Kerala High Court
Mohammed Sajjid vs State Of Kerala on 10 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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1
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
BAIL APPL. NO. 910 OF 2025
CRIME NO.398/2024 OF Kadavanthra Police Station, Ernakulam
PETITIONER/S:
MOHAMMED SAJJID
AGED 25 YEARS
S/O ABDUL GAFOOR, BA HOUSE, MARA 4TH MILE,
CHENGALA, KASARGODE, KASARGODE, KERALA, PIN -
671541
BY ADVS.
FRANCIS ASSISI
AJEESH S.BRITE
AMRUTHA P S
MANJU LUCKOSE
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
C.R.
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A.No.910 of 2025
----------------------------------------------
Dated this the 10th day of February, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita (for short, BNSS).
2. Petitioner is an accused in Crime No.398/2024
Kadavanthra Police Station. The above case is registered
against the petitioner alleging offences punishable under
Section 22(b) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, NDPS Act).
3. The prosecution case is that, on 11/11/2024 at
about 11.00 P.M, the Police party, on secret information,
conducted a raid at Noa's Arch Hotel at Vyttila and seized
2.28 grams of MDMA from Room No.304. The petitioner
was present there and he was arrested on 12/11/2024.
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Hence it is alleged that the accused committed the offence.
4. Heard counsel for the petitioner and the Public
Prosecutor.
5. The counsel for the petitioner submitted that the
petitioner is entitled to statutory bail under Section 187(3)
of BNSS. According to the counsel for the petitioner, the
petitioner was arrested on 12.11.2024. He moved an
application before the First Additional Sessions Judge,
Ernakulam under Section 187(3) of BNSS for bail. The
same was not considered by the Sessions Judge is the
submission. According to the petitioner, he is entitled to
statutory bail under Section 187(3) of BNSS. The counsel
for the petitioner relied on the judgment of the Apex Court
in Rakesh Kumar Paul v. State of Assam [2017 (4) KHC
470] and the decision of the Karnataka High Court in the
State of Karnataka by Kavoor Police Station v.
Kalandar Shafi [2024 KHC Online 5417]. The counsel
submitted that the offence alleged against the petitioner is
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under Section 22(b) of the NDPS Act, in which the
maximum punishment that can be imposed is ten years.
Therefore he is entitled to the benefit of Section 187(3) of
BNSS.
6. The Public Prosecutor opposed the bail
application and submitted that the petitioner is not entitled
to statutory bail under Section 187(3) of BNSS. The Public
Prosecutor took me through Section 187(3) of BNSS and
also Section 167(2) of the Code of Criminal Procedure (For
short, Cr.P.C.). The Public Prosecutor submitted that there
is a slight difference between Section 167(2) Cr.P.C. and
the corresponding Section 187(3) of BNSS. The counsel
relied on an article of a former Judge of this Court (Justice
R. Narayana Pisharadi [2025 (1) KHC J-33]) and submitted
that as per BNSS, the words used in Section 187(3) of
BNSS are different from the words used in Section 167(2)
Cr.P.C. and therefore the decisions cited by the petitioners
are not applicable and petitioner is not entitled to the
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benefit of Section 187(3) of BNSS.
