S. K. SEN, J. ( 1 ) -THE facts inter alia leading to this bail application are that on December 3, 1992 at about 11-20 hours Sub-Inspector Mohammad Aslam, SHO (CCS) along with Police Party conducted personal search of the petitioner who disembarked from the ship MV Nicobar at Haddo Jetty. It is the case of the State opposite party that 7 Kg. 650 grammes of Ganja was recovered from her steel trunk. After taking out 200 grams illicit Ganja for chemical sample from the recovered Ganja for examination by the experts and sealed and seized all the Ganja under the cover of Panchanama and the petitioner was arrested and the investigation was entrusted to the SHO by the Deputy Superintendent of Police (CID ). The investigation is now complete and the charge-sheet has also been framed. ( 2 ) THE only question involved in this case is whether bail can be granted in view of the specific provisions of section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act of 1985 ). It may be mentioned in this connection that the petitioner also moved before the learned Sessions Judge for bail but the said prayer was not granted in view of the stringent provision of section 37 of the said Act of 1985. Thereafter the petitioner filed the bail application before us on February 17, 1993 when the said application was rejected at that stage with liberty to the petitioner to file fresh bail application on proper materials. ( 3 ) THE petitioner has again moved before us for bail in view of the liberty granted by us on earlier occasion. All the records have been produced by the learned Public Prosecutor. The relevant records being Panchanama, Charge sheet and FIR were translated in English by the State and produced before us. We have seen the copy of the original Panchanama which is written in Hindi. It is true that the said document bears the signatures of two persons as witnesses as also the signature of the accused petitioner but it is the specific case of the petitioner that she does not understand Hindi being Telugu speaking person. It also appears that she has signed the Panchanama in Telugu language. It does not appear that the contents of the said document was explained to her. It also appears that she has signed the Panchanama in Telugu language. It does not appear that the contents of the said document was explained to her. It is well settled that if a document is to be relied upon so as to be used against a person who does not understand the particular language in which it is written the same is to be explained to the person in the language which he or she understands. There are several decisions to which we may refer in this context. Hadibandhu Das v. District Magistrate, Cuttack and another reported in AIR 1969 SC 43 ; (2) Smt. Raziya Umar Bakshi v. Union of India and Ors. reported in AIR 1980 SC 1751 ; (3) Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others reported in AIR 1986 SC 687 ; (4) Mr. Kubic Daruisz v. Union of India and Others reported in AIR 1990 SC 605 ; and (5) Lallubhai Jogibhai Patel v. Union of India reported in (1981) 2 SCC 427 : AIR 1981 SC 728 . ( 4 ) IN the case of Hadibandhu Das v. District Magistrate, Cuttack and another (Supra) the Supreme Court passed an order directing the order passed by the State of Orissa detaining the appellant under the Preventive Detention Act be quashed. The main reason which weighed with the Court in quashing the said order is that the grounds in support of order in English language were served on detenue running into fourteen typed pages and referred to his activities over thirteen years beside referring to large number of Court proceedings concerning him and his associates. It was held by the Supreme Court that mere oral explanation by the Authorities of such complicated order without supplying him translation in script and language which he understood amounts to denial of right of being communicated the ground and of being afforded the opportunity of making representation against the order. It was held by the Supreme Court that mere oral explanation by the Authorities of such complicated order without supplying him translation in script and language which he understood amounts to denial of right of being communicated the ground and of being afforded the opportunity of making representation against the order. ( 5 ) IN the case of Raziya Umar Bakshi v. Union of India and others (Supra) wherein it was held by the Supreme Court that the service of the ground of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenue, unless the contents of the grounds are fully explained and translated to the detenue, it will tantamount to not serving the grounds of detention to the dentine and would thus vitiate the detention ex-facie. In cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue, it must see to it that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language which he understands. A bare statement at the stage when Habeas Corpus petition is filed in the Court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation. ( 6 ) IN