Summary
The Supreme Court set aside a High Court order directing a re-trial in an NDPS case involving seizure of 39 kg of ganja. A video recording supported by a Section 65B(4) certificate is admissible like a document and need not be played during each witness's deposition or transcribed; a Chemical Examiner's report is admissible under Section 293 CrPC without examining him; and non-production of samples or contraband could be cured by additional evidence under Section 391 CrPC. Re-trial is for exceptional cases only, so the appeals were restored to the High Court for fresh decision.
Issues
- Whether the High Court was justified in ordering a re-trial of the appellant's NDPS case.
- Whether a video recording of the search and seizure, certified under Section 65B(4) of the Evidence Act, is inadmissible unless played and explained during each witness's deposition.
- Whether the Chemical Examiner must be examined in every NDPS case to prove his report.
- Whether non-production of the seized contraband and samples at trial warranted a re-trial, and what relief was appropriate.
Provisions considered
- Section 65B(4), Indian Evidence Act, 1872With the maker's certificate, the CD became admissible like a document and its video contents could be seen and heard by the court to draw inferences; no transcript or witness narration is a legal precondition of admissibility. (¶¶ 14, 19)
- Section 293, Code of Criminal Procedure, 1973The report of a Government scientific expert such as a Chemical Examiner is admissible without his being produced; the court may summon him, but there is no requirement to examine him in every NDPS case. (¶ 21)
- Section 391, Code of Criminal Procedure, 1973The appellate court may take additional evidence, including to exhibit material already on record, instead of ordering a re-trial to explain a video or to produce samples. (¶¶ 20, 33)
- Section 386, Code of Criminal Procedure, 1973Cited for the appellate court's duty to peruse the record; if it found the video hard to understand it could have had parties or witnesses explain it. (¶ 20)
- Section 52-A, Narcotic Drugs and Psychotropic Substances Act, 1985The inventory, photographs and list of samples certified by the Magistrate are primary evidence under sub-section (4); bringing these on record, with proof of sealed dispatch and intact seals at the FSL, avoids an adverse inference from non-production of the contraband. (¶¶ 25, 26, 30, 31)
- Section 8(c) read with Section 20(b)(ii)(C), Narcotic Drugs and Psychotropic Substances Act, 1985The offences for which the appellant was tried and convicted; the Court expressed no opinion on the merits of the charge. (¶¶ 3, 38)
Held
- A re-trial is to be ordered only in exceptional cases, such as want of jurisdiction, a trial vitiated by serious illegality or misconception of the proceedings, or where a party was prevented from leading material evidence; it is not to be ordered to let the prosecution lead evidence it could have led but did not. (¶¶ 16, 17)
- Once the requirements of Section 65B are met, a CD is admissible like a document and the video in it is akin to the contents of a document which the court can see and hear; an explanatory statement may sometimes help, but the law does not require the video to be played during each witness's deposition or reduced to a transcript. The High Court's reason for re-trial on this ground was misconceived. (¶¶ 19, 20)
- If the appellate court has difficulty in understanding a video on record, it can have the parties or witnesses explain it or take additional evidence under Section 391 CrPC; there is no justification for a re-trial merely to understand the video. (¶ 20)
- Under Section 293(1) CrPC a Chemical Examiner's report is admissible without examining him, and there is no legal requirement to examine him in each NDPS case; the report here was exhibited without objection. (¶ 21)
- Non-production of the seized contraband is not by itself fatal if there is reliable evidence of seizure, drawing of samples and the FSL report on those samples; but to avoid an adverse inference, the Section 52-A documents, proof of sealed dispatch with seals found intact, and the FSL report with the sample tested should be placed on record. (¶¶ 29, 31)
- Failure to open representative samples or produce remnant samples before the trial court was not a ground for re-trial, since the appellate court could take additional evidence under Section 391 CrPC and then decide the appeal on its merits. (¶¶ 33, 34)
- Since neither court below had considered the entire evidence and deciding the merits would deprive the parties of an appeal, the proper course was to restore the appeals to the High Court rather than acquit the appellant. (¶ 35)
Result
Appeal allowed; the High Court's order of re-trial set aside and both criminal appeals restored to the High Court for fresh decision, preferably within six months. The appellant to remain on bail; the co-accused at liberty to seek suspension of sentence and bail. No opinion expressed on merits.