Conviction can be based on police witnesses' testimony, compliance with procedural requirements under the NDPS Act is crucial, and discrepancies in weight and absence of certificate under Section 65B of the Indian Evidence Act were found immaterial.

Mukta Gupta, J.

The present appeal is directed against the judgment dated 21st January, 2016 passed by the learned Special Judge, NDPS whereby appellant was convicted for the offences punishable under Section 21(b) of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), Section 471 IPC and Section 14 of Foreigners Act, 1946. Vide order on sentence dated 28th January, 2016, he was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.25,000/- and in default of payment of fine, to further undergo simple imprisonment for three months for the offence punishable under Section 21(b) of NDPS Act, rigorous imprisonment for two years and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo simple imprisonment for one month for the offence punishable under Section 14 of Foreigners Act and rigorous imprisonment for two years and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo simple imprisonment for one month for the offence punishable under Section 471 IPC.

2. Briefly stated, prosecution case is that on 28th February, 2012, at about 8:00 P.M., one secret informer came to Narcotics Cell, Crime Branch, Shakarpur, Delhi and met SI Paramjeet Singh (PW-11) and informed him that one person, namely, Frank, who resided in the area of IGNOU Road and used to supply cocaine in large and small quantities would come between 10:00 P.M. 10:30 P.M., near Red light, Uphar Cinema, Green Park, Delhi to supply the same to someone. At around 8:10 PM., SI Paramjeet Singh produced the secret informer before Insp. Vivek Pathak (PW-9). After enquiring about the information, Insp. Vivek Pathak forwarded the information to ACP Udaivir Singh (PW-4) on telephone. ACP Udaivir Singh directed Insp. Vivek Pathak to take legal action and to conduct a raid who in turn directed SI Paramjeet Singh to conduct the raid. At 8:20 P.M., SI Paramjeet Singh lodged DD No. 28 (Ex.PW-4/A) and the same was sent to Insp. Vivek Pathak. SI Paramjeet Singh constituted a raiding party consisting of HC Sanjeev Kumar (PW-3), HC Harender Singh and Ct. Manjeet Singh (PW-6).

3. Si Paramjeet Singh along with the secret informer reached near Uphar Cinema Red light, Green Park around 9:30 P.M. On the way, at ITO bus stand and INA market, SI Paramjeet Singh asked passengers to join the raid but none of them agreed and left the spot without disclosing their names or addresses. The vehicle was parked on the service road, near the gate of the Metro Station and SI Paramjeet Singh, HC Sanjeev Kumar and secret informer took positions at the corner of the red lights with other members of the raiding team on the opposite side. At 10:00 P.M., a Nigerian man who was wearing blue jeans and a striped shirt came from the side of the metro station and was identified by the secret informer as the person in question. On reaching near the raiding party, the person tried to turn away, however he was apprehended and due to catching him, he received minor injury near his left eye. On enquiry, he revealed his name as Frank Ezenwa. Notice under Section 50 NDPS was prepared vide Ex.PW-3/A by HC Sanjeev and the appellant was informed about his right to be searched before a gazetted officer or magistrate. Appellant replied vide Ex.PW-3/B to the notice stating his refusal for being searched in front of a magistrate or gazetted officer. Public persons were asked to join the proceedings but none agreed. On the formal search of the appellant, one semi-transparent white polythene was recovered from the front pant pocket, which was tied with a rubber band and was found containing white coloured substance/powder. On testing it with the field testing kit, it was found to be cocaine weighing 17 grams. Two samples (Mark A and Mark B) of 2 gm each were sealed and the rest of the powder was again put in the semi-transparent white polythene (Mark C). They were all seized with the seizure memo exhibited as Ex.PW-3/C