ORDER

Date : 29-04-2022 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA Heard Ms. Lalngaihsaki Fanai learned counsel for the petitioner. Also heard Mrs. Linda L. Fanai, learned Addl. Public Prosecutor.

2. The petitioner herein was arrested with a co-accused for alleged possession of 49 grams of suspected heroin on 24.01.2022. The petitioner was remanded to Excise custody by the Judicial Magistrate on 25.01.2022. The petitioner was again remanded to Excise custody on 26.01.2022. The petitioner was thereafter sent to judicial custody by the Magistrate on 27.01.2022.

3. On 28.03.2022, the petitioner filed an application for default bail under Section 167(2) Cr.P.C. The learned Trial Court rejected the bail application, on the ground that the petitioner had been remanded into judicial custody w.e.f. 27.01.2022. By excluding the date of judicial remand i.e.

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27.01.2022, 28.03.2021 was the 60 day. Further, as charge- sheet had been filed on 28.03.2021, Section 167 Cr.P.C was not applicable for granting default bail to the petitioner.

4. The petitioner’s counsel submits that the learned Trial Court has misconstrued the provisions of Section 167(2) Cr.P.C, inasmuch as, the learned Trial Court should have counted the days spent in Excise custody, while computing the number of days of remand, to determine whether default bail under Section 167(2) Cr.P.C was applicable to the case.

5. On the other hand, the learned Addl. Public Prosecutor submits that there has been no error committed by the learned Trial Court, as the period of 60 days, for grant of default bail, would have to be determined on basis of the time spent in judicial custody. Also, the first day of judicial remand, i.e. the date of the order for judicial remand would have to be excluded, while making the computation of days spent on remand.

6. The learned Addl. Public Prosecutor also submits that for application of Section 167(2) Cr.P.C, the period spent in judicial custody only can be considered for default bail and not the period spent in Excise custody.

In support of her submissions, the learned Addl. Public Prosecutor has relied upon the Judgment of the Apex Court in the State of M.P vs. Rustam & Ors., 1995 Supp (3) SCC 221 and in the case of Dilawar vs. State of Haryana & Anr., reported in (2018) 16 SCC 521. She also relied upon the Judgment of the Apex Court in the case of CBI vs. Anupam J.

Kulkarni, (1992) 3 SCC 141.

7. I have heard the learned counsels for the parties.

8. The Apex Court in Rustam & Ors (supra) has held that while computing the period of custody to avail default bail as per Section 167(2) Cr.P.C, the day on which the accused was remanded to judicial custody should be excluded and the day on which Challan has filed, should be included.

9. In the case of Dilawar vs. State of Haryana & Anr (supra), the Apex Court has held that even a Magistrate cannot authorize detention in police custody beyond 15 days. Further, after judicial custody for more than 90 days in serious cases stipulated therein and 60 days in other cases, there is a provision for mandatory default bail requirement if there is delay in investigation beyond the said period.

10. In the case of CBI vs. Anupam J. Kulkarni (supra), the Apex Court has held in para 13 that there cannot be any detention in police custody after the expiry of the first 15 days. It has further held that if the investigation is not completed within a period of 90 days or 60 days, then the accused has to be released on bail as provided under the proviso to Section 167(2) of the Cr.P.C. The period of 90 days or 60 days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the Police. Consequently, the first period of 15 days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first 15 days, it should only be judicial custody.

11. In the case of Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & An