nostandard of it in the West and such standard has been fixed as the result ofspecial research work here. It is contended that the principle on which theinference that a sample of batter fat is adulterated, is based, has not beenunderstood. On the other band, the learned Pleader for the defence argues thatthe reasoning of the analyst is fallacious and is not justified by thetechnical treatises produced, It does not appear that at any rate all thegrounds on which the latters reasoning was based was (as I have already said)put to the analyst and I cannot assume, in the absence of explanation, that thecriticism of the analyst evidence is justified,

11. It has been said, it was admitted that the ghee camefrom Gantur and it was suggested that there may be a special standard forcommercial samples obtained from Gantur. It is true that the learned Judgesseem to speak of this ghee as having come from Gantur but I cannot find thatthere is any evidence of this or admission. The witness Dr. Ghose on the otherhand, says in his evidence that he cannot say positively whether the samplescame from Gantur. Nor is there any admission that I discover: nor do I see howit was possible for the Corporation to admit a fact of which they bad noknowledge. It is said then that if that be so, the prosecution fails. But it isno necessary part of the prosecution case that the ghee comes from Gantur oranywhere else. They treat it as a commercial sample of ghee in the Calcuttamarket where it was bought.

12. Reliance is placed by the defense on the note of theprosecution argument handed to me stating that all these analytical processesand limits raise presumption only, and positive opinion as to the purity orotherwise of any sample can-not, in the nature of the thing, be expected. As itis conceded that in some cases the adulteration may be so obvious as to leaveno manner of doubt, I understand this passage to mean that the remark was madeas regards cases of adulteration with considerable similarity to pure ghee. Onthe whole, I am of opinion that points have been elaborated against the defenceto a considerable extent in this Court on technical works; and that it wouldnot be safe to rely on the books alone without the aid of an expert to whomtheir alleged effect may be put. This is the more necessary as the case is, asChitty, J. puts it", of public importance. It is true as Smither, J.,says, that an acquittal now will not stand in the way of any future prosecutionif the accused committed an offence. But the prosecution contend that if thelearned Judges judgment stands, it will not be possible to convict any one inthe future. Whether this be so or not, I need not enquire; but this issufficient to show that questions of great importance are raised which shouldbe fully put to the prosecution witnesses.

13. It may be that on a future trial the conclusion ofSmither, J., may be justified but I am unable, on the present materials andunder the circumstances stated, to agree with Smither, J., that the accusedshould be acquitted. There must, therefore, be a retrial.

14. It has been suggested by the defence that if I do notacquit the accused, I should not direct a retrial, but act under Section 428.Even if this section were in law applicable to the case, I should not in factapply it. The proper order in this case is a retrial. I, therefore, set asidethe convictions and sentences and order a retrial de novo in all these caseswhich I remand to the Municipal Magistrate for that purpose. Both partiesdesire that the first Magistrate who heard these oases, should re-try them andI order accordingly. All fines, if paid, will be refunded.

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Grande Venkata Ratnamvs. Nity Charan Hazra (21.05.1918- CALHC)