Sanchayita Lahkar

The High Court of Kerala, Single Bench of Justice K. Babu held that the duration an accused spends on interim bail cannot be included while computing the period of detention for claiming statutory bail. Deciding an application under the Bharatiya Nagarik Suraksha Sanhita, 2023, in a case involving offences under the NDPS Act, the Court clarified that only the actual days of detention—whether continuous or in separate spells—can be aggregated to determine eligibility for default bail. Concluding that the petitioner had not completed the requisite custody period, the Court dismissed the plea for statutory bail.

The petitioner was the third accused in a Crime registered for offences punishable under Sections 22(c), 8(c), and 27(a) read with Section 29 of the NDPS Act. The bail application was filed under Section 483 of the BNSS, invoking Section 187 of the BNSS read with Section 36A(4) of the NDPS Act. According to the case record, the petitioner was arrested on February 18, 2025, and remained in judicial custody until May 24, 2025. He was then granted interim bail on medical grounds, which continued until September 9, 2025, after which he was again remanded to custody until October 22, 2025. The defence submitted that the period of interim bail should be treated as part of the custody since the petitioner did not enjoy complete liberty during that time.

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The petitioner relied on the argument that the total custody, when computed by combining both periods—before and after the interim bail—would exceed the statutory period prescribed for investigation under Section 187(3) of the BNSS. The plea sought release on statutory or 'default' bail, contending that the investigation was not completed within the required period.

The prosecution opposed the plea, contending that the period of interim bail cannot be treated as custody for computing the statutory limit. The learned Amicus Curiae, appointed by the Court, also supported this position, citing relevant judicial precedents to argue that only actual physical detention can be counted for the purpose of statutory bail.

Justice K. Babu examined the issue in detail, referring to Section 187(3) of the BNSS, which parallels Section 167(2) of the former Code of Criminal Procedure. The Court recorded that under the law, the Magistrate may authorise detention for up to ninety or sixty days depending on the gravity of the offence, and that beyond this period, an accused shall be entitled to bail if prepared to furnish it. For offences under the NDPS Act involving commercial quantities, the permissible period extends up to 180 days.

The Court observed that "the question whether continuous or broken periods pieced together reaches the requisite period for the purpose of statutory bail was considered by the Supreme Court in Gautam Navlakha v. NIA [(2022) 13 SCC 542]." Referring to that decision, the Bench recorded that "broken periods of custody can be counted whether the custody is suffered by order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person."

Justice Babu also cited the Kerala High Court’s earlier decision in Sabu v. CBI [2020 (3) KLT 710], which held that broken periods of custody could be considered for the grant of statutory bail under the earlier Code. However, addressing the specific question raised in this case, the Court stated that the issue was not about combining two separate spells of custody but whether the period during which the accused was on interim bail could be considered as custody.

The judgment recorded: "What matters for statutory bail is detention, as provided in the statutory provisions, whether it is in one spell or in two spells. An accused person is entitled to be released on statutory bail by adding the truncated periods of detention suffered by him." However, the Court further clarified: "I have no doubt in concluding that the period during which the accused person was released on temporary/interim bail should not be computed for the purpose of reckoning the period for statutory bail, as only the actual period of detention undergone by the accused need be counted for."

The Court noted that the petitioner had been in actual detention for a total of 140 days—96 days in the first spell and 44 days in the second. Since the statutory limit for filing the charge sheet under the NDPS Act in such cases is 180 days, the Court concluded that the petitioner was not entitled to statutory bail at that stage.

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"The period during which the petitioner remained on interim bail, at any rate, could not be counted for granting statutory bail." The Court further recorded the submission of the Amicus Curiae, who had relied on Amir Hassan Mir v. Union Territory of Jammu & Kashmir (MANU/JK/0206/2022), that "the petitioner could not be treated to be in detention or custody for the period he was released on temporary bail."

"Therefore, the necessary conclusion is that the petitioner is not entitled to statutory bail. The Bail Application stands dismissed."

Advocates Representing the Parties:
For the Petitioner: Sri. M.G. Sreejith, Smt. Vidyajith M., Smt. Swapnalekha K.T., and Smt. Anjana A.
For the Respondents: Public Prosecutor Sri. G. Sudheer.

Case Title: Fisal P.J. v. State of Kerala & Another
Neutral Citation: 2025: KER:79121
Case Number: B.A. No. 11634 of 2025
Bench: Justice K. Babu