This petition is filed under Section 439(2) of Cr.P.C.

praying to cancel the bail granted to respondent-accused No.17

in

Crl.Misc.No.1450/2021

dated

in

Crime

No.109/2020 registered by Cottonpet Police Station, for the

offences punishable under Sections 21, 21(c), 27A, 27B and 29

of the Narcotic Drugs and Psychotropic Substances Act, 1985

(8NDPS Act9 for short) and Section 120(B) of IPC.

2.

Heard the Special Counsel for the petitioner. The

respondent though served with the notice of this petition, he has

remained unrepresented.

3.

The factual matrix of the case of the prosecution is

that this petitioner was arrested on 15.09.2020 and from his

possession, the police have seized 12 grams of cocaine and the

same is an intermittent quantity.

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4.

Learned Special Counsel for the petitioner would

submit that the learned Judge, while granting bail has given the

reason that Section 37 of NDPS Act does not attract. Apart from

that, the Trial Court also relied upon the judgment of the Apex

Court passed in Writ Petition (Crl.) No.384 of 2020 with

Crl.A.No.63 of 2021 (Special Leave Petition (Crl.) No.6185 of

2020) dated 21.01.2021 in the case of RAGINI DWIVEDI @

GINI @ RAGS VS. STATE OF KARNATAKA. The counsel

would also submit that the said judgment would not be

applicable to the facts of the case on hand, since there was no

recovery at the instance of the appellant in that case. Hence,

the Apex Court has granted bail in favour of the appellant in that

case. The counsel would further submit that the Trial Court has

not considered the investigation papers before granting bail and

also failed to consider the fact that there was sufficient evidence

against the respondent-accused No.17 to believe that he has

committed the offence and the Trial Court also not given any

finding that there are reasonable grounds to believe that the

respondent-accused No.17 has not committed the offences

alleged against him. In the absence of such a finding, the Trial

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Court ought not to have granted bail to the respondent-accused

No.17 and the Trial Court has totally ignored the material on

record.

5.

The counsel would further contend that the Trial

Court failed to take note of the fact that the respondent is a

citizen of Nigeria and if he is released on bail, he may abscond

and may not be available for trial and there are reasonable

grounds to believe that the respondent-accused No.17 is

indulging in drug peddling. He would further submit that there

are reasonable grounds to believe that the respondent-accused

No.17 is part of conspiracy with other accused involved in drug

peddling and these are the aspects which are not considered by

the Trial Court. Hence, it requires interference of this Court

6.

Having heard the Special Counsel appearing for the

petitioner and also taking note of the material on record, it is not

in dispute that 12 grams of cocaine is seized from the custody of

this respondent. The offences under Sections 21, 21(c), 27A,

27B, 29 of NDPS Act and Section 120(B) of IPC are also invoked

against the respondent herein.

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7.

On perusal of the order of the Trial Court, it is seen

that in paragraph No.9, the Trial Court has made an observation

that on careful perusal of material placed before the Court,

complainant has seized in all 12 grams of cocaine, 55 grams of

ganja, 8 ecstasy tablets, 11.5 grams ecstasy tables and 10

grams of MDMA from the accused persons. The MDMA seized is

of commercial quantity and punishable upto 20 years RI and fine

which may extend to Rs.2 Lakhs. However, considering the

principles laid down in the judgment of the Apex Court in Ragini

Dwivedi9s case, wherein it is observed that if the offence of

consuming drugs at parties is alleged, it could attract Section 27

of NDPS Act, for which the maximum sentence for consumption

of certain drugs under Section 27(a) is one year, and under

Section 27(b) is six months. As such, Section 37 is not

applicable to the case and appellant is entitled for bail subject to