K.L. Shrivastava, J.
1. This appeal is directed against the judgment dated 1-7-89 passed by the I.A.S.J., Shajapur in S.T. No. 19/89 where by the appellant has been convicted Under Section 8/18 of the Narcotic Drugs & Psycho-tropic Substances Act, 1985 (for short 'the Act') for possession of 1 1/4 Kgs. of opium valued at Rs. 4,000/- and has been sentenced to undergo R.I. for 10 years and to a fine of Rs. 1 lac.
2. According to the prosecution, on 26-11-1988, information was furnished to Arjun Singh Parihar (P.W. 5), the Town Inspector, Shujalpur, by an informer that the appellant Salamat AH, r/ o Rajgarh dressed as a home-guard sainik was proceeding to Bhopal for selling opium.
3. On the basis of the said information, Arjunsingh Parihar (P.W. 5) accompanied by probationary Sub-Inspector Madan Mohan (P.W. 1) and Police Constable Kamlesh-kumar (P. W. 2) reached Chhatri Chowk, near Shujalpur Railway Station. The appellant was encircled and was caught hold of. He had a bag with him. On search being taken the contra-bond opium was found in his possession in a plastic bag and was seized. The search and the seizure were effected in the presence of Panch witnesses Prem (P.W. 3) and Mahesh (P.W. 4).
4. The sample was taken from the opinion seized and sealing was done. The appellant was arrested and was brought to the Police Station Shujalpur and a crime was registered (vide Ex. P/4).
5. The sample was sent to the Forensic Science Laboratory Sagar and the report Ex, P/ 8 received from there is to the effect that the article was opium.
6. At the conclusion of the investigation the appellant was prosecuted. His defence was one of denial. According to him he was taken from the Railway Station and was arrested. He was not in possession of any bag and no opium was seized from him.
7. At the conclusion of the trial, the learned trial Judge in the absence of any cross-examination on the point held that the substance in question was opium. The panch witnesses Prem and Mahesh had admitted their signatures on the relevant documents, but had denied the prosecution case of seizure of opium from the appellant. The learned trial Judge held that the evidence of the departmental witnesses which is free from material contradictions, in the absence of evidence of any hostile animus on their part, emerges reliable and the same, beyond any reasonable doubt, connects the appellant with the crime.
8. The contention of the learned counsel for the appellant is that apart from the fact that independent Panch witnesses have not supported the prosecution case, even the evidence of the departmental witnesses is manterially discrepant and conviction for the crime could not be founded on the same. It is further urged that there has been non-compliance with the mandatory provisions in Sections 50, 52 and 57 of the Act providing safeguards and this introduces a fatal infirmity in the prosecution case. In support of these submissions the learned counsel has placed reliance on various decisions including those in State of M.P. v. Shav Singh (1981) 2 MPWN 218, Babulal's case (1988) 2 MPWN 100, Gendalal's case (1988) 1 MPWN 215, Veersingh's case (1988) 1 MPWN 218 and Madhu Nath's case (1990) 1 MPWN 166.
9. The contention of the learned counsel for the State is that on the material on record the conviction is well merited.
10. The point for consideration is whether the appeal deserves to be allowed.
11. I shall first take up the appellant's contention regarding non-compliance with the provisions of the Act and the consequences thereof.
12. As pointed out in the Principles of Statutory Interpretation (1988 4th Edn.) by Justice G. P. Singh, the former Chief Justice of M.P. High Court, the general rule is that non-compliance of a mandatory requirement per se results in nullification of the Act. This, however, is subject to at least one exception. If certain requirements or conditions are provided by statute in the interest of a particular person, the requirements or conditions although mandatory may be waived by him if no public interests are involved and in such a case the act done will be valid even if the requirements or conditions have not been performed. On the other hand, failure to obey a directory provision does not render a thing done in disobedience of it a nullity unless prejudice is shown to have resulted.
