Heard Mr. Nimaichand Singh, learned counsel for the petitioner and Mr. A. Jagatchandra Singh, learned Public Prosecutor. 2. This is an application under section 439 CrPC for granting bail to accused Shri NL Angshung Anal. He has been arrested in connection with Sugnu Police Station Case No. 49(11)93 under section 21 of the NDPS Act on 10.11.1993. He was arrested by the Army authority and from his custody some quantity of heroin powder was recovered and on the following day he was produced before the said police station. The seized heroin was also handed over to the police. Thereafter the accused was produced before the learned Judicial Magistrate, First Class, Thoubal and since then he is in custody. 3. Mr. Nimaichand Singh, learned counsel for the petitioner first drew my attention to section 42 of the NDPS Act and submitted that except the officers mentioned therein, none has any authority whatsoever under the law to arrest the petitioner or make any search or seizure under the provisions of the said Act. In this case the petitioner having been arrested by the Army authority and the offending article having been recovered by the said authority, the arrest, search and seizure, as aforesaid, are clearly illegal and without authority of law and, therefore petitioner has to be released on bail. 4. Mr. Nimaichand Singh, learned counsel, further drew my attention to section 50 and submitted that section 50, inter alia, requires that whenever a person is arrested and search and seizure is sought to be made, such person should be informed that if he so desires, he may be searched in presence of a Gazetted Officer of the departments mentioned in section 42 of the Act or before the nearest Magistrate. The accused was never informed by the Army authority about his right as contemplated under section 50 of the Act. Therefore, Mr. Nimaichand Singh submits that arrest/search/seizure having been made in clear contravention of section 42 and 50 of the said Act, same are clearly illegal and without jurisdiction/authority and, therefore, the petitioner has to be released on bail, 5. To buttress the aforesaid contentions, Mr. Nimaichand Singh referred to a decision of Single Bench of Madhya Pradesh High Court in Mari Appa vs. State of MP, 1990 Crl LJ 1990. True this decision supports the contention of Mr. Nimaichand Singh. To buttress the aforesaid contentions, Mr. Nimaichand Singh referred to a decision of Single Bench of Madhya Pradesh High Court in Mari Appa vs. State of MP, 1990 Crl LJ 1990. True this decision supports the contention of Mr. Nimaichand Singh. But for reasons stated below, I am unable to agree with the views expressed by the learned Single Judge in the aforesaid decision. 6. Admittedly, the offence said to have been committed by the petitioner is a cognizable offence. Section 43 of the Code of Criminal Procedure provides that even a private person may arrest or cause to be arrested any psrson who in his presence commits a non bailable and cognizable offence or any proclaimed offender and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a Police Officer or in the absence of a Police Officer, take such action and cause him to be taken in custody to the neatest Police Station. Admittedly the offence alleged against the accused is a cognizable and non bailable offence. That apart there are catena of decisions of the Supreme Court laying down that those search and seizure may be illegal, yet it will not affect the validity of such search and seizure and further investigation. However, Supreme Court further observed that at the time of trial the evidence collected through such illegal search/seizure may be scruti­nised more carefully and with greater caution. In Kadha Kishan vs. State of Uttar Pradesh, AIR 1963 SC 822 , it was observed in paragraph 5 as follows : "So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal, the seizure of the articles is not vitiated. It may be that where the provisions of sections 103 and 165 of the Code of Criminal Procedure are contravened the search could resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding tae sei­zure. But beyond these two consequences no further consequence ensues." 7. The Supreme Court in State of Maharastra vs. Natwarlal Damodardas Soni, (1980) 4 SCC 669 also held the similar view and observed in paragraph 9 to 13 as follows : ''9. But beyond these two consequences no further consequence ensues." 7. The Supreme Court in State of Maharastra vs. Natwarlal Damodardas Soni, (1980) 4 SCC 669 also held the similar view and observed in paragraph 9 to 13 as follows : ''9. Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seizure this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming argue do, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs. 10. In Radhakisban vs. State of UP ( AIR 1963 SC 822 ) the appellant was a postman. He and his father were living in the same house. Certain undelivered postal articles were recovered from an almirah in the house, the key of which was produced by the father. The appellant, Radhakisban was tried and convicted of an offence under section 52 of the Post Offices Act, for secreting postal articles One of the contentions raised on behalf of the appellant was that the search and seizure was illegal inasmuch as it was in contravention of the provisions of sections 103 and 165 of the Code of Criminal Procedure. Mudholkar, J Speaking for the Court, repelled this contention, thus : (SCR page 411-12). "So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of section 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues. These observations apply aptly to the instant case. 11. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues. These observations apply aptly to the instant case. 11. Again in Shyam Lal Sharma vs. State of MP, ( AIR 1972 SC 886 ), Jagamohan Reddy, J delivering the opinion of the Bench, held that even if the search is illegal being in contravention with the requirements of section 165, Criminal Procedure Code, 1898, that provision cease to have any application to the subsequent steps in the investigation. 12. In State of Kerala vs. Alasserry Mohameed, ( AIR 1978 SC 933 ) question arose, whether the failure on the part of the Food Inspector to comply strictly with the statutory provisions, would vitiate the trial and conviction of the respondent ? This Court answered this question in the negative, and referred with approval to the decision, dated July 6, 1976, in \VT Stone, Warden. 74-1055 vs. Lloyd Charles Powell and Cearles L. Wolff, 74-1222 vs. David L. Rice wherein the Supreme Court of the United States of America made a clear departure from its previous decision in the application of the exclusionary rule of evidence. The prosecution in those cases relied upon the evidence of search and seizure, . which were said to be unconstitutional and unlawful. Mr. Justice Powell, who delivered the leading majority judgment, made these pertinent observations : (See SCC page 395 para 12). Upon examination, we conclude, in light of the nature and purpose of the Forth Amendment exclusionary rule, that this view is unjust­ified. We hold, therefore, that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a State prisoner be granted federal have as Corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In his concurring opinion, Chief Justice Burger highlighted the injustice that often resulted from application of the 'exclusionary rule'. In his concurring opinion, Chief Justice Burger highlighted the injustice that often resulted from application of the 'exclusionary rule'. Said the learned Chief Justice : To vindicate the continued existence of this Judge made rule, it is incumbent upon those who seek its retention and surely its extension to demonstrate that it serves its declared deterrent purpose and to show that the results outweigh the rules heavy costs to rational enforcement of the Criminal Law. See. e.g. Willough vs. United States. The burden rightly rests upon those who ask society to ignore trustworthy evidence of guilty, at the expense of setting obviously guilty criminals free to ply their trade. 13. What has been said above is more than enough to show that the first contention raised on behalf of the respondent is devoid of merit." 8- Same view was reiterated by the Supreme Court again in Dr. Pratap Singh vs. Director of Enforcement, Foreign Exchange Regulation Act & others, (1985) 3 SCC 72 . For the sake of gravity, I do not like to reproduce the relevant passages from this decision. 9. Recently, a Single Bench of Delhi High Court in Ompati vs. State, 1990 (2) Crimes 151 held similar views. 10. Therefore, in view of the aforesaid position of law, I am unable to accept the contentions of Mr. Nimaichand Singh that because there were some infraction of section 42 and 50 of the NDPS Act while arrest/search/ seizure etc. were made by the Army authority, the petitioner has to be released on bail. However, at the time of trial, the trial Court may have to exercise greater caution and scrutiny in deciding whether or not to accept or act upon such evidence as regards arrest, search and seizure. Save this there is absolutely no further consequence. 11. Admittedly, the offence said to have been committed by the accused is punishable for 5 years or more as it involves a possession of heroin and, therefore, section 37 of the Act is clearly applicable in this case. Unless the conditions/limitations as contemplated under section 37 of the Act are fully satisfied, this Court has no jurisdiction/authority to grant bail to the accused at this stage. For the reasons stated above, the petition is rejected.