JAIN, J. - (1.) HEARD the learned counsel for the parties.
(2.) THE appellant was convicted and sentenced under Section 8/21 of the NDPS Act to 15 years R. I. and a fine of Rs. 1 lac, in default of payment of fine to further undergo one year R. I. by the Court of Special Judge, NDPS Case, Jhalawar in Sessions Case No. 35/99. Being aggrieved with the same, the present appeal was preferred before this Court. Pw 11 Rajeev Dutta, SHO, Kotwali, Jhalawar received an information on 24. 5. 99 at 3. 25 p. m. from informer that accused Abid is selling illegal smack. The information was reduced in writing (Ex. P. 11) and a copy of which was forwarded to S. P. Jhalawar (Ex. P. 13 ). Vide Ex. P. 1 to SHO, Kotwali, Jhalawar directed Constable Ramkalyan to bring two independent witnesses of the locality of the place where search is to be made on 24. 5. 99 at 3. 55 p. m. that nobody is willing to be a witness to the search as the entire area belongs to Muslim community. The SHO put a note on Ex. P. 1 below the report of Pw 2 Ramkalyan that no one is prepared to become an independent witness to the search, therefore, Ashish Bhargava Sub-Inspector and Yashwant Singh, Sub-Inspector were made witnesses in the case. A notice Ex. P. 3 under Section 50 of the Act was given to the accused apprising him to get his search before any Gazetted Officer or before the Magistrate or by SHO itself. The accused gave in writing that he wants his search in presence of Gazetted Officer. Vide Ex. P. 4 search and seizure memo, 10 gram smack with small paper bags was recovered from the possession of the accused appellant. The net weight of contraband was 5 gram. The site plan Ex. P. 2 was prepared. The quantity of contraband was small, therefore, entire smack was sent for chemical examination. As per report Ex. P. 19 given by Asstt. Director, Chemical State Forensic Science Laboratory, Rajasthan, Jaipur diacetyl morphine (Heroin) was found. After receipt of positive report and other investigation of the case, a challan was filed against the appellant under Section 8/21 and against co-accused Dheeraj under Section 8/29 of the Act. The Trial Court framed charge against the appellant under Section 8/21 and against co-accused Dheeraj under Section 8/29 of the Act. The prosecution examined 11 witnesses and produced documentary evidence Ex. P. 1 to Ex. P. 19. The statement of the accused was recorded under Section 313 Cr. P. C. No evidence oral or documentary was produced in defence. The learned Trial Court, after nearing both the parties acquitted co-accused Dheeraj from the charge levelled against him, but convicted and sentenced the accused appellant as mentioned above. The learned counsel for the appellant contended that Ex. P. 1 notice given by SHO to appellant was not according to Section 50 of the Act as it was mandatory to write in this notice that it is a legal right of the accused to get himself searched in presence of Magistrate or before Gazetted Office but this fact of legal right of an accused was not mentioned in it, therefore, it cannot be said that Section 50 of the Act was fully complied with in the present case. He further contended that as per sub-section 2 of Section 42 of the Act it was necessary for the SHO to forward the copy of the information Ex. P. 11 to his immediate superior officer. Although Ex. P. 13 has been placed on record having forwarded the copy or the information to S. P. Jhalawar but at what time it was sent and whether in fact it was received or not in the office of S. P. , Jhalawar is not clear from this document or any other evidence, therefore, this is a case of violation of sub-section 2 of Section 42 of the Act. He further contended that this is an admitted case of the prosecution from Ex. P. 1 itself that no sincere efforts were made to call two independent witnesses at the time of search of the accused and search was made in presence of police persons who were subordinate to the SHO, searching officer, therefore, it is clear that provisions of sub-section 5 of Section 50 of the NDPS Act were not complied with. He contended that mere writing a report that independent witnesses are not available cannot be said to be a sufficient compliance of mandatory provisions of sub-section 5 of Section 50 of the NDPS Act read with Section 100 of the Cr. P. C. in support of his contention he referred Nadeem vs. State of Rajasthan, 1998 Cr. L. R. (Raj.) 392 and Saudan and Anr. vs. State of Rajasthan, 2003 (1) R. C. C. 501. The learned counsel for the appellant lastly contended that although in view of non-compliance of mandatory provisions of Section 50 of the Act, the accused is entitled to be acquitted, but if this court does not agree with his submission then at least, the case of appellant for the purpose of sentence of imprisonment be considered. He contended that the accused appellant was arrested at the spot on 24. 05. 1999 and he was not enlarged on bail during investigation/trial as well as during pendency of this appeal, therefore, he is in jail since 24. 05. 1999 and has already undergone a sentence of imprisonment for more than 6 and half years, however a minimum sentence of 10 years imprisonment is prescribed in the above offences, hence at least sentence of 15 years imprisonment awarded by the Trial Court be reduced to a period of minimum sentence of 10 years R. I. particularly when the contraband found in the present case was only 5 gram in quantity.
(3.) THE learned P. P. contended that the Trial Court has considered oral as well as documentary evidence and rightly convicted and sentenced the accused appellant and no interference is called for in this appeal. I have considered the rival submissions and examined the impugned judgment passed by the Trial Court. Ex. P. 3 is the notice given under Section 50 of the Act to the appellant wherein it is specifically mentioned that accused may get himself searched before the Magistrate or before Gazetted Officer or by SHO. In Prabha Shankar Dubey vs. State of M. P. (2004) 2 SCC, 56 the Hon'ble Apex Court considered the provisions of Section 50 and held that there is no form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed of intended, the court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or straitjacket formula. In view of above judgment of Hon'ble Supreme Court I find from the perusal of Ex. P. 3 that sufficient compliance in respect of giving notice under Section 50 of the Act has been made in the present case, therefore, I do not find any force in the contention of the learned counsel for the appellant in this regard. ;