GRANDE VENKATTA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) In these oases tried together as one case the accused are charged with having adulterated Ghee. The proceedings have unfortunately been very protracted. There were originally three oases ending in conviction, which came up to this Court. The Criminal Bench differed in their opinion and there was a reference to a third Judge which resulted in a remand. Their judgments are reported as Grande Venkata Ratnan v. Corporation of Calcutta 46 Ind. Cas. 593 : 22 C.W.N. 745 : 28 C.L.J 82 : 19 Cr.L.J. 753. The retrial extended over 7 months. Five experts were examined and a large number of text books and scientific journals was used. At the re trial both the accused have been convicted in respect of two samples of Gouranga Brand Ghee which were taken by the Corporation on the 31st October 1917, and sentenced under Section 495-A, Sub-section (1), to pay fines. In respect of the sample taken on the 27th November 1917 which formed the subject-matter of the third case, the learned Magistrate held that "the Corporation analysis of the sample was not as complete as it might have been." He was "not prepared to arrive at a finding of undoubted adulteration so far as that sample was concerned and although such analysis as had been made aroused suspicion." He gave the accused the benefit of his doubt.

(2.) The accused are sellers of Ghee, not manufacturers, and the charge is that they sold or stored adulterated Ghee. Adulteration is defined in Section 2 of Bengal Act I of 1917. The definition is fairly comprehensive and the present case is said to be covered by Sub-clause (2) of Section 2, as some foreign fat is said to have been substituted in part for genuine Ghee. The Act provides "that a report signed by an analyst certified by the Chairman to be employed by the Corporation for the purpose of analysing Ghee shall be sufficient evidence of the result of such analysis." It is unfortunate that the Statute does not lay down a standard raising a presumption that the Ghee is not genuine. In England a committee was appointed to enquire and report as to what regulations might with advantage be made under Section 4 of the sale of Food and Drugs Act, 1899, for determining what deficiency, if any, of the normal constituents of butter or what addition of extraneous matter other than water should raise a presumption, until the contrary was proved, that the butter was not genuine; but no such steps have been taken by the Government in this country and the question of adulteration has become an extremely difficult one in consequence. The English Batter Regulations Committee took a large body of evidence and examined a large number of eminent analytical experts and tabulated the results of some thousands of determinations, the results of actual experiments, and arrived at a figure representing an analytical standard which they reported should be taken as a guide, that is to say, that if any sample fell below that figure, a presumption was to ha raised that the batter was not genuine. They examined the results of experiments with butter of different countries. They took into account various factors such as climatic conditions, period of lactation, nature and amount of food, breed and idiosyncrasy of the cow. This variation in composition, they stated, had a corresponding influence upon such of the physical characteristics of butter as are used by analysts to supplement their chemical tests, The work was of an extremely difficult and technical nature and was carried on by a board of experts and a standard was fixed by them. Unfortunately nothing of that kind has been undertaken in India, and Courts of Law are sailed upon to decide questions of adulteration upon such evidence as is available in each individual case and arrive at findings on the basis of experiments which cannot for a moment be compared with the experiments dealt with by the Butter Commission, It is unfortunate that the burden of carrying on necessary experiments was thrown upon the Calcutta Corporation with its limited resources. We, however, find that the chemi cal experts of the Corporation have done their work with great care and remarkable ability. It was urged upon us by the prosecution that we should accept the Corporation standard and if we were not able to do so, then we should fix a standard ourselves. No doubt we must determine whether or not the Municipal standard ought to be acted upon in this case, but we must decline to fix a standard ourselves if we cannot accept it. If we did so, it would be absolutely of no value. It would not be binding upon any other Bench of this Court. As there is no statutory presumption, every case must depend upon its own evidence. We are strongly of opinion that a statutory standard should be laid down raising a presumption, and cases of this kind should not be made to depend upon the evidence forthcoming in each case testing the value of the Corporation standard. If we had to deal with butter derived from cow s milk, the English standard would be of great value, but "Ghee" is not butter. Admittedly changes take place when butter is clarified and the temperature at which Ghee is prepared is not a negligible factor. Ghee is not defined in the Act; a further difficulty is that Ghee is produced from various kinds of milk, but the Calcutta Corporation standard is practically based upon Ghee made from buffalo milk. That particular kind alone has been treated as "Commercial Ghee", in this case a term not used in the Act, and the Magistrate has dealt with the samples as such Ghee. The Ghee most prized is that made from cow s milk which yields different analytical results. Other kinds of butter perhaps give different results but we have no data before us about them. A mixture of cow s milk and buffalo milk gives varying results, but Ghee produced from such mixture cannot be treated as adulterated as it is derived exclusively from milk. This adds to the difficulty of judicial determination.

(3.) In the experiments carried on by the Corporation, climatic conditions, the nature of food, period of lactation, breed, stabling and local conditions have not been considered, nor has the temperature of manufacture been taken into account, and the resulting variation noted. It appears that sudden alterations of temperature, exposure to wet and cold winds, affect the volatile acids which are a characteristic constituent of butter fat as distinguished from other fats. All these factors were carefully considered by the Butter Regulations Committee of England and they determined that what is known as the Reicbert, Wollny method, hereafter referred to as the R.W. method, supplied a safe test. Butter fat has not a constant composition. The variations are sufficiently wide rendering the establishment of a presumption of adulteration, on the basis of a deficiency in the normal proportion of some one or other of its constituents, very difficult. The R.W. test determines the amount of volatile acids which butter may contain. According to the committee that test fulfils the conditions of a quantitative method which can be made the basis of judicial proceedings. They fixed a limit, although the results of the experiments largely varied. In so doing they were mindful of two considerations, namely, that it was sufficiently low not to press harshly upon too large a proportion of genuine if abnormal butters, and on the other hand that it was sufficiently high to take away the inducement for adulteration. These points have to be kept in view.