The interpretation of the proviso to Section 167(2) of the Criminal Procedure Code determines the entitlement to bail for an accused in custody for a period exceeding the specified duration.

N. Krishnan Nair, J. - Whether a Magistrate is competent to authorise the detention of an accused in custody for a period exceeding 60 days where the investigation relates to an offence punishable with imprisonment which may extend up to 10 years as per the proviso to Section 167 (2) of the Criminal Procedure Code ? That is the question involved in this case.

2. This application for bail is filed by the second accused in Crime No. 721/2000 of the Kottarakkara Police Station. The said crime was registered alleging the commission of the offence punishable under Section 8(1) and (2) of the Abkari Act. The allegation is that on 30.09.2000 at about 3.30 p.m., the Asst. Sub Inspector of Police, Kottarakkara found one Raju engaged in the sale of illicit arrack in T.S. No. 11 of the Chengamanad Village. The Asst. Sub Inspector seized 32 litres of arrack from the toddy shop and also arrested the said Raju. Subsequent investigation revealed that the petitioner was in charge of the toddy shop on the date of the occurrence and accordingly he was implicated as an accused in the crime. An application moved by the petitioner before the Judicial First Class Magistrate I, Punalur was dismissed. Two earlier applications for bail moved by the petitioner before this court were also dismissed. Now the petitioner claims the benefit of the second proviso to Section 167(2) of the Criminal Procedure Code

3. According to the Public Prosecutor, since the petitioner is accused of an offence punishable with imprisonment which may extend upto 10 years, the provisio (a) (i) to Section 167 of the Criminal Procedure Code is attracted in this case and therefore the petitioner is not entitled to be released on bail at this stage.

4. The question arising for consideration is whether the petitioner is entitled to get bail in view of the provisions contained in the proviso to Section 167(2) of the Criminal Procedure Code Admittedly, the investigation in the case has not been completed and the charge has not been laid before the court. The petitioner is in custody since 23.12.2000. The proviso to section 167(2) lays down that no Magistrate shall authorise the detention of the accused person in custody for a period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years and 60 days where the investigation relates to any other offences and the person concerned is to be released on bail if he is prepared to and does furnish bail. According to the Public Prosecutor, the expression "offences punishable with imprisonment which may extend up to 10 years" includes all offences where the punishment is imprisonment for a term not less than 10 years referred to in proviso (a) (i) of Section 167 Criminal Procedure Code I cannot agree. To attract the proviso (a) (i) of Section 167(2), the offence must be punishable with death, imprisonment for life or imprisonment for a term not less than 10 years. But in the case of an offence punishable with imprisonment which may extend up to 10 years, the court is competent to pass a sentence of imprisonment less than 10 years. Therefore, an offence punishable with imprisonment which may extend up to 10 years is covered by the proviso (a)(ii) to Section 167(2) and not covered by proviso (a)(i). In all cases where the offences are punishable with imprisonment which may extend up to 10 years, the legislature does not expect the imposition of sentence of imprisonment not less than 10 years. In a case covered by proviso (a)(i) of Section 167(2) the minimum punishment is imprisonment for 10 years whereas in the case of an offence punishable with imprisonment which may extend up to 10 years the maximum punishment is imprisonment for 10 years. Therefore the two cases cannot be included in the same category. In this case the petitioner is alleged to have committed an offence punishable with imprisonment for a term which may extend to 10 years