Statutory bail under BNSS cannot be denied based on prior criminal history; the maximum punishment under Section 22(b) of the NDPS Act allows bail after 60 days.

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 (3) of 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 (3) of . The counsel for the petitioner relied on the judgment of the Apex Court inRakesh 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 (3) of .

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 (3) of 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 (3) of . 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 , the words used in (3) of 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 (3) of .

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. (b) of the NDPS Act is extracted hereunder:

“22. Punishment for contravention in relation to psychotropic substances- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable, -

(a) xxxxxxxxxxxxxxxxxxxx

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(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

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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 o