Delhi District Court
State vs Jamesh Anthony on 27 September, 2025
IN THE COURT OF MS. BHAVNA KALIA:
SPL. JUDGE (NDPS)-01: DWARKA COURTS: NEW DELHI
SC No. 50/2022
FIR No. 488/2021
U/s. 21/22 NDPS Act & 14 A Foreigners Act
PS: Mohan Garden
STATE VS. JAMESH ANTHONY
Date of Institution of case:-20.01.2022
Date of arguments:- 09.09.2025
Date on which Judgment pronounced:-27.09.2025
JUDGMENT
CNR No. : DLSW01-000443-2022
Date of commission of the offence : 04.09.2021
Name of the complainant : HC Jitender
Name and address of accused : Jamesh Anthony,
S/o Sh. Anthony,
Offence complained of : 22(c) NDPS Act & 14 A
Foreigners Act
Plea of accused : Pleaded not guilty
Date of order : 27.09.2025
Final order : Acquitted u/s 22(c) NDPS Act
& convicted u/s 14(c)
Foreigners Act
THE CASE OF THE PROSECUTION:
1. It is the case of the prosecution that on 04.09.2021, ASI Jitender Singh was present in his office and at about 3.00 p.m., Ct. Het Ram produced one secret informer before him who informed him that one person namely Jamesh Anthony who used to supply Heroin would come in between 6:15 p.m to 6:45 p.m at H.No. L-33 Extension, Kalyani Devi Mandir Gali, Mohan Garden in an empty plot for supplying drugs and can be apprehended if raid is conducted. He SC No.50/2022 FIR No.488/2021 Page 1 of 16 shared the secret information with SI Subhash who reduced it into writing vide DD no. 6 (Ex.PW-2/A) and sent the copy of the same to ACP operation through Ct. Kuldeep for compliance U/s 42 NDPS vide DD No. 7. After approval of senior officers a raiding party was constituted consisting of SI Subhash, ASI Kartar, Ct. Het Ram, Ct. Ravi, Ct. Kuldeep and secret informer. All the members of raiding party along with secret informer started from the office of Anti Narcotics Cell at about 4:20 p.m in a car bearing no. DL-9CAP-9458 and motorcycle bearing no. DL-1SAF-0637. They all reached at Metro Pillar No. 821 where efforts were made to join public persons in the raiding team but none of them was inclined to join and due to shortage of time, no notice was given to them. At about 6:20 p.m., one African National person, who is the accused was seen, coming from the side of Gali No. 6 and standing near the plot no. L-33 Extension. After seeing him, the secret informer pointed out towards the accused and he was apprehended by ASI Jitender Singh with the help of other members of the raiding party. ASI Jitender Singh gave his introduction to the accused and informed him about the secret information that he was suspected to have drugs and his search was to be taken and before his search, he could take search of the members of the raiding team. ASI Jitender Singh also apprised the accused about his legal right to be searched in the presence of any Gazetted officer or Magistrate and told accused that such officer could be called if he so desired. Notice u/s 50 NDPS Act Ex.PW-9/B was served upon the accused and his reply Ex.PW-9/C was taken on the copy of the same. SI Subhash informed ACP Joginder Joon about the proceedings and requested him to reach the spot. ACP Joginder Joon reached the spot at about 7:30 p.m where he introduced himself to the accused and SC No.50/2022 FIR No.488/2021 Page 2 of 16 explained to him about his legal rights and also that the accused could take the search of ACP Joginder Joon and also the search of the raiding team but the accused refused for the same. Thereafter, on the directions of ACP Joginder Joon, ASI Jitender Singh had taken search of accused and in his search, one white polythene containing white coloured dalidar substance was recovered from the right pocket of blue coloured half pant that he was wearing. The recovered powder was checked on the field drug testing kit and it was found to be amphetamine. On weighing, the recovered amphetamine was found to be 200 grams. The recovered polythene was kept in a transparent container / box and was converted into pulanda and was sealed with the seal of SC. The seal after use was handed over to Ct. Hetram. The case property was seized vide memo Ex.PW-4/A bearing the signatures of ASI Jitender Singh at point B which also bears the signature of ASI Jitender Singh as a witness. At about 8:30 p.m, ACP Joginder Joon left the spot. Thereafter, ASI Jitender Singh prepared tehrir U/s 21 NDPS Act Ex.PW-9/D and handed it over to Ct. Kuldeep along-with sealed case property and seizure memo of the case property for registration of the FIR and proceedings U/s 55 NDPS Act. After registration of FIR, further investigation was marked to ASI Vinod who prepared the site plan Ex.PW-7/A at the instance of ASI Jitender Singh and also recorded his statement at the spot. After recording the statement of ASI Jitender Singh, ASI Vinod left the spot. On completion of investigation, the charge-sheet was filed before the court.