7. This Court considered the contentions of the
petitioner and the Public Prosecutor. The offence alleged
against the petitioner is under Section 22(b) of the NDPS
Act. Section 22(b) of the NDPS Act is extracted hereunder:
"22. Punishment for contravention in relation
to psychotropic substances- Whoever, in
contravention of any provision of this Act or any
rule or order made or condition of licence granted
thereunder, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports
inter-State or uses any psychotropic substance
shall be punishable, -
(a) xxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx
(b) where the contravention involves quantity
lesser than commercial quantity but greater than
small quantity, with rigorous imprisonment for a
term which may extend to ten years and with fine
which may extend to one lakh rupees;
(c) xxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx"
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From the above provision, it is clear that the
maximum punishment that can be imposed for an offence
under Section 22(b) of the NDPS Act is ten years. Section
36A of the NDPS Act is extracted hereunder:
36A. Offences triable by Special Courts.--
(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973,
(a) all offences under this Act which are
punishable with imprisonment for a term of
more than three years shall be triable only by
the Special Court constituted for the area in
which the offence has been committed or where
there are more Special Courts than one for such
area, by such one of them as may be specified
in this behalf by the Government;
(b) where a person accused of or suspected of
the commission of an offence under this Act is
forwarded to a Magistrate under sub-section (2)
or sub-section (2A) of section 167 of the Code
of Criminal Procedure, 1973 (2 of 1974), such
Magistrate may authorise the detention of such
person in such custody as he thinks fit for a
period not exceeding fifteen days in the whole
where such Magistrate is a Judicial Magistrate
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and seven days in the whole where such
Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the
Special Court where such Magistrate considers
--
(i) when such person is forwarded to him as
aforesaid; or
(ii) upon or at any time before the expiry of
the period of detention authorised by him,
that the detention of such person is
unnecessary, he shall order such person to
be forwarded to the Special Court having
jurisdiction;
(c) the Special Court may exercise, in relation
to the person forwarded to it under clause (b),
the same power which a Magistrate having
jurisdiction to try a case may exercise under
section 167 of the Code of Criminal Procedure,
1973 (2 of 1974), in relation to an accused
person in such case who has been forwarded to
him under that section;
(d) a Special Court may, upon perusal of police
report of the facts constituting an offence under
this Act or upon complaint made by an officer
of the Central Government or a State
Government authorised in his behalf, take
cognizance of that offence without the accused
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being committed to it for trial.
(2) When trying an offence under this Act, a
Special Court may also try an offence other than
an offence under this Act with which the accused
may, under the Code of Criminal Procedure, 1973
(2 of 1974), be charged at the same trial.
(3) Nothing contained in this section shall be
deemed to affect the special powers of the High
Court regarding bail under section 439 of the Code
of Criminal Procedure, 1973 (2 of 1974), and the
High Court may exercise such powers including the
power under clause (b) of sub-section (1) of that
section as if the reference to "Magistrate" in that
section included also a reference to a "Special
Court" constituted under section 36.
(4) In respect of persons accused of an offence
punishable under section 19 or section 24 or
section 27A or for offences involving commercial
quantity the references in sub-section (2) of
section 167 of the Code of Criminal Procedure,
1973 (2 of 1974) thereof to "ninety days", where
they occur, shall be construed as reference to "one
hundred and eighty days":
Provided that, if it is not possible to complete the
investigation within the said period of one hundred
and eighty days, the Special Court may extend the
said period up to one year on the report of the
Public Prosecutor indicating the progress of the
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investigation and the specific reasons for the
detention of the accused beyond the said period of
one hundred and eighty days.
(5) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), the
offences punishable under this Act with
imprisonment for a term of not more than three
years may be tried summarily."
8. Section 36A of the NDPS Act in effect modifies
the application of Section 167 Cr.P.C. in cases involving
offences punishable under Sections 19, 24 and 27A or for
the offences of commercial quantity under the Act. It
permits the investigation in the cases involving the above
offences to be completed within a period of 180 days with
the further proviso that the Special Court is empowered to
extend that period up to one year if it is satisfied that, it is
not possible to complete the investigation within the said
period of 180 days based on the report of the Public
Prosecutor detailing the progress of the investigation and
the specific reasons for the detention of the accused
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beyond the said period of 180 days.
9. But, as far as the other offences are concerned,
in which commercial quantity is not involved, the provision
of Section 167 of Cr.P.C is applicable. Admittedly in this
case the quantity seized is not a commercial quantity.
10. Section 167 Cr.P.C deals with procedure when an
investigation cannot be completed in 24 hours. It will be
better to extract Section 167 of Cr.P.C.
