In a significant ruling on procedural safeguards in criminal trials under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Supreme Court examined whether the High Court erred in ordering a re-trial against the appellant, Kailas, despite alleged procedural lapses. The key issue before the Court was the interplay between the rights of the accused and the powers of appellate courts to direct re-trials, particularly in cases involving electronic evidence, chemical reports, and recovery of contraband. Read on to see how the Court clarified the contours of re-trial and the evidentiary standards in such matters.
Brief Facts:
The case arose from a police tip-off that Kailas and Raju Motiram Solanke were storing Ganja for sale in a hut. Acting on this, the police conducted a search with senior officers, panch witnesses, a photographer, a gazetted officer, and a weighing scale, recovering 18 plastic packets totaling 39 kg of Ganja, from which samples were drawn and sealed. Following information revealed by Kailas and Raju, the police raided the residence of one of the three other accused, recovering 107.90 kg of Ganja and arresting the transporter. Consequently, all four were charge-sheeted under Sections 8(c) read with 20(b)(ii)(C) of the NDPS Act. The Trial Court convicted Kailas and Raju based on oral evidence, the raid video, and chemical analysis reports, acquitting the others. The High Court partly allowed their appeals, setting aside the conviction but remanding the matter for re-trial due to procedural lapses, directing that Kailas and Raju remain in judicial custody. Aggrieved, Kailas approached the Supreme Court.
Contentions of the Appellant:
The Appellant contended that a re-trial can only be directed in exceptional circumstances, as laid down by the Constitution Bench in Ukha Kolhe v. State of Maharashtra, a principle consistently followed by this Court, and recently reaffirmed by a Three-Judge Bench in Nasib Singh v. State of Punjab and Another. He argued that a re-trial cannot be ordered merely to allow the prosecution to lead evidence it could have, but failed to present earlier, whether due to insufficient appreciation of the case or other reasons. According to the appellant, if the High Court was dissatisfied with the prosecution’s evidence on record, the correct course should have been to acquit him, rather than ordering a re-trial.
Contentions of the Respondent:
The Respondent contended that the High Court wrongly held the video inadmissible. It was admissible under Section 65B of the Evidence Act, 1872, supported by a certificate from its creator, oral evidence of the raiding party, and documents like the seizure memo and inventory. The video was played in Court before the accused and their counsel, with no dispute on identities, and transcripts of visual evidence are not required. The non-examination of the Chemical Examiner did not affect the admissibility of the report under Section 293 CrPC. Hence, a re-trial was unnecessary; the High Court could have admitted additional evidence under Section 391 CrPC if needed.
Observation of the Court:
The Court reiterated while referring to the case Ukha Kolhe v. State of Maharashtra, "An order for the re-trial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interest of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could, but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons."
Addressing electronic evidence under Section 65B of the Evidence Act, the Court held that the High Court's view requiring the video to be played during each witness's deposition and transcribed was misconceived, as the certificate under Section 65B(4) suffices for admissibility, and no transcript of visual input is mandated. On non-examination of the chemical examiner, the Court clarified that under Section 293 CrPC, such reports are admissible ipso facto without summoning the expert unless required.
Regarding non-production of seized contraband, the Court surveyed precedents and held, "Mere non-production of the seized contraband during trial may not be fatal if there is reliable evidence in respect of its seizure, drawing of samples therefrom, and FSL report relating to the sample drawn from the seized material. However, to ensure that no adverse inference is drawn against the prosecution for non-production of the seized contraband, documents prepared in terms of the provisions of Section 52-A, inter alia, evidencing preparation of inventory of seized contraband and drawing of samples therefrom, would have to be brought on record. Likewise, evidence should be there that the sample drawn from the inventory was sent to FSL in a sealed container/ envelop, as per guidelines, and that the seal was found intact at the end of FSL. This is to obviate any doubt regarding sample being tampered in transit. Similarly, FSL’s report along with the sample tested by it is to be placed on record so that there remains no doubt regarding the sample tested."
The Court found the High Court's reasons for re-trial invalid, as they did not meet exceptional circumstances under constitutional and statutory interpretations, highlighting the need to balance prosecutorial duties with accused rights to avoid miscarriage of justice.
The decision of the Court:
Under the light of the foregoing discussion, the Court allowed the appeal, set aside the High Court's order, and restored it for fresh decision in accordance with law, preferably within six months. The appellant shall continue on bail, and the co-accused may apply for bail on merits.
Case Title: Kailas S/O Bajirao Pawar Vs. The State Of Maharashtra
Case No: SLP (Criminal) No.4646 of 2025
Coram: Justice Manoj Misra, Justice Ujjal Bhuyan
Advocate for Appellant: AOR Sachin Shanmukham Pujari. Advs. Anil Mardikar, Digvijay Singh
Advocate for Respondent: AOR Aaditya Aniruddha Pande, Advs. Aditya Krishna, Siddharth Dharmadhikari, Shrirang B. Varma
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