S. C. PANDEY, J. ( 1 ) THIS appeal is directed against the judgment dated 6-2-1997, delivered by IIIrd Additional Sessions Judge, Raipur, in the capacity of Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985, in Special Criminal Case No. 165 of 1994, whereby the Court-below has convicted the appellant under Section 20 (b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act'), and sentenced her to undergo five years' R. I. and to pay a fine of Rs. 1,000/-, in default, to undergo R. I. for three months. ( 2 ) IT is not in dispute that during the investigation, the police had registered Crime No. 350/94 against the appellant as well as one Askaran under Section 20 (b) of 'the Act'. During the pendency of the case, Askaran died and, therefore, his name was deleted from the array of the accused persons. ( 3 ) THE prosecution case, in short, is that on 2nd August, 1994, at about 10. 15 p. m. , the Sub Inspector, C. P. Saxena, of Police Station Khamtari, District Raipur, received the information through the police informer that contraband Ganja is likely to be unloaded at Chuna Bhatta, after being carried by Waltair Train to Raipur. After informing the Superintendent of Police and concerned Station House Officer about the news received by him and recording the fact in Rojnamcha Sanha, C. P. Saxena went to Chuna Bhatta along with A. S. I. , Chandrakar, Head Constable No. 367 and Constable Nos. 711, 1633 and 1166 in a police vehicle. The vehicle was being driven by one Raju. The fact of departure was got recorded by C. P. Saxena in Rojnamcha Sanha No. 122, dated 2-8-1994. ( 4 ) THEREAFTER, C. P. Saxena went to the spot along with witnesses, and after serving notice to the appellant and Askaran, and asking them that they had valid licence for keeping Ganja with them, made a search and found that Askaran had 11 kilogrammes of Ganja and the appellant had 20 Kilogrammes of Ganja with her. The Ganja was recovered from different plastic bags. Two plastic bags containing 20 kilogrammes of Ganja were found in possession of the appellant. Thereafter, C. P. Saxena seized Ganja from the possession of both the persons. Thereafter, he took about 100 grammes each from the two sets of material seized, by way of sample. The Ganja was recovered from different plastic bags. Two plastic bags containing 20 kilogrammes of Ganja were found in possession of the appellant. Thereafter, C. P. Saxena seized Ganja from the possession of both the persons. Thereafter, he took about 100 grammes each from the two sets of material seized, by way of sample. He then, prepared two packets and sealed them for the purpose of sending them to Chemical Examiner. Thereafter, both the accused persons were arrested and they were brought to police station at about 2. 05 a. m. on 5-8-94. Accordingly, F. I. R. was recorded and Crime No. 350/94 was registered against both the accused persons. Two samples of 100 grammes each seized from the bags belonging to Askaran as well as Shantabai were sent to Chemical Examiner, Raipur. Thereafter, prosecution was lunched against both the accused when it was found from report of Chemical Examiner that the samples aforesaid were Ganja. ( 5 ) THE appellant was charged with an offence covered by Section 20 (b) of 'the Act'. The appellant denied the charge. ( 6 ) THE trial Court has convicted the appellant holding that 20 kilogrammes of Ganja was recovered from the possession of the appellant. For this purpose the Court below relied mainly on the evidence of P. W. 1, S. L. Chandrakar, the Sub Inspector of Police, who accompanied late C. P. Saxena, the Investigating Officer. The prosecution was unable to examine C. P. Saxena on account of the fact he died in an accident. P. W. 1, S. L. Chandrakar proved the signature of C. P. Saxena on Ex. P-1 to Ex. P-9. In his evidence, he stated that he had accompanied C. P. Saxena, who had seized Ganja from the appellant and Askaran in his presence and lodged F. I. R. Ex. P-9 and had sent two packets containing 100 gms. of the article seized for each accused to the Chemical Examiner. He also says that C. P. Saxena had taken the consent letters also from the accused persons. P. W. 3, Tarkash admitted his signature on Ex. P-1, Ex. P-2, Ex. P-3 and Ex. P-4 but denied the fact that he had participated in the process of search and seizure. He said that he signed the documents because the police asked him to sign them after stopping him on the way. P. W. 3, Tarkash admitted his signature on Ex. P-1, Ex. P-2, Ex. P-3 and Ex. P-4 but denied the fact that he had participated in the process of search and seizure. He said that he signed the documents because the police asked him to sign them after stopping him on the way. The trial Court, however, found some