K. L. SHRIVASTAVA, J, J. ( 1 ) THIS appeal is directed against the Judgment dated 2 1. 7. 1989 passed by the Additional Sessions Judge, Neemuch, in Sessions Trial No. 125 of 1988, whereby the appellant has been convicted under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and has been sentenced to undergo R. I. for 10 year and to pay a fine of Rs. one Lac and in default to undergo R. I. for 2 years. ( 2 ) ACCORDING to the prosecution on the information furnished to him by an informer at 7 P. M. on 14. 3. 1988. Hakamsingh the Station House officer, Jawad (P. W.-9) recorded the same in the Rojnamcha (vide Ex. P/3 ). Then he prepared the Pane/mama (vide Ex. P/2 ). Thereafter the Station House officer left the police station to apprehend the culprit (vide Ex. P/14 ). ( 3 ) NEAR the Jawad Hotel, the appellant was found and from him 2 bags were seized (vide Ex. P/7), spot map (Ex. P/8) was prepared at 8. 45 p. m. The Station House Officer then returned to the police station and at 9. 30 p. m. on 14. 3. 1988 he recorded the First Information Report (vide Ex. P/16 ). The sample was sent to the Chemical Examiner On 24. 3. 1988 (vide Ex. P. 2) and was received by him on 28. 3. 1988. ( 4 ) AT the conclusion of the investigation, the appellant was prosecuted with the result already stated. ( 5 ) THE contention of the learned counsel for the appellant is that the appellants conviction is not sustainable. He urges that the mandatory provisions in sections 42 (2), 50 (1) and 57 and other sections providing safeguards to an accused have not been complied with. II is further urged that apart from the fact that independent witnesses have not corroborated the evidence of the departmental witnesses. The evidence of the departmental witnesses is inconsistent and it is hazardous to base conviction on the same. In support of his submissions the learned counsel has placed - reliance on the decisions in Laxmi Rai's case1 and Gendalals case, and Madhunaths case. ( 6 ) THE contention of the learned counsel for the state is that the conviction is on firm foundation and no interfere is called for. In support of his submissions the learned counsel has placed - reliance on the decisions in Laxmi Rai's case1 and Gendalals case, and Madhunaths case. ( 6 ) THE contention of the learned counsel for the state is that the conviction is on firm foundation and no interfere is called for. ( 7 ) THE point for consideration is whether the appeal deserves to be allowed. ( 8 ) THE learned counsel invited my attention to the fact that in the seizure memo and spot map, crime No. has been noted when according to the prosecution the registration of the crime was done latter. The learned counsel further pointed out that in Ex. P/7 it has been stated that two plastic bags were seized containing two smaller bags in which opium had been kept. In his evidence, Hakam (P. W. 9) has however, stated that there was a single plastic bag in which 4 small bags with opium were there and were seized. ( 9 ) REGARDING section 42 of the Act, he urged that in the evidence of Hakamsingh it has nowhere been stated that copy of the Rojnamcha recording the information by informer was sent to the superior officer. It is urged that neither there is any entry to this effect nor has the witness so stated. The witness has only stated that the Circle. Inspector Police (not examined) was at the police station and instructions were sought from him and there is no compliance with the provision. ( 10 ) THE learned counsel goes on to contend that section 50 of the Act using the word shall important safeguard to the accused and its noncompliance must be held to be fatal to the prosecution. ( 11 ) 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. 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. Noncompliance of a directory provision, apart from the question of dereliction of duties may also adversely affect the case set-up by the prosecution. ( 12 ) 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 and that failure to observe it will not 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. Kunhamus case, which relates to the Prevention of Food Adulteration Act, 1954 (for short the Food Act ). ( 13 ) THE following observations of the Apex Court in W. Slaney's case5, may profitably be reproduced: 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 a 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 matters whether this is because prejudice is then patent or 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 cither way tjley would be struck down at once. T ( 14 ) IN the instant case I am of the view that the appeal deserves to be allowed as there is no evidence of compliance with Section 50 of the Act which reads thus:50. T ( 14 ) IN the instant case I am of the view that the appeal deserves to be allowed as there is no evidence of compliance with Section 50 of the Act which reads thus: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 (I ). (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. ( 15 ) THE expression TIf such person so requires occurring in sub-section (1) of Section 50 of the act, in my view, clearly pre-supposes 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 decision in State of H. P. v. Sudershan, and Kheta Singh Teja Singhs case. ( 16 ) REFERENCE to the decision in Suk Das's case 8, 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 poors suffer. 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 poors 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 (a) 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 Art. 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 service at the cost of the State. 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 service 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 Art. 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity. ( 17 ) 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. ( 18 ) 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 proceeding. Reference in this connection may usefully be made to the decision in Salamat Ali s case9. ( 19 ) AS a result of the foregoing discussion I am of the view that this appeal must be allowed. ( 20 ) IN the ultimate analysis, the appeal is allowed. Reference in this connection may usefully be made to the decision in Salamat Ali s case9. ( 19 ) AS a result of the foregoing discussion I am of the view that this appeal must be allowed. ( 20 ) IN the ultimate analysis, the appeal is allowed. The appellants conviction under Section 8/18 of the Act is set aside and so also the sentence passed thereunder. The appellant is acquitted of the offence. The appellant is in jail. He be set at liberty forthwith, if not required in any other case. Appeal allowed. .