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. 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 ma

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