The central legal point established in the judgment is the fundamental right to speedy trial under Article 21 of the Constitution and the power of the Special Court to grant bail under Section 37 of the NDPS Act.

JUDGMENT

Jasmeet Singh, J. (Oral)--This is an application filed seeking grant of bail in Case SC No. 9312/2016 arising out of the FIR No. 52/2015 dated 09.09.2015 registered at PS Special Cell (SB) under Section 21 of the NDPS Act read with Section 14 of the Foreigners Act.

2. It is stated by Mr. Gupta, learned counsel for the applicant that the applicant was caught with 590 grams of heroin, which is commercial quantity. It is further stated by Mr. Gupta, learned counsel that this is the only case against the applicant and he has clean antecedents. It is also stated that the applicant has been in jail since 09.09.2015 i.e. about 7 years and 5 months.

3. The prosecution evidence is still going on and thereafter the defence evidence is to be led.

4. It is further stated by Mr. Gupta, learned counsel that in the present case, at the time of arrest, there were no public witnesses. The proceedings were not videographed and the search is alleged to have been conducted before the ACP.

5. Mr. Singh, learned APP while opposing bail states that the last prosecution witness is left to be examined and 14 witnesses have already been examined. He further states that the respondent is a foreigner and in case he is convicted subsequently, there will be no way of finding him.

6. Mr. Singh, learned APP further states that every compliance of Section 50 has been made as the search was conducted before the ACP.

7. I have heard learned counsel for the parties.

8. Admittedly, the applicant has been in jail since 09.09.2015 which is more than 7 years and 5 months.

9. The Hon'ble Supreme Court in "Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India", [(1994) 6 SCC 731] in para 15 and 16 has held:

"15......He, therefore, rightly sought permission to amend the cause-title and prayer clauses of the petition which was permitted. In substance the petitioner now prays that all undertrials who are in jail for the commission of any offence or offences under the Act for a period exceeding two years on account of the delay in the disposal of cases lodged against them should be forthwith released from jail declaring their further detention to be illegal and void and pending decision of this Court on the said larger issue, they should in any case be released on bail. It is indeed true and that is obvious from the plain language of Section 36(1) of the Act, that the legislature contemplated the creation of Special Courts to speed up the trial of those prosecuted for the commission of any offence under the Act. It is equally true that similar is the objective of Section 309 of the Code. It is also true that this Court has emphasised in a series of decisions that Articles 14, 19 and 21 sustain and nourish each other and any law depriving a person of "personal liberty" must prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial. See Hussainara Khatoon (IV) v. Home Secy., State of Bihar, [(1980) 1 SCC 98: 1980 SCC (Cri) 40]; Raghubir Singh v. State of Bihar, [(1986) 4 SCC 481: 1986 SCC (Cri) 511] and Kadra Pahadiya v. State of Bihar, [(1983) 2 SCC 104: 1983 SCC (Cri) 361] to quote only a few. This is also the avowed objective of Section 36(1) of the Act. However, this laudable objective got frustrated when the State Government delayed the constitution of sufficient number of Special Courts in Greater Bombay; the process of constituting the first two Special Courts started with the issuance of notifications under Section 36(1) on 4-1-1991 and under Section 36(2) on 6-4-1991 almost two years from 29-5-1989 when Amendment Act 2 of 1989 became effective. Since the number of courts constituted to try offences under the Act were not sufficient and the appointments of Judges to man these courts were delayed, cases piled up and the provision in regard to enlargement on bail being strict the offenders have had to languish in jails for want of trials. As stated earlier Section 37 of the