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Issues Involved:
1. Compliance with Section 50 of the NDPS Act. 2. Compliance with Sub-section 2 of Section 42 of the NDPS Act. 3. Compliance with Sub-section 5 of Section 50 of the NDPS Act. 4. Consideration of sentence reduction. Issue-wise Detailed Analysis: 1. Compliance with Section 50 of the NDPS Act: The appellant contended that the notice (Ex.P.I) given by the SHO was not in accordance with Section 50 of the NDPS Act, as it failed to inform the accused of his legal right to be searched in the presence of a Magistrate or Gazetted Officer. However, the court referred to the Supreme Court's decision in Prabha Shankar Dubey v. State of M.P., which held that no specific form is required for the notice under Section 50, as long as the accused is made aware of his right. The court found that Ex.P.3 sufficiently complied with Section 50, and thus, this contention was dismissed. 2. Compliance with Sub-section 2 of Section 42 of the NDPS Act: The appellant argued that the SHO did not properly forward the information to his superior officer as required by Sub-section 2 of Section 42. The court found that although the information was forwarded to S.P. Jhalawar (Ex.P.13), the SHO, being a Gazetted Officer, made the requirement of sending a copy to the superior officer non-mandatory, as per the Supreme Court's ruling in G. Srinivas Goud v. State of A.P. Therefore, this contention was also dismissed. 3. Compliance with Sub-section 5 of Section 50 of the NDPS Act: The appellant contended that the SHO did not make sincere efforts to call independent witnesses for the search, as required by Sub-section 5 of Section 50 and Section 100 of the Cr.P.C. The court examined the evidence, including testimonies and documents, and found that the SHO did not issue written notices to any local inhabitants to attend and witness the search, despite the area being busy and witnesses being available. The court cited previous judgments, including Nadeem v. State of Rajasthan and Saudan and Anr. v. State of Rajasthan, which emphasized the necessity of independent witnesses to ensure the sanctity of the search. The court concluded that the recovery of contraband was not free from doubt due to non-compliance with these mandatory provisions. 4. Consideration of Sentence Reduction: The appellant requested a reduction in the sentence, arguing that he had already served more than six and a half years in jail and that the quantity of contraband was only 5 grams. The court did not address this issue directly, as it found the conviction itself to be unsustainable due to the procedural lapses discussed above. Conclusion: The court allowed the appeal, set aside the trial court's judgment, and acquitted the appellant due to non-compliance with mandatory provisions regarding the presence of independent witnesses during the search. The appellant was ordered to be released forthwith, provided he was not required in any other case.
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