Summary and Analysis of Kailas S/o Bajirao Pawar vs The State of Maharashtra 2025 INSC 1117
1. Heading of the Judgment
Kailas S/o Bajirao Pawar vs The State of Maharashtra
Citation: Kailas S/o Bajirao Pawar vs The State of Maharashtra, (2025) INSC 1117 (Supreme Court of India).
Court: Supreme Court of India
Bench: Justice Manoj Misra and Justice Ujjal Bhuyan
Nature of Proceedings: Criminal Appeal arising out of Special Leave Petition (Criminal) No. 4646 of 2025
2. Related Laws and Sections
The judgment primarily deals with the following legal provisions:
The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act): Specifically, Section 8(c) read with Section 20(b)(ii)(C) (pertaining to the prohibition and punishment for contraventions involving cannabis (ganja)).
The Code of Criminal Procedure, 1973 (CrPC):
Section 386: Powers of the Appellate Court.
Section 391: Appellate Court's power to take further evidence or direct it to be taken.
Section 293: Admissibility of reports from certain Government scientific experts (like Chemical Analysts).The Indian Evidence Act, 1872:
Section 65B: Admissibility of electronic records.
3. Basic Case Details
Parties:
Appellant: Kailas Pawar, who was convicted by the Trial Court under the NDPS Act.
Respondent: The State of Maharashtra.Origin of the Case: The appellant was convicted by the Trial Court for possession of 39 kg of ganja. The conviction was based on evidence including a video recording of the raid and seizure operation. The High Court, upon appeal, set aside the conviction but ordered a re-trial, remanding the accused to judicial custody. The appellant challenged this direction for a re-trial in the Supreme Court.
Core Issue: Whether the High Court was justified in ordering a full re-trial instead of either acquitting the accused or using its appellate powers to remedy the procedural defects.
4. Explanation of the Judgment
The Supreme Court allowed the appeal, set aside the High Court's order for a re-trial, and instead restored the criminal appeals for a fresh hearing before the High Court. The Court's reasoning is a detailed analysis of the law governing re-trials and the proper procedure for admitting different types of evidence in NDPS cases.
A. The High Court's Flawed Reasoning for a Re-Trial
The High Court ordered a re-trial primarily for four reasons, all of which the Supreme Court found to be erroneous:
Improper Admission of Video Evidence: The High Court held that the video recording of the raid (a CD) was not converted into legally admissible evidence. It reasoned that the video should have been played in court during the testimony of each witness so they could describe its contents, creating a "transcript." It held that without this, the video was inadmissible.
Non-examination of the Chemical Analyst (CA): The High Court held that the Chemical Analyst who prepared the report confirming the substance as ganja must be examined in court in every NDPS case.
Non-production of Remnant Samples: The prosecution did not produce the leftover portions of the samples that were sent to the forensic laboratory.
Non-production of Representative Samples: The prosecution did not produce the original sample packets drawn at the spot and during the magistrate's inventory before the court.
B. The Supreme Court's Analysis and Correction
The Supreme Court systematically dismantled the High Court's reasoning, explaining the correct legal position on each point.
i. On Video Evidence (Section 65B, Evidence Act):
The Supreme Court held the High Court's view was "strange and unacceptable."
Legal Principle: An electronic record (like a CD) becomes admissible as evidence once the requirements of Section 65B of the Evidence Act are fulfilled. This requires a certificate from the person who created the record (in this case, the photographer, SW No.2), which was duly provided (Exh. 32).
No Need for Transcript: The law does not require that the contents of a video be reduced to a transcript through the testimony of every witness. The video is a document itself; its contents can be seen and heard by the court to draw inferences. While an explanatory statement might be needed in some cases, its absence does not render the entire video inadmissible.
Conclusion: The video was already admissible. The High Court, if it had difficulty understanding the video, should have used its power under Section 391 CrPC to call for additional evidence or explanation, not ordered a full re-trial.
ii. On Non-examination of the Chemical Analyst (Section 293, CrPC):
The Supreme Court held the High Court's view was not sustainable.
Legal Principle: Section 293 CrPC explicitly states that the report of a Government Chemical Analyst is admissible as evidence without the analyst necessarily being present in court. The court may summon the analyst if it thinks fit, but it is not mandatory.
Conclusion: The prosecution is not obligated to examine the Chemical Analyst in every case. The report was already admitted as evidence (Exh. 81 & 82). The High Court erred in treating this as a ground for a re-trial.
iii. On Non-production of Samples and Contraband:
The Supreme Court acknowledged that the production of samples is important but clarified that it is not an absolute requirement fatal to the prosecution in every case.
Legal Principle (from precedents like State of Rajasthan v. Sahi Ram): If the seizure of contraband is otherwise proven and not disputed, the entire bulky material need not be produced in court. What is crucial is the proof of a clear chain of custody:
Evidence that samples were drawn from the seized contraband.
Evidence that the samples were sealed and sent to the FSL in a sealed condition.
The FSL report must state that the seals were intact.
Documents like the inventory prepared under Section 52-A of the NDPS Act and certified by a Magistrate can be treated as primary evidence.Application to this Case: The Trial Court judgment referred to an inventory (Exh. 84) prepared by a Magistrate, which detailed the sealing process and confirmed the seals were intact. The constable (SW No.6) testified to delivering the sealed samples to the FSL, and the FSL report confirmed the seals were intact. Therefore, there was prima facie evidence of a proper procedure.
Conclusion: While the non-production of samples was a lapse, it was not so grave in this specific context to warrant the extreme step of a re-trial, especially when alternate evidence existed.
C. The Law on Re-Trials
The Supreme Court reiterated the well-settled principle from the Constitution Bench in Ukha Kolhe vs State of Maharashtra, AIR 1963 SC 1531, and recently followed in Nasib Singh vs State of Punjab, (2022) 2 SCC 89:
A re-trial is an exceptional measure to be ordered only to avert a miscarriage of justice.
It is not to be ordered merely to enable the prosecution to fill in gaps in its evidence or to fix procedural errors that could be remedied otherwise.
A re-trial wipes out the entire previous record and forces the accused to face a new trial, which is a harsh consequence.
The Supreme Court found that the High Court's reasons did not meet this high threshold for ordering a re-trial. The procedural defects identified could have been addressed by the High Court itself exercising its appellate powers under Section 391 CrPC to take additional evidence.
5. Supreme Court's Final Directions and Conclusion
The Supreme Court concluded that the High Court's direction for a re-trial was "totally misconceived and baseless."
The Court issued the following directions:
The appeal is allowed.
The impugned order of the High Court directing a re-trial is set aside.
The criminal appeals filed by the appellant and his co-accused are restored to the file of the High Court for a fresh decision on merits in accordance with the law.
The High Court is requested to decide the appeals preferably within six months.
The appellant, who was on bail, shall continue to remain on bail during the pendency of the appeal before the High Court.
The Supreme Court explicitly clarified that it had not expressed any opinion on the ultimate merits of the case. Its role was only to decide the limited question of whether a re-trial was justified. The matter is now back before the High Court to decide the appeals afresh, considering all evidence on record.