Holding

A re‑trial was not justified as the video CD was admissible under Section 65B, the chemical examiner's report was admissible under Section 293, and the procedural lapses did not constitute a miscarriage of justice warranting a fresh trial.

Summary

The appellant Kailas and co-accused were convicted under the NDNDPS Act for possession of 39 kg of ganja seized during a police raid, with the trial court relying on a video recording of the raid and a chemical examiner's report. The High Court set aside the convictions and ordered a re‑trial, holding that the video was not converted into admissible evidence, the chemical examiner was not examined as a witness, and the seized contraband and representative samples were not produced in court. The Supreme Court examined the legal standards for admissibility of electronic evidence under Section 65B of the Evidence Act, the permissibility of using a chemical examiner's report under Section 293 of the CrPC, and the necessity of producing seized narcotic material. It held that the video CD, once certified under Section 65B, was admissible without a transcript, that the chemical examiner's report was admissible without his personal testimony, and that the alleged procedural lapses did not warrant a re‑trial. Consequently, the Court set aside the High Court’s order and restored the appeals for fresh consideration by the High Court, allowing the appellant to remain on bail.

Issues considered

The admissibility of a video recording of a raid under Section 65B of the Evidence Act without a transcript or witness narration.
Whether the non‑production of the chemical examiner as a witness renders the forensic report inadmissible under Section 293 of the CrPC.
Whether the failure to produce seized contraband, remnant samples, and representative samples necessitates a re‑trial.
Whether the High Court was justified in ordering a re‑trial under the principles governing re‑trials in criminal cases.

Legislation cited

Code of Criminal Procedure, 1973s. 293, s. 391, s. 52-A
Evidence Act, 1872s. 65B(4)
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii)(C), s. 52-A, s. 8(c)

Headnote

Issue for Consideration Issue arose 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. Headnotes† Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.8(c) r/w 20(b)(ii)(C) – to cannabis plant and cannabis – Search and seizure operation leading to recovery of contraband-Ganja weighing 39 kgs from the hut of the appellant-accused no. 1 and accused no.2 – On disclosure by two accused, complicity of accused no.3 came to light and on accused no.3’s

Subjects

Re-trialRecovery of contrabandContrabandRaidTranscript of the videoSearch and seizure operationCorroborate the oral testimonyChemical Examiner’s reportNon-production of seized contrabandGanjaVideo recording of the raidJudicial custodyAdditional evidenceNDPS Act

Judgment

[2025] 9 S.C.R. 935 : 2025 INSC 1117

Kailas S/o Bajirao Pawar
v.
The State of Maharashtra
(Criminal Appeal No. 4041 of 2025)
15 September 2025
[Manoj Misra* and Ujjal Bhuyan, JJ.]

Issue for Consideration
Issue arose 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.

Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss.8(c) r/w 20(b)(ii)(C) – Punishment for contravention in
relation to cannabis plant and cannabis – Search and seizure
operation leading to recovery of contraband-Ganja weighing 39
kgs from the hut of the appellant-accused no. 1 and accused
no.2 – On disclosure by two accused, complicity of accused
no.3 came to light and on accused no.3’s arrest, complicity
of accused no.4 came to light – Trial court relied on the
video recording of the raid to corroborate the substantive
evidence led during trial and convicted accused nos.1 and 2
and acquitted the other two accused – High Court set aside
the conviction and sentence, however, remanded the matter
for a re-trial since the video-recording was not converted
into admissible evidence; the chemical examiner/analyst not
produced as a witness; non-production of remnant samples;
and non-production of representative samples – Sustainability:
Held: Order by the High Court ordering re-trial not sustainable –
As regards the admissibility of video recording-Compact Disc, 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, is a strange and unacceptable reasoning since the CD is an
electronic record and once the requirement of s.65B is fulfilled it
becomes an admissible piece of evidence, and the video recorded
therein is akin to contents of a document which can be seen and

* Author
936 [2025] 9 S.C.R.

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heard to enable the court to draw appropriate inferences – On
facts, search and seizure operation was sought to be proved by
oral evidence of witnesses, the video, was perhaps to corroborate
the oral testimony – Video was played in court in the presence of
all accused as well as both sides counsels and the presiding officer,
upon seeing the video, could spot and confirm the presence of
witnesses as well as the accused at the time of search and seizure,
in such circumstances, re-trial is not required only to explain the
video – As regards the non-production of the chemical examiner
as a witness, 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 u/s.293(1) CrPC – Moreover, from the
judgment of the trial court it appears that the Chemical Examiner’s
report was admitted in evidence – Nothing in High Court’s judgment
that any objection was raised in respect of exhibiting the Chemical
Examiner’s report – As regards, non-production of remnant samples
and representative samples, prima facie, 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 – 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 – This was not a ground to direct for a
re-trial when the appellate court has power to take additional
evidence u/s.391 CrPC – Direction for restoration of appeals before
the High Court for a fresh decision – Impugned order of the High
Court set aside. [Paras 19, 21, 31, 33-36]

Case Law Cited
Ukha Kolhe v. State of Maharashtra [1964] 1 SCR 926 : AIR 1963
SC 1531; Nasib Singh v. State of Punjab and Another [2021] 13
SCR 566 : (2022) 2 SCC 89; Jitendra and Another v. State of M.P.
[2003] Supp. 3 SCR 918 : (2004) 10 SCC 562; Ashok v. State of
M.P. [2011] 4 SCR 253 : (2011) 5 SCC 123; Vijay Jain v. State of
M.P. [2013] 4 SCR 293 : (2013) 14 SCC 527; Noor Aga v. State
of Punjab [2008] 10 SCR 379 : (2008) 16 SCC 417; Union of
India v. Jaroopram [2018] 1 SCR 618 : (2018) 4 SCC 334; Baldev
Singh v. State of Haryana (2021) 18 SCC 523; Vijay Pandey v.
State of U.P. [2019] 10 SCR 774 : (2019) 18 SCC 215; State of
Rajasthan v. Sahi Ram [2019] 14 SCR 1117 : (2019) 10 SCC
649 – referred to.
[2025] 9 S.C.R. 937

Kailas S/o Bajirao Pawar v. The State of Maharashtra

List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Evidence
Act, 1872; Code of Criminal Procedure, 1973.

List of Keywords
Re-trial; Recovery of contraband; Contraband; Raid; Transcript
of the video; Search and seizure operation; Corroborate the oral
testimony; Chemical Examiner’s report; Non-production of the
seized contraband during trial; Ganja; Video recording of the
raid; Remanded to judicial custody; Re-trial with judicial remand;
Additional evidence; Search and seizure operation; Recovery of
contraband-Ganja weighing 39 kgs; Corroborate the substantive
evidence; Video-recording not converted into admissible
evidence; Chemical examiner/analyst not produced as witness;
Non-production of remnant samples; Non-production of
representative samples; Legally admissible evidence.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
4041 of 2025
From the Judgment and Order dated 25.10.2024 of the High Court
of Judicature at Bombay at Nagpur in CRLA No. 449 of 2023

Appearances for Parties
Advs. for the Appellant:
Anil Mardikar, Sr. Adv., Sachin Shanmukham Pujari.
Advs. for the Respondent:
Aditya Krishna, Siddharth Dharmadhikari, Aaditya Aniruddha Pande,
Shrirang B. Varma.

Judgment / Order of the Supreme Court

Judgment

Manoj Misra, J.

1. Leave granted.
938 [2025] 9 S.C.R.

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2. This appeal arises from a judgment and order of the High Court1,
dated 25.10.2024, in Criminal Appeal Nos. 449 of 2023 and 457 of
2024, whereby the appeals filed by the appellant and another, against
the order of conviction and sentence dated 29.04.2023 of the Trial
Court2 in Special Sessions Trial No. 34 of 2020, were partly allowed,
the order of conviction was set aside and the case was remanded to
the Trial Court for a re-trial coupled with a direction that the accused
shall stand remanded to judicial custody.

Facts
3. 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, 19853. Prosecution case is based on
a search and seizure operation leading to recovery of contraband
(i.e., Ganja). It is alleged that on receipt of information that accused
No. 1 - Kailas (the appellant) and accused No. 2 – Raju Motiram
Solanke have stocked Ganja for sale in a hut, after entering the
information in the Diary, sending information to senior officer vide
written letter (Exh. No.69) and seeking permission (Exh. No.70), a raid
was organized after arranging two panch witnesses, a photographer,
a gazetted officer and a weighing scale. The hut was located. Two
persons, namely, accused nos.1 and 2, were found sitting there. After
necessary formalities, the hut was searched. Upon search, in the
presence of panchas, 18 plastic packets, kept in a sack, containing
Ganja, weighing 39 kilograms, were recovered; from which samples
were drawn and sealed. On disclosure by the aforesaid two accused,
complicity of accused No.3 came to light. Thereafter, raid was
conducted at the residence of accused No. 3, who was not found
present. However, during house search, five sacks with packets
containing Ganja, weighing 107.90 kilogram, were recovered. When
accused No. 3 was arrested, complicity of accused No. 4 came to
light as the person who transported the contraband.
4. After investigation all four were charge-sheeted and tried. During trial,
prosecution examined seven witnesses, namely, S.W. No. 1 – Vinayak

1 The High Court of Judicature at Bombay, Nagpur Bench, Nagpur
2 Additional Sessions Judge Akot, District Akola
3 NDPS Act
[2025] 9 S.C.R. 939

Kailas S/o Bajirao Pawar v. The State of Maharashtra

Rajabhau Shinde i.e., witness of spot and seizure panchnama; S.W.
No. 2 – Santosh Ashok Solanke i.e., photographer who took video
as well as photographs of the raid proceedings; S.W. No. 3 – Sajid
Khan Rajulla Khan i.e., person who weighed the contraband; S.W.
No. 4 – Gopal Ukhardu Patil i.e., one of the members of the raiding
party; S.W. No. 5 – Mohammed Umar Anisoddin i.e., panch witness
of seizure panchnama of accused no.4’s vehicle, who was declared
hostile; S.W. No. 6 – Gopalsingh Narsingh Daberao i.e., driver-cum-
Police Constable, who took Ganja samples to forensic laboratory,
Amravati for chemical analysis; and S.W. No. 7 – Sagar Ashokrao
Hatwar i.e., Chief of the raiding party.
5. Trial Court convicted accused Nos.1 and 2 and acquitted the other
two accused.
6. In its judgment, the Trial Court, inter alia, relied on the video recording
of the raid to corroborate the substantive evidence led during trial.
Relevant observations qua appreciation of evidence including the
video recording are found in paragraphs 40 to 48 of the judgment,
which are reproduced below:
“40. Santosh (SW No.2) has stated in his examination in
chief that, he himself videographed the entire procedure
and he himself made the compact disc of the said video
film. He also personally gave the necessary certificate to
the police in that behalf. He has included all the technical
details in the said certificate. It is the same certificate as
Exh. No.32.
41. The certificate on Exh. No.32 is given by Santosh (SW
No.2). That is, of course as per section 65 B (4) of the
Indian Evidence Act, 1872. In the said certificate Santosh
(SW No.2) has mentioned the entire details such as the
business of photography the witness is involved in, the
camera he uses for that purpose, its particulars such as
Sony company camera model number 450 H.D. camera
etc and he has proven the certificate that he has issued
personally (Exh. 32) on all the legal and technical criteria.
42. The video film of the proceedings of the raid conducted
by the police and its compact disc made by Santosh (S.W.
No. 2) is produced in the court and it was seen in the
940 [2025] 9 S.C.R.