167. Procedure when investigation
cannot be completed in twenty-four
hours
(1) Whenever any person is arrested and
detained in custody, and it appears that the
investigation cannot be completed within the
period of twenty-four hours fixed by section
57, and there are grounds for believing that
the accusation or information is well-
founded, the officer-in-charge of the police
station or the police officer making the
investigation, if he is not below the rank of
sub-inspector, shall forthwith transmit to the
nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed
relating to the case, and shall at the same
time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused
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person is forwarded under this section may,
whether he has or has no jurisdiction to try
the case, from time to time, authorise the
detention of the accused in such custody as
such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if he
has no jurisdiction to try the case or commit
it for trial, and considers further detention
unnecessary, he may order the accused to be
forwarded to a Magistrate having such
jurisdiction:
PROVIDED that,-
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so,
but no Magistrate shall authorize the detention of the
accused person in custody under this paragraph for a
total period exceeding-
(i) ninety days, where the investigation
relates to an offence punishable with death,
imprisonment for life or imprisonment
for a term of not less than ten
years;
(ii) sixty days, where the investigation
relates to any other offence, and, on the
expiry of the said period of ninety days, or
sixty days, as the case may be, the accused
person shall be released on bail if he is
prepared to and does furnish bail, and every
person released on bail under this sub-
section shall be deemed to be so released
under the provisions of Chapter XXXIII for
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the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the
accused in custody of the police under this section
unless the accused is produced before him in
person for the first time and subsequently every
time till the accused remains in the custody of the
police, but the Magistrate may extend further
detention in judicial custody on production of the
accused either in person or through the medium of
electronic video linkage;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of the police.
Explanation I: For the avoidance of doubts, it is
hereby declared that, not-withstanding the expiry of
the period specified in paragraph (a), the accused
shall be detained in custody so long as he does not
furnish bail.
Explanation II: If any question arises whether an
accused person was produced before the Magistrate
as required under clause (b), the production of the
accused person may be proved by his signature on
the order authorising detention or by the order
certified by the Magistrate as to production of the
accused person through the medium of electronic
video linkage, as the case may be.
PROVIDED FURTHER that in case of women under
eighteen years of age, the detention shall be
authorised to be in the custody of a remand home
or recognised social institution.
(2A) xxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxx
(4) xxxxxxxxxxxxxx
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(5) xxxxxxxxxxxxxx
(6) xxxxxxxxxxxxxx
11. As per Section 167(2)(a)(i) of Cr.P.C, the
Magistrate may authorise the detention of the accused
person, otherwise than in custody of police, beyond the
period of 15 days, if he is satisfied that adequate ground
exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this
paragraph for a total period exceeding 90 days, where the
investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not
less than 10 years. Here the words used are 'for a term
of not less than 10 years.' As per Section 167(2)(a)(ii), the
Magistrate shall authorise the detention of the accused
person in custody under this paragraph for a total period
exceeding 60 days, where the investigation relates to any
other offence. The section also says that on the expiry of
the said 90 days or 60 days as the case may be, the
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accused person shall be released on bail, if he is prepared
to and does furnish bail and every person released on bail
under this sub-section shall be deemed to be so released
under the provisions of Chapter XXXIII for the purpose of
that chapter.
12. The corresponding Section of Section 167 of
Cr.PC in BNSS is Section 187. It will be better to extract
Section 187 of BNSS:-
187. Procedure when investigation cannot be
completed in twenty-four hours.
(1) Whenever any person is arrested and detained in
custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours
fixed by section 58, and there are grounds for
believing that the accusation or information is well-
founded, the officer in charge of the police station or
the police officer making the investigation, if he is not
below the rank of sub-inspector, shall forthwith
transmit to the nearest Magistrate a copy of the
entries in the diary hereinafter specified relating to the
case, and shall at the same time forward the accused
to such Magistrate.
(2) The Magistrate to whom an accused person is
forwarded under this section may, irrespective of
whether he has or has no jurisdiction to try the case,
after taking into consideration whether such person has
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not been released on bail or his bail has been cancelled,
authorise, from time to time, the detention of the
accused in such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days in the whole, or in
parts, at any time during the initial forty days or sixty
days out of detention period of sixty days or ninety
days, as the case may be, as provided in sub-section
(3), and if he has no jurisdiction to try the case or
commit it for trial, and considers further detention
unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction.
(3) The Magistrate may authorise the detention of the
accused person, beyond the period of fifteen days, if he
is satisfied that adequate grounds exist for doing so, but
no Magistrate shall authorise the detention of the
accused person in custody under this sub-section for a
total period exceeding-
(i) ninety days, where the investigation relates
to an offence punishable with death,
imprisonment for life or imprisonment for
a term of ten years or more;
(ii) sixty days, where the investigation relates
to any other offence,
and, on the expiry of the said period of ninety
days, or sixty days, as the case may be, the
accused person shall be released on bail if he
is prepared to and does furnish bail, and every
person released on bail under this sub-section
shall be deemed to be so released under the
provisions of Chapter XXXV for the purposes of
that Chapter.
