SHOBHARAM v. STATE OF M. P. — 1994 DIGILAW 699 (MP)

D. P. S. CHAUHAN, J. ( 1 ) THE appellant Shobharam, having been convicted by Shri Vijay Kumar Shrivastava, Sessions Judge, Narsinghpur in Special Case No. 6/94 for committing offence u/s. 18 of the Narcotic Drugs and Psychotropic Substances Act 1985, (hereinafter referred to as the Act) whereunder he has been sentenced to ten years' R. I. together with a fine of Rs. 1 lac and in default of payment of fine, to undergo one year's further R. I. has approached this Court by means of present appeal. ( 2 ) THE appellant is resident of village Menhada within the P. S. Tendukhede, Distt. Narsinghpur. It was on 30-1-1994 that an informant gave information to Rajesh Tiwari, Sub-Inspector of Police Tendukheda (P. W. 5) that in village Menhada, which falls within the said police station, that Shobharam, the present appellant, carries on the business in opium and is at present possessed of the opium which is kept by him in the inner pocket of his Baniyan. On receipt of such information, after making entry in the general diary, i. e. Roznamcha Sanha and proceeded with the staff accompanied by Mohd. Saheed Khan A. S. I. and others, constables and Sainiks (Homeguard person) and two witnesses Sitaram and Rangai, for the village Menhada on 4 motorcycles and reached there. The accused, seeing them, tried to rushinside his house but he was taken into custody after surrounding him and thereafter, after obtaining the consent from the accused, In charge Police Station, Rajesh Tiwari gave his search as well as search of the staff and the witnesses to the accused whereafter the search of the accused Shobharam was taken. From the left inner pocket of the, Baniyan worn by the accused Shobharam, about 25 to 30 grams opium was found in a polythene pack which was seized on the spot together with the Baniyan and the same was sealed and the seizure memo Ex. P. 3 was prepared. Thereafter, Dehati Naldshi was taken down and a crime was registered by the police at the police station as Crime No. 17/94 u/s. 18 of the Act. The Supdt. of Police as well as Asst. Supdt. of Police were given information regarding the offence and report was communicated to them on wireless which is Ex. P. 11. Thereafter, Dehati Naldshi was taken down and a crime was registered by the police at the police station as Crime No. 17/94 u/s. 18 of the Act. The Supdt. of Police as well as Asst. Supdt. of Police were given information regarding the offence and report was communicated to them on wireless which is Ex. P. 11. ( 3 ) THE seized article first of all was sent to the Excise Sub-Inspector who after examining the same, opined the seized article to be the opium whereafter the article was sent to the Forensic Science Laboratory, Sagar and as per the report of the Forensic Science Laboratory, Sagar, the seized article was found to be the opium of Poupi in impurified Coagulated Juice. The report is Ex. P. 14. According to the report, the presence of Morfin was found to be 2. 39 which was above the specified standard. After investigation, the accused was booked for crime u/ss. 18, 19 and 20 of the Act and he was accordingly charge-sheeted. ( 4 ) THE incident is dated 30-1-1994 and the time of information given by the informant is 8. 55 and, the alleged recovery is of the same day at 11 a. m. The place of recovery and arrest is Gram Menhada. The arrest was made at 11. 30 a. m. The first information report of the crime was registered on the same date at 13. 25 p. m. ( 5 ) THE prosecution examined as many as 5 witnesses in support of its case. K. K. Singh, the Excise Sub-Inspector was examined as P. W. 1 as he has given his opinion regarding the seized article being opium Sitaram, a witness to seizure was examined as P. W. 2 Rangai, another witness to seizure was examined as P. W. 3 S. S. Khan, Asstt. Sub-Inspector of Police, who accompanied Rajesh Tiwari, was examined as P. W. 4 Rajesh Tiwari, the Investigation Officer, who made the arrest, search and seizure, was examined as P. W. 5 ( 6 ) THE defence was that of denial and false implication and according to the defence, the appellant was taken by S. S. Khan, Assistant Sub-Inspector of Police to the police station and there he was put in the police lock up and a false case was planted on him but no defence witness was examined. ( 7 ) HEARD Shri S. C. Datt, the learned counsel for the appellant and the learned State counsel, Shri L. S. Singh, Dy. Advocate General. The learned counsel for the appellant made the following 3 fold submissions :- (1) On account of the failure on the part of the prosecution to comply with the mandatory requirement of S. 50 of the Act, the entire proceedings are null and void, inasmuch as, the appellant, as required u/s. 50 of the Act, was not told about his right