Retrials Are Exceptional: Supreme Court Clarifies Admissibility of Video Raid Footage Under Section 65B and Non‑mandatory CA Examination in NDPS Trials

Introduction

In Kailas v. The State of Maharashtra (2025 INSC 1117), a two-Judge Bench of the Supreme Court of India (Manoj Misra, J. and Ujjal Bhuyan, J.) set aside a remand for re‑trial ordered by the Bombay High Court (Nagpur Bench) in an NDPS prosecution arising out of a search-and-seizure operation that was videographed. The Trial Court had convicted accused nos. 1 and 2 for offences under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), relying inter alia on a compact disc (CD) containing the raid recording, accompanied by a certificate under Section 65B(4) of the Indian Evidence Act, 1872.

On appeal, the High Court set aside the conviction and ordered a re‑trial, principally on two grounds: (i) the video recording was allegedly not converted into “legally admissible evidence” because it was not played witness-by-witness with a running narration and transcript; and (ii) the Chemical Analyst (CA) was not examined, coupled with concerns about non‑production of remnant and representative samples during trial. The Supreme Court rejected these reasons as misconceived, holding that:

• Electronic video evidence with a valid Section 65B(4) certificate is admissible as a document; law does not require witness‑by‑witness playback or a transcript to render it admissible.
• Under Section 293 CrPC, a Chemical Examiner’s report is ipso facto admissible; examination of the CA is not mandatory in every NDPS case.
• Mere non‑production of the seized contraband is not fatal where Section 52‑A NDPS Act inventory, properly drawn and certified samples, and an FSL report (with intact seals) exist and correlate the seized substance with the sample tested.
• Retrial is an exceptional remedy; appellate courts should prefer the statutory route of additional evidence under Section 391 CrPC or other case‑management tools if clarification is needed, rather than wiping out the prior trial.

The Court restored both criminal appeals (of accused nos. 1 and 2) to the High Court for a fresh decision within six months, and continued the appellant’s bail pending the outcome.

Summary of the Judgment

The Supreme Court addressed the narrow question whether the High Court was justified in ordering a re‑trial. It held that the High Court’s reasons did not satisfy the stringent thresholds for directing a re‑trial. Specifically:

• Electronic evidence: The raid video CD was accompanied by a Section 65B(4) certificate from its creator (PW‑2). It had been exhibited and played in the Trial Court. The High Court’s insistence that the CD had to be played during each witness’s deposition with a running narration/transcript for it to be “legally admissible” is “strange and unacceptable.” Once Section 65B conditions are met, the video is admissible like any document; explanation may sometimes be helpful, but is not a legal precondition to admissibility.
• CA examination: Section 293 CrPC makes the CA’s report admissible by itself; it is not a rule of law that in every NDPS case the CA must be examined. Courts retain discretion to summon the CA if needed, but non‑examination is not per se a ground for re‑trial.
• Production of contraband and samples: Non‑production of the bulk contraband is not automatically fatal where Section 52‑A documentation (inventory; certified samples; photographs) and the FSL chain (sealed transmission; intact seals at FSL) exist, enabling correlation between the seized material and the tested sample. If the appellate court found gaps in how the trial judge recorded or appreciated this, it could have resorted to Section 391 CrPC to take limited additional evidence or clarifications—re‑trial was unwarranted.
• Disposition: The retrial order was set aside. The Supreme Court restored the appeals to the High Court for a fresh merits decision, preferably within six months, while maintaining the appellant’s bail during pendency. No opinion was expressed on the ultimate guilt or innocence.

Analysis

Precedents Cited and Their Influence

The Court anchored its analysis in a line of decisions that tightly cabin the re‑trial power and clarify evidentiary standards in NDPS prosecutions.

