The Supreme Court of India, in a significant ruling, has held that a re-trial in a criminal case cannot be ordered merely to allow the prosecution to rectify procedural lacunae that could be addressed at the appellate stage. A Division Bench of Justice Manoj Misra and Justice Ujjal Bhuyan set aside a Bombay High Court order that had directed a re-trial in a narcotics case, finding the High Court’s reasoning for doing so to be “misconceived and baseless.”
The apex court was hearing an appeal filed by Kailas Bajirao Pawar against the High Court’s judgment which, while setting aside his conviction under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, had remanded the case to the trial court for a fresh trial. The Supreme Court restored the criminal appeal to the file of the High Court for a fresh decision on its merits.
Background of the Case
The prosecution case originated from a raid conducted on a hut based on information that the appellant, Kailas Pawar (accused No. 1), and Raju Motiram Solanke (accused No. 2) had stocked Ganja for sale. During the search, 18 plastic packets containing 39 kilograms of Ganja were recovered. Based on their disclosure, a further 107.90 kilograms of Ganja were recovered from the residence of accused No. 3. All four accused were charge-sheeted and tried by the Additional Sessions Judge, Akot, District Akola.
The trial court, after examining seven prosecution witnesses, convicted Kailas Pawar and Raju Solanke while acquitting the other two accused. A key piece of evidence relied upon by the trial court was a video recording of the entire raid, search, and seizure process. The trial judge noted in his judgment that the CD of the recording was played in open court and that there was “no dispute regarding the video film in the said compact disc raised by the defense.” The court concluded that the oral testimony of witnesses was “strongly and undisputedly supported by the video film.”
High Court’s Order for Re-trial
Aggrieved by the conviction, the two convicts appealed to the High Court of Judicature at Bombay, Nagpur Bench. The High Court partly allowed the appeals, setting aside the conviction but remanding the matter for a re-trial. The High Court identified several “imminent flaws” in the trial, which it concluded had resulted in a “miscarriage of justice.”
The High Court’s primary reasons for ordering the re-trial were:
- Improper handling of Video Evidence: The Court observed that the video recording, which it termed the “best evidence,” was not converted into legally admissible evidence. It held that the correct procedure was to play the CD while each witness was deposing, so the witness could “describe or translate the video recording or the contents of the recording in his own words on oath before the Court.” The High Court noted, “This procedure has to be scrupulously followed. This has not happened in this case.”
- Non-examination of the Chemical Analyst (CA): The High Court stated that the failure to examine the CA was a “serious mistake,” especially in NDPS cases, to prove the nature and description of the seized substance.
- Non-production of Samples: The High Court faulted the prosecution for not producing the remnant samples received from the CA’s office or opening the representative samples before the trial court during the evidence stage.
Based on these perceived procedural errors, the High Court concluded that a re-trial was the “best option in the interest of the appellants as well as the prosecution.”
Arguments in the Supreme Court
Before the Supreme Court, the appellant argued that a re-trial can only be ordered in exceptional circumstances and not merely “to enable the prosecutor to lead evidence which he could, but has not cared to lead.” It was submitted that if the evidence on record was insufficient, the proper course was acquittal, not a re-trial.
The State of Maharashtra, on the other hand, contended that the High Court had erred. It argued that the video was admissible under Section 65B of the Indian Evidence Act, 1872, as a certificate had been provided by its creator (SW-2). Further, the report of the Chemical Examiner was admissible under Section 293 of the Code of Criminal Procedure, 1973, without the expert having to testify. The State submitted that if the High Court had difficulty understanding the evidence, it could have taken additional evidence under Section 391 of the CrPC, but a re-trial was not justified.
Supreme Court’s Analysis and Decision
The Supreme Court bench, led by Justice Misra, meticulously analyzed the law on re-trials, citing the Constitution Bench decision in Ukha Kolhe versus State of Maharashtra, which established that “an order for the re-trial of a criminal case is made in exceptional cases.”
The Court systematically dismantled the High Court’s reasoning:
- On Video Evidence: The Supreme Court found the High Court’s reasoning to be “strange and unacceptable.” It held that once the requirements of Section 65B of the Evidence Act are met, a CD becomes an admissible piece of evidence. The Court stated, “…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.” The Court noted that the trial court’s judgment made it clear the video was played in the presence of all parties, and therefore, a re-trial was not required “only to explain the video.”
- On Non-examination of the CA: The Court observed that Section 293 of the CrPC makes a Chemical Examiner’s report admissible without the witness being produced. The Court found “no such requirement of law that Chemical Examiner would have to be called in each NDPS case.” Since the report was admitted in evidence at trial without objection, this could not be a ground for re-trial.
- On Non-production of Contraband/Samples: While acknowledging the importance of producing seized contraband, the Court, citing State of Rajasthan v. Sahi Ram, held that “mere non-production of the seized contraband during trial may not be fatal if there is reliable evidence in respect of its seizure, drawing of samples therefrom, and FSL report.” The Court noted that the trial record indicated that an inventory of the seized Ganja was prepared before a Magistrate as per the procedure under Section 52-A of the NDPS Act. Any remaining issues, the Court opined, could be addressed by taking additional evidence under Section 391 CrPC, but “in any event, it cannot be a ground to direct a re-trial.”
Concluding its analysis, the Court held that the order for a re-trial could not be countenanced. However, instead of acquitting the appellant, the Court deemed it appropriate to restore the appeals to the High Court for a fresh decision on merits. The Court reasoned that the High Court had not addressed the entire evidence on record and had been “swayed by an erroneous view that the video-record was the best evidence available which was not converted into legally admissible evidence.”
The Supreme Court, therefore, allowed the appeal, set aside the impugned High Court order, and restored the appeals of both convicts to the High Court for a fresh decision, preferably within six months. The appellant was directed to remain on bail.
