JUDGMENT 1. - An important question of law has been raised in this bail application filed by the petitioner under Section 439, G.P.C. in a criminal case pending against him under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The question is, whether in view of Section 37 of the Act, the accused cannot be released on bail under Section 439, Cr.P.C., even in a case where there has been an undue delay in conducting the trial, and thereby infringing the fundamental right available to him under Article 21 of the Constitution. 2. In order to appreciate the arguments, the relevant and necessary facts may be given in brief. It is alleged that on 19.4.91 three and a half grams of smack was seized from the possession of the petitioner on his search. A report was made at the police station, and thereafter, after completion of the investigation, a charge sheet was filed against him under S. 8/21 of the Act. Since April 19, 1991, the petitioner is in jail and no satisfactory progress in the trial of the case has been made as yet, though more than 18 months have already passed since his detention. 3. The main thrust of the argument of the learned counsel is that the petitioner has already remained in custody for a period of more than 18 months, and there has been no substantial progress in the trial of the case. According to the learned counsel, the petitioner has a fundamental right under Article 21 of the Constitution for a speedy trial of the case, and that on account of undue delay in the completion of the trial, he has a right to be released on bail forthwith, as his fundamental right stands infringed. Counsel argued that S. 37 of the Act cannot override the constitutional right available to the petitioner under Article 21 of the Constitution. It was also submitted that the quantity of smack recovered from the possession of the petitioner is very small, as such the petitioner should be released on bail. 4. Counsel argued that S. 37 of the Act cannot override the constitutional right available to the petitioner under Article 21 of the Constitution. It was also submitted that the quantity of smack recovered from the possession of the petitioner is very small, as such the petitioner should be released on bail. 4. On the other hand, the learned P.P. strongly contested the release of the petitioner on the ground that till the conditions contained in Section 37 of the Act are satisfied, the petitioner cannot be released on bail, even if there has been an undue delay in the trial or the quantity of smack recovered from the possession of the petitioner is small. 5. It is now well settled that Article 21 of the Constitution of India provides that there is a fundamental right available to a person to have a speedy trial in a criminal case pending against him. It is also a settled law that in case of a violation of such fundamental right, the accused can claim to be released on bail. Further, any procedure, which deprives a person of his life or liberty must be just, fair and reasonable. A just, fair and reasonable procedure implies a right of speedy trial. This preposition of law has been developed by the Apex Court of the country by various land mark judgments including Menka Gandhi's case AIR 1979 SC 1369 and Hussainara Khatoon's case AIR 1979 SC 1369 . In Kadra Pehadia v. State of Bihar, AIR 1981 SC 1369 , it was again held that a speedy trial is a fundamental right of the accused under Article 21 of the Constitution. In Sriniwas Gopal v. Union Territory of Arunachal Pradesh, 1983 (3) Judgments Today, SC 342 , it has been again reiterated that quick Justice is a sine que non of Article 21 of the Constitution. This Court has also consistently adopted a practice to release an accused on bail, even in cases in which an accused is facing trial under a grave offence, if there has been undue delay in the trial.In Noor Taki alias Mammu v. State of Rajasthan, 1986 RLR 195 : AIR 1987 Raj. 52 , a full bench of this court considered the question as to whether an accused-approver can be released on bail in exceptional cases where the trial is not completed in a reasonable time. 52 , a full bench of this court considered the question as to whether an accused-approver can be released on bail in exceptional cases where the trial is not completed in a reasonable time. After considering various judgments of the various High Courts and the Apex Court of the country, it was held as under:- "We have no hesitation in holding that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution. Reasonable expeditious trial is warranted by the provisions of the Criminal Procedure Code and in case this is not done and an approver is detailed for a period which is longer than what can be considered to be reasonable in the circumstances of each case, this court has always power to declare his detention either illegal or enlarge him to bail while exercising its inherent powers". It was further observed:- "However, in exceptional cases to enlarge the approver on bail, we answer the question that according to S. 306(4) (b), Cr.P.C. the approver should be detained in custody till the termination of trial, if he is not already on bail, at the same time, in exceptional and reasonable cases the High Court has power under S. 482, Cr.P.C.to enlarge him on bail or in case there are circumstances to suggest that his detention had been so much prolonged, which would otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of Article 21 of the Constitution". 6. In spite of the aforesaid view, the question still remains to be decided, whether bail can be declined to the petitioner for the limitations contained under S. 37 of the Act. Section 37 of the Act runs as under "37. 