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court on the laptop by the court (myself), the concerned
clerk, the learned counsels for the accused, the learned
counsels for the prosecution and all the accused. The
said compact disc is assigned property No.27. There is no
dispute regarding the video film in the said compact disc
raised by the defense. This important fact is to be taken
into consideration and kept in our collective conscious (sic).
43. All of us saw when the said CD was played in this court
that the panch witnesses, police officers, staff members,
the weighing scale operator, sub-divisional officer, both
the accused No.1, Kailas, No. 2 Raju could be seen in
the video film (i.e., in the video shooting in the CD) in the
compact disc marked as property No.27.
44. There is no reason whatsoever to take any doubt
regarding the veracity of the video film in the said property
No.27. There is no place whatsoever to raise any doubt
regarding the reliability of Santosh No.2 doing the video
shooting. There is also no reason whatsoever to raise any
doubts regarding this certificate exhibit No.32 issued as
per section 65-B (4) of the Indian Evidence Act 1872. No
one has raised any dispute whatsoever in the recognition
or identification of the panch witnesses, police officials,
staff members, accused seen in the said video hence all
these facts stand proven.
45. In this way the originally reliable contentions made
in the oral statements and examination in chief by all the
witnesses such as Vinayak (SW No.1), Santosh (SW No.2),
Sajid Khan (SW No.3), Gopal (SW No.4) and Shri Hatkar
(SW No.7) that, on the date, time and place of occurrence
the accused No.1, Kailas, and accused No.2, Raju, were
found in possession of Ganja weighing 39 kilograms are
strongly and undisputedly supported by the video film
and photographs in the compact disc of property No.27
on record of the court. There is no reason whatsoever to
refute the said proofs. As mentioned earlier the said video
film in the said CD has also not been contested on behalf
of the accused No.1 and 2.
[2025] 9 S.C.R. 941

Kailas S/o Bajirao Pawar v. The State of Maharashtra

46. In the said video film and in some still photographs
(i.e., in the photographs in exhibit No.36, 37, 38 on record
of this court) an unknown person in yellow T-shirt and who
has dyed his color can be seen. The learned counsel Shri
Sharma for the accused No.1 and 2 attempted to create
a big controversy during the cross examination of the
witnesses in that behalf.
47. All the witnesses have clearly dismissed the suggestions
made by the learned counsel for the accused number 1
and 2 to the witnesses in their cross examination that the
Hut behind the Mari Mata temple at Adgaon is owned by
the unknown person in those photographs and the Ganja
also belongs to him. Shri Hatwar (S.W. No.7) has clearly
stated in his cross examination (Exh. No.61), page No.14,
Para No.67) that the person wearing the yellow T-shirt is
the associate of the weighing scale operator Sajid Khan
(SW No.3).
48. It is quite possible that some bystanders, overzealous
persons then enter as intruders while any such proceedings
are in progress. Just because he was seen in one of
such photographs and in some part of the video film, the
cogent, reliable and undisputed proof of all the remaining
witnesses, public prosecution does not and should not get
nullified. The identification of the unknown person seen in
the said photograph and the video film is not the point of
contention in this case. It is unnecessary and irrelevant,
and it is not sufficient at all to nullify all the other reliable
evidence produced by the prosecution.”
(Emphasis supplied)

7. Aggrieved by Trial Court’s judgment and order, the two convicts filed
criminal appeals before the High Court. Criminal Appeal No. 449 of
2023 was by the appellant whereas the other i.e., Criminal Appeal
No. 457 of 2024, was by Raju Motiram Solanke.
8. 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 has been filed.
942 [2025] 9 S.C.R.

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High Court’s observations
9. The reasons for which High Court directed a re-trial can be found in
paragraphs 12 to 19 of its judgment, reproduced below:
“12. It is to be noted that the entire process of raid at the hut
as well as at the house of Shatrughna was video recorded
with the help of the photographer. The photographer has
been examined. Panch witness has supported the case of
the prosecution. PW-1 Vinayak Shinde, the panch witness,
has deposed in great detail about the raid, search, seizure
and sampling. He has stated that, in his presence, the entire
process was video recorded by the photographer. PW-2
Santosh Solanke is the photographer. He has deposed
about the video recording of the entire process of search,
seizure, sampling and apprehension of the appellant. PW-7
Sagar Hatwar, the investigating officer, has deposed in his
evidence that the entire process of the raid was video-
graphed. The CD of the video recording is at Exh. 27. In
this context, it would be necessary to consider the evidence
of the photographer (PW-2). At Para No. 7, he has stated
that on last date the CD was played on the computer of
the Court by the clerk. The APP and the Advocates for the
appellants had seen the recording. Perusal of the evidence
of all the witnesses does not show that the learned Judge,
while recording their evidence, had played the CD in the
Court and personally saw it.”
13. In this background, it is necessary to consider the
observations made by the learned Judge in his judgment.
Para No. 42 would be relevant. Learned Judge has
noted that he had personally seen the video recording.
Similarly, it was seen by the concerned clerk, APP and the
advocates for the appellants. Learned Judge has noted
that the advocates for the appellants had no dispute about
the contents of the CD. In my view, this observation is
against the appellants. It is to be noted that the CD has
been admitted in the evidence. It is marked as Exh. 27.
The question is whether the evidence adduced before the
Court is sufficient to prove the contents of the CD or not.
If the Court comes to the conclusion that this evidence is
[2025] 9 S.C.R. 943

Kailas S/o Bajirao Pawar v. The State of Maharashtra

not sufficient to prove the contents, then the question is
as to how the same could be used against the appellant.”
14. It is to be noted that we are in the era of technology.
The technology is now being used for the purpose
of investigation. This is a good sign for the criminal
justice administration. Electronic evidence collected
with the assistance of the technology, which may be
audio recording, video recording, photography or the
data from the memory card, cannot be admitted in the
evidence as it is. Before such material is admitted as an
evidence, proper care and procedure is required to be
followed. Such material has to be converted into a legally
admissible evidence. The law prescribes the procedure.
The prosecutor, the presiding officer and the advocates
must be well versed with the procedure, while recording
the evidence of the witness with regard to the contents
of the video recording or CCTV footage. If there is a lack
of procedural knowledge to convert such material into
legally admissible evidence collected during the course of
investigation, then the very purpose of the video recording
or collection of the CCTV footage capturing the incident
will be frustrated. The video recording or CCTV footage
without proper evidence to prove the contents of the video
recording cannot be made use of against the accused. It
needs to be stated that with the advent of technology and
use of the technology during the investigation, all concerned
are required to keep themselves abreast with the law
and procedure. A great care is required to be taken while
recording the evidence when such electronic evidence is
produced before the court. It is the duty of the court and
other stakeholders to see that it is converted into legally
admissible evidence. If there is a failure on the part of the
prosecutor and the presiding officer, on account of some
misconception related to the subject, then it can cause
miscarriage of justice. It needs to be stated that in this
case on account of procedural error, apparent lacuna has
crept in, and which has resulted in miscarriage of justice.
It has caused prejudice not only to the appellant but to
the prosecution as well. It needs to be mentioned that in
944 [2025] 9 S.C.R.

