Electronic Evidence Is Not Admissible Unless Properly Presented — Playing CD Without Witness Deposition Is Fatal : Supreme Court Quashes High Court's Retrial Order In NDPS Case

“Once Electronic Record Is Accompanied By Section 65B Certificate, It Becomes Admissible — No Law Requires Playing Video Separately Before Each Witness” — In a critical judgment Supreme Court of India set aside the order of retrial passed by the Bombay High Court (Nagpur Bench) in a narcotics case, ruling that the High Court misapplied evidentiary standards for electronic evidence under Section 65B of the Indian Evidence Act, 1872.

The case involved the alleged recovery of 39 kilograms of Ganja from a hut where the appellant was arrested. The trial court had convicted Kailas and another co-accused based on witness testimony and video recordings of the raid. However, the High Court remanded the matter for retrial, citing that video evidence was not properly proved, causing prejudice to both the accused and the prosecution.

“A CD Is Not Just a Display — It’s a Document Once Properly Certified”: Supreme Court Slams Misinterpretation of Section 65B

The core legal controversy revolved around admissibility and evidentiary value of a Compact Disc (CD) containing video footage of the raid, seized from the accused. The High Court had ruled that unless the CD is played during the deposition of each witness and the witness orally narrates the visuals in court, the contents cannot be treated as legally admissible.

The Supreme Court outright rejected this logic as legally flawed and procedurally regressive:

“The CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inference(s).”

The Court emphasized that no provision in law mandates that each witness must be shown the video and asked to narrate what is visible on it. Doing so would defeat the very purpose of technological integration in criminal trials.

Trial Court Followed Law — High Court Misconstrued Procedure

The Trial Court had convicted Kailas after:

• Recording testimonies from seven witnesses, including panchas, investigating officer, photographer, and weighing agent.

• Viewing the CD in open court, in the presence of the accused, defence counsel, prosecutors, and the presiding judge.

• Accepting a certificate under Section 65B(4) from the photographer who shot the video and prepared the CD.

The Court recorded that: “There is no reason whatsoever to raise any doubt regarding the veracity of the video film... There is also no reason whatsoever to raise any doubts regarding the certificate issued as per Section 65-B(4).”

However, the High Court reversed the conviction, not because it doubted the seizure, but due to alleged procedural irregularity in handling electronic evidence, ruling that the CD must be played while examining each witness and the contents explained on oath.

Calling this interpretation “strange and unacceptable”, the Supreme Court clarified: “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 who created the video or is noticed in the video.”

“Retrial Cannot Be Ordered to Help the Prosecution Cover Its Own Lapses”: Supreme Court Cautions Against Dilution of Trial Standards

The Supreme Court underscored the serious consequences of ordering a retrial, which effectively wipes out all previous trial proceedings, giving the prosecution a fresh opportunity to rectify earlier failures.

Quoting the Constitution Bench decision in Ukha Kolhe v. State of Maharashtra, and the three-judge Bench ruling in Nasib Singh v. State of Punjab, the Court reiterated: “An order for retrial is made in exceptional cases... not to allow the prosecution to fill up gaps in evidence which it could have led earlier.”

The judgment went on to hold that merely failing to play a CD at the time of each witness's deposition does not amount to such an exceptional circumstance warranting retrial.

Chemical Examiner’s Non-Appearance Not Fatal — Report Admissible Under Section 293 CrPC

Another ground cited by the High Court was the failure of the prosecution to examine the Chemical Analyst (CA). The Supreme Court clarified that a CA’s report is admissible under Section 293(1) CrPC, and no law mandates examination of the CA in every case unless the accused challenges the report’s authenticity.

“There is no such requirement of law that Chemical Examiner would have to be called in each NDPS case to prove the report when it is otherwise admissible under Section 293 CrPC.”

Non-Production of Contraband Not a Sufficient Ground for Retrial

While the High Court observed that samples and contraband were not shown during trial, the Supreme Court ruled that non-production of the seized substance is not fatal if reliable documentation, sampling, sealing procedures, and forensic links are properly proved.

The Court pointed to the Trial Court’s findings which showed:

• Preparation of inventory before Magistrate.

• Sealed samples sent to forensic lab.

• Certificates confirming seal integrity and Ganja identification.

Citing its previous decisions (Jitendra v. State of MP, Noor Aga, Vijay Jain, and Sahi Ram), the Court noted: “If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the court... What is required is the link evidence between seizure, sampling, and lab confirmation.”

Supreme Court Restores the Appeal Instead of Acquitting the Appellant

The appellant had requested that, if retrial was illegal, he should be acquitted. However, the Court took a balanced approach, restoring the criminal appeals of both Kailas and co-accused Raju before the High Court for fresh adjudication on merits, preferably within six months.

“Ends of justice would be served if the appeal(s) are restored on the file of the High Court for a fresh decision in accordance with law.”

Courts Must Keep Pace With Technology

This ruling reasserts the need for courts, prosecutors, and defence counsel to modernize trial procedures, especially regarding digital evidence. Courts cannot insist on outdated evidentiary formalities that undermine the value of technology in criminal justice.

“Electronic evidence collected during investigation must be properly introduced, but insistence on archaic procedures not supported by law only results in miscarriage of justice.

Date of Decision: September 15, 2025