The provisions of Ss. 42 and 50 of the N. D. P. S. Act are mandatory and violation of these provisions must, prima facie, be held to cause prejudice to the accused.

( 1 ) IN these bail applications, similar questions of law have been raised and these are accordingly being disposed of by this common order.

( 2 ) THE submission made on behalf of the learned counsel, for the applicants are that Ss. 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as N. D. P. S. Act) are, mandatory and their violation must lead to the presumption of prejudice to the accused. It is further submitted by the learned counsel that if these provisions are violated, the prosecution and. trial will itself be vitiated, and, as such, the accused will be entitled to bail. As a corollary to this proposition, it is submitted that, in considering the grant of bail for violation of these provisions, the alleged fact that large quantity of the narcotic drugs or psychotropic substances was recovered, will be quite irrelevant consideration.

( 3 ) ON the other hand, learned Additional Government Advocate submitted that these provisions may not be considered to be mandatory and if there is reason to believe that accused is prima facie guilty of the offence or he is unable to show prima facie that he is not guilty of the offence with which he has been charged, mere violation of these provisions could not entitle him to be released on bail.

( 4 ) RELEVANT portions of Ss. 42 and 50 read as follows : "42. (1) Any such officer. . . . . . . . if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed. . . . . . . . . . may, between sunrise and sunset : (a) enter into and search any such building conveyance or place; (b) to (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : (2) Where an officer takes down any information in writing under Sub-Sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. "50 (1 ). When any officer duly authorised under 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 ). (2) 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. "

( 5 ) THE nature and scope of these provisions was considered by me in an earlier decision of Sewa Ram v. State, 1992 Cri LJ 2929. On an analysis of these two provisions, they were held to be mandatory. It may be wrothwhile to reproduce the following observations made in that judgment : "these provisions cast a statutory duty upon the police officers or the other authorities to reduce the information in writing and also gave an option to the accused to be searched before a Gazetted Officer or a Magistrate. These provisions are mandatory and violation thereof must, prima facie, be held to cause prejudice to the accused. " "there is another aspect of the matter. If these provisions are not held mandatory and their violation is overlooked or permitted that would be against the mandate contained in Art. 21 of the Constitution. The word law in the expression, procedure prescribed by, law in Art. 21 has been interpreted in Maneka Gandhis case AIR 1978, SC 597 to mean tha