that he has got a right for being searched by a nearest Gazetted Officer of the departments mentioned in S. 42 or by the nearest Magistrate. (2) The entire proceedings stand vitiated on account of non-compliance of the provisions of Ss. 52 and 55 of the Act. (3) There being no evidence on record that the seized article was sent to the Chemical Examiner for analysis and that the same was examined by the Chemical Examiner on this account, a serious prejudice has been caused to the appellant and as such, the entire proceedings are vitiated. ( 8 ) SO far as the first submissions is concerned, it is based on the requirement of S. 50 of the Act. "50. Conditions under which search of persons shall be conducted - (1) officer duly authorised under S. 42 is about to search any person under the provisions of S. 41, S. 42 or S. 45, 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 Magistrates. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer 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 any one excepting a female. THE main thrust of the arguments of the learned counsel for the appellant is on the following words in the said section"if such person, so requires"before making submission on the legal aspect, the learned counsel for the appellant took the Court through the statement of S. S. Khan, Asstt. THE main thrust of the arguments of the learned counsel for the appellant is on the following words in the said section"if such person, so requires"before making submission on the legal aspect, the learned counsel for the appellant took the Court through the statement of S. S. Khan, Asstt. Sub-Inspector of Police, P. S. Tendukheda where he stated that he was knowing the accused Shobharam and he accompanied the In charge Police Station Shri Rajesh Tiwari to the village Menhada and along with witnesses and as soon as he reached the house of the accused, the accused after seeing himran inside the house and he was caught by all the persons. On his asking, the accused told that he has no opium with him and he volunteered by saying that he can search him. At this, Rajesh Tiwari, In charge Police Station gave his search as well as the search of the persons and obtained the consent letter regarding the search on the accused, and thereafter, the search was taken and the contraband article was recovered from the inner pocket of the Baniyan worn by the accused, wrapped in a polythene wrapper. In this connection, the learned counsel for the appellant further invited the attention of the Court to the specific statement that the accused-was caught hold of by Rajesh Tiwari, In charge Police Station and Rajesh Tiwari did not tell the accused that if he so desires, he can get search done before the nearest Gazetted Officer or the nearest Magistrate and he further stated that nothing in this regard was taken in writing to this effect. The relevant statement is as extracted below :thereafter, the learned counsel for the appellant placed before the Court the statement of Rajesh Tiwari, Investigating Officer (P. W. 5) who has reported the whole of the story and he stated that the accused volunteered for getting himself searched. At this, he prepared the consent letter which is Ex. P-2. and contains the signature of the accused. The search was taken and the opium about 25-30 grams was recovered from the inner pocket of the Baniyan which the accused was wearing and the article recovered was seized and the seizure memo was prepared. At this, he prepared the consent letter which is Ex. P-2. and contains the signature of the accused. The search was taken and the opium about 25-30 grams was recovered from the inner pocket of the Baniyan which the accused was wearing and the article recovered was seized and the seizure memo was prepared. Learned counsel for the appellant invited the attention of the Court to Para 4 of the Statement and the relevant portion is extracted below :on this basis, the learned counsel for the appellant submitted firstly that it was not a case where the police personnel went to arrest a person or search a person for something else. It was a case where the special information was provided by the informant by the police regarding the possession of opium by the appellant and not only this, the informant was so much exact that the police officers were also told that the person is keeping the opium in the inner pocket of the Baniyan; and as such the proceedings were taken regarding search, seizure and arrest under the Act and the proceedings were not under the provisions of Code of Criminal Procedure. ( 9 ) LEARNED counsel for the appellant further submitted that to such cases, the requirement of law is that the person who was to be searched, ought to have been told about his right in unequivocal language that he has got a right under