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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J.
Mohammed Sajjid S/o Abdul Gafoor - Appellant
Versus
State Of Kerala - Respondent
Bail Appl. No. 910 of 2025
Decided on : 10-02-2025
Based on the provided legal document, the key points relevant to your query are as follows:
The offence in question involves possession of a psychotropic substance, specifically MDMA, under Section 22(b) of the NDPS Act, with a maximum punishment of up to ten years of rigorous imprisonment (!) .
The statutory provisions for bail under the Bharatiya Nagarik Suraksha Sanhita (BNSS) are similar to those in the Cr.P.C., particularly regarding the period for which detention can be authorized without a charge sheet: 60 days for offences punishable with less than ten years, and 90 days for offences punishable with ten years or more (!) (!) .
The phrase "for a term of 10 years or more" in Section 187(3)(i) of BNSS is interpreted to mean that the minimum punishment must be ten years or more, not merely up to ten years. Since the offence's maximum punishment is exactly ten years, it does not meet this threshold, and thus, the provisions allowing extended detention beyond 60 days do not apply (!) (!) .
As the offence's maximum punishment is ten years, the investigation period permissible under Section 187(3)(ii) of BNSS is 60 days, and the detention period should accordingly be limited to this timeframe (!) (!) .
The application for statutory bail under Section 187(3) was filed but was not considered by the court, which is a procedural oversight. The court emphasizes that the mere presence of antecedents or habitual offender status cannot be a sole reason to deny bail when the offence's maximum punishment does not exceed ten years (!) (!) .
The court concludes that the petitioner is entitled to statutory bail under Section 187(3) of BNSS since the offence's maximum punishment is not "more than ten years," and the investigation period should be limited to 60 days (!) .
Conditions for bail include executing a bond, cooperating with the investigation, not leaving India without permission, and refraining from committing similar offences. The bail can be canceled if these conditions are violated (!) (!) (!) (!) (!) .
The court directs the petitioner to be released on bail upon executing a bond of Rs.50,000 with two solvent sureties of the same amount, and to appear before the Investigating Officer as required (!) .
In summary, since the maximum punishment for the offence is ten years, the petitioner is entitled to bail within the statutory period of 60 days, and the application for bail should be considered on this basis without undue delay.
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.
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 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 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:
(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”
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 o
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