ORDER :

This is an application for regular bail.

2. Petitioner is arrayed as 1st accused in Crime No.206 of 2022 of Kondotty Police Station, Malappuram which was registered on 03/04/2022 for the offences punishable under Sections 21(C) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ''NDPS Act''). As of now, 4 persons are arrayed as accused in the above case. The petitioner was arrested and remanded on 03/04/2022.

3. The prosecution allegation is that on 03/04/2022 at 01.25 a.m. near Kondotty Bus Stand, the petitioner along with accused No.2 was found transporting 450 grams of brown sugar. It is further alleged that the petitioner and 2nd accused were employed and funded by accused Nos. 3 and 4. Thus, the accused had committed the offences under Sections 21(C) & 29 of the NDPS Act.

4. It is submitted that the petitioner had preferred an application for bail before the Special Court for NDPS cases, Manjeri on 30/09/2022 (181st day) praying for default bail under Section 167(2) Cr.P.C. as the period of 180 days was over on 29/09/2022 and a petition under Section 36A (4) was not filed by the prosecution for seeking further time for completing the investigation. However, the Prosecutor had filed such an application in the afternoon session on the same day.

5. On the same day evening, ie. on 30/09/2022 the Special Court for NDPS cases, Manjeri dismissed the bail application of the petitioner, as per Annexure-2 order stating that the petitioner was remanded on 03/04/2022 and the date of remand has to be excluded while computing the statutory period of 180 days and thus, he is not entitled for statutory bail on that day. The Trial Court relied on the judgment in Ravi Prakash Singh alias Aravind Singh vs. State of Bihar, 2015(8) SCC 340.

6. It is contended that the trial court had mechanically dismissed the bail application filed by the petitioner and on the other hand allowed the application of the prosecution filed under Section 36A (4) of NDPS Act. As stated earlier, the court below observed that as on 30/09/2022 it is the 180th day of the investigation after the first remand and thus the investigating agency’s petition seeking time for investigation is valid and within the time limit. It is respectfully submitted that the court below purposefully ignored the settled position in counting the period of detention as laid down by the Apex Court in Chaganti Satyanarayana and others. vs. State of A.P., 1986 (3) SCC 141. The petitioner also relies on the judgment in Rakesh Kumar Paul vs. State of Assam, 2017 (4) KHC 470 and Sabu K.A. vs. CBI, 2020 (2) KLJ 979. It is also contended that the provisions of Rule 22 of the Criminal Rules of Practice was not considered by the Trial Court while dismissing the bail application.

7. In Chaganti Satyanarayana and Others case supra, the Apex Court was considering the question as to whether for computing the period of 90/60 days envisaged in proviso to Section 167(2) Cr.P.C. whether the date of arrest or the date of order of remand should be taken into consideration and held that the relevant period for consideration would be from the date of order of remand and not the date when accused was arrested. Petitioner also relies on the judgment in Harish Babu Maddineni (Dr.) vs. State of Kerala, 2012 (1) KHC 62 which held that the time for calculating the period for the purpose of Section 167(2) Cr. P.C. is from the date of remand and not the date of arrest.

8. The learned Public Prosecutor relied on the judgment of the Apex Court in Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 to contend for the position that the first day of remand was excluded by the Apex Court in calculating the mandatory period as envisaged in Rule 167(2) Cr.P.C. The learned Public Prosecutor also relied on the order in Somasekharan vs. State of Kerala, 2021 SCC OnLine Ker 8392 in support of his contention.

9. A similar issue came before the Apex Court in Enforcement Dir