(4) No Magistrate shall authorise detention of the
accused in custody of the police under this section
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unless the accused is produced before him in person
for the first time and subsequently every time till the
accused remains in the custody of the police, but the
Magistrate may extend further detention in judicial
custody on production of the accused either in person
or through the audio-video electronic means.
(5) No Magistrate of the second class, not
specially empowered in this behalf by the High Court,
shall authorise detention in the custody of the police.
Explanation I - For the avoidance of doubts, it is
hereby declared that, notwithstanding the expiry of
the period specified in sub-section (3), the accused
shall be detained in custody so long as he does not
furnish bail.
Explanation II - If any question arises whether an
accused person was produced before the Magistrate
as required under sub-section (4), the production of
the accused person may be proved by his signature on
the order authorising detention or by the order
certified by the Magistrate as to production of the
accused person through the audio-video electronic
means, as the case may be:
Provided that in case of a woman under eighteen
years of age, the detention shall be authorised to be
in the custody of a remand home or recognised social
institution:
Provided further that no person shall be detained
otherwise than in police station under police custody
or in prison under judicial custody or a place declared
as prison by the Central Government or the State
Government.
(6) xxxxxxxxxxxx
(7) xxxxxxxxxxxx
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(8) xxxxxxxxxxxxx
(9) xxxxxxxxxxxxx
(10) xxxxxxxxxxxxx
13. As per Section 187 of BNSS, the Magistrate may
authorise the detention of the accused persons beyond the
period of 15 days, if he is satisfied that adequate ground
exists for doing so, but no magistrate shall authorise the
detention of the accused person in custody under this sub-
section for a total period exceeding 90 days, where the
investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of 10
years or more.
14. As per Section 187(3)(ii), the Magistrate may
authorise the detention of the accused person in custody
under this sub-section for a total period exceeding 60 days,
where the investigation relates to any other offence.
15. A comparative study of Section 167(2)(a)(i) of
Cr.P.C and 187(3)(i) of BNSS would show that the words
used are 'for a term of not less than 10 years' and 'for a
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term of 10 years or more'. It is true that there is a slight
difference between the words in BNSS and Cr.P.C. The
words in Section 167(2)(a)(i) Cr.P.C are interpreted by the
Hon'ble Apex Court in Rakesh Kumar Paul (supra). It
will be better to extract the relevant portion of the above
judgment:-
24. "In the context of the word "punishable"
occurring in Clause (i) and the meaning attached
to this word taken from several dictionaries, this
Court held in Bhupinder Singh that where a
minimum and maximum sentence is prescribed,
both are imposable depending upon the facts of
the case. Therefore, if an offence is punishable
with imprisonment that may extend upto or
beyond or including 10 years, then the period
available for completing investigations would be 90
days before the provision for 'default bail' kicks in.
It was said in paragraph 15 of the Report:
"Where minimum and maximum
sentences are prescribed, both are
imposable depending on the facts of
the cases. It is for the court, after
recording conviction, to impose
appropriate sentence. It cannot,
therefore, be accepted that only the
minimum sentence is imposable and
not the maximum sentence. Merely
because minimum sentence is
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provided that does not mean that the
sentence imposable is only the
minimum sentence."
25. While it is true that merely because a
minimum sentence is provided for in the statute it
does not mean that only the minimum sentence is
imposable. Equally, there is also nothing to
suggest that only the maximum sentence is
imposable. Either punishment can be imposed and
even something in between. Where does one strike
a balance? It was held that it is eventually for the
court to decide what sentence should be imposed
given the range available. Undoubtedly, the
Legislature can bind the sentencing court by laying
down the minimum sentence (not less than) and it
can also lay down the maximum sentence. If the
minimum is laid down, the sentencing judge has
no option but to give a sentence "not less than"
that sentence provided for. Therefore, the words
"not less than" occurring in Clause (i) to proviso
(a) of Section 167(2) of the Cr.P.C. (and in other
provisions) must be given their natural and
obvious meaning which is to say, not below a
minimum threshold and in the case of Section 167
of the Cr.P.C. these words must relate to an
offence punishable with a minimum of 10 years
imprisonment.