corroboration in the testimony of another hostile witness, P. W. 5, Dhirendra Kumar Mehta. The evidence of this witness is ambivalent. He said that seizure was made from the appellant but not before him. He signed the documents Ex. P-1 and Ex. P-2 at police station Khamtarai. ( 7 ) FROM this evidence on record, the trial Court seems to have concluded, that it was proved that 20 kilogrammes of Ganja was recovered from the appellant. It was found by trial Court that 100 gms. of Ganja out of the Ganja seized from the appellant was sent to Regional Forensic Science Laboratory, Raipur. It confirmed that the substance seized from the appellant, was Ganja. Accordingly, the trial Court found that Shantabai, the appellant, was guilty of offence under Section 20 (b) of 'the Act'. The trial Court, having turned down the plea of the appellant that the trial was vitiated because Section 50 of 'the Act' was not complied with on the ground that the appellant was not prejudiced. ( 8 ) THE learned counsel for the appellant, Shri A. D. Deoras, argued that compliance of Section 50 (1) of 'the Act' was mandatory as was held by Supreme Court in the case of State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702), Ali Mustafa Abdul Rahman Moosa v. State of Kerala, AIR 1995 SC 244 : (1994 AIR SCW 4393) and Mohinder Kumar v. The State, Panaji, Goa, AIR 1995 SC 1157 : (1995 Cri LJ 2074 ). The learned counsel urged that the burden of proof was upon the prosecution to prove that Section 50 (1) of 'the Act' was strictly complied with as it was a mandatory provision. The learned counsel argued that non-compliance of aforesaid Section 50 (1) was prejudicial to accused as seizure witnesses have not supported the case of the prosecution. The appellant is being convicted on the primarily on the basis of testimony of P. W. 1, S. L. Chandrakar. ( 9 ) THE Penal Lawyer, Ku. The learned counsel argued that non-compliance of aforesaid Section 50 (1) was prejudicial to accused as seizure witnesses have not supported the case of the prosecution. The appellant is being convicted on the primarily on the basis of testimony of P. W. 1, S. L. Chandrakar. ( 9 ) THE Penal Lawyer, Ku. Maya Verma, supported the decision of trial Court arguing that the consent letter Ex. P-5, was enough compliance of Section 50 (1) of 'the Act'. She also argued that no prejudice was caused to the appellant. ( 10 ) BEFORE, this Court embarks upon question of the nature of compliance of Section 50 of 'the Act', it is necessary to determine from the evidence on record, if there was any strict compliance of Section 50 (1) of 'the Act'. P. W. 1, S. L. Chandrakar says that consent of accused persons were obtained and consent letter was also prepared. The witness does not say in his evidence that the appellant was orally informed by C. P. Saxena that she had a right to require him to be searched in presence of the authorities mentioned in Section 50 (1) of 'the Act'. P. W. 5, Dhirendra Kumar Mehta does not say that he had seen C. P. Saxena obtaining any consent. In fact, P. W. 3, Tarkesh and P. W. 5, Dhirendra Kumar Mehta were treated as ordinary seizure witnesses. No question was put to them on behalf of the prosecution regarding obtaining of consent. Therefore, the case of the prosecution hinges upon the testimony of P. W. 1, S. L. Chandrakar and the document Ex. P-3. Ex. P-3 is consent letter. It bears the thumb mark of the appellant showing that she is totally illiterate and is unable to sign. Therefore, it was incumbent upon the prosecution to prove that she was informed orally about her right. There is no evidence in support of the prosecution case that there was any oral information given to the appellant. This fact in itself sufficient for holding that there was no compliance with Section 50 (1) of the Act. It is not necessary to proceed further. However, the consent letter does not strictly comply with Section 50 (1) of the Act. In this letter, the last line says if the accused is willing to get the search made through him or 'through another Gazetted Officer'. It is not necessary to proceed further. However, the consent letter does not strictly comply with Section 50 (1) of the Act. In this letter, the last line says if the accused is willing to get the search made through him or 'through another Gazetted Officer'. Even if we assume that this consent letter was effective, it would not be strict compliance with Section 50 (1) of the Act. ( 11 ) IT is, therefore, necessary to consider the meaning and purport of Section 50 (1) of the Act. Section 50 (1) of the Act reads as follows :-"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. "it is clear from Section 50 (1) of the Act that it issues mandate to any officer authorised under