( 1 ) THIS petition is filed under Section 439 of Cr. P. C. , for grant of bail.

( 2 ) THE petitioner who is accused No. 1 along with 5 others charge-sheeted for committing offences punishable under Sections 8, 21, 25, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to N. D. P. S. Act for short) by the Narcotic Control Bureau, South Zone, Chennai, in Special Case No. 24/2000 on the file of the Sessions Judge, for N. D. P. S. , Bangalore City. The petitioner seeks bail on medical ground as well as on the ground of delay that trial is not concluded even after a lapse of 3 years.

( 3 ) SRI Hasmath Pasha, learned counsel appearing for the petitioner confines his arguments to grant bail on medical grounds without reference to merits or delay in conclusion of the trial.

( 4 ) SRI Urval Ramanand, Special Public Prosecutor for Central Government, filed detailed objections and opposed to grant bail.

( 5 ) THE contentions raised by the parties give rise to a serious and an interesting question of law regarding the limitations and the powers of High Court to grant bail under Section 439, Cr. P. C. , Sri Urval Ramanand relied on the ruling of the Supreme Court in Narcotic Control Bureau v. Kishanlal (reported in (1991) 1 SCC 705 : (1991 Cri LJ 654 ). In the concluding part of para 7 of the judgment, it is held thus :"from the above discussion it emerges that in Usmanbhai case the Supreme Court did not express anything contrary to what has been observed in Balchand Jain case and on the other hand, at more than one place observed that such enactments should prevail over the general enactment and the non-obstante clause must be given its due importance. For all the aforesaid reasons, we hold that the powers of High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly. "

( 6 ) THE other decisions of the Supreme Court are cited at the bar to show the binding effect of Section 37 of the N. D. P. S. Act, in limiting the powers of the High Court while giving bail under Section 439 of Cr. P. C. In the decisions cited, the Supreme Court has held that the power of the High Court to grant bail under Section 439, Cr. P. C. , is subject to the limitation contained in Section 37 of the N. D. P. S. Act. In Kishan Lal's case, the provisions of Section 36-A (3), Section 37 of NDPS Act and Section 439 of Cr. P. C. , are adverted and discussed succinctly about the combined effect of the said provisions with regard to powers of High Court to grant bail.

( 7 ) SRI Hasmath Pasha, relied on the ruling of the Supreme Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat, reported in AIR 1988 SC 922 : (1988 Cri LJ 922), contends that the said decision, although rendered with reference to the provisions of TADA. The Supreme Court however elucidated the position of law that the power of the designated Court to grant bail, to an accused under TADA Act, if in custody, is derived from the Code and not from Section 20 (8) of the TADA Act, 1987 and Section 20 (8) should read only as a limitation qualifying the power to grant bail u/s. 439, Cr. P. C. Counsel further contended that the proposition of law laid down equally applies to the provisions of N. D. P. S. Act, the source of power to grant bail has to be found only under Section 439 of Cr. P. C. , and Section 37 of the NDPS Act should be read in to 439, Cr. P. C. , while considering the bail application for grant of bail.

( 8 ) FOR convenient reference, the provisions of Section 37 of the N. D. P. S. Act are extracted hereunder :"37. Offences to be cognisable 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 c

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