26. Of the two views expressed by this Court,
we accept the view in Rajeev Chaudhary.
27. It is true that an offence punishable with
a sentence of death or imprisonment for life or
imprisonment for a term that may extend to 10
years is a serious offence entailing intensive and
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perhaps extensive investigation. It would therefore
appear that given the seriousness of the offence,
the extended period of 90 days should be available
to the investigating officer in such cases. In other
words, the period of investigation should be
relatable to the gravity of the offence -
understandably so. This could be contrasted with
an offence where the maximum punishment under
the IPC or any other penal statute is (say) 7 years,
the offence being not serious or grave enough to
warrant an extended period of 90 days of
investigation. This is certainly a possible view and
indeed the Cr.P.C. makes a distinction in the
period of investigation for the purposes of' default
bail' depending on the gravity of the offence.
Nevertheless, to avoid any uncertainty or
ambiguity in interpretation, the law was enacted
with two compartments. Offences punishable with
imprisonment of not less than ten years have been
kept in one compartment equating them with
offences punishable with death or imprisonment
for life. This category of offences undoubtedly calls
for deeper investigation since the minimum
punishment is pretty stiff. All other offences have
been placed in a separate compartment, since they
provide for a lesser minimum sentence, even
though the maximum punishment could be more
than ten years imprisonment. While such offences
might also require deeper investigation (since the
maximum is quite high) they have been kept in a
different compartment because of the lower
minimum imposable by the sentencing court, and
thereby reducing the period of incarceration during
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investigations which must be concluded
expeditiously. The cut-off, whether one likes it or
not, is based on the wisdom of the Legislature and
must be respected.
xxxx xxxx xxxx
100. A bare reading of S.167 of the Code clearly
indicates that if the offence is punishable with
death or life imprisonment or with a minimum
sentence of 10 years, then S.167(2)(a)(i) will
apply and the accused can apply for 'default bail'
only if the investigating agency does not file
charge - sheet within 90 days. However, in all
cases where the minimum sentence is less than 10
years but the maximum sentence is not death or
life imprisonment then S.167(2) (a) (ii) will apply
and the accused will be entitled to grant of 'default
bail' after 60 days in case charge - sheet is not
filed.
101. Even if I were to assume that two views are
possible and third category envisaged in S.167(2)
(a)(ii) is ambiguous, as suggested by learned
brother Pant, J., then also I have no doubt in my
mind that a Statute which curtails the liberty of a
person must be read strictly. When any human
right; a Constitutional fundamental right of a
person is curtailed, then the Statute which curtails
such right must be read strictly. S.167 of the Code
lays down the procedure established by law by
which a person can be deprived of his personal
liberty, guaranteed to him under Art.21 of the
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Constitution of India. If two meanings could be
attributed to such a provision then the Courts must
lean towards liberty and accept that interpretation
of the Statute, which upholds the liberty of the
citizen and which keeps the eternal flame of liberty
alive. If words are ambiguous then also the Court
should be reluctant to accept that interpretation
which curtails the right of a human being of being
free."
16. From the above decision, it is clear that the
Hon'ble Apex Court interpreted the word "not less than"
and observed that, it means imprisonment should be 10
years or more and would cover only those offences for
which punishment could be imprisonment for a clear period
of 10 years or more.
17. The petitioner relied on this and submitted that
almost the same words are used in Section 187(3)(i) of
BNSS as - 'for a term of 10 years or more'. The Public
Prosecutor relied on an Article of a Former Judge of this
Court, which is reported in Kerala High Court cases [2025
(1) KHC J-33]. This Court perused the Article. The learned
Judge only observed that in the light of the amendment in
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BNSS as far as 187(3)(ii) compared to Section 167(2)(a)(i)
of Cr.P.C an authoritative judgment is necessary from the
Hon'ble Apex Court in the light of the dictum in Rakesh
Kumar Paul's Case.
