Court’s Decision
The Kerala High Court, in a significant ruling by Justice K. Babu, held that the period during which an accused remains on interim or temporary bail cannot be reckoned as part of judicial custody for claiming statutory (default) bail under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, read with Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
Dismissing the bail application filed by an accused under the NDPS Act, the Court ruled that “only the actual period of detention undergone by the accused can be counted for calculating the period for statutory bail.” The Court clarified that once the accused is released on interim bail—even if on medical or temporary grounds—he cannot be deemed to be in custody.
“The period during which the accused person was released on temporary or 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.”
This decision marks one of the earliest judicial interpretations of Section 187 BNSS, which replaces Section 167 of the Criminal Procedure Code, reaffirming established jurisprudence under the old law while applying it to the new procedural framework.
Facts
The petitioner, arrayed as Accused No. 3 in Crime No. 1068/2024 of Angamaly Police Station, faced charges under Sections 22(c), 8(c), and 27(a) read with Section 29 of the NDPS Act, involving the alleged possession and trafficking of a commercial quantity of narcotic drugs.
He was arrested on 18 February 2025 and initially remained in judicial custody until 24 May 2025 (96 days), when he was granted interim bail on medical grounds. He continued on interim bail until 9 September 2025, after which he was re-arrested and remained in custody until 22 October 2025 (44 days).
The petitioner sought statutory (default) bail under Section 187 of BNSS read with Section 36A(4) of the NDPS Act, arguing that the combined period of custody—broken though it was—exceeded 180 days.
He contended that the interim bail period should also be included in the computation since he was “not enjoying absolute liberty” and remained subject to court-imposed restrictions.
The prosecution, however, strongly opposed the claim, asserting that only actual detention in custody could be considered for default bail computation.
Issues
- Whether broken periods of custody can be added together for claiming statutory bail under Section 187(3) BNSS.
- Whether the period spent on interim bail can be treated as part of custody for the purpose of computing the maximum detention period permissible under the BNSS and NDPS Act.
- Whether the petitioner, having undergone partial custody and interim bail, was entitled to claim statutory bail when the investigation had not been completed within the statutory period.
Petitioner’s Arguments
The petitioner argued that the time spent on interim bail should be treated as constructive custody, since his liberty remained restricted under the terms of the bail order. His counsel submitted that the petitioner “had not enjoyed the benefit of absolute liberty”, and therefore, the entire period between arrest and re-arrest should count toward the 180-day period prescribed under Section 36A(4) of the NDPS Act.
He relied on the Supreme Court’s ruling in Gautam Navlakha v. NIA [(2022) 13 SCC 542], where it was held that broken periods of custody, whether ordered by the Magistrate or higher courts, could be added together for determining eligibility for default bail.
Counsel also referred to the Kerala High Court’s earlier decision in Sabu v. CBI [2020 (3) KLT 710], where it was held that broken periods of detention could be considered cumulatively for default bail under Section 167(2) CrPC. He urged the Court to interpret the BNSS provisions in light of these judgments, emphasizing the remedial and liberty-protective nature of statutory bail provisions.
Respondent’s Arguments
The learned Public Prosecutor contended that the petitioner’s interpretation was legally untenable, as the concept of “custody” under Section 187 BNSS is limited to actual detention. Once an accused is released on interim or temporary bail, even for medical reasons, he ceases to be in custody within the meaning of the law.
The prosecution argued that the Supreme Court’s decision in Gautam Navlakha dealt with “broken periods of actual custody,” not periods of release on bail. Hence, while multiple spells of detention could be combined, any period spent outside jail cannot be counted.
The State relied on Amir Hassan Mir v. UT of J&K (MANU/JK/0206/2022), where the Jammu & Kashmir High Court held that an accused released on temporary bail is not in custody and such period cannot be included for calculating the statutory detention limit under the NDPS Act.
Therefore, the prosecution maintained that since the petitioner had been in custody for only 140 days in total, he was not entitled to statutory bail.
Analysis of the Law
The Court began by comparing Section 187(3) of BNSS, 2023, which governs detention during investigation, with Section 167(2) CrPC, its predecessor provision. Both impose an upper limit on the total period of custody that can be authorized before filing of the charge sheet.
