Supreme Court: While considering this appeal challenging Bombay High Court’s decision to direct re-trial of a NDPS case and remanding the appellant to judicial custody, who was originally convicted by the Trial Court after recovery of contraband; the Division Bench of Manoj Misra* and Ujjal Bhuyan, JJ., opined 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.
The Court further set aside the High Court’s order for re-trial and instead restored the case of the file of the High Court for fresh decision in accordance with law as neither the High Court nor the Trial Court has enlisted the entire evidence available on record; therefore, it was difficult for the Court to take a decision with precision as to whether the prosecution has been successful in bringing home the charge against the accused and appellant or not.
Background:
Appellant and three others were tried for offences punishable under Section 8(c) read with Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution case was based on a search and seizure operation leading to recovery of contraband. After investigation all four were charge-sheeted and tried. During trial, prosecution examined seven witnesses, and subsequently, the Trial Court convicted accused Nos.1 and 2 and acquitted the other two accused. In its judgment, the Trial Court, inter alia, relied on the video recording of the raid to corroborate the substantive evidence led during trial.
Aggrieved by the Trial Court’s verdict, the 2 convicts, which included the appellant, filed criminal appeals before Bombay High Court. The High Court partly allowed the appeals, set aside the conviction and sentence, however, remanded the matter for a re-trial with a direction that the accused shall stand remanded to judicial custody. Aggrieved by the direction for a re-trial with judicial remand, this appeal was filed.
Counsel for the appellant contended that a re-trial can be directed in exceptional circumstances. Furthermore, re-trial cannot be ordered just to enable the prosecution to lead evidence which it could but did not care to lead either on account of insufficient appreciation of the nature of the case or for other reasons.
Per contra, the respondent contended that High Court made an error by holding that the video of the raid was not admissible. it was urged, there was no necessity to direct for a re-trial; and if the High Court found it difficult to understand the video, it had power to accept additional evidence on record under Section 391 CrPC but in no case a re-trial was required. Therefore, the respondents prayed that the order of the High Court be set aside, and the appeal be restored on the file of the High Court for fresh consideration.
Court’s Assessment:
Perusing the matter, the Court had to consider whether the High Court was justified in ordering a re-trial? If not, then what would be the appropriate order that may be passed in this appeal?
The Court noted that in the present case, the High Court had ordered retrial as videorecording of search and seizure operation was the best evidence, but the same was not converted into admissible evidence; the Chemical Examiner / Analyst (CA) was not produced as a witness; the prosecutor did not produce remnant samples received from the office of CA and, prosecutor did not produce the representative samples drawn at the time of the seizure from the spot as well as drawn in presence of the learned Magistrate at the time of making the inventory.
The Court pointed out that the High Court did not dispute that the electronic record was duly exhibited as there existed a certificate envisaged under Section 65B(4) of the Evidence Act. However, strangely, the High Court opined that the video would become relevant only if it is played during deposition of each witness so that the witness could explain its contents in his own words resulting in a transcript of the video. The Court said that the High Court’s reasoning was strange and unacceptable, because the CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence. There may be an occasion where to appreciate contents of a video an explanatory statement may be needed, but that would depend on the facts of a case. However, it is not the requirement of law that the contents of the video would become admissible only if it is reduced to a transcript in the words of a witness who created the video or is noticed in the video.
The Court added that while exercising appellate power the record must be perused and, therefore, if the High Court, as an appellate court, had difficulty in understanding the contents of the video, which was part of the record, it could have called for the presence of the accused as well as the witnesses or their respective lawyers to explain to the Court the significance of what appears in that video. Besides, the power to take additional evidence is there under Section 391 CrPC. “However, to merely understand the video, in our view, there is no justification to order a re-trial and fresh recording of evidence”.
The Court further opined that there is no such requirement of law that Chemical Examiner would have to be called in each NDPS case to prove the report when it is otherwise admissible under Section 293(1) CrPC.
Referring to Section 52-A of the NDPS Act, the Court pointed out that it enables preparation of inventory of seized contraband, drawing of samples therefrom, taking of photographs, etc., as well as its disposal. Therefore, mere non-production of the seized contraband during trial may not be fatal if there is reliable evidence in respect of its seizure. 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. Furthermore, 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 pointed out that there existed material to indicate that the seized contraband was sent in a sealed condition for preparation of inventory. Thereafter, inventory was prepared, samples were drawn and sealed; and the samples were sent to FSL in a sealed condition, which found the seal intact. The High Court, however, observed that the representative sample was not opened before the Court at the time of recording of statement of the concerned witness.
The Court therefore deemed it fit a direction for restoration of appeals before the High Court for a fresh decision would be more appropriate, as the High Court’s judgment did not address the entire evidence on record, rather it is swayed by an erroneous view that the video-record was the best evidence available which was not converted into legally admissible evidence; and the parties will lose the right of appeal if the Court takes a decision on the merits, more so when the High Court has not taken a final call on merits.
Therefore, the Court found it appropriate to restore the case to the file of the High Court to be reconsidered.
[Kailas v. State of Maharashtra, 2025 SCC OnLine SC 1977, decided on 15-9-2025]
*Judgment by Justice Manoj Misra
Advocates who appeared in this case:
For Petitioner(s): Mr. Anil Mardikar, Sr. Adv. Mr. Sachin Shanmukham Pujari, AOR Mr. Digvijay Singh, Adv.
For Respondent(s): Mr. Aditya Krishna, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Shrirang B. Varma, Adv
Buy Code of Criminal Procedure, 1973 HERE