18. I am of the considered opinion that as long as
the dictum in Rakesh Kumar Paul's case (supra) is in
force, this Court need not further interpret Sec.187(3)(i) of
the BNSS. The words used in Sec. 167(2)(a)(i) Cr.P.C.is
"not less than 10 years". The Apex Court observed that this
phrase indicates that, for Sec. 167(2)(a) (i) Cr.P.C. to
apply, the minimum sentence that can be imposed for an
offence should be 10 years. But in Sec. 187(3)(i), it is
clearly stated that "for a term of 10 years or more". There
is no much difference between the words "for a term of 10
years or more" mentioned in BNSS and "not less than 10
years" mentioned in Sec. 167(2)(a) (i) Cr.P.C. While
interpreting a statute, in case of ambiguity, whether actual
or assumed, the ambiguity must be resolved in favour of
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the accused persons since liberty is at stake. The Apex
Court in Enforcement Directorate, Government of
India v. Kapil Wadhawan [2023 (2) KHC 663] observed
like this :
"40. In construction of a penal statute in case of
ambiguity, whether actual or assumed, in order to,
fulfill the legislative intent underlying S.167(2) CrPC,
the ambiguity must be resolved in favour of the
accused person since liberty is at stake. This was the
opinion expressed in M. Ravindran (supra) where the
following was pronounced: "whenever there is any
ambiguity in the construction of a penal statute, the
Courts must favour the interpretation which leans
towards protecting the rights of the accused, given
the ubiquitous power disparity between an individual
and the State."
41. Similarly, In Rakesh Paul (supra), a three -
judge bench of this court, in context of, S.167, held
that where, on reading the statute, two views are
possible, then the provision that curtails individual
liberty should be read strictly. It was observed that
since Art.21 rights are involved, the Court should lean
in favour of the interpretation that upholds and
protects personal liberty (Rakesh Kumar Paul vs.
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State of Assam, 2017 (15) SCC (109) para 72-73,
(per Lokur J.)). This interpretation is also supported
by the idea that Constitutional law is logically, morally
and legally superior to the statutory law (VM Bachal,
The Indian Journal of Political Science, Vol. 25, No.
3/4, Conference Number For XXVI Indian Political
Science Conference 1964: Annamalainagat (July -
Sept. - December, 1964), pp. 231-240). Therefore,
any statutory provision, must be in conformity with
the constitutional law. Further, In the specific context
of the right to default Bail, under the first proviso to
S.167 (2) of the CrPC, this court in Gautam Navlakha
(supra) held that, right to default bail is a
fundamental right and in case a remand order is
passed mechanically or in violation of law or be
afflicted with vice of lack of jurisdiction, a writ of
habeas corpus would lie."
19. The Division Bench of the Allahabad High Court
in Shyam Lal v. State [1968 KHC 4079] observed like this
"12. It seems to us clear that the true rule of
construction of a penal statute is that where the
legislature evinces its intention to modify the law, in
favour of the accused, so as to reduce the rigour of
the law in the light of past experience and changed
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social conditions, so long as prosecution of the
accused has not concluded by a judgment of
conviction, the proceedings against him are regarded
as inchoate and the law applicable to him would be the
law as amended by the legislature. The Court trying
an accused person has to take into consideration the
law as it exists on the date of the judgment. It seems
reasonable that an accused person cannot render
himself liable to a higher punishment under a statute
which has ceased to exist and has been substituted by
a new law which favours him. Where the question as
to the interpretation of a penal statute is concerned,
the Court must construe its provisions beneficially in
regard to their applicability to the accused. It would be
violating the spirit of the law and the will of the
Legislature as expressed in the amending statute to
sentence an accused person on the basis of the
original Act which has been considered by the
Legislature to be harmful and harsh against public
interest." (emphasis supplied)
20. The Delhi High Court in Varun Goyal v. State
NCT of Delhi [2024 KHC Online 2864] observed like this :
"59. Provision of S.167(2), CrPC is in the nature
of beneficial provision. It is settled law that in case of
any ambiguity or doubt, the benefit has to go in
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favor of the accused.
60. Needless to say that in a matter of personal
liberty, the statute has to be interpreted strictly and
no leverage or benefit can be extended to the
prosecution and an interpretation in favour of the
accused is to be accepted. Failure of the prosecution
cannot be at the detriment of the accused."
21. I respectfully agree with the dictum laid down by
the Delhi High Court and Allahabad High Court. I am of the
considered opinion that while interpreting Sec. 187(3), the
interpretation which will favour the accused's liberty should
be adopted by a court of law. Moreover, the Karnataka
High Court took the same stand in a similar situation in the
State of Karnataka by Kavoor Police Station v.