COGNIZANCE AND CHARGE
2. Cognizance of the offence was taken and documents were SC No.50/2022 FIR No.488/2021 Page 3 of 16 supplied to the accused. After hearing arguments on charge, charge was directed to be framed against the accused for offence u/s 22(c) of NDPS Act and Section 14 A of Foreigners Act, 1946. Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. In order to prove its case, prosecution examined 13 witnesses.
4. HC Het Ram, HC Kuldeep and Inspector Subhash were the members of the raiding team and examined as PW-10, PW-11 and PW-12. They deposed on similar lines as the case of the prosecution. They all had correctly identified the accused before the Court and they were cross examined at length by the Ld. Defence Counsel.
5. PW-1 Retd. ASI Narender stated that on 04.09.2021, he was posted as Duty Officer at PS Mohan Garden. He deposed that at about 9:26 p.m, he recorded FIR no. 488/21 (Ex.PW-1/A) on the basis of rukka sent by HC Jitender through Ct. Kuldeep. After recording FIR, he made endorsement Ex.PW1/B on the rukka and handed over the same to ASI Vinod Kumar with copy of FIR Ex.PW-1/C. At about 10:10 p.m he lodged General Diary No. 109A on the direction of SHO with regard to compliance of 55 NDPS Act which is Ex.PW-1/D.
6. PW-2 Ct. Sheesh Pal was posted at Anti Narcotics Cell on 04.09.2021 as DD Writer and his duty hours were from 8 a.m to 8 p.m. He deposed that HC Jitender lodged DD No. 6 regarding receiving of secret information and shared the said information with ACP U/s 42 NDPS Act which is Ex.PW-2/A. On the same day at about 4:02 p.m, SC No.50/2022 FIR No.488/2021 Page 4 of 16 HC Jitender made his departure entry along-with the raiding team, true copy of which is Ex.PW-2/B. On the same day, at about 9:20 a.m PW- 2 Ct. Sheesh Pal also lodged the DD no. 10 regarding recovery of amphetamine and arrest of accused which is Ex.PW-2/C.
7. PW-3 HC Kavita proved the report U/s 57 NDPS Act sent by HC Jitender as Ex.PW-3/A and the report U/s 57 NDPS Act sent by ASI Vinod as Ex.PW-3/B. He deposed that the then Reader of ACP Operation made the entry in Diary Register regarding the receipt of the above said reports vide entries at Srl. No. 354 and 355, copy of which is Ex.PW-3/C.
8. PW-4 ACP Sh. Joginder Joon deposed on the same lines as that of complainant ASI Jitender Singh and proved the case property Ex.PW-4/A. He further deposed that on 05.09.2021 IO came to his office and recorded his statement.
9. PW-5 ASI Vinay was posted as Photographer on 06.09.2021 at P.S. Crime Branch. He proved the photographs Ex.PW-5/A (colly) which were clicked by him and were signed by Sh. Paras Dalal, Ld. MM. He also proved the certificate U/s 65B of Indian Evidence Act as Ex.PW-5/B which was issued by him regarding the proper functioning of digital camera and further stating that there was no tampering with the system in any manner for fabrication of the evidence.
