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6. Mr. Ajit Kumar Dutta appearing on behalf of the appellants argued, firstly, that there was no evidence in support of the charge of conspiracy to cheat, nor any in respect of the charge as to cheating. Mr. Dutta next argued that in view of the provision contained in Sub-section (3) of Section 25 of the Drugs Act (Act XXIII of 1940) whereby any document purporting to be a report signed by a Government Analyst is conclusive evidence of the facts stated therein, it was incumbent upon the prosecution to establish that full protocols of the tests applied in the case had been sent along with the report and that in the absence of such protocols the report mentioned in Section 25(3) could not be held to be conclusive evidence of the drug in question having been mixed with arachis oil.

9. The finding of the learned Magistrate that the offending drug was a misbranded drug within the meaning of Section 17(a) (c) and (e) was not disputed. It was not challenged that the drug in question was not of standard quality. Indeed, the defence was that the olive oil concerned was blended and, therefore, not of standard quality. The evidence in the case established beyond any doubt that neither appellant had a licence to manufacture or sell or stock or exhibit for sale or distribute any drug. Thus, each appellant would be guilty of contravention of the provisions of Section 18(a) (i) and (ii) and of Section 18(c) of the Act. The main criticism put forward by Mr. Dutt was about the alleged omission on the part of the prosecution to give full protocols of the tests applied by the Government Analyst in carrying out the tests and/or analyses of the drug. This omission, Mr. Dutta urged, was fatal to the prosecution case. We must, therefore, turn to a consideration of this point.

With this sub-section must be read Rule 5 of the Bengal Drugs Rules, 1946. Rule 5 is as follows:

"5. Procedure on receipt of sample. On receipt of a package from an Inspector containing a sample for test or analysis, the Government Analyst shall compare the seals on the packet with the specimen impression received separately and shall note the condition of the seals on the package. After the test or analysis has been completed, he shall forthwith) supply to the Inspector a report in triplicate in Form 1 of the result of the test or analysis, together with full protocols of the tests applied.
Provided that no protocols of tests shall be supplied in the case of patent and proprietary medicines registered at the Central Drugs Laboratory."

In Form 1 which is given in Schedule A to the Rules there appears an item as follows:

"7. Result of test or analysis with protocols of tests applied....."

It is thus clear that a Government Analyst has to submit a report in Form 1 of the result of the test or analysis concerned together with full protocols of the tests applied. Unless full protocols of tests are supplied, the report of a Government Analyst cannot be regarded as conclusive evidence, or indeed as any evidence, of the facts stated therein. This position is not challenged on behalf of the State. What was argued on behalf of the State was that the relative certificate (Ex. 35) contained full protocols of the tests applied by the Government Analyst. Mr. J.M. Banerjee on behalf of the State was, however, not clear as to the meaning of the word "protocols" and there was no evidence as to what was meant by the word. Accordingly, we examined the Government Analyst Mr. P.K. Sanyal, to tell us what he meant by the expression "lull protocols of the tests applied." We discovered, to our amazement that the Government Analyst had been approached on behalf of the prosecution and forewarned as to the point which troubled us. There is no doubt that the word 'protocol' or 'protocols' has been and is now used in different senses. Originally, the word appears to have meant the original note or minute of a transaction, negotiation agreement or the like, drawn up by a recognised public official, notary etc., and duly attested, which formed the legal authority for any subsequent deed, agreement, or the like based on it. (see Murray's Oxford Dictionary, page 1509). The word 'protocol' also meant as it does now, a formal or official statement of a transaction or proceeding. Mr. Dutt urged that the word as used in the Drugs Rules meant the original minute or report of the tests applied in the case, especially in view of the fact that by Sub-section (3) of Section 25 of the Act the report of a Government Analyst was made conclusive evidence of the facts stated in it. In our view, the expression "full protocols of tests applied" means an official statement or account of a proceeding, as a description of an experiment or a clinical report. Indeed this is one of the meanings of the word 'protocol' or 'protocols' given in Webster's Dictionary, Volume II, 1934 Edition. Mr. P.K. Sanyal, who in this case carried out the required tests, deposed to the effect that the word 'protocol' meant an official statement of the experiments carried out by the department to determine the quality of the drug. We find that the various tests employed by the analyst to test the purity of the drug were in fact embodied in the report itself. We find that under item 7 of the report (Ex. 35) full protocols of the tests applied are set out; for instance, "Test for Purity : 1 c. c. of the oil was boiled with 1.5 N alcoholic potash under reflux condenser for 10 mins. 50 c. c. alcohol (70 per cent) and Order 8. C. C. H. Cl. added. The mixture was stirred with a thermometer in it. Turbidity appeared at above 38'C. (Genuine olive oil should not show turbidity above 9'C)"