(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.

(3). 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.

(4). 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.

(5). 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