the law for getting his search done either before the nearest Gazetted Officer of any of the departments mentioned in Section 42 of the Act or before the nearest Magistrate. In this back ground, the learned counsel for the appellant, in support of his submission placed reliance on the decision of the Supreme Court in state of Punjab v. Balbir Singh, (1994) 3 SCC 299 : (1994 Cri LJ 3702 ). In that case, the question for consideration was as to what meaning to be given to the words "if the person to be searched so requires". There is no dispute that the provisions of Section 50 of the Act are brought on the book so as to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities; and as such, the legislature has taken fullest possible precautions so as to see that the innocent persons are not harassed. The question for consideration before the Supreme Court was whether the aforesaid words in Section 50 are mandatory. Section 50 lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The Supreme Court considered the meaning of the phrase "if the person to be searched so requires", and it was held : When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a nearest Gazetted Officer or a nearest Magistrate. Thus, the provisions of Section 50 are mandatory. Now the question for consideration is that the person to be searched should make a request as aforesaid, on his own or that he should be informed by the officer taking the search. The question of making of such a request on his own by the accused would arise only when the accused 'person has knowledge of his such right. If he is innocent or ignorant about his right, there is no question of his making such a request of his own. Of course, the Section contains the words in sub-para (1 ). ( 10 ) THE facts of the case relied on are different as it appears from the judgment in the case of the State of Punjab v. Balbir Singh (1994 Cri LJ 3702) (supra ). In that case, it was held that if a police officer without any prior information as contemplated under the provisions of the N. D. P. S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr. In that case, it was held that if a police officer without any prior information as contemplated under the provisions of the N. D. P. S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr. P. C. and when such search is completed at that stage Section 50 of the N. D. P. S. Act would not be attracted and the question of complying with the requirements there under would not arise. In such a situation, as is observed by the Supreme Court in the case (supra), the position was held to be different and the Court found that the compliance of Section 50 N. D. P. S. in regard to search and seizure would not arise and such search and seizure in compliance with the provisions of Cr. P. C. cannot be declared as illegal. But in the case in hand, the position is different. Here the police officer received the specific information through the informant about the commission of the offence under the Act and the police officer affected arrest, search and seizure not on any suspicion of commission of the punishable offence but under the provisions of the Act. ( 11 ) THE Court in the above case considered the position that when a police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the Cr. P. C. comes across a person being in possession of the narcotic drugs or psychotropic substance then two aspects will arise. If he happens to be one of those empowered officers under the N. D. P. S. Act also then he must follow thereafter the provisions of the N. D. P. S. Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing should do is that he must in form the empowered officer under the N. D. P. S. Act who should thereafter proceed from that stage in accordance with the provisions of the N. D. P. S. Act. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and question of taking to Gazetted Officer would not arise because by then search would have been over. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and question of taking to Gazetted Officer would not arise because by then search would have been over. As laid down in Section 50 the steps contemplated thereunder namely informing and taking him to the Gazetted Officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of Cr. P. C. then the question of complying with Section 50 would not arise. In the present case, the proceedings were under the Act and not under the Code of Criminal Procedure. The Court in the aforesaid case (supra) also observed in para 8 to the following effect :-"8. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then, in such a case, the Magistrate or the officer empowered has to proceed and act under the provisions of Sections 41 and 42. ( 12 ) PARA 16 of the said judgment is relevant on the point and the same is extracted below :-"16. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the N. D. P. S. Act by the empowered or authorised officer while conducting the search, affects the prosecution case ? The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 42, shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the authorised officer concerned can detain him until he can produce him before such Gazetted Officer or the Magistrate. After such production, the Gazetted Officer, or the Magistrate, if sees no reasonable ground for search, may discharge the person. But, otherwise, he shall direct that the search be made. To avoid humiliation to females. it is also provided that no female shall be searched by any one except a female. After such production, the Gazetted Officer, or the Magistrate, if sees no reasonable ground for search, may discharge the person. But, otherwise, he shall direct that the search be made. To avoid humiliation to females. it is also provided that no female shall be searched by any one except a female. The words "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazettedofficer of a Magistrate and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to he searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the persons to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart such more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. AND the Court in para 20 came to the conclusion that :"when such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. There it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus, the provisions of Section 50 are mandatory. There it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus, the provisions of Section 50 are mandatory. "so is the conclusion in para 25 (5) of the said judgment, which is extracted below :-"on prior information, the empowered officer or authorised officer while acting under Section 41 (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such persons should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. " :- ( 13 ) LEARNED state Counsel submitted that the case relied on by the learned counsel for the appellant would not be applicable as the appellant himself gave him consent letter for his search being done by the investigating officer and that consent was duly signed by him and therefor with such consent as given by the appellant himself the position became different as the person to be searched has relinquished his right as provided under the Act. ( 14 ) THE submission at the out set, as stated above, appears to be attractive but if accepted, would not satisfy the intent of law. The basic question of waiver of right by consent would arrive only when the person knows about his right or he has knowledge about his right or he is made known about his right hut in the present case there is no material that the accused person was knowing his right or he was made known about his right under the law. In this regard the only material is the statement of witnesses P. W. 4 S. S. Khan and P. W. 5 Rajesh Tiwari. ( 15 ) LEARNED counsel for the State submitted that from the para 20 of the judgment of the Supreme Court (1994 Cri LJ 3702) (supra) it appears that the point of consideration of the Hon'ble Judges of the Supreme Court was the word "desires" and not the word "requires". In para 16, of the judgment (supra) of course the words are "if the person to be searched if so desires" but on reading whole of the Paragraph it is amply clear that the Court was considering the word "requires" and not "desires. " ( 16 ) THE third submission of the learned counsel for the State was that the requirement of Section 50 for taking such person to the nearest Gazetted Officer or the nearest Magistrate was complied with in the present case the present case the person who made the search was the person empowered u/s. 41 of the Act and appointed u/s. 7 of the Act and in this connection the reliance is placed on the Notification No. F. No. B-6-35-VSR-86-4801 dated 11-11-85 published in exercise of the powers conferred by sub Section (2) of Section 41 of the Act. ( 17 ) THE said notification is extracted below :"notification.- F. No. B-6-35-VSR-85-4801, dated the 11th November, 1985.- In exercise of the powers conferred by sub-Section (2) of Section 41 of the Narcotic Drugs and Psychotropic Substances Act 1985 (No. 61 of 1985), the State Government hereby authorises following officers for the purposes of the said sub-Section, within the areas of their respective jurisdiction, namely :-I. Excise Department - (I) Excise Commissioner/additional Commissioner of Excise. (II) Deputy Commissioner Excise. (III) Assistant Commissioner Excise/assistant Commissioner Excise, Flying Squad. (IV) District Excise Officer/district Excise Officer, Flying Squad. (V) Excise Inspector/excise Inspector, Flying Squad. (VI) All Head Constables. 