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this case, on this count, there is an imminent flaw, which
has caused prejudice not only to the appellants but to the
prosecution as well.
15. It is to be noted that the video recording of the entire
process was the best evidence in the possession of
the prosecution. The question that was required to be
addressed by the learned Judge while recording such
evidence was as to how it has to be converted into legally
admissible evidence. The learned Judge and the learned
prosecutor have committed a procedural error. The proper
procedure has not been followed. In this case, the main
witnesses are the panch witnesses, the photographer,
other members of the raiding party and the investigating
officer. If the evidence consists of a video recording of
the particular incident or part of the incident, the recorded
incident must be proved through the concerned witness.
As far as the video recording or recorded CCTV footage
is concerned, the witness who is an eyewitness to the
incident or acted as a panch witness or in the other capacity,
must describe the incident on oath before the Court. In
such a case, at the time of recording the evidence of the
concerned witness, the video recording, either recorded
in the CD or pen drive or any other electronic gadget,
must be played on the screen. The witness, after playing
the CD, must describe or translate the video recording or
the contents of the recording in his own words on oath
before the Court. If it is an audio recording, then the
part of the audible conversation must be transcribed and
placed on record under the signature of the investigating
officer. Unless and until the recorded video or CCTV
footage is played at the stage of evidence of the witness,
the witness would not be able to describe or narrate the
incident in his or her own words on oath before the Court.
In this way, at the stage of recording of evidence, each
and every witness concerned with the video recording
of the incident or any part of the incident must describe
or narrate the incident in his or her own words on oath
before the Court. If it is not so done, then it would be very
difficult to understand or read that video recording by the
[2025] 9 S.C.R. 945

Kailas S/o Bajirao Pawar v. The State of Maharashtra

presiding officer, prosecutor or Advocate. This procedure
has to be scrupulously followed. This has not happened
in this case. The CD was not played while recording the
evidence of the panch witnesses, the photographer, the
other members of the raiding party and the investigating
officer. It is therefore apparent that the legally admissible
evidence as to the contents of the recording/CD has not
at all been recorded.
16. The CD is a part of the record. At the stage of the
arguments in these appeals, the CD was played in the
Court. It is evident that the video recording commenced
with the apprehension of the appellant. The CD contains
the recording of the inspection of hut, recovery of the
substance, the description of the substance and further part
of the proceedings. The CD further contains the recording
of the raid and recovery at the house of Shatrughna. The
learned Judge was required to play the CD at the time
of recording evidence of each witness and record the
contents appearing on the screen with the help of the
concerned witness. If this procedure had been followed,
then the contents of the CD would have become legally
admissible evidence. This procedure had not been
followed. This has caused prejudice to the appellants
as well as to the prosecution. The important evidence
collected in the form of the video recording has not been
converted into legally admissible evidence. In order to verify
the correct factual position, at the stage of the argument
of the appeals, the video recording was played. It was
very difficult to understand the contents of the CD. If the
evidence of the witnesses had been recorded on playing
the video recording at the time of the evidence, then the
oral testimony of the witnesses on oath, as to the contents
of the CD would have been part of the record.
17. It is evident that in this case the detailed description
of the Ganja has not been recorded in the panchnama.
Similarly, the detailed description of the Ganja has not
been stated by the witnesses. The substance seized from
the possession of the appellant can be seen from the
video recording. It was necessary to show this part of the
946 [2025] 9 S.C.R.

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recording to the witnesses and record the description of
the substance in detail through each and every witness.
In my view, this is a fundamental flaw in this case. The
appellants could not be held responsible for this mistake
or rather a mess. It was the responsibility of the learned
prosecutor to insist before the learned Judge to play the
CD when the witnesses were in the witness box. It was
not done by the learned Prosecutor/In-charge of the case.
Similarly, the learned Judge did not follow this procedure
scrupulously. It seems that the learned Judge did not act
diligently while recording the evidence of the witnesses
with regard to the incident or a part of the incident video-
graphed by the investigating officer. Learned Judge has
observed in his judgment that there was no objection as
such on the part of the appellants to this CD. In my view,
this observation is totally perverse. This observation is
not only against the appellants, but it is also against the
prosecution. In this case, the required evidence as to
the contents of the video recording or CD has not been
properly recorded. There is a procedural error. It was the
duty of the Court to give justice to the hard work put in by
the police officer, while conducting the raid and ensuring
the video recording of the entire proceedings. The video
recording is the most important and vital evidence in this
case. It can reflect upon the credibility and authenticity of
the raid. Similarly, the description of the substance, which
can be seen from the video recording, would be of immense
importance. It cannot be excluded from consideration, if it is
proved properly. This is one flaw in this case. It has caused
prejudice to the appellants as well as to the prosecution.
18. The next important flaw which can be seen is the failure
of the prosecution to examine the CA. It is noticed that in
the Vidarbha region, in the trials under the NDPS Act, the
CA is not examined. In my view, this is a serious mistake
on the part of the prosecution. It needs to be placed on
record that in Greater Mumbai, in every case under the
NDPS Act, the CA is examined. In Vidarbha region, while
deciding the appeals against the conviction and sentence
in NDPS cases, it is noticed that this aspect is taken for
[2025] 9 S.C.R. 947