the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others reported in AIR 1986 SC 687 it was held that the grounds for detention must be communicated in the language understood by the detenue. In paragraph 62 of the said judgment at page 696 the Supreme Court observed, inter alia, as follows :-"it will be appropriate to deal with the first ground. Whether the grounds should have been communicated in the language understood by the detenus? The Constitution requires that the grounds must be communicated. Therefore, it must follow as an imperative that the grounds must be communicated in a language understood by the person concerned so that he can make effective representation. " ( 7 ) IN the case of Mr. Whether the grounds should have been communicated in the language understood by the detenus? The Constitution requires that the grounds must be communicated. Therefore, it must follow as an imperative that the grounds must be communicated in a language understood by the person concerned so that he can make effective representation. " ( 7 ) IN the case of Mr. Kubic Dariusz v. Union of India and others reported in AIR 1990 SC 605 the Supreme Court observed that it is settled law that the communication of the grounds which is required by the earlier part of Cl. (5) of Art. 22 is for the purpose of enabling the detract, to make a representation, the right to which is guaranteed by the latter part of the Clause. ' A communication in this context, must, therefore, mean imparting to the detenue sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attribute to him. Such a communication would be there when it is made in a language understood by the detenue. ( 8 ) IN paragraph 6 at page 609 of the said report the Supreme Court referred to its earlier decision in the case of Lallubhai Jogibhai Patel v. Union of India reported in AIR 1981 SC 728 and observed as follows:-"6. Where it is stated that the detaining authority explained the grounds of detention to the detenue, Court insists on adequate proof in the absence of any translation being furnished. Thus in Lallubhai Jogibhai Patel v. Union of India (1981) 2 SCC 427 : AIR 1981 SC 728 , the detenue did not know English and the detaining authority in affidavit stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenue. Admittedly, no translation of the grounds of detention into Gujarati was given to the detenue. It was held that there was no sufficient compliance with the mandate of Article 22 (5) of the Constitution which required that the grounds of detention must be communicated to the detenue. "communicate" is a strong word. It requires that sufficient knowledge of the basic-facts constituting the grounds should be imparted effectively and fully to the detenue in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. "communicate" is a strong word. It requires that sufficient knowledge of the basic-facts constituting the grounds should be imparted effectively and fully to the detenue in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenue and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22 (5) is infringed. This follows from the decisions in Harikisan v. State of Maharashtra, AIR 1962 SC 911 and Hadibandhu Das v. District Magistrate, Cuttack and others. (1969) 1 SCR 277 : AIR 1969 SC 43 ". ( 9 ) THE learned Advocate for the petitioner has specifically disputed the fact that the purported document stated to be the Panchanama is the original one. The said document is stated to be the nakal Panchanama. He has strenuously argued that the original Panchanama has not been produced. The learned Public Prosecutor however submits that the original Panchanama is lying at the Trial Court. ( 10 ) BE that as it may, the learned Public Prosecutor submits that there is no difference between the original Panchanama and this document slated to be the Nakal Panchanama. In any view of the matter this document was not explained to the petitioner in the language she understands. It appears that the signature of the petitioner was obtained without explaining the contents of the document to her and she was unaware of the contents and signed the document without understanding the implications and/or contents of the said document. ( 11 ) IT has been urged on behalf of the petitioner that section 50 of the said Act of 1985 has not been complied with. ( 12 ) SECTION 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is set out hereunder :"50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised u/s 42 is about to search any person under the provisions of S. 41, S. 42 or S. 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 S. 