Section 42 of the Act- (i) who is about to search the person under Sections 41, 42 or 43; and-- (ii) if such person, whom he is about to search, requires to take him without unnecessary delay- (a) to the nearest Gazetted Officer of the departments mentioned in Section 42 or-- (b) to the nearest Magistrates. This Court finds that in absence of any oral evidence on record that the consent was obtained after informing the appellant about her right under Section 50 (1) of the Act, the trial Court rightly concluded that Section 50 (1) of the act was not complied with. This is more so in case of the appellant who could barely put her thumb mark on consent letter without understanding the contents of it unless explained orally. However, such cases are of frequent occurrence and, therefore, it is necessary to dilate a little further on Ex. P-5, because it was contended, that after obtaining the letter, Ex. P-5 from the appellant, the prosecution was immune from any criticism as there was sufficient compliance with Section 50 (1) of the Act. It is not in dispute that Section 50 (1) of the Act is mandatory. P-5, because it was contended, that after obtaining the letter, Ex. P-5 from the appellant, the prosecution was immune from any criticism as there was sufficient compliance with Section 50 (1) of the Act. It is not in dispute that Section 50 (1) of the Act is mandatory. The decision of the Supreme Court in State of Punjab v. Balbir Singh (supra) has concluded the controversy. The further question whether it could be held that in giving the information to accused persons, whether the investigating agency could mull over the matter by supplying inadequate information. In other words, the manner of compliance of Section 50 (1) of the Act is merely directory and its compliance only is mandatory. In a given statute such interpretation is possible when mandatory and directory provisions are lumped together. However, it is not possible to say that compliance of Section 50 (1) of the Act is mandatory but it need not be complied exactly. The facts of this case show that Ex. P-5 only mentions Gazetted Officer. It omits nearest Magistrate. Gazetted Officers are galore; whereas Section 50 (1) of the Act refers to 'the nearest Gazetted Officer of any of the department mentioned in Section 42'. Therefore, mentioning of Gazetted Officer only is not strict compliance with Section 50 (1) of the Act. ( 12 ) THIS Court is of the view that Section 50 (1) of the Act has to be interpreted as mandatory for the reason the accused has right to be produced before the nearest Magistrate or Gazetted Officer of any of the department mentioned in Section 42, if he so requires, because Section 50 (3) of the Act clothes one of them only with power to discharge him if he sees no 'reasonable ground for search'. This right cannot be exercised by accused before any other Gazetted Officer. The Investigating Officer cannot get away by giving wrong information and thereby disobeying the statute. It may be that the accused may have no right to demand that he should be produced before a particular officer but he has a right to definite information regarding the search to be made before the officers who could discharge him. The protection given by Section 50 (3) of the Act is not merely protection against search of the person, but it is much larger protection. It is a protection from arrest and detention. The protection given by Section 50 (3) of the Act is not merely protection against search of the person, but it is much larger protection. It is a protection from arrest and detention. If the accused is discharged by the named officer without any search, he is a free citizen. Even otherwise, search by or before an officer of Superior rank is likely to protect the accused from false implication, if search is made in his presence. Looking to the importance of involved right of liberty in this case, this Court holds not only compliance of Section 50 (1) mandatory but the mode of compliance is also mandatory. Section 50 (1) of the Act should be complied with strictly. ( 13 ) THE aforesaid principle of interpretation has been applied in numerous cases where power was conferred upon the Court or an authority to deprive a person of his liberty. It is not necessary to multiply the cases. However, the following observations of Supreme Court in State of Punjab v. Sukhpal Singh, AIR 1990 SC 231 at p. 245 : (1990 Cri LJ 584) are appropriate :-"relying on the observation of M. H. Beg, J. , in P. D. Drorah v. District Magistrate, Kamrup, (1974) 2 SCR 12 : AIR 1974 SC 183 : (1974 Cri LJ 286) it can be said that the gravity of the evil to the community resulting from anti-social activities cannot furnish adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The protection of personal liberty is largely through insistence on observance of the mandatory procedure. "it was further observed at the same page that :-"one of the foremost and fundamental rights guaranteed in the Constitution is personal liberty and one cannot be deprived of it except by the procedure prescribed by law, Libertus inestimabilis res est. Liberty is an inestimable thing above price. Libertus omnibus rebus favourabilier est. Liberty is more favoured than all things (anything ). It would be ironic if, in the name of social security, we would sanction the subversion of this liberty. When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is strictly observed. "thus, the view of this Court constitutionalizes the statute. When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is strictly observed. "thus, the view of this Court constitutionalizes the statute. ( 14 ) THE next question that has to be answered by this Court is if the trial Court was right in holding that, the appellant is liable to be convicted. In a civil case, there is possibility of waving a mandatory procedure but accused persons cannot waive a mandatory procedure. It is very difficult to understand, if a particular procedure is mandatory; how could accused waive it or the prosecution could claim that non-compliance of it does not prejudice the accused ? It is as well the mandatory procedure should have been taken out of statute book. However, so far as this case is concerned, it is clear that the appellant was prejudiced. She had a right to be produced before any of the officers mentioned in Section 50 (1) of the Act who was authorised by Section 50 (3) of the Act to discharge her at the spot if he had reason to believe that no search was necessary. Even she would be in better hands when search was under before him. He could unlike the police let the accused go if after search nothing was found. The Legislature itself had made this safeguard and to say, that no prejudice is caused, by not providing the opportunity to claim its benefit, would be travesty of justice. ( 15 ) THIS Court is further of the view that the appellant was prejudiced on account of the fact that Ex. P-9, F. I. R. was written by late C. P. Saxena himself, and due to his death, he could not be examined. The seizure witnesses have not supported the case of the prosecution. The arrest memo, Ex. P-3 and Ex. P-4 apparently bear the signature of the seizure witnesses. The prosecution has omitted to prove their signatures on these documents. In absence of C. P. Saxena, it is difficult to prove by cross-examination, that these documents were not prepared at the spot but subsequently at the police station in order to show arrest. The arrest memo, Ex. P-3 and Ex. P-4 apparently bear the signature of the seizure witnesses. The prosecution has omitted to prove their signatures on these documents. In absence of C. P. Saxena, it is difficult to prove by cross-examination, that these documents were not prepared at the spot but subsequently at the police station in order to show arrest. Had the appellant been given option to exercise her statutory right, she may not even be prosecuted if she was discharged or nothing was recovered from her. It is great prejudice to her case, that despite the fact that independent witnesses did not support the case of the prosecution, she is being convicted on the testimony of a witness who merely accompanied the Investigating Officer C. P. Saxena. All the documents must have been prepared by C. P. Saxena as nobody says otherwise. The appellant had no opportunity to cross-examine him. Therefore also, non-compliance of Section 50 (1) of the Act was fatal to the case of the prosecution. ( 16 ) THIS Court strongly relied on the decision of Supreme Court in State of Punjab v. Balbir Singh (supra), Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (supra) and Mohinder Kumar v. The State, Panaji, Goa (supra), for coming to the conclusion that non-compliance of Section 50 (1) of the Act would be fatal to the prosecution and accused is entitled to acquittal. ( 17 ) THE result of the aforesaid discussion is that this appeal succeeds and is allowed. The conviction and sentence imposed upon the appellant by the trial Court vide impugned judgment, are, hereby set aside and the appellant/accused Shanta Bai is acquitted. The amount of fine, imposed upon the appellant by the trial Court, it has already been deposited by her, shall be refunded to the appellant. The appellant is on bail. Her personal and surety bonds are hereby discharged. She is directed to appear before the Chief Judicial Magistrate, Raipur, on 23rd of October, 1997, for hearing the result of this appeal. Appeal allowed. .