Interim Bail Period Excluded from Statutory Bail Calculation: Kerala High Court Delivers Key Ruling

KOCHI – In a significant judgment clarifying the nuances of statutory bail, the Kerala High Court has ruled that the time an accused spends on interim bail cannot be counted towards the total detention period required to claim this indefeasible right. Justice K. Babu, while dismissing a bail application in an NDPS case, held that only the actual period of detention, whether continuous or broken, is relevant for computation under Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The ruling in Fisal P.J. v. State of Kerala and Anr. (Bail Appl. No. 11634 of 2025) provides crucial guidance on the interpretation of "custody" for the purposes of default bail, reinforcing that a release on interim bail, even if conditional, breaks the chain of detention.

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Background of the Case

The petitioner, Fisal P.J., was arrested on February 18, 2025, in connection with offences under Sections 22(c), 8(c), and 27(a) read with Section 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. He remained in judicial custody until May 24, 2025. On that date, he was granted interim bail on medical grounds, a status he maintained until September 9, 2025. Following this period, he was again taken into custody.

Cumulatively, the petitioner had undergone 140 days of actual detention, split into two periods. He approached the High Court seeking statutory bail under Section 187 BNSS read with Section 36A(4) of the NDPS Act. The core argument advanced by his counsel, M.G. Sreejith, was that the period of interim bail should be treated as constructive custody. The counsel contended that during this time, the petitioner had not enjoyed "absolute liberty" and was subject to the conditions of the bail order, thus it should be included in the calculation, which would push his total detention past the statutory limit of 180 days prescribed for NDPS cases.

Legal Arguments and Judicial Scrutiny

The central legal question before the Court was twofold: first, whether broken periods of detention can be aggregated, and second, whether a period of interim bail qualifies as "detention" for the purpose of statutory bail.

On Aggregating Broken Periods of Custody:

The Court first addressed the permissibility of adding together non-continuous periods of detention. Referring to the landmark Supreme Court decision in Gautam Navlakha v. NIA and its own precedent in Sabu v. CBI [2020 (3) KLT 710] , the Court affirmed that such aggregation is permissible. Justice Babu observed, "An accused person is entitled to be released on statutory bail by adding the truncated periods of detention suffered by him." This part of the judgment reinforces the principle that it is the total duration of actual custody that matters, not its continuity.

On the Nature of Interim Bail:

The more contentious issue was the petitioner's claim regarding the interim bail period. The Court sought the assistance of an amicus curiae, Advocate Sarath K.P., to provide a comprehensive legal perspective. The amicus curiae submitted that the very essence of statutory bail is to safeguard an individual from prolonged pre-trial detention without the investigating agency completing its probe within the stipulated timeframe.

Citing the Jammu & Kashmir High Court's decision in Amir Hassan Mir v. UT of J & K , the amicus curiae argued that a release on bail, whether temporary or regular, fundamentally alters the status of the accused. The person is no longer in the custody of the court or the police but is at liberty, albeit with conditions. It was submitted that "only the actual custody undergone by the accused will be counted for computing the period for default bail."

The Public Prosecutor, G. Sudheer, appearing for the State, supported this view, emphasizing that the petitioner had only completed 140 days of actual detention, falling short of the 180-day requirement under the NDPS Act.

The Court's Conclusive Finding

Justice K. Babu, concurring with the submissions of the amicus curiae and the prosecution, drew a clear line between detention and liberty granted through bail. The Court held that statutory bail is a remedy against the failure of the investigating agency to file a final report within the time prescribed by law, during which the accused is deprived of liberty. When an accused is released on interim bail, this deprivation ceases.

In its dispositive reasoning, the Court stated:

“I have no doubt in concluding that the period during which the accused person was released on temporary/interim bail should not be computed for the purpose of reckoning the period for statutory bail, as only the actual period of detention undergone by the accused need be counted for.”

The Court underscored that the purpose of Section 187 BNSS (formerly Section 167 CrPC) is linked to the actual loss of freedom. Since the petitioner was not in custody during his interim bail period, that time could not be used to claim a right that is predicated on continuous detention. As the petitioner's actual detention period of 140 days did not meet the statutory threshold of 180 days, the application for statutory bail was dismissed.

Analysis and Implications for Legal Practice

This judgment from the Kerala High Court serves as a vital clarification for criminal law practitioners and the lower judiciary.

1. Reinforces the 'Actual Custody' Doctrine: The ruling solidifies the principle that statutory bail calculations must be based on "actual" detention. This excludes not only periods of interim bail but also, by extension, any period where an accused is at liberty, such as during the pendency of an anticipatory bail order.
   
   
2. Prevents Misuse of Interim Bail: It closes a potential loophole where an accused, after securing interim bail on sympathetic grounds like medical emergencies, could later claim that this period of relative freedom should be treated as custody to secure default bail.
   
   
3. Clarity on Aggregation: While the primary finding is on exclusion, the judgment also positively affirms the principle of aggregating broken detention periods. This is crucial in cases where an accused is released and re-arrested, ensuring that the total time spent in custody is what counts towards the statutory limit.
   
   
4. Impact on NDPS Cases: The ruling is particularly relevant for cases under the NDPS Act, which provides for a longer detention period (180 days, extendable to one year). This extended timeline makes the precise calculation of each day of custody critically important for the rights of the accused.

For defence lawyers, this decision means that strategies involving interim bail must be carefully considered, as they will pause the clock for statutory bail. For prosecutors, it provides a clear legal basis to oppose default bail claims that seek to include periods of temporary release. Ultimately, the judgment balances the indefeasible right to statutory bail with the logical premise that this right can only be invoked by those who have actually been deprived of their liberty for the full statutory period.