2. Police Department, - (I) Superintendent of Police/additional Supdtd. of Police. (II) Deputy Superintendent of Police. (III) Assistant Supdt. of Police. (IV) Inspector. (V) Sub-Inspector. (VI) Assistant Sub-Inspector. 3. Revenue Department :- (I) Collector/addl. Collector. (II) Asstt. Collector. (III) Dy. Collector. (IV) Tahsildar. 4. Drug Department :- (I) Drug Controller. (II) Asstt. Drug Controller. (III) Drugs Inspector. 2. Police Department, - (I) Superintendent of Police/additional Supdtd. of Police. (II) Deputy Superintendent of Police. (III) Assistant Supdt. of Police. (IV) Inspector. (V) Sub-Inspector. (VI) Assistant Sub-Inspector. 3. Revenue Department :- (I) Collector/addl. Collector. (II) Asstt. Collector. (III) Dy. Collector. (IV) Tahsildar. 4. Drug Department :- (I) Drug Controller. (II) Asstt. Drug Controller. (III) Drugs Inspector. ACCORDING to the learned State counsel the notification aforesaid includes Sub-Inspector of Police and in the present case, Rajesh Tiwari is the Sub-Inspector of Police who effected search and seizure and as such, according to him, there is no irregularity or illegality. ( 18 ) THE words in Section 50 of the Act are "gazetted Officer". The question arises as to what is Gazetted Officer. The authorities are not at variance at the point. The word "gazetted" is not defined in the Act. In such a situation, the help from the Dictionary may be taken though the Dictionaries are not dictates of statutes. The word "gazette" is defined in the General Clauses Act, 1897 (X of 1897) in Section 2 (39) which is extracted below :-" (39) "official Gazette" or "gazette" shall mean the Gazette of India or the Official Gazette of a State :"in the M. P. General Clauses Act, 1957 (Act No. 3 of 1957), the word "official Gazette" or "gazette" means the Official Gazette of the State of Madhya Pradesh;the word "gazette" in the "the Shorter Oxford English Dictionary" (By William Little) Third Edition at page 781, is defined and the word to be gazetted is also mentioned. The word "gazette", as per this Dictionary, means "to publish in a gazette" and the word "to be gazetted" means to be announced in the Official Gazette as appointed to a command, or the like. But the meaning of the word "to be gazetted out" an officer means a person whose resignation is announced in the Gazette. THE word "officer" is also not defined either in the Act, the Central General Clauses Act or in the M. P. General Clauses Act but the "officer" means a person who is the holder of an office. But the meaning of the word "to be gazetted out" an officer means a person whose resignation is announced in the Gazette. THE word "officer" is also not defined either in the Act, the Central General Clauses Act or in the M. P. General Clauses Act but the "officer" means a person who is the holder of an office. In the Dictionary (supra) at page 1362, the word "officer" is defined as one to whom the charge is committed or whom performs a function, a minister, an agent, or one who holds an office, post or place, or one who holds an office, post or place, or one who holds a public, civil, or ecclesiastical office. ( 19 ) THE learned counsel for the appellant submitted that the Assistant Sub-Inspector is not the Gazetted Officer and as such, he was not the person, even otherwise, authorised under the law. Such a submission is sans substance. Under Section 7 of the Act, the Sub-Inspector of Police is appointed as a person under the Act and he comes within the category of the person u/s. 42 of the Act as he has been empowered for the purpose of the Act. Thus, P. W. 5 Sub-Inspector of Police, Rajesh Tiwari is the Gazetted Officer, as the appointment of the persons empowered under the Act are notified in the Gazette and as such, for the purpose of the Act, he is the Gazetted Officer. ( 20 ) NOW the question for consideration in the present case is not the person or officer who took the search was a Gazetted Officer, within the meaning of Section 50 of the Act, or not but the question for consideration is whether the accused was made known about his right in advance to the search effected and the material on record indicates that the accused was not apprised of his right, as available to him under the law that he, has a right to be searched either by the nearest Gazetted Officer or the nearest Magistrate. Learned Counsel for the State submitted that the Sub-Inspector of Police P. W. 5 Rajesh Tiwari was the Gazetted Officer within the meaning of Section 7 of the Act and was duty authorised to effect search and since the person to be searched had given his consent and since he (the accused) had no objection of being searched, in such a situation, the argument advanced by the