Introduction:
In a significant ruling that reinforces the precise interpretation of statutory bail provisions, the Kerala High Court, in Fisal P.J. v. State of Kerala & Another [Bail Application No. 11634 of 2025; 2025 LiveLaw (Ker) 674], held that the period during which an accused is released on interim or temporary bail cannot be reckoned as part of the period of detention for the purpose of claiming statutory (default) bail. The judgment, authored by Justice K. Babu, meticulously examined the interplay between the concept of “actual custody” and “interim release” under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The Court clarified that only the actual period spent in detention—whether continuous or broken—can be aggregated to determine eligibility for statutory bail. This decision arose in a petition where the accused, charged under Sections 22(c), 8(c), and 27(a) read with Section 29 of the NDPS Act, sought default bail under Section 187(3) BNSS (corresponding to Section 167(2) CrPC), claiming that even the duration of his interim bail should count towards his total custody period.
Arguments of the Petitioner:
The petitioner, represented by advocates M.G. Sreejith, Vidyajith M., Swapnalekha K.T., and Anjana A., was arrested on 18 February 2025 in connection with a narcotics offence. He remained in judicial custody until 24 May 2025, after which he was granted interim bail on medical grounds. He remained out on interim bail until 9 September 2025, when he was re-arrested. Cumulatively, he had undergone 140 days of custody. The petitioner approached the Kerala High Court seeking statutory bail, contending that the period during which he was released on interim bail should also be included in calculating the 180-day period prescribed under Section 36A(4) of the NDPS Act for filing a charge sheet. His counsel argued that though he was on interim bail, it was not a period of “absolute liberty,” as he was still subject to court-imposed restrictions and remained under the control of judicial orders.
The petitioner relied on the principle that statutory bail is a fundamental right flowing from Article 21 of the Constitution, ensuring that an individual is not indefinitely detained without a charge sheet being filed within the stipulated time. The counsel contended that the legislative intent behind Section 187(3) BNSS and Section 36A(4) NDPS Act was to safeguard personal liberty against procedural delays, and hence, the term “detention” should be interpreted liberally in favor of the accused. They submitted that the petitioner’s case involved “broken detention”—two separate spells of custody interrupted by a period of interim bail—and that these spells must be pieced together to compute the total duration of custody. According to them, interim bail did not completely sever the custodial connection since the accused remained under court supervision and could not claim full freedom.
Furthermore, the petitioner’s counsel placed reliance on the Supreme Court’s decision in Gautam Navlakha v. National Investigation Agency (2021) 7 SCC 329, where the apex court had recognized that while determining entitlement to default bail, the cumulative period of detention could be considered. The petitioner urged that the ratio in Gautam Navlakha should extend to cases involving interim bail, since both situations involve judicially controlled liberty. The petitioner also sought to draw parity with the judgment in Sabu v. CBI [2020 (3) KLT 710], where the Kerala High Court permitted aggregation of broken periods of custody to calculate the total duration for default bail. Thus, it was argued that since the petitioner had already undergone substantial detention and the State had not filed its final report within the statutory timeframe, he was entitled to statutory bail as a matter of right.
Arguments of the Respondents and Amicus Curiae:
The Public Prosecutor, G. Sudheer, appearing for the State, strongly opposed the bail plea. He contended that the petitioner’s argument misinterpreted the legislative intent behind the concept of “custody.” The prosecutor asserted that interim bail, even if granted for medical or humanitarian reasons, is a form of temporary release that interrupts the continuity of custody. Therefore, the duration of such interim bail cannot be equated to detention under judicial custody. He argued that the petitioner’s liberty during the interim bail period, though subject to certain conditions, cannot be considered curtailed to the same extent as when in judicial custody.
Supporting the prosecution, the Amicus Curiae, Sarath K.P., referred to the Jammu and Kashmir High Court’s decision in Amir Hassan Mir v. Union Territory of J&K, where it was categorically held that the period during which an accused is released on temporary or interim bail cannot be treated as detention or custody. The amicus submitted that the interpretation of “custody” under Section 187 BNSS (formerly Section 167 CrPC) and Section 36A NDPS Act must be restricted to “actual physical confinement.” The amicus clarified that while the law recognizes the aggregation of broken periods of detention (i.e., separate instances of custody separated by re-arrest), the same principle cannot be extended to cover periods of interim bail, since bail—by its very nature—signifies release from custody.