Kailas S/o Bajirao Pawar v. The State of Maharashtra

granted by the prosecution. It needs to be stated that
in Vidarbha region, the majority of the cases under the
NDPS Act are with regard to the seizure of the Ganja.
The examination of the CA, in the case of the analysis
of Ganja, is very important because, in the report of the
CA the description of the substance in detail is recorded
invariably. The description of the substance, seized as
Ganja, is required to be proved to bring it within the ambit
of the definition of Ganja under Section 2(iii)(b) of the NDPS
Act. In this case, the prosecution has failed to examine the
CA. In this case, the learned prosecutor did not produce
remnant samples received from the office of CA. Similarly,
the prosecutor did not produce the representative samples
drawn at the time of the seizure on the spot as well as
drawn in presence of the learned Magistrate at the time
of the inventory. The remnant samples are required to
be shown to the CA to bring on record the nature of the
narcotic drug and the description of the drugs. Similarly, the
representative samples are required to be opened before
the Court at the time of the evidence of the concerned
witness. The presiding officer is required to note down
the description of the narcotic drug/substance found in
the sample packets. It is further pertinent to mention that
if the seized drug is not destroyed, then the same shall
also be produced before the Court while recording the
evidence of the witness. The description of the substance
found in the packets/sacks shall also be recorded. The
learned presiding officer is required to record this part
of the evidence very meticulously and note down the
description of substance.
19. I am conscious of the fact that under Section 293 of
the Code of Criminal Procedure, the reports of certain
Government scientific experts may be used as evidence
in an inquiry, trial or other proceedings. The record shows
that no specific order was passed by the learned Judge,
while admitting the CA report. It is to be noted that, in
cases under the NDPS Act, as and when a CA report is
tendered, the Court shall insist the prosecutor to examine
948 [2025] 9 S.C.R.

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the CA. If the CA is available, then the learned Judge
shall not exhibit the report without examining the CA. The
trial of the offences under the NDPS Act cannot be taken
lightly. The trial for the offences under the NDPS Act has
to be conducted very carefully. It needs to be mentioned
that in such a trial, the Court has to deal with so many
technical aspects and issues. The NDPS Act provides for
checks and balances while conducting the investigation
in the crime so as to avoid false implication of innocent
persons. The act provides for stringent punishment for a
proved offence. Therefore, the Court has to be very careful
while recording the evidence. In this case, the required
care was not taken.”
10. After the above discussion, the High Court proceeded to consider
whether a re-trial of the case would be necessary and, in Paragraph
26, the High Court opined that re-trial is necessary. Paragraph 26
of the impugned judgment is extracted below:
“26. It is to be noted that in this case, for the purpose
of proving the contents of the CD, the recall of all the
witnesses would be necessary. The witnesses were the
members of the raiding party. Each and every witness
would be required to describe /translate the contents of
the CD/video recording. Similarly, the prosecution would
be required to examine the CA. Therefore, in this case,
the option of recording additional evidence may not be
appropriate. Even after recording the additional evidence,
the further procedure with regard to the recording of 313
statement of the accused would be required to be gone
into. In this case, in my view, the re-trial would be the
best option in the interest of the appellants as well as the
prosecution. In the facts and circumstances, in this case,
I am opting to order a re-trial.”
11. Having held that re-trial is necessary the High Court set aside the
Trial Court judgment and ordered re-trial of accused nos.1 and 2.
However, since there was no appeal against acquittal of accused
nos.3 and 4, the High Court observed that accused nos. 3 and 4
shall not have to face re-trial.
12. Aggrieved by the direction for holding a re-trial, one of the accused,
namely, Kailas, is in appeal before us.
[2025] 9 S.C.R. 949

Kailas S/o Bajirao Pawar v. The State of Maharashtra

Submissions on behalf of the Appellant
13. On behalf of the appellant, it is submitted that a re-trial can be
directed in exceptional circumstances as laid down by a Constitution
Bench of this Court in Ukha Kolhe versus State of Maharashtra4,
which has been consistently followed, and recently followed by a
three Judge Bench of this Court in Nasib Singh versus State of
Punjab and Another5. Relying on the aforesaid decisions, it was
urged that re-trial is not to 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. It was urged that if the High Court was not satisfied
with the prosecution’s evidence on record, the appropriate course for
the High Court was to order acquittal of the appellant. Accordingly,
it is urged that the order of the High Court directing for a re-trial be
set aside and the appellant be acquitted.

Submissions on behalf of Respondent-State
14. Per contra, on behalf of the State, it was urged that the High Court
erred in holding that the video was not admissible. The same was
admissible as a document under Section 65B of the Indian Evidence
Act, 18726 in view of there being a certificate under sub-section (4)
of Section 65B from its creator (SW No.2). Moreover, there was
substantive oral evidence of the members of the raiding party
who witnessed the recovery. Additionally, there were documents in
the form of seizure memo, inventory of the consignment of Ganja
prepared by Magistrate, produced as Exh. No.84, evidencing the
recovery. Besides above, during trial, the video was played in Court
in the presence of the presiding officer of the Court, the accused
persons and their respective counsels. No dispute as regards the
identity of accused and members of raiding party as seen in the
video was raised before the trial court. Therefore, the view of the
High Court that video was not admissible, because it was not played
while recording statement of each witness and its transcript was
not prepared, is misconceived. Moreover, it was urged, transcript

4 AIR 1963 SC 1531
5 (2022) 2 SCC 89
6 Evidence Act
950 [2025] 9 S.C.R.

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of a visual input cannot be prepared. As regards non-examination
of Chemical Examiner, it was urged, it would not have a material
bearing on the admissibility of its report because, under Section 293
of the Code of Criminal Procedure, 19737, Chemical Examiner is
a scientific expert, and its report is ipso facto admissible. In such
circumstances, 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. It was thus
prayed on behalf of the State 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.