10. PW-6 Inspector Rajesh Maurya was posted as SHO P.S. Mohan Garden on 04.09.2021. On that day, at about 9:40 p.m Duty Officer SC No.50/2022 FIR No.488/2021 Page 5 of 16 ASI Narender and Ct. Kuldeep came to his office and produced the sealed parcel / pullanda duly sealed with the seal of 'SC' along-with photocopy of seizure memo. PW-6 put his counter seal of 'RKM' on the said parcel / pullanda and also mentioned the FIR No. 488/2021 on it. Thereafter, he called MHC(M) CP HC Jitender to his office along- with register no. 19 and handed over the parcel / pullanda to him for depositing the same in the malkhana who made the entry in register no. 19 regarding depositing of the case property, it was also signed by him. PW-6 lodged DD No. 109A regarding depositing of the case property under compliance of Section 55 NDPS Act and proved the same as Ex.PW-1/D.
11. PW-7 ASI Vinod deposed that on 04.09.2021 he was posted at Anti Narcotics Cell, Dwarka as ASI. After registration of FIR, investigation was marked to him. He reached the spot along-with the police staff where accused was found. HC Jitender handed over the custody of accused and all documents to him. Copy of FIR was handed over to him by Ct. Kuldeep. He proved the site plan Ex.PW- 7/A which was prepared by him at the instance of HC Jitender. He also proved the arrest memo Ex.PW-7/B, seizure memo of all the three mobile phones Ex.PW-7/C, personal search of accused Ex.PW-7/D, disclosure statement Ex.PW-7/E, application for proceeding for drawing samples U/s 52A of NDPS Act as Ex.PW-7/F, order of LD MM for drawing samples U/s 52A of NDPS Act as Ex.PW-7/G.
12. PW-8 Dr. Kavita Goyal, Assistant Director (Chemistry), FSL Rohini, Delhi stated that on 08.09.2021, one sealed parcel along with forwarding letters were received in the FSL. The same was marked to SC No.50/2022 FIR No.488/2021 Page 6 of 16 her for examination. The seals on the envelop were found intact and tallied as per forwarding authorities specimen seals. The parcel was opened and found containing Ex. S-1 (white coloured crystalline material) weight approx. 10.3 grams. She prepared a detailed report of examination Ex.PW8/A bearing her signatures at point A on both pages. After examination, the remnants of the exhibits were sealed with the seal of ''K.G.F.S.L.DELHI'' and were sent to the forwarding authority with the report. She was cross examined by the Ld. Defence Counsel.
13. PW-9 ASI Jitender Singh also deposed on the same lines as that of complainant ASI Jitender Singh and proved the intimation U/s 42 NDPS as Ex.PW-9/A, notice U/s 50 NDPS Act as Ex.PW-9/B, reply of the accused as Ex.PW-9/C.
14. PW-10 HC Hetram, PW-11 HC Kuldeep and PW-12 Inspector Subhash Chand also narrated the same facts as that of PW-9 ASI Jitender Singh and also proved on record various documents such as notice U/s 50 NDPS as Ex.PW-9/B, reply of the accused Ex.PW-9/C, seizure memo of the property which was seized by HC Jitender as Ex.PW-4/A, site plan Ex.PW-7/A, arrest memo Ex.PW-7/B, seizure memo of mobile phones Ex.PW-7/C, personal search memo of accused Ex.PW-7/D and statement of accused Ex.PW-7/E etc.
15. PW-13 ASI Jitender Kumar proved the copy of relevant entry made in register no. 19 vide its entry at Sl. No. 996/21 as Ex.PW-13/A. He further proved the entry made by him in register no. 19 vide its entry at Sl. No. 996/21 as Ex.PW-13/B regarding deposit of SC No.50/2022 FIR No.488/2021 Page 7 of 16 mobile phones in malkhana. Copy of RC No. 128/21/21 is proved as Ex.PW-13/C. This witness further deposed that he received the copy of acknowledgment of case property acceptance which was deposited by him in malkhana and also made the entry in this regard in register no. 19 which is proved by him as Ex.PW-13/D. Copy of RC No. 130/2/21 is Ex.PW-13/E. The entry made with regard to the envelope brought from FSL by Ct. Satbir which was deposited in malkhana by the then MHCM and handed over to IO of this case is proved as Ex.PW-13/F. STATEMENT OF ACCUSED RECORDED U/S 313 CR.P.C.:
16. On 21.07.2025, all the incriminating evidence was put to the accused for the purpose of recording his statement u/s 313 Cr.P.C. He replied that he was falsely implicated in the present case; nothing incriminating was recovered from his possession or at his instance;
police had implicated him at the instance of their senior officers and that he was innocent. The accused had not opted to lead any evidence in his defence.
