Supreme Court Restores NDPS Appeals to High Court After Finding Re-trial Direction Unwarranted

A bench of Justices Manoj Misra and Ujjal Bhuyan heard an appeal by Kailas S/o Bajirao Pawar challenging a Bombay High Court order that set aside his conviction in an NDPS trial and remanded the matter for a re-trial coupled with a direction that the accused be remanded to judicial custody. The primary issue before the Supreme Court was whether the High Court was justified in directing a re-trial on account of alleged procedural lapses in the recording and conversion of electronic evidence and non-examination of the Chemical Examiner.

The Court allowed the appeal, held that the High Court's direction for a re-trial was not sustainable, and restored both criminal appeals to the High Court for fresh consideration in accordance with law within six months. The Court observed that re-trial is an exceptional remedy and emphasised that electronic evidence admitted under Section 65B of the Evidence Act and scientific reports under Section 293 CrPC may be admissible without necessarily replaying the material in court during each witness's evidence. The Court noted that “The CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document.” The Court, in its reasoning, observed: “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.” The Court further recorded that, in the circumstances of the 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.”

Background The prosecution alleged that on September 23, 2020 a raiding party recovered 18 plastic packets of ganja weighing about 39 kg from a hut behind Mari Mata temple at Adgaon, and subsequent searches produced 107.90 kg at the residence of a co-accused; four persons were charged under Section 8(c) read with Section 20(b)(ii)(C) of the NDPS Act. Trial evidence included panch witnesses, a photographer who made a video recording (marked Exh.27) and a Chemical Analyst’s report; the trial court convicted accused Nos.1 and 2 and acquitted two others, relying in part on the video. The High Court partly allowed appeals, set aside the convictions and ordered a re-trial primarily on the grounds that the video “was the best evidence” but had not been played while recording each witness’s evidence, no transcript or descriptive evidence of the video was recorded in the witness box, and the Chemical Examiner had not been examined; the High Court described the video as “the most important and vital evidence in this case.” The State contended before the Supreme Court that the video was admissible under Section 65B (with a certificate by its creator) and that the CA report was admissible under Section 293 CrPC, and that defects could have been remedied by additional evidence under Section 391 CrPC rather than by ordering a re-trial. Applying settled precedents on when re-trial is warranted (including Ukha Kolhe and Nasib Singh), the Supreme Court held that the High Court erred in ordering a re-trial solely for procedural defects in presenting the video or for non-examination of the Chemical Examiner; the Court restored the appeals to the High Court for fresh adjudication, directed that Kailas remain on bail as earlier ordered by this Court subject to cooperation in the hearing, and observed that it expressed no opinion on the merits.

Case Details: Case No.: 2025 INSC 1117 Case Title: KAILAS S/O BAJIRAO PAWAR v. THE STATE OF MAHARASHTRA Appearances: For the Petitioner(s): Shri Sharma (Advocate for appellant) For the Respondent(s): Additional Public Prosecutor (name not specified in judgment)