Discussion
15. Having considered the rival submissions, the principal question that
falls for our consideration is 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?
16. Before we proceed further, it would be useful to survey the judicial
precedents as to in what circumstances a re-trial is to be directed
and what are the consequences of such a direction. In Ukha Kolhe
Versus State of Maharashtra (supra), this 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 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

7 CrPC
[2025] 9 S.C.R. 951

Kailas S/o Bajirao Pawar v. The State of Maharashtra

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.”
17. Following the aforesaid decision, in Nasib Singh versus State of
Punjab and Another (supra), this Court summarized the principles
governing re-trial as follows:
“33. The principles that emerge from the decisions of this
Court on re-trial can be formulated as under:
33.1 The appellate court may direct a re-trial only in
“exceptional” circumstances to avert a miscarriage of
justice.
33.2 Mere lapses in the investigation are not sufficient to
warrant a direction for retrial. Only if the lapses are so
grave so as to prejudice the rights of the parties, can a
re-trial be directed.
33.3 A determination of whether “shoddy” investigation /trial
has prejudiced the party, must be based on the facts of
each case pursuant to a thorough reading of the evidence.
33.4 It is not sufficient if the accused/prosecution makes
a facial argument that there has been a miscarriage of
justice warranting a re-trial. It is incumbent on the appellate
court directing a re-trial to provide a reasoned order on the
nature of the miscarriage of justice caused with reference
to the evidence and investigatory process.
33.5 If a matter is directed for re-trial, the evidence and
record of the previous trial is completely wiped out.
33.6 The following are some instances, not intended to
be exhaustive, of when the Court could order a re-trial on
the ground of miscarriage of justice:
(a) The trial court has proceeded with the trial in the
absence of jurisdiction;
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(b) The trial has been vitiated by an illegality or irregularity
based on a misconception of the nature of the proceedings;
and
(c) The prosecutor has been disabled or prevented from
adducing evidence as regards the nature of the charge,
resulting in the trial being rendered a farce, sham or
charade.”
18. In the instant case, the High Court ordered a re-trial citing following
reasons:
(a) Video-recording of search and seizure operation was the best
evidence, but the same was not converted into admissible
evidence inasmuch as, (i) video was not played while recording
statement of each witness so as to enable the witness to explain
the video in his own words in his deposition; (ii) no transcript
of video was prepared; and (iii) when it was played in Court, in
absence of explanatory statement of witnesses qua the video,
its content could not be understood.
(b) The Chemical Examiner / Analyst (for short CA) was not
produced as a witness.
(c) The prosecutor did not produce remnant samples received
from the office of CA.
(d) The 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.
19. As far as admissibility of video recording i.e., Compact Disc (CD) is
concerned, 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. Interestingly, the High
Court did not dispute that the electronic record was duly exhibited
as there existed a certificate envisaged under sub-section (4) of
Section 65B. 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. In our view, this is
a strange and unacceptable reasoning for the simple reason that
[2025] 9 S.C.R. 953

Kailas S/o Bajirao Pawar v. The State of Maharashtra

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, 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). No doubt, 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. Besides
that, in the instant case, the search and seizure operation was sought
to be proved by oral evidence of witnesses. The video, therefore,
was perhaps to corroborate the oral testimony. Even the judgment
of the trial court makes it clear that the video was played in court
in the presence of all accused as well as both sides counsels and
the presiding officer, upon seeing the video, could spot and confirm
the presence of witnesses as well as the accused at the time of
search and seizure. In such circumstances, in our view, a re-trial is
not required only to explain the video.
20. We are conscious of the law that while exercising appellate power
the record must be perused8 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 of CrPC. However, to merely understand the
video, in our view, there is no justification to order a re-trial and
fresh recording of evidence. For the reasons above, reason (a)
supra assigned by the High Court for ordering a re-trial is totally
misconceived and baseless.
21. As far as non-production of Chemical Examiner as a witness is
concerned, under Section 2939 of CrPC, report of a Chemical

8 See: Section 386 CrPC
9 Section 293. Reports of certain Government scientific experts. --- (1) Any document purporting to be
a report under the hand of a government scientific expert to whom this section applies, upon any matter
or thing duly submitted to him for examination or analysis and report in the course of any proceeding
under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2). The court may, if it thinks fit, summon and examine any such expert as to the subject matter of his
report.
954 [2025] 9 S.C.R.

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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. Nothing is there in High Court’s judgment to
show that before the trial court any application was moved to summon
the Chemical Examiner but the same was rejected. In paragraph 19
of its judgment, the High Court records that no specific order was
passed by the trial judge while admitting the CA (Chemical Analyst)
report. The High Court thereafter goes on to observe that in cases
under NDPS Act as and when a CA report is tendered, the Court
must insist the prosecutor to examine the CA. In our view, 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 sub-section (1) of Section 293 of CrPC. Moreover,
from the judgment of the trial court it appears that the Chemical
Examiner’s report was admitted in evidence as Exh Nos.81 and 82.
Nothing is there in High Court’s judgment that any objection was
raised in respect of exhibiting the Chemical Examiner’s report. In
such circumstances, reason (b) supra assigned by the High Court
for ordering re-trial is not sustainable.
22. As far as reasons (c) and (d) (supra) assigned for ordering a re-trial
are concerned, they are linked to each other and shall, therefore, be
discussed simultaneously. Before we discuss the same, it would be
useful to survey judicial pronouncements as to why production of the
seized contraband may be important and in what manner recovery
of contraband may be proved.
23. In Jitendra and Another v. State of M. P.10 the Charas and Ganja
alleged to have been seized from the possession of the accused were

(3). Where any such expert is summoned by a court and he is unable to attend personally, he may,
unless the court has expressly directed him to appear personally, depute any responsible officer working
with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily
depose in Court on his behalf.
(4). This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State
Forensic Science Laboratory;
(f) the Serologist to the Government.
(g) any other Government scientific experts specified, by notification, by the Central Government for this
purpose.
10 (2004) 10 SCC 562
[2025] 9 S.C.R. 955