1) Retrial is exceptional: Ukha Kolhe and Nasib Singh

• Ukha Kolhe v. State of Maharashtra (AIR 1963 SC 1531): A Constitution Bench held that an order for re‑trial is an exceptional measure, justified only when the original trial lacked jurisdiction, was vitiated by serious illegalities/irregularities such that there was in substance no real trial, or where a party was prevented (for reasons beyond control) from leading material evidence. A re‑trial wipes out the earlier proceeding and must not be used to give the prosecution a second chance to fill avoidable gaps.
• Nasib Singh v. State of Punjab (2022) 2 SCC 89: A three‑Judge Bench synthesized the retrial principles:
  • Re‑trial only in “exceptional” cases to avert miscarriage of justice;
  • Shoddy investigation/trial justifies re‑trial only if lapses are so grave as to prejudice the parties;
  • Appellate courts must give reasoned findings of prejudice; and
  • A re‑trial wipes out the earlier record and cannot be used merely to let the prosecution rectify curable infirmities.

The Supreme Court in Kailas applied these standards and found that the High Court’s reasons fell far short: the challenged shortcomings (video playback method; CA not examined; handling of samples) did not amount to such grave illegality or prejudice as to warrant the nuclear option of re‑trial.

2) NDPS proof: production of contraband, sampling, and chain-of-custody

The Court surveyed NDPS jurisprudence on production of seized substances, proper sampling, and correlation with FSL reports:

• Jitendra v. State of M.P. (2004) 10 SCC 562; Ashok v. State of M.P. (2011) 5 SCC 123; Vijay Jain v. State of M.P. (2013) 14 SCC 527:
  • Emphasized the importance of producing seized contraband and establishing chain‑of‑custody to connect the substance seized with the sample tested; mere oral assertions or panchnamas cannot discharge the heavy burden under the NDPS Act.
• Noor Aga v. State of Punjab (2008) 16 SCC 417:
  • Where samples and physical evidence were not produced and statutory destruction protocols were not proved, adverse inference under Section 114(g) of the Evidence Act was warranted. Also underscored the significance of Section 52‑A procedures (inventory, sampling, certification).
• Union of India v. Jaroopram (2018) 4 SCC 334:
  • Stressed that destruction of contraband must be backed by a Magistrate’s order under Section 52‑A NDPS Act; otherwise, non‑production of bulk contraband undermines the prosecution.
• Baldev Singh v. State of Haryana (2021) 18 SCC 523:
  • Allowed the appeal where contraband was not produced and chain‑of‑custody was not satisfactorily proven.
• Vijay Pandey v. State of U.P. (2019) 18 SCC 215:
  • It is not enough to have a laboratory report; the seized sample and the tested sample must be clearly correlated through the chain‑of‑custody and seals.
• State Of Rajasthan v. Sahi Ram (2019) 10 SCC 649:
  • Clarified that non‑production of the entire contraband is not, by itself, fatal, especially where it is bulky. If seizure is proved, and samples are drawn, preserved, and tested with intact seals, and the forensic report establishes the nature of the material, the essential ingredients can be made out without producing the entire bulk in court.

The Supreme Court in Kailas harmonized these rulings by endorsing Sahi Ram’s approach: prosecution can prove seizure and nature of substance without always producing the bulk, provided the Section 52‑A regime (inventory; Magistrate certification; representative samples) and a robust chain‑of‑custody to FSL (with intact seals) are demonstrated. Where those statutory safeguards are observed and documented, absence of bulk production is not fatal.

Legal Reasoning and Principles Applied

A) Electronic video evidence under Section 65B Evidence Act

The Trial Court had admitted and relied upon the CD of the raid video, accompanied by a Section 65B(4) certificate from the photographer (PW‑2). The High Court nonetheless thought it was not “converted into legally admissible evidence” because the CD was not played for each witness to narrate/translate its contents, nor was a transcript prepared.

The Supreme Court rejected this as a “strange and unacceptable” view. Key points:

• Once the requirements of Section 65B are satisfied, the electronic record is admissible “like a document”; the Court may view and hear it to draw inferences.
• While a witness’s explanation may be useful in some fact situations, the law does not prescribe witness‑by‑witness playback or a transcript as a condition of admissibility.
• The raid was independently proved through oral testimonies; the video was corroborative. The Trial Court noted the CD was played in court in the presence of the accused and counsel, and identities were undisputed.
• If the High Court had difficulty understanding the video during appellate scrutiny, it should have:
  • Called parties/witnesses/counsel to assist, or
  • Resorted to Section 391 CrPC to take narrowly tailored additional evidence (e.g., a brief explanatory note or identification), rather than order a full re‑trial.

