‘10 Years or More’ in BNSS S.187(3) Means Minimum Sentence of 10 Years; 60-Day Default Bail Period Applies to Offences Punishable ‘Up To’ 10 Years: Kerala High Court - 2025-02-10

BNSS Doesn't Alter Default Bail Rule for Offences Punishable Up to 10 Years: Kerala High Court Grants Statutory Bail

Kochi: The Kerala High Court, in a significant interpretation of the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), has ruled that the 60-day period for granting statutory (default) bail continues to apply to offences where the maximum punishment may extend up to ten years. Justice J clarified that the phrase "imprisonment for a term of ten years or more" in Section 187(3)(i) of the BNSS refers to offences with a minimum sentence of ten years, thereby upholding the precedent set under the old Criminal Procedure Code (Cr.P.C.).

The court granted statutory bail to Mohammed Sajjid, an accused in a drug case, emphasizing that any ambiguity in a penal statute must be interpreted in favour of the accused's liberty.

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Background of the Case

The petitioner, Mohammed Sajjid, was arrested on November 12, 2024, after being found in possession of 2.28 grams of MDMA, an intermediate quantity. He was charged under Section 22(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, an offence punishable with rigorous imprisonment for a term which may extend to ten years.

After 60 days in custody, Sajjid moved the Sessions Court for statutory bail under Section 187(3) of the BNSS, arguing that the investigation was not completed within the stipulated period. The Sessions Judge dismissed his application, citing his criminal antecedents. Aggrieved, Sajjid approached the High Court.

Arguments Before the High Court

Petitioner's Counsel: The petitioner argued that his case falls under the 60-day custody period as the maximum punishment is up to ten years, not a minimum of ten years. He relied on the landmark Supreme Court judgment in Rakesh Kumar Paul v. State of Assam , which interpreted the corresponding provision (Section 167(2)(a)(i)) of the erstwhile Cr.P.C. to mean that the 90-day period applies only when the minimum sentence is ten years or more.

Public Prosecutor's Submission: The prosecution contended that the language in the new BNSS is different. While the Cr.P.C. used "imprisonment for a term of not less than ten years," the BNSS uses "imprisonment for a term of ten years or more ." This change, the prosecutor argued, made the Rakesh Kumar Paul precedent inapplicable and necessitated a fresh interpretation from the Apex Court, suggesting the 90-day period should apply.

Court's Interpretation and Legal Reasoning

The High Court meticulously compared Section 167(2) of the Cr.P.C. with Section 187(3) of the BNSS. Justice J observed that despite the "slight difference" in wording, the legislative intent remains the same. The court held that 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."

The judgment strongly reaffirmed a foundational principle of criminal jurisprudence: the protection of personal liberty. The court cited several Supreme Court and High Court precedents, including Enforcement Directorate v. Kapil Wadhawan , to make its point.

"While interpreting a statute, in case of ambiguity, whether actual or assumed, the ambiguity must be resolved in favour of the accused persons since liberty is at stake."

The court fully endorsed a recent decision by the Karnataka High Court in State of Karnataka v. Kalandar Shafi , which reached the same conclusion.

Excerpt from the Judgment: "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 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."

Furthermore, the High Court admonished the lower court for rejecting the statutory bail plea based on the accused's criminal history. It clarified that antecedents are irrelevant when considering an indefeasible right to default bail that accrues due to the prosecution's failure to complete the investigation in time.

Final Decision and Implications

The Kerala High Court allowed the bail application, ordering the release of Mohammed Sajjid on a bond of Rs. 50,000 with two solvent sureties. The decision provides crucial clarity on the application of default bail provisions under the new BNSS, ensuring that the pro-liberty interpretation established under the Cr.P.C. regime continues to hold the field. This ruling reinforces that unless an offence carries a mandatory minimum sentence of ten years, the investigating agency must file its final report within 60 days, failing which the accused is entitled to statutory bail.