A. B. SRIVASTAVA, J. On a reference by a learned Single Judge (Honble G. S. N. Tripathi, J.) the following has been referred to this bench for decision: "whether the ruling Sewa Ram v. State, reported in 1992 (29) ACC Page 586 lays down the correct position of law or not?" 2. Since the aforesaid referred to us arises in connection with a bail application moved in a criminal appeal against connection, only short facts are required to be men tioned. The accused appellant was prosecuted before the Additional Sessions Judge, Varanasi for offence under Section 21 (1) of the Narcotic Drugs and Psychotropic Substan ces Act, 1985 (hereinafter reference as the Act) on the allegation that while on patrolling duty on April 12, 1992, the Station Officer, Police Station Luxa, District Varanasi, alongwith other members of the force, on getting suspicious about the movement of two persons caught hold of them at about 3. 30 P. M. The arrested persons gave out their names as Ashok Kumar Singh and Suraj. On search of their person from the possession of Ashok Kumar five packs of heroin and from the Co-accused ten packs of heroin were recovered. A recovery memo was prepared, the recovered article was duly sealed and after registering a case and usual investigation, charge-sheet was submitted which led to the trial and conviction of both the accused persons. 3. The Criminal Appeal No. 728 of 1993, was preferred by appellant Ashok Kumar inter alia on the ground that there was not compliance made of Sections 42 and 50 of the N. D. P. S. Act. His bail application was pressed on merits as well as on the ground of non-compliance of Sections 42 and 50 of the N. D. P. S. Act. Reliance was placed in this regard on Sewa Ram v. State, 1992 ACC (29) page 586, decided by Honble IS. Mature, J. on April 9, 1992, to the effect that provisions of Sections 42 and 50 of N. D. P. S. Act are mandatory, and it was urged in support of the bail application that once it is proved that there is non-compliance of the mandatory provisions of the rules, the entire conviction is bound to the set aside and this point cannot be deferred till the stage of final adjudication either by the trial Court or by the appellate Court. 4. 4. The learned Single Judge noticed that in Hakim Singh v. Union Territory of Chan digarh, 1988 Cr. LJ 558 the Punjab and Haryana High Court has held the said provisions to be mandatory and violation thereof to cause immense prejudice to the accused. A slightly different note was made by the Bombay High Court in Lawrence D. Suiza v. State of Maharashtra, 1992 Cr. LJ 399 to the effect that in a given case reasonable explanation could be given showing that no prejudice had been caused and in Wilfred Joseph v. State of Maharashtra, 1990 Cr. LJ 1034, it has been held that there is nothing in Section 50 of the N. D. P. S. Act to suggest that Police Officer was duty bound to inform the accused that if he so desires, he shall be searched in the presence of Gazetted Officer or Magistrate. Noticing further that in Banka Das. v. State of Orissa, 1993 Cr. LJ 442, the Orissa High Court has also taken a similar view, and also considering the scheme of the Act, the learned Single Judge has differed with the observations made by Honble I. S. Mathur, J. in Sewa Rams case (Supra), to the effect that, in view of the fact that there are a large number of illiterate people in India who are not aware of their legal rights and provisions of law, therefore, it is mandatory under Section 50 to inform the person to be searched that he had a right to wait till the search is made before a Magistrate under sub-section (1) thereof, and similarly as and when an information is received that must be invariably noted down in Section 42 irrespective of the circumstances, place and time in which it is received, and the moment it is found that there is non- compliance of any of these mandatory provisions, the prosecution case must crumble down. 5. The learned Single Judge has taken the view that the provisions of Section 42 (1) regarding taking down information in writing is not mandatory rather it is directory, to be followed as far as possible and its breach would not necessarily result in failure of prosecu tion. 5. The learned Single Judge has taken the view that the provisions of Section 42 (1) regarding taking down information in writing is not mandatory rather it is directory, to be followed as far as possible and its breach would not necessarily result in failure of prosecu tion. As regards Section 50 the duty to take the person to be searched to the nearest Gazetted Officer or the nearest Magistrate is cast upon the Officer taking search, only when the person to be searched makes a request for the same. If he does not so require, no such duty is cast upon him. In view of this opinion, the learned Single Judge has referred the question aforesaid to a larger bench. 