FINAL ARGUMENTS:
17. Final arguments in the matter were heard. Ld. Counsel for the accused had stated that accused should be acquitted in the matter as there were contradictions in the statements of prosecution witnesses and that despite availability of independent witnesses, no public witness was included in the list of witnesses.
18. Ld. APP had argued that evidence of prosecution witnesses was consistent and recovery of commercial quantity of 200 SC No.50/2022 FIR No.488/2021 Page 8 of 16 Grams of Amphetamine made from the accused was as per procedure.
It was submitted that no defence had come forward from the accused to discharge the reverse burden of proof placed upon him.
REASONS FOR DECISION AND DECISION:
19. I have considered the rival submissions and gone through the documents and evidence available on record.
20. Before proceeding to discuss the merits of the case, it is important to mention the legal provisions applicable. Section 35 of NDPS Act presumes culpable mental state of the accused i.e. there is reverse burden of proof upon accused. It provides that the Court shall presume the culpable mental state of the accused but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged. Further, Section 54 of the NDPS Act provides that the Court shall presume unless the contrary is proved, that the accused has committed an offence under the Act for which he has been charged in case he is found in possession of the substance as mentioned in the Section for which he has no satisfactory explanation1. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. The procedure provides that when the Officer u/s 41 NDPS Act receives secret information, he has to inform the same to his superior Officer within 72 hours. In case, any arrest or seizure is done, the Officer mentioned u/s 42 NDPS Act has to forward the same to the IO without unnecessary delay. The Officer mentioned u/s 42 NDPS Act is the complainant who apprehends the accused and does recoveries himself 1 Balvinder Singh (Binda) Vs. NCB, AIR 2023 SC 4684 SC No.50/2022 FIR No.488/2021 Page 9 of 16 or through the raiding party. The complainant is the witness who claims recovery of prohibited substances from the possession of the accused and these claims are verified and substantiated by the IO during investigation. It is further mandatory that the IO has to take measures for disposal of the alleged substances as per Section 52(4) of the Act. Further, the person arrested has to be produced before the Magistrate and the contraband seized is required to be dealt with by the Officer u/s 53 NDPS Act or the SHO in accordance with Section 52A of NDPS Act. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence2. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
21. The record of the present case reveals that the accused stands charged for the possession of 200 grams of Methamphetamine (psychotropic substance) which was recovered from him on 04.09.2021 concealed in white knotted polythene panni in right side pocket of the blue colour half pant he was wearing, in contravention of the provisions of NDPS Act. He was apprehended on the basis of secret information which was received by PW-9 HC Jitender on 2 Balvinder Singh (Binda) Vs. NCB, AIR 2023 SC 4684; Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 SC No.50/2022 FIR No.488/2021 Page 10 of 16 04.09.2021 at about 03.00 pm when he was present in his office, on production of secret informer before him by PW-10 Ct. Hetram. He was informed by the secret informer that one person namely, James Anthony who was involved in supply of heroin would come at house no. L-33 Extn., Kalyani Devi, Mandir Gali, Mohan Garden between 06.15 pm to 06.45 pm, in empty plot for supplying of drugs and he could be apprehended, if raid is conducted. This information was shared by PW-9 with PW-12, Inspector Subhash Chand who verified the same and on his instructions the said information was recorded in DD register vide DD No. 6/ExPW2/A, Anti Narcotic Cell, Dwarka and copy of the same was sent to the office of ACP Operation Sh.