13. It may be noted that the use of the word 'shall' in a provision is not conclusive on the question of it being mandatory in character. The provisions of a statute creating public duties, are, generally speaking directory. The Legislature while giving certain procedural instructions with a view to require strict compliance thereof by public functionaries, excluding all discretion on their part, uses the word 'shall'. Nevertheless, non-compliance of these instructions per se does not result in rendering the acts done as null and void. It has to be shown that such non-compliance has caused prejudice and failure of justice. Non-compliance of a directory provision, apart from the question of dereliction of duties, may also adversely affect the case set-up by the prosecution.
14. Thus a provision may be mandatory in the sense a public servant is required to observe the same but not mandatory in the strict sense of the expression in that failure to observe it will per se vitiate the entire proceedings without the accused showing that such failure has resulted in prejudice to him. Reference in this connection may usefully be made to the decision in E.V. Kunhamu case 1989 Cr LJ 2340 (Kerala) which relates to the Prevention of Food Adulteration Act, 1954 (for short the 'Food Act').
15. In the aforesaid work by Justice G.P. Singh it has been pointed out that the study of numerous cases relating to mandatory and directory provisions does not lead to the formation of any universal rule except this that language alone often is not decisive and regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. The question as to whether a provision is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other.
16. In the Division Bench decision in State of H. P. v. Sudarshan Kumar (1990) I E. F. R. 15 (Him Pra) it has been pointed out that scheme and purpose behind the provision have an important bearing in the matter of its interpretation as being directory or mandatory. In the decision in Reserve Bank of India v. Peerless Company AIR 1987 SC 1023 it has been observed as under (at p. 1042 of AIR) :--
"That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context."
In the decision in E. V. Kunhamu's (1989 Cri LJ 2340) (supra) the decision in Murlidhar Meghraj Loya v. State of Maharashtra (1976 Cri LJ 1527) : (AIR 1976 SC 1929) and Dalchand v. Municipal Corporation, Bhopal AIR 1983 SC 303 : (1983 Cri LJ 448) have been referred to. In the decision in Murlidhar's case (supra) the Apex Court has delivered itself thus (Para 5 of 1976 Cri LJ) :--
"It is trite that the social mission of food Laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons which make indulgent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes calculated to protest the public health and the nations' wealth."
The decision in Dineshchandra Jamnadas's case AIR 1989 SC 1011 : (1989 Cri LJ 889) is also pertinent. The following observation in Dalchand's case (1983 Cri LJ 448) (SC) (supra) are apposite (Para 1 of 1983 Cri LJ) :--
"The broad purpose of the Statute is important. The object of the particular provision must be considered. The link between the two is not important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the Statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative are no more than mere instructions to those entrusted with the task of discharging statautory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute.
The decision in Food Inspector, Mandsaur v. Devilal 1985 MPLJ 14 : 1985 Jab LJ 195 : (1985 Cri LJ 726) (FB) may also be usefully perused. The decision in M/s. Sashikant and Co. 1989 Cri LJ 264 (Orissa) strikes a discordant note.
17. It has to be remembered that Courts cannot legislate in the garb of interpretation. As pointed out in the aforesaid work by Justice O.P. Singh the duty of the judicature is to act upon the true intent of the Legislature mens or sententia legis as expressed. It is only when there is ambiguity that extraneous aids are permissible. When a provision is capable of bearing two or more constructions the most firmly established rule of construction of such a provision is the rule laid down in Heydon's case (1584-76 ER 637) which is also known as 'purposive construction' or 'mischief rule'. Reference in this connection may also be made to the decision in Bengal Immunity Co.'s case AIR 1955 SC 661, Babaji Kondaji case AIR 1984 SC 192 and Kehar Singh's case AIR 1988 SC 1883 : (1989 Cri LJ 1) also make illuminative readings on the interpretation of statutes.
18. Chapter V of the Act bearing the heading 'procedure' consists of Section 41 of 68. It may be pointed out that the procedure laid down by the Act is not exhaustive but so far as it is applicable it has precedence over the provisions of the Criminal Procedure Code; 1973 (for short 'the Code').