B) CA report under Section 293 CrPC: examination not mandatory

The High Court criticized the State for not examining the CA and remarked that in some regions (e.g., Greater Mumbai) CAs are invariably examined in NDPS trials. The Supreme Court clarified the legal position:

• Section 293(1) CrPC expressly makes a CA’s report admissible as evidence; it does not require oral examination in every case.
• Courts retain discretion under Section 293(2) to summon and examine the CA if the subject matter calls for it; however, non‑examination per se is not a ground for re‑trial, particularly when the report stands exhibited and unobjected.
• On the record, the CA reports had been exhibited (Exhs. 81 and 82), and there was no recorded objection to their admission.

C) Section 52‑A NDPS Act, samples, and FSL correlation

The Supreme Court underscored the centrality of Section 52‑A mechanisms to avoid adverse inferences where the bulk contraband is not produced:

• Section 52‑A(2): inventory, drawing of representative samples in the presence of the Magistrate, and certification (“primary evidence” by virtue of Section 52‑A(4)).
• Chain‑of‑custody: sealed transmission of samples to FSL; seals intact on receipt; FSL’s report correlating the tested sample with the seizure.

In Kailas, the Trial Court recorded that:

• An inventory was prepared by the Magistrate (Exh. 84) soon after seizure, noting the proper seals and re‑sealing of samples.
• The driver‑constable (PW‑6) carried the sealed samples to FSL; the FSL noted intact seals and opined the sample was “nothing but Ganja” (Exhs. 81 and 82).

Even if the representative samples were not opened in the Trial Court during a particular witness’s deposition (as the High Court remarked), the appellate court could have invoked Section 391 CrPC to introduce or exhibit documents or material already on record or to take limited clarificatory evidence. That omission did not justify wiping the slate clean through a re‑trial order.

D) Appellate duty and case management: Sections 386 and 391 CrPC

The Court reminded that an appellate court must peruse the record (Section 386 CrPC). If it encounters difficulty in appreciating an electronic record already on file, the appropriate tools are:

• Seeking assistance from counsel or calling the relevant witnesses for limited clarification; or
• Invoking Section 391 CrPC to take additional evidence, ensuring the accused’s right to be present and cross‑examine is preserved.

Directing a re‑trial merely to “understand” a video or to fill curable gaps is legally impermissible and contrary to the extraordinary nature of re‑trial jurisdiction.

Impact and Likely Consequences

• Electronic evidence practice: The ruling dispels the misconception that a Section 65B‑certified video must be played witness‑by‑witness and reduced to a transcript to be admissible. Courts can and should treat such videos as documents, using clarificatory measures only when necessary.
• Uniform NDPS trial standards: It rejects a blanket rule requiring CA examination in every NDPS case. This should harmonize practices across regions and reduce avoidable delays, while preserving judicial discretion to summon experts when warranted.
• Section 52‑A as evidentiary backbone: The decision reinforces that Magistrate‑certified inventory, representative sampling, photographs, and sealed chain‑of‑custody to FSL constitute “primary evidence” and can obviate the need to produce bulky contraband in court.
• Appellate restraint on retrials: High Courts are reminded that re‑trials are an extraordinary remedy. Where issues are confined to appreciating existing evidence or taking limited clarifications, Section 391 CrPC is the appropriate route.
• Case management and timelines: By restoring the appeals with a six‑month timeline, the Court signals the imperative of swift, record‑based adjudication rather than time‑consuming re‑trials absent exceptional circumstances.
• Bar and Bench training: The judgment implicitly encourages continued capacity‑building on handling electronic evidence (admission, viewing, and appreciation) and NDPS sampling protocols to avoid procedural missteps that can prejudice either side.

Complex Concepts Simplified

1) What is a Section 65B(4) certificate and why does it matter?

Section 65B of the Evidence Act governs the admissibility of electronic records. When a video or audio file (e.g., a CD, pen drive, phone recording) is tendered as evidence, a certificate under Section 65B(4), issued by a person in charge of the device or process that produced the electronic output, attesting to its authenticity and the working of the device, renders the record admissible. Once admitted, the court may view/hear it as it would read a document. The law does not require a live narration by every witness or a transcript to make such a record admissible.