6. We have heard Sri S. P. S. Raghav, the learned Counsel for the appellant and the learned Government Advocate on behalf of the State. 7. At the very outset we would like to make it clear that although the learned Single Judge has referred the questions relating to both Sections 42 (1) and 50 (1) of the N. D. P. S. Act, in the facts and circumstances of the present case the question relating to the mandatory nature or otherwise of Section 42 (1), does not arise. The said section relates to entry, search, seizure and arrest without warrant or authorization, in the event of there being reason to believe from personal knowledge, or information given by any person, that any Narcotic Drugs or Psychotropic Substances in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission of such offence, is kept or concealed in any building, conveyance or enclosed place, and provides that after taking down the information given by such person in writing, entry into, and search of, any such building, conveyance or place, can be made between sun rise and sun set, and in special cir cumstances mentioned in the proviso even between sun set and sun rise after recording the grounds of belief. In the instant case search not having been made of any building, conveyance or place, or of any person in such building, conveyance or place, nor having been made on information given by any person, the provisions of Section 42 (1) of the N. D. P. S. Act did not come into play, and for this reason we do not consider it necessary to answer this part of the question or refer to the analogous provisions in other statutes, or the cases, including the decisions of Supreme Court, cited in this regard, clearly saying that non-compliance of a provision of the nature of Section 42 (1) does not vitiate the evidence so collected. The only effect thereof would be that the Court would be inclined to examine the evidence carefully. 8. As regards the point arising with reference to Section 50 (1) of the Act, in the nature of the controversy raised, the question surviving may be summed up as below: "whether in view of provisions of Section 50 (1) of the N. D. P. S. Act a duty is cast upon the officer authorised under Section 42, who is about to search any person, to inform such person that he is entitled to require to be taken to the nearest Gazetted Officer or to the nearest Magistrate for being searched, and what, will be the effect if he is not so informed?" 9. There is no scope for any two opinion on the point that the provisions of Section 50 of the N. D. P. S. Act would be mandatory if the person to be searched so requires, where after the officer authorized under Section 42 to take the search, will be bound to take such person without unnecessary delay to the nearest Gazetted Officer mentioned in Section 42 or to the nearest Magistrate as required under sub- section (1) of Section 50, and the search shall then be taken in accordance with the provisions of sub- sections (2) and (3) of Section 50. The law does not give any option to the officer conducting search in this regard and a search conduct in contravention thereof would be illegal. The law does not give any option to the officer conducting search in this regard and a search conduct in contravention thereof would be illegal. Yet however, the evidence collected through such illegal search would not altogether be shut, rather as laid down in Radha Kishan v. State of U. P, AIR 1963 SC 822 ; Puran Mal v. Director of Inspection, AIR 1974 SC 348 and State of Maharashtra v. Natwar Lal Damodar Das Soni, AIR 1980 SC 593 , the Court will still have a discretion to admit the evidence so obtained in the given circumstances of the case, the only requirement being that the Court or authority has to be cautious and circumspect in dealing such evidence or material. 