19. It may be noted that the Act does not provide as to the consequences of non-compliance with the provisions in Sections 50, 52 and 57.
20. In the decision in Bai Radha's case AIR 1970 SC 1396 : (1970 Cri LJ 1279) which relates to the Suppression of Immoral Traffic in Women and Girls Act, 1956 (for short 'the Suppression Act'), in the absence of any provisions therein that any search carried out in contravention of Section 15 would render the trial illegal, with reference to Section 165 of the repealed Cri.P.C. 1898 it was held that trial is not rendered illegal unless the accused has been prejudiced and that the irregularity was curable. It was pointed out therein that the jurisdiction to make search is conferred by the Statute and is not derived from the recording of evidence required by Section 65.
21. In the decision in State of H.P. v. Sudarshan Kumar, (1990 (1) EFR 15) (Him Pra) (supra) several decisions including the one in Delhi Adminstration v. Ramsingh, AIR 1962 SC 63 : (1962 (1) Cri LJ 106) wherein the accused was discharged in a case under the Suppression Act on the sole ground that the offence had been investigated by a Police Officer other than a Special Police Officer as provided in that Act, have been referred to and it was observed that the Act is a Special Law meant to meet a different situation and the provisions thereof have to be interpreted in their own background.
22. Reference also be made to the decision in Balaji's case 1981 Jab LJ 684 : (1981 Cri LJ 1558). It relates to the proviso to Sub-section (2) of Section 202 of the Code. Therein it has been pointed out that irregularity means failure to comply with the procedural provisions and is curable under Section 465 of the Code and illegality means defects which strike at the very root of jurisdiction or the substance of justice and the question of failure of justice ultimately raises the question of material prejudice to the accused.
23. The following observations of the Apex Court in W. Slaney's case AIR 1956 SC 116 : 1956 Cri LJ 291 may profitably be reproduced (Para 13) :--
"Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused hearing, a refusal to allow him to defend himself a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matter whether this is because prejudice is then patent because it is so abhorrent to well established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once."
24. The provisions in the Food Act also contain provisions similar to those in the Act. Regarding the Food Act requirement of presence of independent witness at the time of the action by the Food Inspector, it has been pointed out in E.V. Kanhamu's case (1980 Cri LJ 2340) (Kerala) (supra) with reference to earlier decisions in State of Rajasthan v. Rehman, AIR 1960 SC 210 : (1960 Cri LJ 286), Food Inspector Kalicutt Corporation's case 1968 Cri LJ 683 (Kerala) and the Full Bench decision in Prabhakara's case 1983 Cri LJ 81 (Kerala) in which several earlier decisions have been reviewed, that the proceedings relating to purchase and sampling might be valid even if no independent person or persons were present provided there is evidence worthy of acceptance by the Court that the action of the Food Inspector is in accordance with law. The provision cannot be held to be mandatory in the sense that absence of witnesses would vitiate the entire action of the Food Inspector. In this connection the decision in Durand Didier's case 1990 SCC (Cri) 65 : (AIR 1989 SC 1966) which is under the Act is also pertinent.
25. Now I proceed to deal with the relevant provisions of the Act in the light of law discussed above.
26. The Act is a Special Legislative measure for social defence to combat the evil of drug menace which has a deadly impact on the society as a whole (vide Durand Didier's case (supra)). The Act provides that the socio-economic offences dealt with thereunder are absolute ones and entail punishment without mens rea. These strict statutory offences, according to the Act, entail severe punishment. Therefore the legislature, in its concern for the fundamental right of life and liberty guaranteed to the citizens under Article 21 of the Constitution, has also taken care to provide certain safeguards with a view to ensure that those entrusted with the authority under the Act are not placed in a position to harass innocent citizens and there is hight of degree of faireness in the investigation. Apart from the other provisions Section 58 provides for punishment for vexatious entry, search, seizure or arrest. Reference in this connection may usefully be made to the decision in Bhanwar Singh's case (1990) 1 EFR 300 (Raj).