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. " ( 13 ) IT is the contention of the learned Advocate for the petitioner that in terms of the aforesaid provision contained in section 50 of the said Act of 1985, there is an obligation on the person intending to take search that the person to be searched is to be informed that he has legal right to require that he a searched in the presence of the concerned Gazetted Officer or the Magistrate. The learned Advocate for the petitioner has also submitted that in terms of section 50 of the Act no female shall be searched by anyone excepting a female. According to the learned Advocate for the petitioner in the instant case both the conditions were not complied with. He further submitted that the compliance of the provision is mandatory and failure to comply with the provision vitiates the entire proceeding. ( 14 ) IN support of his contention the learned Advocate for the petitioner relied upon the judgment and decision in the case of Salamat Ali v. The State through Police, Shujalpur reported in 1991 0 Crlj 1991 . In the aforesaid decision it was held that in section 50 of the said Act of 1985 it is implicit the legislative mandate regarding the person to be searched to be informed by the person intending to make 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 latter and in spirit so that it is not rendered nugatory. It may also be pointed out that this mandate has to be met by the prosecution in latter 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. ( 15 ) THE expression 'if such person so requires' occurring in sub-sec. (1) of Section 50 of the said Act in my view clearly presupposes 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 searched is mandatory and noncompliance therewith is fatal to the prosecution. This is the view taken in the decision in State of Himachal Pradesh v. Sundershan (1990) 1 EFR 15 (HP) and Kheta Singh alias Teja Singh's case (1990) 2 EFR 312 (Punj and Har ). ( 16 ) IN the instant case it is on record that the petitioner being a female was not searched by a female person which is mandatory. The conditions mentioned under section 50, in my opinion, are mandatory and have to be strictly followed. Non-compliance with the mandate of this sub-section that 'no female shall be searched by anyone excepting a female' may be fatal to the prosecution case. ( 17 ) IN the case of Smt. Geeta v. State (Delhi Admn) reported in 1989 Cr LJ 1165 (Delhi) it has been held that the personal search memo of the female accused should not only indicate that a female was called for taking her search but also should bear signature of such female witness. ( 18 ) SECTION 52 of the said Act of 1985 requires that every officer arresting a person shall inform him of the grounds of arrest. ( 18 ) SECTION 52 of the said Act of 1985 requires that every officer arresting a person shall inform him of the grounds of arrest. This is in consonance with Art. 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. "section 52 provides as follows : -"52. Disposal of persons arrested and articles seized.- (1) Any Officer arresting a person under section 42, section 43 or section 44 shall, as soon as may be, informed him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of section 41 and section 42 and section 43 or section 44 shall be forwarded without unnecessary delay to (a) the Officer-in-Charge of the nearest Police Station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law or such person or article". ( 19 ) IN our view aforesaid provisions of the Act cast a statutory duty upon the police officers or other authorities to reduce the information in writing and also give an option to the accused to be searched before a Gazetted Officer or a Magistrate. These provisions are mandatory and violation thereof would cause prejudice to the accused. The words in these two sections are unambiguous and have no scope for an interpretation to the effect that the Police Officer or any other authority can violate these provisions at their whims and pleasure. The intention of the legislature obviously is that, when such stringent punishments are provided under the Act, there should be sound safeguards to ensure that innocent persons are not harassed or unnecessarily detained by any arbitrary or whimsical actions of the police or the other authorities. The intention of the legislature obviously is that, when such stringent punishments are provided under the Act, there should be sound safeguards to ensure that innocent persons are not harassed or unnecessarily detained by any arbitrary or whimsical actions of the police or the other authorities. ( 20 ) IT is also there settled when there was no explanation as to why the information received by the Sub-Inspector could not have been reduced in writing nor it was shown that the Police Officer who arrested the accused applicant informed them that they could have the search made before a Gazetted Officer, the mandatory provisions contained in sections 42 and 50 of the Act could be said to be violated. Since the mandatory provisions in Section 42 of the Act was violated, the prosecution must be able to show that notwithstanding the non-compliance of the said provision, there was no prejudice caused to the accused. Until the prosecution is able to show that no prejudice had been caused the accused must be found entitled to take benefit of the failure to comply with the said provision and be entitled to bail on that account. Moreover, the violation of the