S.187(3) BNSS | Default Bail Can Be Granted After 60 Days For Offence Punishable With Imprisonment Which May Extend To 10 Yrs: Kerala HC

The Kerala High Court has granted default bail under Section 187(3) BNSS to an accused in a drugs case, booked under Section 22(b) of NDPS Act punishable with rigorous imprisonment for a term which may extend to ten years (maximum ten years punishment), after 60 days in custody.

Section 187(3)(ii) of the Bhartiya Nagarik Surakhsha Sanhita prescribes that the Magistrate may authorise the detention of the accused person in custody for a total period not exceeding 60 days, where the investigation relates to any other offence (apart from those punishable with death, imprisonment for life or imprisonment for a term of ten years or more (as stipulated under Section 187(3)(i)).

Justice PV Kunhikrishnan did not apply Section 187(3)(i) to the Petitioner-accused, noting that the maximum punishment that can be imposed upon the Petitioner is up to ten years, whereas Section 187(3)(i) relates to offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more.

The bench relied on Rakesh Kumar Paul v. State of Assam (2017) whereby the Supreme Court had held that the word “not less than ten years” used in Section 167(2)(i)(a) CrPC means imprisonment should be 10 years or more. In this case, the maximum punishment that can be imposed upon the Petitioner is ten years.

The Public Prosecutor had opposed grant of bail, contending that the words used in Section 187(3) BNSS are different from the corresponding provision for default under Section 167(2) CrPC and thus, Rakesh Kumar Paul (supra) is not applicable.

Under Section 167(2)(a)(i) CrPC, default bail is to be granted after 90 days of custody for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years (minimum ten years).

However, under Section 187(3)(ii) BNSS, default bail is to be granted after 90 days of custody for offences punishable with death, imprisonment for life or imprisonment for a term of ten years or more.

The High Court observed that in Rakesh Kumar Paul (supra) the Supreme Court had interpreted the words “not less than ten years” to mean imprisonment should be 10 years or more. It said the same language has been employed in the corresponding provision of BNSS. Thus it observed,

"I am of the considered opinion that as long as the dictum in Rakesh Kumar Paul's case (supra) is in force, this Court need not further interpret Sec.187(3)(i) of the BNSS. The words used in Sec. 167(2)(a)(i) Cr.P.C.is “not less than 10 years”. The Apex Court observed that this phrase indicates that, for Sec. 167(2)(a) (i) Cr.P.C. to apply, the minimum sentence that can be imposed for an offence should be 10 years. But in Sec. 187(3)(i), it is clearly stated that “for a term of 10 years or more”. There is no much difference between the words “for a term of 10 years or more” mentioned in BNSS and “not less than 10 years” mentioned in Sec. 167(2)(a) (i) Cr.P.C."

It agreed with the Karnataka High Court's decision in State of Karnataka by Kavoor Police Station v. Kalandar Shaf (2024) where it was held that the phraseology of the words 'ten years or more' found in Section 187(3)(i) BNSS would mean- the minimum threshold punishment imposable on an offence under the BNS should be ten years. It had also held that in case where sentence is extendable upto ten years, completion of investigation has to be undoubtedly completed in 60 days.

The Court then proceeded to caution that while interpreting a statute, the ambiguity must be resolved in favour of the accused persons, since their liberty is at stake. It said,

"I am of the considered opinion that while interpreting Sec. 187(3), the interpretation which will favour the accused's liberty should be adopted by a court of law...The contention of the Public Prosecutor is that a different meaning is given in Sec. 187(3) of the BNSS in place of Sec.167(2)(a)(i) Cr.P.C. cannot be accepted. The dictum laid down by the Apex Court in Rakesh Kumar Paul's case (supra) is equally applicable to Sec. 187(3) of the BNSS also. Therefore, I am of the considered opinion that the petitioner in this case is entitled to statutory bail under sec. 187(3) BNSS."

Accordingly, the Petitioner was ordered to be released on default bail after 60 days custody, upon executing a bond for Rs.50,000/- with two solvent sureties.

Counsel for the Petitioners: Advocates Francis Assisi, Ajeesh S. Brite, Amrutha P. S., Manju Luckose