JUDGMENT 1. - An important question of substantial importance has been raised in this bail application. The question is: Whether on the ground of delay, an accused facing trial for an offence punishable under the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act') can claim his released on bail under section 437/439, Criminal Procedure Code, 1973 read with Section 37 of the NDPS Act. 2. In brief, the facts of the present case are that opium weighing 10.8 kgs. was recovered on 23-11-1991 which was concealed in the door panels of a Maruti Car when it was checked by the officials of the Central Narcotics Department. The petitioner and his younger brother Paramjeet Singh were sitting in the Car at the time of recovery. Their statements were also recorded by the officials of the Narcotics Department in which they admitted their conscious possession. 3. A case under section 8/18 of NDPS Act was registered at the Police Station-Central Narcotics Bureau, Kota. After usual investigation, a charge-sheet was submitted against the accused persons. The case was then, committed for trial and is now pending in the court of Additional Sessions Judge, Bundi. 4. The prayer to grant bail under section 439 Criminal Procedure Code was rejected twice by this Court considering the merits of the case. In this third application for bail under section 439 Criminal Procedure Code the only point canvassed before me by the learned counsel for the petitioner is that the petitioner is in custody since 23-11-1991 but still, the trial has not committed, as such, petitioner should be released on bail. 5. This prayer is vehemently opposed by the learned counsel appearing for the Department. His contention is that the amended section 37 of the NDPS Act starts with a non-obstante clause and its operative part by the use of negative language prohibits the enlargement of bail of of any person accused of commission of an offence under the NDPS Act punishable for a term of imprisonment of five years or more, unless two conditions laid down in the section are satisfied. Counsel argued that the conditions are that the prosecution must be given an opportunity to oppose the application, and if there is an opposition, the court must be satisfied that there were reasonable grounds for believing that the accused was not guilty of such offence and that he was not likely to commit any offence if released on bail. According to the learned counsel, if either of these two conditions is not satisfied the ban operates and a person under detention cannot be released on bail. In other words, the argument of the learned counsel appearing for the Department, is that if the legislative mandate imposed fetters on the exercise of powers of granting bail in certain kind of cases. the powers to grant bail can be exercised only on removing those fetters bysatisfying the conditions laid down. 6. I have given my careful consideration to the above sub-missions. 7. Mr. Bajwa, substantiating his argument. contended that there is a fundamental right available to the accused petitioner under Article 21 of the Constitution for a speedy trial of the case. On account of undue delay in concluding the trial, he has a right of being released forthwith. According to him, Section 37 of the NDPS Act is a legislative provision which cannot override the constitutional right available to the petitioner under Article 21 of the Constitution and as such he should be bailed out. Strong reliance is placed on various decisions, including the decision in Houssainara Khatoon's case, AIR 1979 SC 1360 and Noor Taki @ Mamoo v. State of Rajasthan, AIR 1987 Raj. 52 . Counsel contended that under section 306 (4) (b) of Criminal Procedure Code an approver has to be detained in the custody till the termination of the trial if he has already not been on bail, but in exceptional case, inspite of these provisions even an approver can be released on bail as held by a Full Bench of this Court in Noor Taki's case (supra) Learned counsel also relied on several decisions of this Court where bail was granted to an accused facing trial under NDPS Act on the ground of delay in the trial. 8. In Narcotics Control Bureau v. Kishan Lal and Ors., 1991 Cr LR (SC) 178 . 8. In Narcotics Control Bureau v. Kishan Lal and Ors., 1991 Cr LR (SC) 178 . the Apex Court of the country had an occasion to consider the effect of the restrictions placed on the powers of the Court to grant bail under the amended Section 37 of the NDPS Act While considering the object of the Act and the stringent provisions of bail under the amended Section 37, it held that the powers of the High Court to grant bail under section 439 Criminal Procedure Code are subject to the limitations contained in the amended Section 37. All the restrictions placed on the powers of the Court under these section are applicable to the High Court also in the matter of granting bail. In Usmanbhai Dowoodbhai Memon and Ors. v. State of Gujarat, (1988) 2 SCC 271 . the Hon'ble Supreme Court had an occasion to consider the effect of restrictions contained in Section 20 (8) of Terrorists and Disruptive Activities (Prevention) Act. 1987 in the matter of granting bail. It may be stated that the provisions contained in Section 20 (8) of the aforesaid Act are para-materia to the provisions contained in Section 37 of the NDPS Act. In that case also, it was held that two conditions specified in clauses (a) and (b) must be satisfied before an accused could be released on bail. 9. In Anil Kumar Gandhi and Ors. v. N.C.B. and Ors., 1992 Cr LJ 1703 , a learned Single Judge of Delhi High Court considered a similar question as to whether an accused could claim his release on bail on the ground of undue delay in the trial. The learned Judge rejected the argument that the provisions of Section 37, NDPS Act, should be construed in the light of Article 21 of the Constitution and bail should be granted to an accused if there was inordinate delay in the trial. 10. The learned Judge rejected the argument that the provisions of Section 37, NDPS Act, should be construed in the light of Article 21 of the Constitution and bail should be granted to an accused if there was inordinate delay in the trial. 10. After considering the matter in depth, I am of the view that the question involved 's an important and substantial question of law and it requires consideration by a larger bench, especially keeping in view the judgment of the Full Bench of this Court in Noor Taki's case (supra) and the latter judgment of the Supreme Court in Narcotics Control Bureau's case (supra) restricting the powers of the High Court to grant bail under section 439 Criminal Procedure Code I, therefore, frame the following substantial question of law for reference to a larger bench: (i) Whether an accused facing trial of an offence punishable for a term of imprisonment for five years and more under the NDPS Act can be released on bail by the 'Special Court' or the 'High Court' on the ground of delay in the trial inspite of the limitations prescribed by Section 37 (I) (b) of the Act? (ii) If question No. 1 is decided in the affirmative, then what should be the guidelines in granting bail? 11. The Registry is directed to place this case before Hon'ble the Chief Justice for doing needful.Order accordingly. *******