De novo retrial of a criminal case

Validity of directions given for re-trial of criminal case.

During the trial, it transpired that most of the witnesses had turned hostile. This further prompted the complainant to approach the High Court of Gujarat with an appropriate writ petition seeking certain reliefs including that of de novo trial. The parties requested that the hearings in the aforesaid criminal miscellaneous application (seeking cancellation of bail) be deferred to await the decision of the High Court. The High Court has decided the writ petition filed by the complainant vide its detailed judgment dated June 29, 2017. Allowing the said writ petition, the High Court has directed de novo trial of the case with the following specific directions:

“95. This writ application is disposed of with the following directions:

(1) The High Court on the administrative side shall pass an appropriate order transferring all the three CBI Sessions cases i.e. CBI Sessions Cases Nos. 1 of 2014, 2 of 2014 and 3 of 2014 as on date pending in the Court of the Presiding Officer, namely, Shri Dinesh L. Patel, CBI Courts, Court No. 4, Ahmedabad to any other CBI Court. On all the three CBI Sessions cases referred to above being transferred to a particular Court, the Presiding Officer concerned shall retry all the accused persons on the selfsame charge framed.

(2) The prosecuting agency i.e. the CBI shall obtain the witness summons from the Court concerned and start examining the witnesses a fresh.

(3) The retrial shall commence at the earliest and shall proceed on the day-to-day basis.

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Proof of recovery of contraband under NDPS Act

In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused.

The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act. Continue reading “Proof of recovery of contraband under NDPS Act”