Further, the amicus explained that statutory bail, also known as default bail, arises from the prosecution’s failure to file a charge sheet within the stipulated period, which under Section 36A(4) NDPS Act is 180 days (extendable up to 1 year in special circumstances). However, this right crystallizes only when the accused has remained in detention for the entire prescribed duration without interruption. Since the petitioner had undergone only 140 days of actual custody, his plea for statutory bail was premature. The amicus emphasized that if the court were to include the period of interim bail as part of detention, it would defeat the statutory distinction between “custody” and “release,” leading to absurd results. The amicus therefore urged the court to maintain a strict interpretation of custody in consonance with established precedents and legislative intent.
Court’s Judgment and Reasoning:
Justice K. Babu, after meticulously reviewing the submissions and the judicial precedents cited, framed the primary issue for determination: Whether the period during which an accused is released on interim or temporary bail can be included in calculating the period of detention for the purpose of statutory bail under Section 187 BNSS read with Section 36A(4) NDPS Act.
The Court began by reaffirming the settled principle that the right to statutory bail is not merely procedural but a substantive right rooted in Article 21 of the Constitution. However, the right accrues only upon the completion of the prescribed period of actual custody, and not before. Relying on the Supreme Court’s observations in Gautam Navlakha v. NIA, Justice K. Babu noted that the term “detention” refers to actual confinement in the custody of the investigating agency or judicial authority. The Court distinguished between situations involving broken periods of custody and those involving release on bail, clarifying that while the law allows aggregation of distinct custody periods separated by re-arrest, it does not extend to periods of bail, since bail marks a legal cessation of custody.
The Court cited Sabu v. CBI [2020 (3) KLT 710] to reinforce that truncated periods of detention—meaning multiple spells of custody separated by periods of liberty—may be combined for determining the statutory period. However, it emphasized that this principle applies only where the accused remains continuously under detention in the legal sense. Once the accused is released on bail, even temporarily, the chain of custody is broken, and the intervening period cannot be included. The Court further relied on Amir Hassan Mir v. UT of J&K to underline that custody implies physical control and deprivation of liberty, and a person on bail cannot be said to be in such a state of restraint.
Justice K. Babu observed, “An accused person is entitled to be released on statutory bail by adding the truncated periods of detention suffered by him. 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.” This categorical declaration underscored the Court’s intent to maintain the sanctity of the statutory framework and avoid interpretations that would blur the distinction between custody and liberty.
The Court elaborated that interim bail, unlike suspension of sentence or parole, results in temporary cessation of custody, thereby halting the computation of detention. Once the accused is released, the clock for calculating detention stops and resumes only upon re-arrest or surrender. To include the interim bail period as detention, the Court said, would not only be contrary to the textual reading of the statute but would also lead to unjust enrichment of liberty without lawful confinement.
Justice K. Babu also addressed the petitioner’s argument that his liberty was not “absolute” during interim bail. The Court clarified that while interim bail may impose certain restrictions, such as appearing before authorities or refraining from leaving jurisdiction, it does not equate to judicial custody. The core element of custody is deprivation of personal liberty by state authority, and interim bail, by definition, restores liberty subject to conditions. Therefore, conditional liberty cannot be conflated with detention.
Having thus reasoned, the Court concluded that the petitioner, having undergone only 140 days of actual custody, had not completed the statutory 180-day threshold required under Section 36A(4) of the NDPS Act. Accordingly, his right to default bail had not accrued. The Court therefore dismissed the bail application, holding that “only the actual period of detention undergone can be considered, adding together continuous or broken periods of custody, and the period spent under interim bail cannot form part of that computation.”
This decision reaffirms the strict interpretation of “custody” in the context of statutory bail, ensuring that the benefit of default bail accrues only to those who have genuinely endured prolonged detention without charge. It also aligns with judicial precedents across various High Courts and the Supreme Court, maintaining coherence in the criminal justice framework concerning bail rights under the NDPS Act.