said provisions could be considered even at that stage of bail. In the case of Hakam Singh v. Union Territory, Chandigarh, reported in 1988 Cr LJ 528 it was held by the Punjab and Haryana High Court that these provisions are mandatory and the violation thereof causes prejudice per se. The same view has been taken by the Bombay High Court in Lawarance D'souza v. State of Maharashtra, 1992 Cr LJ 399 with the rider that the prosecution may collect independent material which may, with the reasonable explanation as to why and particular requirement in a given case could not have been followed shows that no prejudice has, in fact, been caused. ( 21 ) IF these provisions are not held mandatory and their violation is overlooked or permitted that would be against the mandate contained in Article 21 of the Constitution. The word 'law' in the expression, 'procedure prescribed by law' in Article 21 has been interpreted in Maneka Gandhi's case reported in AIR 1978 SC 597 to mean that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive. The word 'law' in the expression, 'procedure prescribed by law' in Article 21 has been interpreted in Maneka Gandhi's case reported in AIR 1978 SC 597 to mean that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 could not be satisfied. ( 22 ) IN this connection we may take note of the judgment and decision in the case of Smt. Maneka Gandhi v. Union of India reported in AIR 1978 SC 597 and also in the case of Sunil Batra v. Delhi Administration reported in AIR 1978 SC 1675 : 1978 Cr LJ 1741, it was held that the principle or reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14, it must be right just and fair and not arbitrary, fanciful or oppressive. ( 23 ) IT has also been alleged that section 102 (2) of the Code of Criminal Procedure provides that every Police Officer shall forthwith report the seizure to the Magistrate having jurisdiction and under section 159 Cr. P. C. the Magistrate will receive the report. In this case no Panchanama was produced in original before the learned Chief Judicial Magistrate on 4th December, 1992 and the Nakal Panchanama which was produced by the prosecution on 19th January, 1993 before the learned Court of the Sessions Judge contained no endorsement of the learned Chief Judicial Magistrate. ( 24 ) IT has further been alleged that on 5th January, 1993 when the accused was brought in the Court custody for producing her before the learned Court of Sessions Judge the Police authority obtained signature from the accused by preparing another Panchanama and the accused being not aware of the Hindi language signed on good faith without knowing the contents of the documents and thereby two Panchanama were prepared-one at the time of arrest and one at the time of rejection of second bail petition by the learned Court of the Sessions Judge. ( 25 ) IT has been submitted that the so called Panchanama which was prepared in later stage has certainly caused prejudice to the accused since it has covered all the lacunae made by the Police during the alleged search and seizure in this case and this so called Panchanama cannot be taken as prima facie evidence in this case against the accused and she has committed offence at this stage as reasonably believed under section 37 of the said Act of 1985. ( 26 ) IT has been submitted that the applicant was arrested on 3rd December, 1992, and was produced before the Chief Judicial Magistrate on the next day i. e. on 4th December, 1992 a remand was granted and the first remand was for 14 days i. e. upto 18th December, 1992 and thereafter a remand was granted for another 14 days i. e. upto 31st December, 1992. ( 27 ) IT has also been submitted that in view of the clear provision of section 36 (A) (1) (D) of the said Act of 1985 the learned Chief Judicial Magistrate should have not passed an order authorising the detention of the accused woman for a period exceeding 15 days and the said unauthorised detention could not be cured at the later stage and the accused is entitled for bail for the said unauthorised detention. ( 28 ) IT has also been alleged that the petitioner came to know from her learned Advocate that when the bail application was moved on 17th December, 1992, and on 28th December, 1992, before the learned Sessions Judge at Port Blair a copy of the Panchanama was produced by the prosecution in connection with G. R. Case No. 1462 of 1992 the State v. Smt. B. Ramannamma pending before the Learned Court of the Chief Judicial Magistrate at Port Blair and in the said document there was no whisper of helping the accused about her right with the help of Telugu language knowing interpreter or offering of key of the alleged steel trunk by the accused to the Police or listing of materials other than Ganja found in the steel trunk or asking to the accused about the search before the Magistrate or accompany of any Police Constable-995 Makadilam or inclusion of TC 456 in the search party. ( 29 ) IT has been submitted that during search and seizure no Telegu language knowing interpreter was given to the