John Woodroffe, J.
1. This matter has been referred to me on a difference of opinion between my brothers Chitty, J. and Smither, J. It is to be observed that there were before them three revision cases and one appeal. Strictly the revision cases and the appeal should have been dealt with separately. If this had been done, then in the appeal the matter would have stood in this way. The trial from which the appeal arises, was heard ex parte. There was then in this case only the prosecution evidence and no cross-examination, It is doubtful whether under these circumstances the appeal, in which the facts were open, could succeed unless a retrial was ordered. And it was doubtless for this reason that the accused asked for a retrial in the event of the Court holding that a prima facie case had been made oat. Again in the revision cases the Court would not ordinarily interfere*' on a question of fact. However, the cases were ordered to be heard together and apparently the evidence taken in one trial was used without objection. Whether this could be done even with consent, I need not enquire because I am going to order a retrial in all the cases. I mention the matter only to show that such an order is possibly more favourable to the accused than that which might have been made if the revision cases and the appeal had been heard separately. As matters now stand, the accused has relied on evidence given in other trials to make out a case on the appeal on the facts. The matter being heard in this way, the conclusions at which the learned Judges arrived, were these:
2. Thought that the accused should be acquitted, Chitty, J., disagreed and was of opinion that a new trial should be directed because the investigation in these cases had not been altogether satisfactory and that as the cases stand, he did not feel himself able to say positively that the analyst was wrong and yet he had doubts of his being right.
3. Both the learned Judges were thus of opinion that the facts 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 of opinion that there should be a retrial. It has consequently been argued that the only question before me is whether the accused should be acquitted or retried. Without deciding that the word 'ease' does not include the whole case it is plain that a third Judge would not differ upon a point on which both the referring Judges were agreed unless there were strong grounds for doing so. I am not going to do so here. It is then urged that I should acquit 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 useful purpose would be served by a retrial. Exception has been taken to the conclusion of Smither, J.'s judgment on the ground that it is largely based on passages from technical treatises on analysis some of which were not put to the expert 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 buffalo ghee with which we are here concerned and that neither the scientific process nor the books in which it is described and the results are recorded, justify his conclusions, which, if adopted, would, it is contended, render any prosecution for adulteration in future impossible.
4. Objection was taken to the use to which the scientific treatises were put. I am not prepared, on the materials before me, to say that this objection is sustained. It seems to me, however, clear that the use of scientific treatises may lead to error if either those who so use them, are themselves not expert in the matter dealt with or are assisted by experts to whom passages relied upon may be put. At any rate, having no expert knowledge myself I am not prepared to decide this matter on conclusions drawn from the books without the assistance of expert evidence.
5. It is said for the defence that the matters on which they rely, were substantially put to the prosecution but the Advocate-General says that in eleven instances this was not done and in part at least this is admitted. Not only should such passages be put to the prosecution expert but he should be given notice by cross-examination of the deductions which the defence seek to draw from them so that he may give an answer if he can.
6. The cases under consideration, are samples of buffalo ghee, such ghee being practically peculiar to India. For the accused it is not admitted that they are samples of pure buffalo ghee and it is suggested that it is possible that they may be pure buffalo ghee and cow ghee mixed; a mixture which it is said, is sold in the market. It is said that there are few recorded experiences as to its composition and nearly all European authorities on the analysis of butter fat are silent about it. The R.W. figure for pure buffalo ghee is 30 and for pure cow ghee 25.
7. It is said that the experience of the Corporation laboratory is based on the analysis of 200 known genuine samples and 6,000 commercial samples of buffalo ghee. This they desire to prove on retrial.
8. It is contended that the learned Judge has not correctly understood the opinions of the authors given in these books and has, in particular, failed to distinguish between cow and buffalo ghee. This is admitted as to some passages in the judgment though it is said that the conclusions refer to figures for Indian buffalo. Thus he cites Richmond and says that 'all the samples in the present cases are between these limits and (sic) the upper than the lower limit'. Richmond, however, speaks of cow ghee and not of buffalo ghee and it would seem that he does not speak of the minimum limit of cow ghee.
9. It is argued that the judgment of Smither, J., relies on a standard based chiefly on analysis of one sample from one individual buffalo which not only the author himself but other authorities considered as too low for buffalo ghee.
10. I refer to the figure obtained by K. Menon one of Lewkowitsch who analysed only one sample of buffalo ghee sent from India, some references 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, abnormally low and would, it is said if accepted, lead to the passing of a considerable amount of adulterated ghee as pure. It may be stated that samples made in the laboratory 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. It may be observed also that buffalo ghee being peculiar to India there is no standard of it in the West and such standard has been fixed as the result of special research work here. It is contended that the principle on which the inference that a sample of batter fat is adulterated, is based, has not been understood. On the other band, the learned Pleader for the defence argues that the reasoning of the analyst is fallacious and is not justified by the technical treatises produced, It does not appear that at any rate all the grounds on which the latter's reasoning was based was (as I have already said) put to the analyst and I cannot assume, in the absence of explanation, that the criticism of the analyst evidence is justified,
11. It has been said, it was admitted that the ghee came from Gantur and it was suggested that there may be a special standard for commercial samples obtained from Gantur. It is true that the learned Judges seem to speak of this ghee as having come from Gantur but I cannot find that there is any evidence of this or admission. The witness Dr. Ghose on the other hand, says in his evidence that he cannot say positively whether the samples came from Gantur. Nor is there any admission that I discover: nor do I see how it was possible for the Corporation to admit a fact of which they bad no knowledge. It is said then that if that be so, the prosecution fails. But it is no necessary part of the prosecution case that the ghee comes from Gantur or anywhere else. They treat it as a commercial sample of ghee in the Calcutta market where it was bought.
12. Reliance is placed by the defense on the note of the prosecution argument handed to me stating that all these analytical processes and limits raise presumption only, and positive opinion as to the purity or otherwise of any sample can-not, in the nature of the thing, be expected. As it is conceded that in some cases the adulteration may be so obvious as to leave no manner of doubt, I understand this passage to mean that the remark was made as regards cases of adulteration with considerable similarity to pure ghee. On the whole, I am of opinion that points have been elaborated against the defence to a considerable extent in this Court on technical works; and that it would not be safe to rely on the books alone without the aid of an expert to whom their alleged effect may be put. This is the more necessary as the case is, as Chitty, 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 prosecution if the accused committed an offence. But the prosecution contend that if the learned Judge's judgment stands, it will not be possible to convict any one in the future. Whether this be so or not, I need not enquire; but this is sufficient to show that questions of great importance are raised which should be fully put to the prosecution witnesses.
13. It may be that on a future trial the conclusion of Smither, J., may be justified but I am unable, on the present materials and under the circumstances stated, to agree with Smither, J., that the accused should be acquitted. There must, therefore, be a retrial.
14. It has been suggested by the defence that if I do not acquit 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 fact apply it. The proper order in this case is a retrial. I, therefore, set aside the convictions and sentences and order a retrial de novo in all these cases which I remand to the Municipal Magistrate for that purpose. Both parties desire that the first Magistrate who heard these oases, should re-try them and I order accordingly. All fines, if paid, will be refunded.