The Supreme Court set aside a High Court order directing a re-trial in NDPS prosecution where the High Court had held that video evidence and certain procedural steps were not properly converted into admissible evidence. The Court held (1) that where Section 65B(4) certificate is produced the electronic record (video/CD) is admissible as a document and need not invariably be played during each witness’s deposition or reduced to a witness transcript; (2) a Chemical Examiner’s report is admissible under CrPC §293 and there is no absolute rule mandating production of the CA in every NDPS trial; (3) non-production of the bulk contraband or representative samples may not be fatal where inventory, sample-sealing, chain of custody and FSL report are on record; and (4) a direction for re-trial is an exceptional remedy — here inappropriate — so the appeals were restored to the High Court for fresh consideration (preferred to ordering acquittal or a re-trial). Appeal allowed; High Court order of re-trial set aside; appeals restored to High Court for fresh decision.
Facts (very short)
Police raid of a hut and later a house recovered ganja (39 kg from hut; 107.90 kg from house). Video of raid recorded by a photographer (SW-2) with a 65B(4) certificate; inventory and samples were made and sent to FSL (reports on record). Trial Court convicted accused nos.1 & 2; High Court set aside conviction and ordered re-trial on grounds that (a) video evidence was not properly converted into evidence (not played during each witness’s testimony), (b) Chemical Analyst (CA) not examined, (c) representative/remnant samples not produced/opened in Court. Supreme Court heard appeal against the direction for re-trial.
Issues considered
-
Whether the High Court was justified in ordering a re-trial because the video (CD) was not played before each witness and not transcribed into witness’ words.
-
Whether non-examination of Chemical Examiner/Analyst (CA) warranted a re-trial.
-
Whether non-production/opening of representative/remnant samples or non-production of bulk contraband required a re-trial or acquittal.
-
Whether a re-trial should be ordered in the facts, applying principles in Ukha Kolhe and Nasib Singh.
Holdings / Ratio (by issue)
-
Admissibility of video / playing during evidence — Once Section 65B requirements are satisfied (there is a certificate under §65B(4) from the maker/creator), the electronic record is admissible like any document. It is not legally required as a rule that the CD/video be played while each witness is being examined or that the contents be reduced to a transcript in the witness’s words. Whether explanatory testimony is needed depends on facts; absence of playing the CD during testimony does not automatically render it inadmissible. (Paras 19–21, 22)
-
Chemical Examiner (CA) non-production — CrPC §293 makes CA reports admissible; the court may summon/examine CA but there is no mandatory rule that CA be produced in every NDPS trial where report is otherwise admissible. The High Court’s insistence that CA must be examined for every NDPS trial is unsustainable. (Paras 21, 31)
-
Non-production of contraband / samples — While omission to produce bulk contraband may create doubt, case law shows non-production is not automatically fatal if the seizure, inventory, representative sample procedure, chain of custody, and FSL report are otherwise proved (citing Jitendra, Ashok, Noor Aga, Jaroopram, Vijay Pandey, Sahi Ram). Section 52-A safeguards inventory, photographs and certified list of samples as primary evidence. Where inventory, sealing and samples are on record and seals remained intact on reaching FSL, non-production of entire bulk may not justify re-trial. (Paras 23–33)
-
Re-trial principles — Retrial is exceptional (per Ukha Kolhe). Appellate court should order retrial only where trial was vitiated by serious illegalities, jurisdictional defects, denial of opportunity to lead material evidence for reasons beyond parties’ control, or where trial was a sham. Mere procedural lapses or failure to lead evidence by prosecution ordinarily do not justify retrial. Here, the High Court’s conclusion that re-trial was required was unsustainable. (Paras 16–18, 34–36)
-
Relief granted — Supreme Court set aside the High Court order directing re-trial and restored the appeals to the High Court for fresh consideration in accordance with law (preferably within six months). The appellant’s bail to continue. (Paras 35–37)
2025 INSC 1117
Page 1 of 38
SLP Criminal No. 4646 of 2025
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2025
(Arising out of SLP (Criminal) No.4646 of 2025)
KAILAS S/O BAJIRAO PAWAR … APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA … RESPONDENT(S)
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
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
1 The High Court of Judicature at Bombay, Nagpur Bench, Nagpur
2 Additional Sessions Judge Akot, District Akola
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SLP Criminal No. 4646 of 2025
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
3 NDPS Act
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SLP Criminal No. 4646 of 2025
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 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.
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SLP Criminal No. 4646 of 2025
No. 6 – Gopalsingh Narsingh Daberao i.e., driver-cumPolice 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
Page 5 of 38
SLP Criminal No. 4646 of 2025
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 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, subdivisional 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
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SLP Criminal No. 4646 of 2025
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.
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
Page 7 of 38
SLP Criminal No. 4646 of 2025
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.
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
Page 8 of 38
SLP Criminal No. 4646 of 2025
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 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,
Page 9 of 38
SLP Criminal No. 4646 of 2025
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
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
Page 10 of 38
SLP Criminal No. 4646 of 2025
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 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
Page 11 of 38
SLP Criminal No. 4646 of 2025
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 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
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SLP Criminal No. 4646 of 2025
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 granted by the prosecution. It needs to
Page 13 of 38
SLP Criminal No. 4646 of 2025
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 the
CA. If the CA is available, then the learned Judge
Page 14 of 38
SLP Criminal No. 4646 of 2025
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.”
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SLP Criminal No. 4646 of 2025
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.
Submissions on behalf of the Appellant
13. On behalf of the appellant, it is submitted that a retrial 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
4 AIR 1963 SC 1531
5
(2022) 2 SCC 89
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SLP Criminal No. 4646 of 2025
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
6 Evidence Act
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SLP Criminal No. 4646 of 2025
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 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
7 CrPC
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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
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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.”
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
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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;
(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.
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(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 subsection (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 the CD
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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
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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
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.
(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
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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. 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
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.
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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 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
10 (2004) 10 SCC 562
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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
11 (2011) 5 SCC 123
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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 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
12 (2013) 14 SCC 527
13 (2008) 16 SCC 417
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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
14 (2018) 4 SCC 334
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absence of there being evidence of its disposal. The relevant
observations are extracted below:
“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.”
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27. In Baldev Singh v. State of Haryana15, a threeJudge 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.
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
15 (2021) 18 SCC 523
16 (2019) 18 SCC 215
17 (2019) 10 SCC 649
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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 were intact, that the report of
the forensic experts shows the potency, nature and
quality of the contraband material and that based
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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
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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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, 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.
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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 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
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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 retrial 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
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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 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
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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.
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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.
......................................J.
(MANOJ MISRA)
......................................J.
(UJJAL BHUYAN)
NEW DELHI;
SEPTEMBER 15, 2025