2) Section 293 CrPC: Using a Chemical Examiner’s report without calling the expert

Section 293(1) CrPC allows certain government scientific experts’ reports (including Chemical Examiners) to be admitted as evidence without the expert’s oral testimony. The court may summon the expert if it thinks fit (Section 293(2)), but there is no mandatory rule requiring examination of the expert in every case. This balances efficiency with fairness.

3) Section 52‑A NDPS Act: Inventory and representative sampling as “primary evidence”

Section 52‑A enables prompt inventory, magistrate‑supervised representative sampling, and certification, and allows the court to treat such inventory and certified samples as “primary evidence” (Section 52‑A(4)). This mechanism is especially useful for bulky, hazardous, or perishable contraband. When properly followed, it avoids the need to produce the entire bulk in court and protects against tampering claims through documented seals and chain‑of‑custody.

4) What does a re‑trial entail and why is it disfavoured?

A re‑trial wipes out the prior trial record and exposes the accused to trial afresh. It may give the prosecution an opportunity to cure lapses that could and should have been avoided. Therefore, courts use it only in exceptional cases—e.g., lack of jurisdiction, serious irregularity vitiating the trial, or a party being prevented from leading material evidence for reasons beyond their control. Lesser issues should be addressed by appellate review tools (like Section 391 CrPC), not by restarting the process.

5) “Ganja” under the NDPS Act: Why detailed description matters

Section 2(iii)(b) of the NDPS Act defines “ganja” as the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves when not accompanied by the tops. Trials often turn on whether what was seized qualifies as “ganja”. While detailed description in panchnamas and testimony is helpful, Section 52‑A documentation and a robust FSL report (often including morphological/chemical features) can establish the nature of the seized substance even if the bulk is not produced in court.

Practical Guidance for Future Cases

• For Investigators/Prosecutors:
  • Video the raid where feasible; secure a proper Section 65B(4) certificate from the device operator/creator.
  • Promptly move the Magistrate under Section 52‑A for inventory, representative sampling, and certification; preserve photographs and sample lists.
  • Ensure sealed transmission of samples to FSL; record seal details; obtain FSL acknowledgment of intact seals.
  • Exhibit the FSL report under Section 293 CrPC; call the CA only where the court or the case facts require it.
  • Where bulk contraband is not destroyed, be ready to produce it; where destroyed, keep the Section 52‑A destruction record and order ready.
• For Trial Judges:
  • Admit electronic records on satisfying Section 65B; play/view the media in court as needed; a running narration is not a condition of admissibility.
  • Meticulously record inventory/sampling details and descriptions when opening sealed samples in court.
  • Recognize Section 293 CrPC’s facilitation while exercising discretion to summon experts where clarity is needed.
• For Appellate Courts:
  • Prefer Section 391 CrPC for targeted clarifications or additional evidence when appreciation of existing materials (e.g., a video) proves difficult.
  • Reserve re‑trial for truly exceptional cases of jurisdictional error or serious illegality/irregularity causing real prejudice.

Conclusion

Kailas v. State of Maharashtra is a significant calibration of criminal procedure in the era of digital evidence and stringent NDPS standards. The Supreme Court reiterates that:

• Retrial is an extraordinary remedy, not a convenient default when courts or counsel struggle with technology or curable evidentiary steps.
• Section 65B‑compliant video is admissible as a document; the law does not insist on witness‑by‑witness playback or transcripts.
• Section 293 CrPC makes CA reports admissible without mandating the expert’s oral examination in every case.
• Section 52‑A NDPS Act provides a complete evidentiary architecture—inventory, certified samples, and photographs—that can stand as primary evidence; with a sealed chain‑of‑custody and an FSL report, the absence of bulk production is not necessarily fatal.
• Appellate courts should lean on Section 391 CrPC and practical case‑management to bridge gaps in appreciation, preserving both fairness and efficiency.

By restoring the High Court appeals for a fresh merits decision, the Supreme Court avoids foreclosing appellate rights while providing a clear roadmap for handling electronic evidence and NDPS seizures. The judgment will likely shape uniform practices across jurisdictions, reduce unnecessary re‑trials, and focus attention on statutory safeguards that ensure both reliability of proof and protection of rights.