27. It may be noted that the present prosecution is by the Police. In the decision In Raj Kumar Karwal's case (1990) 1 EFR 592 : (1991 Cri LJ 97) (SC) it has been held that a Narcotic Officer under the Act, not having been empowered to file a charge-sheet as provided Under Section 173(2) of the Code is not a Police Officer.
28. Section 52 of the Act requires that every officer arresting a person shall inform him of the grounds of arrest. This is in consonance with Article 22(1) of the Constitution of India which runs as under :--
"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice."
Article 22(5) deals with preventive detention.
29. The provision in Section 52 of the Act has to be interpreted as directory. Non-compliance with this requirement would not invalidate the entire proceedings and its only effect would be that the subsequent detention in consequence of such an arrest and not the initial arrest, would be invalid, furnishing to the accused a valid ground for bail. As pointed out in Ahmed Hussain Sheikh Hussain's case (1989) 4 SCC 751 : (1989 Cri LJ 2312) in a case of Preventive Detention, the procedural safeguards constitute the only guarantee and stand on a different footing.
30. Section 57 of the Act provides that full report of the particulars of arrest and seizure shall be made by the Officer concerned to the immediate official superior within 48 hours. The object behind this provision is that the prosecution is left with no opportunity of improving upon the earlier version of the occurrence.
31. In the decision in Sarwan Singh's case AIR 1976 SC 2304 : (1976 Cri LJ 1757) dealing with Section 157 of the Code, it has been held that the delay in despatch of FIR to magistrate is not a circumstance which can throw out the prosecution case in its entirety. In the decision in Ishwar Singh's case AIR 1976SC 2423 : (1976 Cri LJ 1883) it has been held that in such a case the evidence of eye witnesses in the circumstance, cannot be accepted on its face value.
32. In view of the law discussed above I hold that the provision in Section 52 of the Act is directory and non-compliance with the same may affect the reliability of the prosecution case but cannot certainly have the effect of the entire prosecution case being thrown overboard.
33. This brings us to Section 50 of the Act. It is in these terms :
50. Conditions under which search of persons shall be conducted.-- (1) when any officer duly authorised Under Section 42 is about to search any person under the provisions of Section 41, Section 42, or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1)
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
34. The expression 'if such person so requires' occurring in Sub-section (1) of Section 50 of the Act, in my view clearly pre-suppose that the person is told at the very inception that the law invests him with the right to insist that he be searched in the presence of the concerned Gazetted Officer or the Magistrate. The aforesaid requirement regarding information to the person to be searched regarding his right to be so searched is mandatory and non-compliance therewith is fatal to the prosecution. This is the view taken in the decisions in State of H.P. v. Sundershan (1990 (1) EFR 15) (Him Pra)(supra) and Kheta Singh alias Teja Singh's case (1990) 2 EFR 312 (Punj & Har).
35. Reference to the decision in Suk Das's case AIR 1986 SC 991 : (1986 Cri LJ 1084) is very apposite. It is no doubt true that every person is presumed to know the law and ignorance of law cannot be urged as a defence. In the aforesaid decision it has however been pointed out that even literate people do not know what are their rights and entitlements under the law. It is the absence of legal awareness which is responsible for deprivation of rights and benefits from which the poor suffer. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme. That is why it has always been recognised as principal items of the programme of the legal aid movement in the country to promote legal literacy. It would, in the circumstances, make a mockery of legal aid if it were to be left to the poor ignorant illiterate accused to ask for free legal service, legal aid would become merely a paper promise and it would fail of its purpose. Pointing out that social justice may require that free legal service may not be provided by the State in cases involving offences such as economic offences or offences against law prohibiting prostitution and child abuse and the like and interpreting Articles 21 and 30(1) of the Constitution the Apex Court has delivered itself thus :--
"Free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. The conviction reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost which resulted in the accused remaining unrepresented by a lawyer in the trial is clearly a violation of the fundamental right of the accused under Article 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity.