Vijay Singh on whose instructions, raiding party was constituted by HC Jitender, ASI Kartar, Ct. Hetram, Ct Ravi, Ct. Kuldeep and secret informer as stated by PW-12. PW-12 has stated that the computer generated DD No. 6 was duly forwarded by ACP operation by putting his signatures at Point A and copy of secret information recorded for purpose of Section 42 NDPS Act is Ex.PW9/A duly forwarded by PW- 12 and duly seen by ACP Operation showing sufficient compliance of Section 42 NDPS Act, within time. However, PW-12 has stated in his examination in chief that after information was sent to office of ACP Operation Sh. Vijay Singh, on his instruction a raiding party was constituted. The same is not evident from Ex.PW2/A or Ex.PW9/A. Further, it is seen from the evidence led by the prosecution that Sh. Vijay Singh has not been examined by the prosecution and rather the name of Sh. Vijay Singh ACP Operation is not even mentioned in the list of prosecution witnesses filed with the charge-sheet. Thus, the grant of permission for conducting raid is not evident from the record and considering that the accused has been charged for the offence SC No.50/2022 FIR No.488/2021 Page 11 of 16 under section 22(C) of the NDPS Act, the same cannot be overlooked.
22. After compliance of Section 42 NDPS Act comes the part of seizure and arrest in public place u/s 43 NDPS Act. This Section gives power of seizure and arrest to Officer u/s 42 NDPS Act, if such Officer has reason to believe that an offence punishable under this Act has been committed. Officer u/s 42 NDPS Act may detain such person and conduct his search and may also arrest him and any other person in his company.3 In the present case, PW-12 on receiving secret information, had reason to believe that accused was committing an offence punishable under this Act and thus proceeded to apprehend him and search him. After completing the formalities, the raiding team apprehended the accused and thereafter, PW-12 again informed ACP Najafgarh Sh. Joginder Joon/PW-4 regarding the apprehension of accused. The accused was told about the secret information and was also apprised about his rights under Section 50 NDPS Act to be searched before any nearby Gazetted Officer or Magistrate. The accused refused the same and gave his reply in writing. Nobody joined as an independent witness. PW-4 reached at the spot and thereafter accused was searched leading to the recovery of 200 grams of Amphetamine. After checking, the panni was knotted and kept into a transparent plastic container packed with doctor tape and sealed with the seal of SC. It was taken into police possession vide seizure memo Ex.PW-4/A and was also signed by ACP Najafgarh who left the spot at around 08.30 pm. This case property was produced before PW-6/SHO Mohan Garden who put his counter-seal of RKM on the sealed parcel pullanda. PW-13/MHC(M) posted at PS Mohan Garden stated that 3 Beckodan Abdul Rahiman Vs. State of Kerala, AIR 2002 Supreme Court 1810 & Binod Ram Krishna Yadav Vs. Union of India, AIROnline 2024 Gau 356 (Gauhati High Court) SC No.50/2022 FIR No.488/2021 Page 12 of 16 when the parcel was handed over to him, it was bearing the seal of SC and RKM and the said sealed transparent plastic box sealed with the seald of SC and RKM was sent to Dwarka Court for sampling proceedings in the Court of Sh. Paras Dalal, Ld. Duty MM, Dwarka Courts/Concerned MM. On perusal of the proceedings under Section 52A NDPS Act, it is seen that when the sealed box stated to be weighing 200 grams was produced before the Ld. MM, it was bearing the seal of RM and SC. There is a major discrepancy in prosecution evidence at this stage as PW-5 has stated that he had put his counter- seal RKM on the sealed parcel pullanda while the Ld. MM received the sealed parcel pullanda bearing the seal of RM.