Kalandar Shafi [2024 KHC Online 5417].
"14. If the offences now alleged are taken note of
against these accused, the maximum punishment is
that can be extended up to ten years. It is not ten
years or more. Therefore, the police custody should
be within forty days of investigation and final report is
filed within 60 days of investigation. It is brought to
the notice of the Court that the prosecution filed the
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application invoking Section 140 of BNS. If that has
been invoked, it is for the concerned Court to pass
orders by regulating its procedure. The interpretation
that fell to the hands of the Court is interpreted as
aforesaid.
SUMMARY OF FINDINGS:
(i) A slight tweak in the new regime qua 187(3) of
BNSS in juxtaposition to Section 167(2) of the earlier
regime -the Cr.P.C. has not changed the purpose of
the provision.
(ii) The phraseology of the words 'ten years or more'
found in sub-clause (i) of Section 187(3) of the BNSS
would mean, the minimum threshold punishment
imposable on an offence under the BNS should be ten
years
(iii) The offence in the case at hand, does not bear a
minimum threshold sentence of ten years, but is
extendable or to an extent of ten years, which would
mean, discretion available to the concerned Court to
impose punishment up to ten years. Therefore, the
minimum threshold is not ten years.
(iv) Completion of investigation in a punishment
which is up to ten years is undoubtedly 60 days. Rest
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of the other offences, be it death, life imprisonment of
ten years and more, would be 90 days.
(v) If the investigation is to complete within 60 days,
the period of police custody would run from day one
day forty of registration of the crime. If it is 90 days,
it would run from day one to day 60, maximum
period in both the cases is 15 days of police custody.
(vi) In the case at hand, the offence is punishable up
to ten years, Therefore, the police custody is only
from day one to day forty."
22. I fully agree with the decision of the Karnataka
High Court. The contention of the Public Prosecutor is that
a different meaning is given in Sec. 187(3) of the BNSS in
place of Sec.167(2)(a)(i) Cr.P.C. cannot be accepted. The
dictum laid down by the Apex Court in Rakesh Kumar
Paul's case (supra) is equally applicable to Sec. 187(3) of
the BNSS also. Therefore, I am of the considered opinion
that the petitioner in this case is entitled to statutory bail
under sec. 187(3) BNSS.
23. The counsel for the petitioner took me through
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the Annexure-A1 order passed by the 1 st Addl. Sessions
Judge, Ernakulam. The counsel submitted that, the
application was filed under Sec. 187(3) of the BNSS before
the sessions judge. Even then, the learned Sessions Judge
did not consider the same. When an application is filed
under Sec. 187(3) of the BNSS, it is the duty of the court
to consider that contention. The learned Sessions Judge
dismissed the application mainly for the reason that the
petitioner has antecedents. Simply because the petitioner
has antecedents or he is an habitual offender, an
application for statutory bail under Sec. 187(3) of the
BNSS cannot be rejected. Therefore, I am of the
considered opinion that the petitioner is entitled to
statutory bail under Sec. 187(3) of the BNSS.
Therefore, this bail application is allowed with the
following directions.
1. The petitioner shall be released on bail on
executing a bond for Rs.50,000/- (Rupees
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Fifty Thousand only) with two solvent sureties
each for the like sum to the satisfaction of
the jurisdictional Court.
2. The petitioner shall appear before the
Investigating Officer for interrogation as and
when required. The petitioner shall cooperate
with the investigation and shall not, directly or
indirectly make any inducement, threat or
promise to any person acquainted with the facts
of the case so as to dissuade him from
disclosing such facts to the Court or to any
police officer.
3. Petitioner shall not leave India without
permission of the jurisdictional Court.
4. Petitioner shall not commit an offence
similar to the offence of which he is accused, or
suspected, of the commission of which he is
suspected.
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5. If any of the above conditions are violated
by the petitioner, the jurisdictional Court can
cancel the bail in accordance with the law, even
though the bail is granted by this Court. The
prosecution is at liberty to approach the
jurisdictional court to cancel the bail, if there is
any violation of the above conditions.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
JV/AMR/SKS