learned counsel for the appellant loses its weight. ( 21 ) THE requirement of the law here in the present case is not the authority of the person who is effecting search of or seizure or seizure effected by such a person is valid or invalid. In the present case, the controversy is as to whether the accused was made known about his right, available to him under the law, or not. As already stated above, the Sub-Inspector of Police P. W. 5 Rajesh Tiwari was duly authorised for the purpose and was the proper officer as mentioned u/s. 42 of the Act for the purpose of Section 50 of the Act but the position is different, as it relates to the trust of the accused person and the Legislature has given the option to the accused person either to get himself searched before a nearest Gazetted Officer as provided u/s. 42 of the Act or the nearest Magistrate. The word "gazetted Officer" and the "magistrate" in the context of the scheme of the Act u/s. 50 of the Act has been used in a distinct sense. A Magistrate is necessarily a Gazetted Officer and a Gazetted Officer is not necessarily a Magistrate as the Magistrate is appointed under the Code of Criminal Procedure whereas the Gazetted Officer is not appointed under any special particular Act or Code. He can be appointed under in various Acts. The Legislature has given the option to the accused person either to get himself searched by a nearest Gazetted Officer as provided u/s. 42 of the Act or the nearest Magistrate, and Section 50 of the Act requires the person effecting search to make the person to be searched known about his such right available to him under the law. In the present case, the accused was not made known about his such right available to him under the law. In the present case, the accused was not made known about his such right available to him under the law. Thus, the submission that the Sub-Inspector P. W. 5 Rajesh Tiwari was the Gazetted Officer within the meaning of Section 50 of the Act and was duly empowered u/s. 42 of the Act has no relevance in the context of the controversy in the present case. ( 22 ) LEARNED State counsel further submitted that in a situation where the person effecting a search and seizure u/s. 50 of the Act and empowered u/s. 42 of the Act and the accused person, after knowing it well that he is the authorised person within the meaning of that Section, gives his consent to be searched by such person, then, what would be the position under the law. In Section 50 of the Act, after the words "if such person so requires", the word "take" is used and the word "take" has to be given meaning that the accused person has to be escorted either to the Gazetted Officer as authorised under Section 42 of the Act or the nearest Magistrate for search to be conducted or to be carried. It is a settled principle that the Legislature cannot be expected to use the surplus words. However, in the present case, it requires no consideration as it is a hypothetical position not having any bearing upon the context of the case and as such I decline to express any opinion. ( 23 ) IN the case relied on (supra) the requirement of Section 50 has been held to be mandatory, and what is mandatory that cannot be avoided. There is no question of any relaxation. In considering whether a provision in a statute is mandatory and the effect of non-compliance of the same, the Courts should keeping mind the real intention of the legislature keeping in view the whole scope of the Act and the particular provisions to be construed in the context. Mandatory violation is not curable whereas directory violation is curable. In considering whether a provision in a statute is mandatory and the effect of non-compliance of the same, the Courts should keeping mind the real intention of the legislature keeping in view the whole scope of the Act and the particular provisions to be construed in the context. Mandatory violation is not curable whereas directory violation is curable. ( 24 ) SINCE in the present case, I find that the mandatory requirements of law u/s. 50 of the Act have not been satisfied and as such, it cannot be held that the proceedings held under the Act regarding the search were held according to law, on account of the violation of the specific mandatory requirement of law, the action of search and seizure cannot be justified and consequently the entire proceedings become null and void. ( 25 ) IT may be mentioned that the learned counsel for the appellant, at the out set, volunteered for not pressing the submission Nos. 2 and 3. ( 26 ) ACCORDINGLY, the appeal is allowed. The conviction and sentence as passed against the appellant is set aside and consequently he is acquitted of the offence as charged. He be released for with from jail if not required in any other crime. Appeal allowed. .