Arijit Pasayat, C.J.

Scope and ambit of the proviso to S.36 of the Kerala Abkari Act (1 Karkadagom 1077, corresponding to English calendar 1902) (in short, the act), which was extended to the whole of Kerala with effect from 11th day of May 1967 by Act 10 of 1967)is under consideration. This has become necessary as there was cleavage in view expressed by two learned single Judges. In Ramachandran Nair v. State (1990 (1) KLT 44), it was. held that prosecution had failed to give explanation for non-compliance with the conditions stipulated in proviso to S.36 and, therefore, accused was entitled to acquittal. Contrary view appears to have been taken in Job v. State of Kerala (1991 (1) KLT 491). In view of this divergence, learned single Judge, before whom present petition was placed for hearing, has made a reference to this Court.

2. In order to appreciate the rival contentions, it is necessary to quote S.36:

"36. Searches how to be made:- All searches under the provisions of this Act shall be made in accordance with the provisions of the Code of Criminal Procedure, 1898.

Provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer".

3. Main part of S.36 mandates that all searches under the provisions of Act are to be in accordance with provisions of Code of Criminal Procedure 1973 (in short, the Code). Originally the expression read 'Code of Criminal Procedure, 1898 (in short, the old Code) which has been subsequently amended. In the Code, modalities of search are indicated in Chapter VII under the heading 'processes to compel the production of things'. Under the sub-heading (c), 'general provisions relating to searches' are dealt with. S.99 of the Code corresponds to old S.99. S.100 of the Code has eight subsections. Sub-ss.(1), (5), (6) and (8) relate to Sub-s.(1) of old S.102 and sub-s.(2), (3) and (5) of S.103 of old Act respectively, word for word. Sub-s.(2) reproduces S.102(2) and sub-s.(7) reproduces S.103(4) with only change in respect of Sections referred to therein. Sub-ss.(3) and (4) correspond to Sub-s.(3) of S.102 and Sub-s.(4) corresponds to sub-s.(1) of old S.103. In sub-s.(4), certain words viz. 'or of any other locality if no such inhabitant of said locality is available or is willing to be a witness to the search, to attend' have been added and appear to have been made to ensure that witnesses for search are disinterested persons and to provide that witnesses may be of any other locality if respectable and independent witnesses of the locality are not available or are not willing to be witness of search. S.101 of the Code corresponds to old S.99. Proviso to S.36 provides that persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer.

4. Question is whether the provision is mandatory or directory. According to learned counsel for State, provision is directory as it relates to a procedure. On the other hand, according to learned counsel for accused, provision is mandatory, more so when it is in corporated by way of a proviso. Use of the word 'shall' is said to be determinative of the question. Study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of statutory provison in question, in determining whether the same is mandatory or directory. In an oft-quoted passage, Lord Campbell said: "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of legislature by carefully attending to whole scope of the statute to be considered" (see Liverpool Borough Bank v. Turner: (1861) 30 LJ Ch. 37