10. Now coming to the question under reference, on a plain reading of the provisions of Section 50 (1) itself, it becomes clear that not duty is cast upon an officer making search to inform the person about to be searched, or to ask him as to whether he requires the search to be taken in presence of the Gazetted Officer mentioned in Section 42 or a Magistrate. The simple rule of interpretation of a statute being that the intention of the legislature has to be gathered from the words of the statute itself, there is nothing in Section 50 (1) of the Act to show that it casts any such duty on the officer conducting search. If such was the intention of the Legislature, it could have easily provided that in all cases where any officer duly authorized is about to search any person under the provisions of Section 41, Section 42 or Section 43, such search shall be made in the presence of a Gazetted Officer or a Magistrate, unless otherwise desired by the person about to be searched. The contrary view expressed in Sewa Rams case thus with respect, does not lay down the correct law. 11. As stated above, in Lawrence D. Souza v. State of Maharashtra (Supra) a Division Bench of Bombay High Court while interpreting Section 50 of the Act has held that the Police Officer was not duty bound to inform the person about to be searched that if he so desires, he may be taken to a Gazetted Officer or the Magistrate for being searched. 12. In Surajmal Kanhaiyalal Soni v. State of Gujarat, 1991 Cr. 12. In Surajmal Kanhaiyalal Soni v. State of Gujarat, 1991 Cr. IT 1983, a Division Bench of the Gujarat High Court, disagreeing with the view taken in the State of Himachal Pradesh v. Sudarshan Kumar, 1989 Cr. LJ 1412, has held that the person who is to be searched has a right to require the authorised officer to take him to the nearest Gazetted Officer or to the nearest Magistrate. If no such requisition is made, it is not necessary for the authorized officer to take such person to the Gazetted Officer or nearest Magistrate. The section does not specifically provide that such person should be informed by the authorized officer that it is his right to be taken to the Gazetted Officer or to the Magistrate, nor does it impose any obligation or duty on such officer to inform such person. In the absence of any such provisions imposing the duty on the authorized officer to inform the person who is to be searched, it cannot be said that the officer is bound to inform of such right to the person to be searched, such less it can be said that if such person is not reminded of his right, breach of any statutory provisions committed vitiating investigation and proceeding. 13. A Full Bench of Orissa High Court in Banka Das & Ors. v. State of Orissa, 1993, Cr. LJ 442, (Per majority) has taken the following view: "a close reading of the provision makes it clear that in all cases it does not appear necessary to take the person to the Gazetted Officer or Magistrate as the case may be. It is only when the person to be searched so requires, he is to be taken. The pre-requisite for taking the person to be searched is the requisition of the person concerned, sub-section (1) of Section 50 does not cast any obligation on the concerned officer to inform the person to be searched that he has option of making a requisition to be taken before the Gazetted Officer or the Magistrate. The provision is in pari materia with Section 102 (1) of Customs Act, 1962 and Section 19-A of the Foreign Exchange Regulation Act, 1947, the plea that the person must be made aware of this right has no substance. There are many instances where legislature has specifically provided for such intimation. The provision is in pari materia with Section 102 (1) of Customs Act, 1962 and Section 19-A of the Foreign Exchange Regulation Act, 1947, the plea that the person must be made aware of this right has no substance. There are many instances where legislature has specifically provided for such intimation. We may refer to Section 130 of the Arms Act, 1950 which clearly provides that a person is to be informed that he has a right to object to the composition of the Presiding Officer or members reference may also be made to Section 50 (2) of the Criminal Procedure Code. It provides that where a Police Officer arrests without warrant any person other than the person accused of a non-bailable offence he shall inform the person arrested that he is entitled to be released on bail. " 14. With respect we are in full agreement with aforesaid view expressed by the High Courts of Bombay, Gujarat and Orissa, in the case referred above. In view of this it is not necessary to burden this judgment further with a catena of decisions of Honble Single Judges of various High Courts on the subject. 15. In Raj Bahadur v. State of U. P. 1991 Cr. LJ 2239 a learned Single Judge (Honble G. D. Dubey, J.) of this Court before whom a contention was raised based on 1989 Cr. LJ. 1412 (supra) that the designated officer is bound to inform the person of his right to be taken to the nearest Gazetted Officer or Magistrate, observed that on such ground bail could not be allowed and no comment could be made unless the officer recovering the incriminating material has been examined affording opportunity to explain the text of his recovery memo. 16. In Yogesh Kumar alias Tillu v. State of U. P & Am, 1993 AWC 995, a Division Bench of this Court before which this question was raised in the context of an application under Section 482, Cr. P. C. for quashing the F. I. R. declined to quash the same on the basis of plea amongst other, that mandatory provisions of Sections 42 and 50 of the Act were violated. 