Under Section 187(3)(i) and (ii) of BNSS:
- The maximum custody period is 90 days for offences punishable with death, life imprisonment, or imprisonment of ten years or more; and
- 60 days for all other offences.
However, under Section 36A(4) of the NDPS Act, this period extends to 180 days (or even 1 year in exceptional cases).
The Court reaffirmed that statutory bail (also known as default bail) is a legislative right flowing from the failure of the prosecution to complete investigation within the prescribed time. The right arises automatically when the statutory period expires, provided the accused is in custody and ready to furnish bail.
Applying this principle, Justice K. Babu clarified that “detention” and “custody” are physical and legal concepts referring to actual deprivation of liberty, not constructive or symbolic confinement.
Therefore, the period during which an accused enjoys interim or temporary bail cannot be treated as custody, since he is no longer under judicial confinement.
Precedent Analysis
The Court relied on several binding precedents to arrive at its conclusion:
- Gautam Navlakha v. NIA [(2022) 13 SCC 542] – The Supreme Court held that broken periods of actual custody (whether ordered by a Magistrate or a higher court) can be added together for calculating entitlement to statutory bail. The ruling, however, concerned continuous or intermittent detention, not periods when the accused was released.
- Sabu v. CBI [2020 (3) KLT 710] – The Kerala High Court similarly held that broken periods of detention could be considered for default bail, but the decision presupposed uninterrupted custody spells, not interim bail.
- Amir Hassan Mir v. UT of J&K (MANU/JK/0206/2022) – This case directly addressed the question at hand, holding that periods spent on temporary or interim bail cannot be counted toward the statutory period of detention, since the accused is not in custody during that time.
Citing these authorities, Justice Babu concluded that only the actual period of physical custody suffered by the accused can be counted for computing the statutory limit under Section 187(3) BNSS and Section 36A(4) NDPS Act.
Court’s Reasoning
Justice K. Babu held that statutory bail is triggered only by the lapse of the prescribed maximum period of detention while the accused remains continuously or intermittently in custody. The moment the accused is released on bail—whether interim, temporary, or conditional—the custody clock stops.
“An accused person is entitled to be released on statutory bail by adding the truncated periods of detention suffered by him. The period during which the accused person was released on temporary or interim bail should not be computed for the purpose of reckoning the period for statutory bail.”
The Court emphasized that liberty and custody are mutually exclusive states—a person on bail, even with restrictions, is not in custody. Therefore, including such periods would defeat the statutory framework and distort the computation of detention limits.
On applying this interpretation, the Court found that the petitioner had undergone only 140 days of actual custody, falling short of the 180-day requirement under the NDPS Act.
Accordingly, the petition for statutory bail was dismissed.
Conclusion
The Kerala High Court dismissed the application for statutory bail, ruling that the time spent on interim or medical bail cannot be included in the computation of statutory custody under Section 187(3) BNSS and Section 36A(4) NDPS Act.
The Court affirmed that default bail is a right born from detention, not from the mere passage of time since arrest, and that only the actual days spent in custody count.
“The petitioner remained in detention only for 140 days. Therefore, he is not entitled to statutory bail.”
The Court placed on record its appreciation for the assistance rendered by the Amicus Curiae, Sri K.P. Sarath, for elucidating the statutory and judicial principles governing the issue.
Implications
This judgment provides a clear interpretation of the BNSS framework on statutory bail and sets a binding precedent for NDPS prosecutions. It confirms that:
- Only actual custody (continuous or broken) counts towards the statutory detention period.
- Interim or temporary bail periods cannot be counted for default bail eligibility.
- The BNSS provision mirrors Section 167 CrPC, ensuring continuity of established principles.
The ruling strengthens procedural discipline in NDPS investigations and underscores that statutory bail rights depend on strict adherence to custody timelines—not on perceived restrictions during bail.
FAQs
1. Can interim bail be treated as custody for default bail under BNSS?
No. The Kerala High Court held that interim or temporary bail cannot be treated as custody. Only actual detention in judicial or police custody counts.
2. What did the Court say about broken periods of custody?
Broken periods of actual custody can be added together to claim statutory bail, as held in Gautam Navlakha v. NIA (2022).
3. What was the outcome of this bail plea?
The Court dismissed the plea, holding that the petitioner had spent only 140 days in custody, less than the 180 days required under Section 36A(4) NDPS Act.
