Retrial Only in Exceptional Cases: Supreme Court Sets Aside NDPS Retrial Order, Restores Appeals to High Court

Acting on information that the appellant and a co-accused had stocked ganja in a hut, police raided it with panch witnesses, a photographer who video-recorded the raid and a gazetted officer, and seized the contraband (para 3). The trial court convicted the appellant and one co-accused under Section 8(c) read with Section 20(b)(ii)(C) of the NDPS Act, relying partly on the video, and acquitted two others (paras 3-6). On 25.10.2024 the Bombay High Court at Nagpur set aside the conviction and ordered a retrial, with the accused remanded to custody (paras 2, 8).

A retrial may be ordered only in exceptional cases to avert a miscarriage of justice, not to let the prosecution fill gaps, as held in Ukha Kolhe and summarised in Nasib Singh (paras 16-17). The video was admissible: its maker deposed and gave a Section 65B(4) certificate, and if the High Court could not follow it, it could have heard the parties or taken additional evidence under Section 391 CrPC (paras 19-20). A chemical examiner's report is admissible under Section 293 CrPC without examining him, and no request to summon him had been refused (para 21). Reviewing Jitendra, Ashok, Noor Aga, Jaroopram, Vijay Pandey and Sahi Ram, the Court held that non-production of seized contraband is not necessarily fatal if seizure, sampling and the FSL report are reliably proved, but the Section 52-A inventory and sampling documents, proof of sealed dispatch with the seal intact and the FSL report should be on record (paras 23-31). Here a Magistrate had prepared the inventory, samples were sealed and reached the FSL intact, so a retrial was unjustified (paras 32-34).