17. P. C. for quashing the F. I. R. declined to quash the same on the basis of plea amongst other, that mandatory provisions of Sections 42 and 50 of the Act were violated. 17. The anxiety to protect the interest of such persons who are illiterate or not conversant with their legal rights, in the matter of search notwithstanding, the Courts cannot loose sight of the fact that what the legislature has not thought fit to do in its wisdom, cannot be done by the Courts by way of interpretation. There can also be no presumption that the officers authorized to conduct searches under the Act will always Act with ulterior motives. As to the desirability of having such in built safeguard it may be desirable that suitable amendment is made by the legislature in Section 50 of the Act, to the effect that the search shall be conducted in the presence of a Gazetted Officer of the departments mentioned in Section 42 or the nearest Magistrate, unless the accused declines to avail of it in writing if he is literate, or before an independent witness if he is illiterate; but till such an amendment is not made, it has to be held that Section 50 of the Act does not enjoin upon the authorized officer to inform the person concerned that he may require the search to be made before a Gazetted Officer or Magistrate. 18. Learned Counsel Shri S. P. S. Raghav on behalf of the appellant has placed reliance on the decisions of the various High Courts referred in Dadan Singhs case (Supra ). These are as follows: (i) Jaipalan v. State, 1991 (1) EFR 467. (ii) Ahmad Nasir v. State of Andhra Pradesh, 1991 (1) EFR 475. (iii) Jainul Abdin v. State of Manipur & Ors. , 1991 (2) EFR 464. (iv) Bedi & Ors. v. State of Madhya Pradesh, 1991 (2) EFR 461. (v) Shiv Kumar v. State, 1990 (2) EFR 646. 19. All these decisions were however, rendered in appeals preferred against the conviction after trial, at which stage obviously the Court was in a position on the basis of evidence, to take a decision whether or not prejudice had been caused on account of non-observance of the provisions of Sections 42 and 50 of the Act. 19. All these decisions were however, rendered in appeals preferred against the conviction after trial, at which stage obviously the Court was in a position on the basis of evidence, to take a decision whether or not prejudice had been caused on account of non-observance of the provisions of Sections 42 and 50 of the Act. In fact, in Dadan Singhs case (Supra) in Paras 21, 22 and 26 the learned Judge (Honble I. S. Mathure, J.) has himself observed that it is difficult to accept the sweeping submission that mere violation of Sections 42 of 50 and the Act would be fatal to the trial and the accused will be entitled to acquittal or to bail, and if irrespective of failure to comply with these provisions no prejudice has been caused, the illegality of search does not vitiate the evidence collected during such illegal search. 20. Consequently our answer to the question referred as refrained by us, is that view expressed in Sewa Ram v. State, 1992 (29) ACC 586, to the effect that under Section 50 of the N. D. P. S. Act a duty is cast upon an officer authorized under Section 42 of the Act to inform the person about to be searched that if he so desires, he may be taken to the nearest Gazetted officer of the departments mentioned in Section 42, or to the nearest Magistrate for being searched, does not lay down the correct law. 21. As the learned Single Judge has referred the matter of bail also to be considered by the Division Bench, we have examined this aspect also. Although, we feel that there has been not violation of Section 50 of the N. D. P. S. Act, yet in view of the fact that appeal of the appellant shall take a long time to be heard the appellant during the pendency of the appeal may be enlarged on bail. 22. Accordingly let the appellant Ashok Kumar Singh in Criminal Appeal No. 728 of 1993 arising out of Criminal Case No 564 of 1992 - State v. Ashok Kumar Singh, under Section 21 (1) N. D. P. S. Act of the Court of Additional Sessions Judge, Varanasi, be enlarged on bail on furnishing two sureties each in the amount of Rs. 25,000 and a personal bond of like amount to the satisfaction of C. J. M, Varanasi. 23. 25,000 and a personal bond of like amount to the satisfaction of C. J. M, Varanasi. 23. The appeal may be listed in due course, before the appropriate bench for hear ing. Bail granted. .