1. This petition has been filed for the grant of bail as the petitioner was arrested on 22.7.99 for allegedly found in possession of 500 grams of heroin for the alleged offence under section 8 (c) read with 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. The learned counsel for the petitioner submitted that as per Section 52 (2) of the Narcotic Drugs and Psychotropic Substances Act, the article seized has not been forwarded to the Magistrate. In support of the said submission the learned counsel for the petitioner relied upon the letter of the Judicial Magistrate, Tambaram addressed to the Special Judge N.D.P.S. Cases, Chennai in D.No.2413 dated 26.7.99 wherein it has been stated as follows:-

“The property in this case have not been received by this Court and Inspector of Police, NIBCID, Chennai-2 has been asked to produce them before the Special Judge, NDPS Act cases on or before 6.8.1999.”

3. The learned counsel for the petitioner submitted that since admittedly, the properties seized from the petitioner have not been forwarded to the learned Magistrate, the procedure to be adopted by the respondent as contemplated-under Section 52 has not been followed and that provision being mandatory, the petitioner is entitled to the grant of bail.

4. In repudiating the above submission the learned Government Advocate based upon the counter affidavit submitted that on receipt of information on 22.7.99 the Inspector of Police, NIBCID, Chennai forwarded the information to the Deputy Superintendent of Police NIBCID, Chennai and thereafter rushed to the scene of occurrence along with other police officials and intercepted the petitioner with two other ‘accused namely Vanitha W./o Ganesan and Ganesan, S/o Ponnusamy at 16.30 hours on 22.7.99. The petitione r was found in possession of 500 grams of heroin and the other 2 persons were found in possession of 500 grams and 200 grams of heroin respectively and therefore a case was registered under section 8 (c) read with 21 of the Narcotic Drugs and Psychotropic Substances Act. The learned Government Advocate further submitted that the search was conducted by a female warder Alangaram of All Women Police Station, Thousand-Lights, Chennai. He also submitted that the accused were produced before the Judicial Magistrate, Tambaram along with seized Properties on 23.7.99. The learned Magistrate made an endorsement on the seized contraband on 23.7.99 along with endorsement in Form 95 and other documents. The learned Government Advocate further submitted that the petitioner Shanthi was convicted for 10 years R.I. and also was imposed a fine of Rs.1 lakh by the Additional Special Judge, NDPS Act, Chennai on 4.8.99 in C.C.No.134 of 1995 and there is yet another case against the petitioner which is pending trial before the Additional Special Judge, NDPS Act, Chennai in C.C, No.618 of 1995 for the alleged offence under Section 8 (c) read with 21 of the NDPS Act.

5. However the above submissions of the learned Government Advocate made on the basis of the counter affidavit were disputed by the learned counsel for the petitioner on the ground that the learned Magistrate himself in his letter, referred to above has stated that he has not received the properties in this case. Therefore the learned counsel for the petitioner submitted that the petitioner is entitled for the grant of bail for non compliance of the procedures to be adopted by the respondent under Section 52 (2) of the NDPS Act.

6. In order to appreciate the rival submissions it would be appropriate for me to first refer to certain important provisions of the Act, relating to the search, arrest, seizure and disposal of articles involved in the offence. As per Section 41 (1) of the Act a Metropolitan Magistrate or a Magistrate of the First class or any Magistrate of the Second Class specially empowered by the State Government in this behalf may issue warrant for arrest of any person whom he has reason to believe to have