GRANDE VENKATA RATNAM AND Vs. NITY CHARAN HAZRA

JUDGEMENT

(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: Smither, J.

(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.