36. As a result of the foregoing discussion it has to be held that in Section 50 of the Act is implicit the legislative mandate regarding the person to be searched to be informed by the person intending to take search that the former has the legal right to require that he is searched in the presence of the concerned Gazetted Officer or the Magistrate. It may also be pointed out that this mandate has to be met by the prosecution in letter and in spirit so that it is not rendered nugatory. In some of the decisions it has been pointed out that this information should be supplied to the accused in the presence of witnesses and in some of the decisions it has even been held that the search may invariably be taken in the presence of the concerned Magistrate or the Gazetted Officer. What is important is that the compliance in this regard must be in substance and not merely in form.
37. On a careful consideration I am of the view that non-compliance with the aforesaid mandatory requirement of Section 50 of the Act constitutes an illegality which strikes at the very root of jurisdiction and per se vitiates the entire subsequent proceedings.
38. Now regarding the appreciation of evidence in relation to offences under the Act which entail very harsh punishments. At the conclusion of the trial the prosecution can succeed only on discharging the unshifting burden of proving its case against the accused and strongest of suspicion does not constitute the proof required. At the same time it has to be remembered that witness is not a tape recorder and with lapse of time, memory may fail here and there and thereafter, minor discrepancies which do not affect the substratum of the case must not be permitted to be made much (vide State of Punjab v. Wassan Singh, AIR 1981 SC 697 : (1981 Cri LJ 410)). It is the duty of the Court to scrutinise the evidence with great care and caution keeping in mind that it exists not only to ensure that no innocent person is punished but also to ensure that guilty persons do not escape scot-free. In the modern society the sense of social responsibility for variety of reasons, is not all pervasive and is waning and so also the regard for truth. It may be remembered that the law does not require absolute certainty and this is clear from the definition of the term 'proved' as embodied in Section 3 of the Evidence Act and even where, the prosecution is unable to get the support of independent witnesses the Court is not absolved of its duty to record on the uncorroborated evidence of the departmental witness, if the same passes the test of complete reliability in the crucible of probabilities and on the anvil of the objective circumstances of the case a finding of guilty of the accused instead of treading the easy path of acquittal. In this connection the decision in State of U.P. v. Pussu, AIR 1983 SC 867 : (1983 Cri LJ 1356) is pertinent.
39. In the instant case the occurrence is dated 26-11-88 and the witnesses were examined on 27-4-89. The evidence of the departmental witnesses is discrepant on the point as to whether the panch-witnesses had accompanied the police party from the hotel near the P.S. or they had been summoned after the police party had reached the spot. The evidence is also discrepant as to the place where the appellant was apprehended and the distance to which he had to be pursuaded. In the circumstances these discrepancies cannot be brushed aside as wholly inconsequential as respects the merits of the case. The explanation for not taking down in writing the information allegedly received which according to the prosecution led to the appellant being apprehended is also not convicing.
40. As a result of the foregoing discussion I am of the view that the appeal must be allowed.
41. Before parting with the case I consider it apposite to refer to what the Full Bench observed in the decision in Food Inspector, Mandsaur v. Devilal (1985 Cri LJ 726) (Madh Pra) (supra). Therein holding that the provision in Section 13(2) of the Prevention of Food Adulteration Act and Rule 9-A of the Rules framed thereunder are directory and non-compliance thereof is not per se fatal to the prosecution case, it has been observed as under in para 27 :--
"We may like to add that the view which we have taken should not be construed to mean that those who are entrusted with the duty of implementing the provisions of the Act and the rules may not do their duties as laid down by the provisions of the Act and the rules and any lapse on their part must be dealt with at administrative level. They must bear in mind that the procedural provisions made in the Act and the rules are meant to be complied with and their omission to follow the dictates of those provisions may cause prejudice to the accused and in such a case even if the accused had indulged in the act of adulterating articles of food he may have to be acquitted of the offence charged with and thus the salutary object of the Act may be defeated."
42. In the ultimate analysis, the appeal is allowed. Petitioner's conviction Under Section 8/18 of the Act is setaside and so also the sentence passed thereunder. The appellant is acquitted of the said offence. He be set at liberty forthwith, if not required in any other case.