6. In spite of the aforesaid view, the question still remains to be decided, whether bail can be declined to the petitioner for the limitations contained under S. 37 of the Act. Section 37 of the Act runs as under "37. Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of that offence and that he is not likely to commit any offence while on bail. (2) The limitation on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail". 7. It is no doubt true that the Narcotic Drugs and Psychotropic Substances Act has been enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from or used in illegal traffic in narcotic drugs and pyschotropic substances. It is also true that S. 37 of the Act was substituted by Act No. 2 of 1989 to check the release of the drug offenders on technical grounds. It is also true that limitations on granting of bail specified in clause (b) of sub-sec. (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or under any other law for the time being in force on granting of bail. It is also true that limitations on granting of bail specified in clause (b) of sub-sec. (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or under any other law for the time being in force on granting of bail. But, can it be said that in no case bail can be granted to an accused, if the conditions specified in clause (b) are not satisfied even in cases where exceptional circumstances exist for grant of bail, e.g., the accused is a young woman or a boy of tender age having no previous bad record and as she/he is not likely to commit any offence while on bail, the quantity of contraband article is too small or where the accused has remained in jail since undue long time and the trial is not completed without any fault on the part of the accused.Clause (ii) of clause (b) of sub-sec. (1) of Section 37 starts with the words, "where the P.P. opposes the application ....... It means that if P.P. does not oppose a bail application in any of the aforesaid circumstances, the accused can be released on bail, but, if he opposes the application, then the bail has to be declined, as the latter part of the clause is not fulfilled which requires the court to be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail". In my view, the provisions of Section 37 do not create a complete bar to grant of bail to the accused even in grave circumstances, which may require his release. Section 439, Cr.P.C. and Section 37 of the Act have to be read in a harmonious manner and normally an accused arrested for an offence under the Act punishable for a term of imprisonment of five years or more should not be released on bail unless the courts are satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. There can be exceptional circumstances as indicated above, including the undue delay in the trial of the case, small quantity of the contraband article, the tender age of the accused or the accused is a woman etc. etc. There can be exceptional circumstances as indicated above, including the undue delay in the trial of the case, small quantity of the contraband article, the tender age of the accused or the accused is a woman etc. etc. In case of undue delay, fundamental right of an accused is jeoperdised, and at the stage of pre-trial he cannot be kept behind the bars for an indefinite period. The Court has to strike a balance in two situations, namely, the seriousness of the offence and the right of the accused. To hold that bail cannot be granted to the accused in view of S. 37 of the Act may have the danger of this section being declared void on the ground of its being unreasonable and unfair. In Kadra Pehadia's case (supra) the Supreme Court has observed : "It is a crime shame upon our adjudicatory system which keeps man in jail for years on and without trial". Therefore, in spite of the fact that stringent provisions have been made under Section 37, I do not agree with the argument of the learned P.P. that in no case an accused can be released on bail, if the conditions mentioned in Section 37 are not fulfilled. 8. The facts in the present case are not in dispute. As per prosecution, a very small quantity of smack, i.e. 31 grams, is said to have been recovered from the possession of the petitioner, and he is in jail for last more than 18 months, while completion of trial is not in sight. The petitioner is a bonafide resident of Kota having a permanent abode and there is no danger of his fleeing from Justice. In these circumstances, this court cannot remain as a helpless silent spectator, and I am of the confirmed view, supported by the Full Bench judgment of this Court in Noor Taki Mammu v. State of Rajasthan (supra), that it is a fit case in which the petitioner should now be released on bail.Consequently, the bail application is allowed. It is ordered that the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs. 5,000/- with one surety in the like amount to the satisfaction of the trial Court for his appearance in that court or any other court, till the completion of the trial in the present case. It is ordered that the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs. 5,000/- with one surety in the like amount to the satisfaction of the trial Court for his appearance in that court or any other court, till the completion of the trial in the present case. The bail shall be subject to the following conditions:-1. That he shall not commit any offence while on bail.2. If he violates this condition, the prosecuting agency shall be free to move in the trial court for the cancellation of bail, and the trial Court shall decide such prayer, if made before it.Bail rejected. *******