accused to inform her right about search and the Learned Advocate of the accused also pointed out that there was no female in the search party during seizure and search and there is no explanation by the Police about other materials other than Ganja in the said steel trunk. ( 30 ) WE have considered the submissions of the parties. It appears to us that the contentions and submissions already noted cannot be said to be without any substance. ( 31 ) ADMITTEDLY, in the instant case search was conducted in the presence of the independent witnesses and the accused petitioner was not produced before any Gazetted Officer nor she was informed in writing about her right that she could have the right to be searched before a Gazetted Officer and no token of writing of the accused has been taken in the Panchanama that the accused is not willing to be searched before a Gazetted Officer. ( 32 ) SECTION 50 of the said Act of 1985 affords an inbuilt safeguard to the petitioner. It casts duty on the Gazetted Officer or Magistrate to be satisfied that nothing is planted and search a necessary to be taken where he is not so satisfied, he can discharge the accused. Thus he has not to act mechanically. A member of the raiding party even he himself may be a Gazetted Officer or a superior officer of the department cannot himself perform the dual tasks of being a party to the search and arriving at a satisfaction that the search is warranted or not as required by Section 50. ( 33 ) IT is also on record that no female witness signed in the Panchanama nor any female accompanied the search party as required under the law. ( 34 ) IT is quite true that in terms of section 37 of the said Act of 1985 in the event the Public Prosecutor opposes the application then the Court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence alleged and he is not likely to commit any offence while on bail. This provision in the statute is a stringent provision which also requires that the prosecution should follow the procedure meticulously. This provision in the statute is a stringent provision which also requires that the prosecution should follow the procedure meticulously. In this connection we may take note if the passage from 'maxwell on The Interpretation of Statutes', Twelfth Edition, page 245 which is set out hereunder :"similarly, statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed : compliance with procedural provisions will be stringently exacted from those proceeding against the person liable to be penalised, and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. This is so, even though it may enable him to escape upon a technicality. " ( 35 ) IN the instant case the prosecution has not followed the procedure by not explaining to the accused the contents of the document stated to be the Panchanama, and also has not followed the mandatory provisions of sections 42, 50 and 52 of the said Act of 1985. It appears to us that the lacunae in the procedure followed may raise doubt about the offence, if any, committed by the petitioner and may afford good reference to the accused at the trial. We are accordingly of the view that the petitioner has succeeded in making out a prima facie case for defence. ( 36 ) WE are, therefore, of the view that there are reasonable grounds for belief on the basis of the documents and records produced before us that the petitioner may not be found to be guilty of the offence charged at the trial. However, this opinion is not final and it will be open to the trial Court to proceed in accordance with the law and take evidence and come to a decision on the basis of the evidence that may be adduced by both the prosecution and the accused. We are accordingly of the opinion that the petitioner should be released on bail. ( 37 ) WE are also of the view that since the investigation is also complete and charge-sheet has been submitted no prejudice will be caused to the prosecution if the petitioner is released on bail on certain conditions. We are accordingly of the opinion that the petitioner should be released on bail. ( 37 ) WE are also of the view that since the investigation is also complete and charge-sheet has been submitted no prejudice will be caused to the prosecution if the petitioner is released on bail on certain conditions. ( 38 ) ACCORDINGLY the following order is passed : let the accused petitioner be released on bail to the satisfaction of the Chief Judicial Magistrate of Port Blair on conditions that the petitioner shall meet the Station House Officer, Central Crime Station, Port Blair once a week i. e. on every Monday until further orders and she shall not leave the jurisdiction of Port Blair without the leave of the District and Sessions Judge, Port Blair. Let a plain copy only of the operative part of the order passed today duly countersigned by the Assistant Registrar (Court) be given to the learned Advocate for the petitioner on his usual undertaking for taking appropriate action for release of the accused person forthwith. A. K. Bhattacharji, J.-I agree. Application allowed.