23. In view of the above discussion, though there is not much need to discuss the case any further, however, this court finds it important to give its finding on the compliance of Section 50 NDPS Act also. All the prosecution witnesses who took part in raid submitted that accused was told about his right for his search to take place in the presence of any Magistrate or Gazetted Officer. It is only PW-12 who has stated that accused was told about his right for his search to take place in the presence of nearest Magistrate or Gazetted Officer. On perusal of notice under Section 50 NDPS Act Ex.PW9/C, it is seen that the word 'any' has been used and not the word 'nearest'. The Hon'ble Supreme Court of India in the judgment Ranjan Kumar Chadha Vs. State of Himachal Pradesh , 2023 SCC OnLine SC 1262 has held that accused should be communicated in clear terms that he has right to be search by a Gazetted Officer or a Magistrate but it has been simultaneously held that endevour should be made to take him to the nearest Gazetted Officer or Magistrate. In the present case, no SC No.50/2022 FIR No.488/2021 Page 13 of 16 witness has stated that the accused was told about his right under Section 50 NDPS Act in clear terms. It appears that the accused was only told that he could be searched in the presence of any Gazetted Officer or Magistrate and it was only PW-12 who stated that accused was told that he could be searched before the nearest Gazetted Officer or Magistrate. Thus, in such circumstances, it cannot be said that there was full compliance of Section 50 NDPS Act as contemplated by the legislature and as observed in the judgement of Ranjan Kumar Chadha (Supra).
24. In the judgment of State of Punjab Vs. Baldev Singh, (1996) 6 SCC 172 it has been held that whether or not the safeguards provided in NDPS Act have been duly observed or not would have to be determined by the Court on the basis of evidence led at trial. No doubt under Section 54 of NDPS Act, there is presumption of reverse burden of proof upon the accused and the accused can rebut the same only through the discrepancy in evidence led by the prosecution. There is no other way for the accused to rebut the same unless he produce his own defence. Further considering the reverse burden of proof under the NDPS Act, it is relevant that the prosecution should be able to prove its case beyond any shred of doubt 4. In the present case, the prosecution has failed to do the same and hence offence u/s 22(c) NDPS Act is not proved.
25. The accused has further been charged for offence u/s 14A of Foreigners Act 1946 for staying in India without VISA. PW-7 stated that on perusal of travel detail of Anthony Arinze James from whom the Methamphetamine was recovered it was found that his Visa 4 Noor Agah Vs. State of Punjab and Ors (2008) 16 SCC 417 SC No.50/2022 FIR No.488/2021 Page 14 of 16 had expired on 28.02.2018. PW-7 had sent the intimation regarding arrest of accused to High Commission of Nigeria/Mark-X, FRRO/Mark-X1 and Bureau of Immigration/Mark-X2. He received reply of Assistant Director (Intelligence Bureau, Ministry of Home Affairs) regarding arrival, departure and details of accused with regard to his passport no. A06440125 which are Mark-Y and Mark-Y1. PW- 7, IO/ASI Vinod stated that on perusal of travel detail documents of the accused he found that only his arrival had been traced in the name of Anthony Arinze James on given passport no. A06440125 and when he inquired from the accused regarding valid documents to stay in India, the accused could not produce any documents. No cross examination of PW-7 was conducted on this point. Hence, it is evident that the evidence was admitted and thus, proved
26. Accused has been charged for an offence u/s 14A Foreigners Act which provides penalty for entry in restricted area and Section 14A(B) provides punishment for entering or staying in India without valid documents/visa required for such entry or for such stay, as the case may be, under the provision made or any order made under the Act or any direction given in pursuance thereof. In the present case, the accused was found staying in India without any valid documents which is an offence u/s 14(c) of the Foreigners Act, 1946 and not Section 14A with which the accused has been charged. Since, section 14(c) of Foreigners Act provides for lesser punishment than section 14A of Foreigners Act and since it is settled law that a person can be punished for a lesser offence than for which he has been charged, which has been proved by bringing evidence, the accused can be punished u/s 14 (c) Foreigners Act herein as it has been proved that SC No.50/2022 FIR No.488/2021 Page 15 of 16 accused was staying in India without a vaild visa. Thus, accused is convicted for offence u/s 14 (c) of Foreigners Act, 1946.
CONCLUSION:
27. The accused James Anthony is acquitted for the offence punishable u/s 22(c) of NDPS Act, 1985 and is convicted for the offence punishable u/s 14(c) of Foreigners Act, 1946.
Digitally signedAnnounced in the open court BHAVNA by BHAVNA KALIA today i.e 27th September 2025 KALIA Date: 2025.09.27 15:31:53 +0530 (BHAVNA KALIA) Special Judge (NDPS)-01: SW District Dwarka Courts: New Delhi SC No.50/2022 FIR No.488/2021 Page 16 of 16