Kailas S/o Bajirao Pawar v. The State of Maharashtra

not produced before the trial court to connect them with the sample
sent to the forensic science laboratory (FSL). The High Court noticed
the lacuna but brushed it aside by observing that non-production of
those articles before the court is not fatal to the prosecution when the
defense had not insisted during trial that those be produced. While
observing so, the High Court relied on Section 465 CrPC to hold
that non-production of the material object was a mere procedural
irregularity and did not cause prejudice to the accused. Rejecting
the aforesaid reasoning, this Court held:
“6. In our view, the view taken by the High Court is
unsustainable. In the trial it was necessary for the
prosecution to establish by cogent evidence that the
alleged quantities of charas and ganja were seized from
the possession of the accused. The best evidence would
have been the seized materials which ought to have been
produced during the trial when marked as material objects.
There is no explanation for this failure to produce them.
Mere oral evidence as to their features and production of
panchnama does not discharge the heavy burden which
lies on the prosecution, particularly where the offense is
punishable with a stringent sentence as under the NDPS
Act. …”
24. The aforesaid view was followed by this Court in Ashok v. State of
M.P.11, wherein this Court, inter alia, emphasized upon the necessity
of maintaining proper custody of the seized contraband from the date
of its seizure till obtaining of FSL report including production in Court
because for the prosecution to succeed it is imperative that there
must be evidence to connect the forensic report with the substance
that was seized from the possession of the accused. Similar was
the view taken by this Court in Vijay Jain v. State of M.P.12
25. In Noor Aga v. State of Punjab13, the accused, an Afghan national,
was apprehended with 1.4 kg heroin concealed in layered wall of
a carton carrying grapes. The contraband articles were produced
before the Magistrate. Evidence, however, was not clear regarding
the purpose of such production and there was no evidence that order

11 (2011) 5 SCC 123
12 (2013) 14 SCC 527
13 (2008) 16 SCC 417
956 [2025] 9 S.C.R.

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was passed in respect of its destruction. Moreover, no application
for destruction was filed. During trial, the seized contraband was
not produced. Submission, on behalf of accused, inter alia, was that
prosecution having not produced the physical evidence of the seizure
before the court, particularly the sample of the purported contraband
material, no conviction could have been based thereupon. On behalf
of the prosecution, submission was that the contraband was destroyed
under orders of the Magistrate. This Court found that there was no
cogent evidence that guidelines in respect of destruction of contraband
articles were followed. Relevant observations are extracted below:
“96. Last but not the least, physical evidence relating to
three samples taken from the bulk amount of heroin was
also not produced. Even if it is accepted for the sake
of argument that the bulk quantity was destroyed, the
samples were essential to be produced and proved as
primary evidence for the purpose of establishing the fact
of recovery of heroin as envisaged under Section 52-A
of the Act.”
25.1. After observing as above, this Court proceeded to notice
several discrepancies in the evidence produced and held:
“100. Physical evidence of a case of this nature being
the property of the court should have been treated
to be sacrosanct. Non-production thereof would
warrant drawing of a negative inference within the
meaning of section 114 (g) of the Evidence Act. While
there are such a large number of discrepancies, if a
cumulative effect thereto is taken into consideration
on the basis whereof the permissive inference would
be that serious doubts are created with respect to the
prosecution’s endeavor to prove the fact of possession
of contraband by the appellant.”
26. Following the decision in Noor Aga (supra), this Court, in Union of
India v. Jaroopram14, laid emphasis on the production of the bulk
quantity of seized contraband in absence of there being evidence of
its disposal. The relevant observations are extracted below:

14 (2018) 4 SCC 334
[2025] 9 S.C.R. 957

Kailas S/o Bajirao Pawar v. The State of Maharashtra

“10. Omission on the part of the prosecution to produce
the bulk quantity of seized opium would create a doubt in
the mind of the court on the genuineness of the samples
drawn and marked as A, B, C, D, E, F from the allegedly
seized contraband. However, the simple argument that the
same had been destroyed, cannot be accepted as it is not
clear that on what authority it was done. Law requires that
such an authority must flow from an order passed by the
Magistrate. On a bare perusal of the record, it is apparent
that at no point of time any prayer had been made by the
prosecution for destruction of the said opium or disposal
thereof otherwise. The only course of action the prosecution
should have resorted to is for its disposal is to obtain an
order from the competent court of Magistrate as envisaged
under section 52A of the Act. It is explicitly made under
the Act that as and when such an application is made, the
Magistrate may, as soon as may be, allow the application.
11. There is no denial of the fact that the prosecution has
not filed any such application for disposal /destruction of
the allegedly seized bulk quantity of contraband material
nor was any such order passed by the Magistrate. Even
no notice has been given to the accused before such
alleged destruction /disposal. It is also pertinent here to
mention that the trial court appears to have believed the
prosecution’s story in a haste and awarded conviction to
the respondent without warranting the production of bulk
quantity of contraband. But, the High Court committed no
error in dealing with this aspect of the case and disbelieving
the prosecution story by arriving at the conclusion that at
the trial, the bulk quantities of contraband were not exhibited
to the witnesses at the time of adducing evidence.”
27. In Baldev Singh v. State of Haryana15, a three-Judge Bench of
this Court, following the decisions in Jitendra (supra), Vijay Jain
(supra) Ashok (supra) and Noor Aga (supra), allowed the appeal of
a convict on the ground that the seized contraband was not produced
and there was no satisfactory evidence regarding proper custody
of the contraband.

15 (2021) 18 SCC 523
958 [2025] 9 S.C.R.

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28. In Vijay Pandey v. State of U.P.16, this Court laid emphasis on the
existence of evidence to correlate the seized sample with the one
that was tested. The relevant observations are reproduced below:
“8. The failure of the prosecution in the present case to
relate the seized sample with that seized from the appellant
makes the case no different from failure to produce the
seized sample itself. In the circumstances the mere
production of a laboratory report that the sample tested
was narcotics cannot be conclusive proof by itself. The
sample seized and that tested have to be correlated.”
29. In State of Rajasthan v. Sahi Ram17, the High Court acquitted
the accused on the ground that muddamal (i.e., case property
or seized goods) were not produced. The High Court held that in
absence of production of seized goods the prosecution failed to lead
primary evidence of the seizure and thus, the entire evidence of the
prosecution leading to recovery had to be discarded. This Court
did not accept the verdict of the High Court and, while allowing the
appeal and restoring conviction recorded by the trial court, after
discussing earlier decisions in Jitendra (supra), Noor Aga (supra),
Ashok (supra), Vijay Jain (supra) and Vijay Pandey (supra), held
that in none of the decisions of this Court non-production of the
contraband material before the court has singularly been found to
be sufficient to grant the benefit of acquittal. After holding so, the
law on the point was summarized in the following terms:
“18. If the seizure of the material is otherwise proved
on record and is not even doubted or disputed, the
entire contraband material need not be placed before
the court. If the seizure is otherwise not in doubt, there
is no requirement that the entire material ought to be
produced before the court. At times, material could be so
bulky, for instance as in the present material when those
7 bags weighed 223 Kg that it may not be possible and
feasible to produce the entire bulk before the Court. If
the seizure is otherwise proved, what is required to be
proved is the fact that the samples taken from and out of
the contraband material were kept intact, that when the
samples was submitted for forensic examination the seals

