Kiran Raj

The Supreme Court Division Bench of Justices Manoj Misra and Ujjal Bhuyan held that prosecutions under the Narcotic Drugs and Psychotropic Substances Act do not collapse solely because seized drugs are not produced in court, so long as inventories and sample records prepared under Section 52A are on record. Setting aside the Bombay High Court’s Nagpur Bench decision ordering a re-trial in a ganja case, the Court stated that re-trial is an exceptional step, warranted only to avert a clear miscarriage of justice. It found that certified electronic evidence under Section 65B of the Evidence Act, along with duly prepared inventories, provided an adequate evidentiary basis without requiring physical production of the contraband.

The appellant, along with three others, faced charges under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. According to the prosecution, a search and seizure operation in September 2020 led to the discovery of 39 kilograms of ganja in a hut where the appellant and another accused were present. A subsequent raid at the residence of a third accused resulted in the recovery of 107.90 kilograms of ganja. The fourth accused was alleged to have acted as the transporter.

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The prosecution relied on seven witnesses, including a panch witness, a photographer who videographed the proceedings, the person who weighed the contraband, members of the raiding party, a constable who delivered samples to the forensic laboratory, and the investigating officer. Video recordings of the raid, supported by a certificate under Section 65B(4) of the Evidence Act, were also placed before the trial court. On this evidence, the trial court convicted the appellant and a co-accused, while acquitting the remaining two.

On appeal, the Bombay High Court at Nagpur set aside the convictions and ordered a re-trial. The High Court directed that the accused remain in custody, citing serious procedural lapses. These included the failure to play the video recording during the testimony of witnesses, absence of a transcript of the video, non-examination of the Chemical Analyst, and non-production of remnant and representative samples of the seized contraband. It concluded that these deficiencies prevented proper appreciation of the case and justified a fresh trial.

Before the Supreme Court, the appellant contended that a re-trial is permitted only in exceptional circumstances, where the trial itself is vitiated or there has been a miscarriage of justice, and cannot be used to allow the prosecution to repair defects in its case. He relied on earlier rulings that held re-trials to be an extraordinary remedy. The State argued that the video recording was admissible under Section 65B, the seizure had been corroborated by inventory and seizure memos certified by a magistrate, and that under Section 293 of the Code of Criminal Procedure the Chemical Analyst’s report was admissible without oral testimony. It further maintained that the High Court could have invoked its power to take additional evidence under Section 391 CrPC instead of ordering a re-trial.

The Court observed that “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 a 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 giving evidence material to the charge, and in the interests 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.”

It further stated that “the appellate court may direct a re-trial only in ‘exceptional’ circumstances to avert a miscarriage of justice. The reasons that would justify re-trial are to be recorded in the order passed. If the lapse or lapses are of such a nature which may be corrected in exercise of appellate jurisdiction, re-trial ought not to be directed. Only if the lapses are so grave so as to prejudice the rights of the parties, can a re-trial be directed.”

On the admissibility of the video recording, the Court recorded that “the author of the video i.e., SW No.2 not only deposed that he recorded the video, but he also gave a certificate, as contemplated under sub-section (4) of Section 65B of the Evidence Act, to make the CD admissible in evidence.” It stated that “once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inference(s).”

Addressing the High Court’s concerns, it observed: “the difficulty of the High Court in not understanding the video could have been met by seeking assistance of any witness or lawyer before it, if the court was not equipped with the technology to understand the video. In our view, to merely understand the video, there is no justification to order a re-trial and fresh recording of evidence.”

With respect to the Chemical Analyst’s report, the Court stated: “under Section 293 of CrPC, report of a Chemical Examiner is admissible even if he is not produced as a witness though, the Court may summon and examine him as to the subject matter of the report. Thus, the order of the High Court, insofar as it has ordered re-trial for non-examination of the Chemical Analyst, is against the statutory prescription.”

On non-production of the contraband, it recorded that “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.”

Finally, the Court stated that “in our view, even for reasons (c) and (d) indicated in the impugned order, direction for a re-trial cannot be countenanced. In the facts of the present case, ends of justice would be served if the appeal(s) are restored on the file of the High Court for a fresh decision in accordance with law.”

“Consequently, the appeal is allowed. The impugned order of the High Court is set aside. Both Criminal Appeal No.449 of 2023 filed by Kailas s/o Bajirao Pawar and Criminal Appeal No.457 of 2024 filed by co-accused Raju Motiram Solanke are restored on the file of the High Court for a fresh decision in accordance with law, preferably, within six months from the date this order is communicated to the High Court.”

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“The appellant, who was released on bail by an order of this Court dated 05.05.2025, shall continue to remain on bail during the pendency of the appeal subject to the condition that he shall cooperate in the hearing of the appeal(s) by the High Court.”

“The other accused Raju Motiram Solanke who had not filed appeal against the order of the High Court would be at liberty to apply to the High Court for suspension of sentence and bail, which shall be considered on its own merit.”

“We may make it clear that we have not expressed opinion on the merit of the appeals filed by the appellant and the other co-accused before the High Court. Our discussion in this judgment was with a view to assess whether in the facts and law a re-trial is necessitated or not. All pending applications stand disposed of.”

Advocates Representing the Parties

For the Petitioner(s): Mr. Anil Mardikar, Senior Advocate; Mr. Sachin Shanmukham Pujari, Advocate-on-Record

For the Respondent(s): Mr. Aditya Krishna, Advocate; Mr. Siddharth Dharmadhikari, Advocate; Mr. Aaditya Aniruddha Pande, Advocate-on-Record; Mr. Shrirang B. Varma, Advocate

Case Title: Kailas s/o Bajirao Pawar v. The State of Maharashtra
Neutral Citation: 2025 INSC 1117
Case Number: SLP (Criminal) No. 4646 of 2025
Bench: Justice Manoj Misra, Justice Ujjal Bhuyan