ORDER (ORAL) I.G. Shah, J. - The Petitioner who is prosecuted for the offence punishable under sections 21, 22, 23 read with 28 of the N.D.P.S. Act. 1985, and 135 (1)(a) of the Customs Act, 1962, read with section 8 of the N.D.P.S. Act and under section 135(1) (a) of the Customs Act read with Foreign Exchange Regulation Act has filed this petition. The petitioner was arrested on 7th October 1989 in connection with the said offence. The petitioner has been in custody since the date of his arrest and, therefore, is languishing in jail for 2 years and 8 months approximately .The petitioner appears to have applied for bail to this court by filing Criminal Application No. 1919 of 1990. However, it appears that after hearing both sides the petitioner was allowed to be withdrawn his petition and this court expedited the trial. However, it appears that in spite of the said order passed on 4th October 1990, the petitioner was again required to move this court by filing another Criminal Application No. 3360 of 1991 as for various reasons the trial could not commence. After hearing both the sides, this Court again passed- an order directing the Principal Judge of the City Sessions Court, Bombay, to transfer the case of the Petitioner from the file of J.- Yusuf Pathan to the file of J. J.W. Singh with a direction to take up the said case giving priority over other cases and to decide the same within a period of three months. It was further directed that both sides will not seek any adjournment in the case unless it was absolutely necessary due to some unforeseen circumstances. In view of the said order and direction it appears that the trial of the petitioner commenced on 16.1.1992. The further examination in-chief of P.W.No. 1 could not be commenced on that day as it appears that P.W. No. 1 was absent and the case was adjourned to 21.1.1992. On 21.1.1992, P.W. 1 Negi Agai stepped into the witness box for his further examination-in-chief and the same was continued on 21.1.1992 and 22.1.1992 and then the case was adjourned to 27.1.1992. On 21.1.1992, P.W. 1 Negi Agai stepped into the witness box for his further examination-in-chief and the same was continued on 21.1.1992 and 22.1.1992 and then the case was adjourned to 27.1.1992. Again on 27.1.1992, P.W. 1 was absent and the learned Counsel appearing for the present respondent No. 1 before the trial court had no instructions and, therefore, the case was required to be adjourned to 29.1.1992 and a bailable warrant in the sum of Rs. 1,000/- was issued against P.W. l. In pursuance of the said warrant, it appears that P.W. No. 1 appeared before the Court and his examination-inchief was resumed and the same was over on the next date i.e. 31.1.1992. Cross-examination of the said witness was commenced on the same day and was continued on 4.2.1992, 14.2.1992, 19.2.1992 and was concluded on 20.2.1992. It appears that as other witnesses were not present on that day, the case was adjourned to 26.2.1992 for examination-in-chief of P.W. 2 Shri K. Sanjeeva, the Superintendent of Customs. On 26.2.1992, the said P.W. 2 was absent. It appears that the case was further adjourned to 11.3.1992, 13.3.1992 and 20.3.1992 for examination of the said witness P.W. 2, but it appears that he did not appear before the Court and, therefore, the case was required to be adjourned to 26.3.1992. On 26.3.1992, it appears that the said P.W. 2 was examined and the same continued also on 27.3.1992 and thereafter the case was adjourned to 8.4.1992. On 8.4.1992, P.W. 3 Pesi Lala was examined by the prosecution, he was also cross-examined and his evidence it appears was over on that day. Thereafter the case was adjourned to 23.4.1992 and on 23.4.1992 it was required to be adjourned to 29.4 .1992 as the presiding officer of the court was on leave. On 29.4.1992, panch witness Advani was absent and again bailable warrant was required to be issued for procuring his presence and the case was adjourned to 10.6.1992. The Petitioner, therefore, now, has come to this court with a contention that inspite of the clear direction of this court that the case of the petitioner should be completed within a period of three months from 9.1.1992, the date of the order passed by this court and that both sides will not seek any adjournment in the case unless it is absolutely necessary due to some unforeseen circumstances. The prosecution witnesses were not kept present before the trial court and adjournments were sought by the prosecution and the same were given by the trial court, though reluctantly. It is also pointed out that the trial court was also in fact required to issue warrants against the witnesses to procure their presence before the court and it is pointed out that the warrants were required to be issued against the officers of the department. It is on this basis that the contention is tried to be raised before me that it is not as if that it was not in the hands of prosecuting machinery to keep the witnesses present who were belonging of their own department and, therefore, it appears that it could be a delaying tactics on the part of the prosecuting agency and, therefore, the delay has Occurred. 2. The Respondents have filed affidavit in reply of R.S. Waghmare, Intelligence Officer of Customs. Surprisingly, in the said affidavit, there is no explanation given at all about the absence of the prosecution witnesses before the trial court on certain dates which I have enumerated earlier. The reason obviously must be that no plausible explanation could be shown for their absence. Under these circumstances, it does clearly appear that inspite of the directions of this court that both sides shall not ask for adjournments unless it is necessary due to unforeseen circumstances the prosecution was seeking adjournments for the absence of the witnesses which the prosecution in my view could have kept present before the court without any difficulty as at least two out of them were the officers of the Government only. Under these circumstances though it is tried to be contended before me now by the learned Counsel appearing for the Respondent No. 1 that now the case is at the fag end and it could be over within a period of three weeks or so, as there is no explanation coming forth from the prosecution side for not keeping their witnesses present in court for examination, I am not inclined to give any further time keeping the accused in custody. As stated earlier the accused has been in custody since more than two years and eight months and inspite of the directions of this court, the prosecuting agency had been seeking time to present their witnesses before the court which has resulted in the delay in the trial. 3. The learned Counsel appearing for the respondent No. I tried to contend that the powers of this court to grant bail are restricted in view of the provisions of section 37 of the NDPS Act. There is no doubt that the powers of this court are governed by the said provisions but at the same time, if it appears that the prosecution agency which is responsible for a delay in conducting the trial and that has resulted in detention of the accused in custody for a considerable period, it would be within the powers of this court to grant bail in such situation in spite of the provisions of section 37 of the NDPS Act. I am of this view because it would otherwise mean that inspite of the directions of this court the prosecuting agency by adopting delaying tactics and not producing the witnesses can prolong the trial and see that the accused is kept behind bars without trial for a period which it chooses. In this case, the prosecuting agency did not even apply to this court for extension of time which was granted and on the other hand was responsible for the delay which has not been explained at all by the prosecution in the affidavit which they have filed. Under these circumstances, this court though reluctantly is constrained to release the petitioner on bail. Hence order: The Petitioner is ordered to be released on bail on his furnishing surety for Rs. one lakh or cash security of Rs. 75,000/- subject to further condition that on his release, the Petitioner shall not leave the city of Bombay without the previous permission of the trial court and give attendance before the Registrar of the City Sessions Court every day at any time between 2.45 p.m. to 5 p.m. for a period of one month and thereafter once in a week on every Monday between the same time. No further order in respect of passport is necessary as the passport is already in possession of the Respondent No. 1. No further order in respect of passport is necessary as the passport is already in possession of the Respondent No. 1. The learned Counsel for Respondent No. 1 prays for the stay of this order. The prayer is rejected. Petition allowed.