16 (2019) 18 SCC 215
17 (2019) 10 SCC 649
[2025] 9 S.C.R. 959

Kailas S/o Bajirao Pawar v. The State of Maharashtra

were intact, that the report of the forensic experts shows
the potency, nature and quality of the contraband material
and that based on such material the essential ingredients
constituting an offense are made out.”
30. At this stage, we may refer to the provisions of Section 52-A18 of
NDPS Act. This section, inter alia, enables preparation of inventory
of seized contraband, drawing of samples therefrom, taking of
photographs, etc., as well as its disposal. Sub-section (4) of Section
52-A is important. It provides that every court shall treat the inventory,
the photographs of the contraband and any list of samples drawn
under sub-section (2) and certified by the Magistrate, as primary
evidence in respect of such offence.
31. In the light of the discussion above, in our view, 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,

18 Section 52-A. Disposal of seized narcotic drugs and psychotropic substances. – (1) The Central
Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic
substances, controlled substances or conveyances, by notification in the Official Gazette, specify such
narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic
drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall,
as soon as may be after their seizure, be disposed of by such officer and in such manner as that
Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances
has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer
empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such
narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details
relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying
particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or
the tracking in which they are packed, country of origin and other particulars as the officer referred to
in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances,
controlled substances or conveyances in any proceedings under this Act and make an application, to
any magistrate for the purpose of --
(a) certifying the correctness of the inventory so prepared; or
(b) taking in the presence of such Magistrate, photographs of such drugs, substances or conveyances
and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such
Magistrate and certifying the correctness of any list of samples so drawn
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow
the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court trying an offense under this Act, shall treat the inventory,
the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and
any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in
respect of such offence.
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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.
32. In the instant case, trial court in its judgment has observed as follows:
“55. Shri Hatwar (SW No.7) has also stated in his
examination in chief that, I sent a letter (Exh No.83) to
the First Class Judicial Magistrate, Akota for getting the
inventory of the consignment of Ganja that was found
in possession of the accused no.1 and 2 made and,
accordingly, the said court prepared the inventory as per
Exh. No.84.
56. Going through the inventory at Exh. No.84, it appears
that, it was made by the First Class Judicial Magistrate,
Court No.2, Akot on dated 25.9.2020 i.e., immediately
on the day following the date of occurrence i.e., dated
23.9.2020. Basically, the hearing proceedings appear to
be going on till the midnight of dated 23.9.2020 i.e., from
00.26 till 1.09 hours on dated 24.9.2020. Therefore, one
day after 24th i.e., immediately on the following day i.e.,
on dated 25.9.2020 the court appears to have made the
inventory of Exh. No.84.
57. Accordingly, the said court has mentioned in Exh.
No.84 that the entire consignment was found properly
sealed, samples were sealed and were sealed again, its
weight of 39.180 kilos was noted correctly and in detail.
It was also mentioned in it that the entire consignment
was properly sealed and the seal was intact and it has
been resealed. Later it was also mentioned in it that the
First Class Judicial Magistrate of the said court and the
panchas and the witnesses have signed the said inventory.
58. The driver Gopal Singh (SW No.6) has stated in his
examination in chief that, he had taken such properly sealed
samples to the Forensic Laboratory, Amravati for chemical
[2025] 9 S.C.R. 961

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analysis and for examination. The chemical analysis report
of the said substance given by the said laboratory after
examining it are on record at Exh. No.81 and 82. It is clearly
mentioned in the said report that the sample of the said
substance is nothing but Ganja. It is mentioned in the report
that the said samples were brought to the said laboratory
through Gopal Singh (SW No.6) the police constable, batch
number 2140. The seal of the wrapping on the samples
were intact and it is mentioned in Exh. No.81.
59. From the above it stands indisputably proven beyond
all possible doubts that, the accused no.1 Kailas and
accused no.2 Raju were found in possession of Ganja
weighing 39 kilograms in the hut that is located behind
the Mari Mata Temple at Adgaon on dated 23.9.2020.
There is not even a word of clarification except denial in
the statement recorded under section 313 of CrPC of the
accused in this behalf.”
33. From above, prima facie, 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. Be that as it
may, this was not a ground to direct for a re-trial when the appellate
court has power to take additional evidence under Section 391 of
CrPC, which, inter alia, can be exercised to exhibit a document or
material already on the record of the Court. And if those defects are
fatal to the prosecution, the appellate court is free to take its decision
as may be warranted in the facts of the case. But, in any event, it
cannot be a ground to direct a re-trial.
34. We are therefore of the view that even for reasons (c) and (d)
(supra), direction for a re-trial cannot be countenanced. We shall now
consider as to what would be the appropriate relief to the appellant,
that is, should he be acquitted or the appeals be restored for a fresh
consideration by the High Court in accordance with law.
35. In our view, a direction for restoration of appeals before the High
Court for a fresh decision would be more appropriate, reasons
being: (a) neither the High Court nor the Trial Court has enlisted
962 [2025] 9 S.C.R.

Supreme Court Reports

the entire evidence available on record therefore it is difficult for us
to take a decision with precision as to whether the prosecution has
been successful in bringing home the charge against the accused;
(b) the High Court’s judgment does 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 (c) the parties would lose the
right of appeal if we take a decision on the merits more so when the
High Court has not taken a final call on merits. In our view, therefore,
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.
36. Consequently, the appeal is allowed. The impugned order of the High
Court is set aside. Both the appeals (i.e., one filed by the appellant,
being Criminal Appeal No.449 of 2023, and the other by the co-
accused Raju Motiram Solanke, being Criminal Appeal No.457 of
2024), 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.
37. We also direct that 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.
38. At this stage, we would like to clarify 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.
39. Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Nidhi Jain