The Gauhati High Court granted default bail to a petitioner arrested for heroin possession. The court held that police custody time prior to judicial remand counts towards the 60-day limit for default bail under Section 167(2) Cr.P.C., though the initial remand day is excluded.
Petitioner granted bail on a bond of Rs. 50,000 with surety.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC030001442022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3/2022
Lalkhawngaiha S/o Lallungmuana R/o H/No. 151, Hermon,Khawzawl, Mizoram
VERSUS
State of Mizoram Aizawl, Mizoram
Advocate for the Petitioner : Ms. Lalngaihsaki Fanai
Advocate for the Respondent :
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
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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. 27.01.2022, 28.03.2021 was the 60th day. Further, as chargesheet 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,
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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
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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 & Anr., reported in (2013) 3 SCC 77, the Apex Court has held that during the period of investigation, the accused is under the custody of the Magistrate before whom he is produced. During that stage, under Section 167(2) Cr.P.C, the Magistrate is vested with the authority to remand the
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accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years. In the event, an investigating authority fails to file the chargesheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence.
12 . By applying the decisions of the three-Judges Bench of the Apex Court in Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr.(supra), and the two-Judges Bench in CBI vs. Anupam J. Kulkarni (supra), the Judicial Magistrate having remanded the petitioner, firstly to police custody for 2 days and thereafter to judicial custody, the period spent in police custody and judicial custody would have to be counted to determine whether 60 days had elapsed without the filing of charge-sheet. Further, the date/day of initial remand is not to be counted for determining whether the petitioner had completed 60 days of police/judicial remand.
13 . It may also be noticed here that the judgment passed by the Apex Court in State of M.P vs. Rustam & Ors (supra) and Dilawar vs. State of Haryana & Anr (supra) was passed by the two-Judges Bench, while the judgment in Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr (supra) was
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passed by a three-Judges Bench.
14 . In the case of CBI vs. Anupam J. Kulkarni (supra), it has been held that the period of 90 dyas or 60 days under Section 167(2) Cr.P.C, would have to be computed from the date of remand of the accused and not from the date of arrest.
16. Though it appears that the Apex Court in Dilawar vs. State of Haryana & Anr (supra) has held that the default bail can be considered only on completion of 90 days or 60 days in judicial custody, this Court is of the view that the judgment of
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the three-Judges Bench of the Apex Court in Suresh Kumar Bhikamchand Jain (supra) does not make a distinction with regard to police custody vis-à-vis judicial custody, for computing the 90 days or 60 days remand period to be completed, as long as the accused has been remanded by a Judicial Magistrate. As such, this Court is of the view that while determining the number of days undergone by an accused in custody on the basis of detention orders issued by a Judicial Magistrate, the period spent in police custody and judicial custody would have to be computed, to determine whether the accused is entitled to default bail under Section 167(2) Cr.P.C. However, the first day of remand has to be excluded from computing the period of 90 days/30 days, i.e. the date the remand order is issued.
17 . In view of the above reasons, the petitioner’s remand into Excise custody on 25.01.2022 cannot be counted, to determine whether the petitioner had completed 60 days of remand. However, the remand of the petitioner into Excise custody again on 26.01.2022 would have to be counted. By excluding 25.01.2022, the period of 60 days would have been completed on 26.03.2022. As the charge-sheet had been filed only on 28.03.2022, the petitioner is entitled to grant of default bail under the proviso to Section 167(2) Cr.P.C.
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18 . On considering the judgment of the three-Judges Bench in Suresh Kumar Bhikamchand Jain (supra) and Chaganti Satyanarayana (supra), this Court is of the view that default bail would have to be given to the petitioner. Accordingly, the petitioner is granted bail on a bail-bond of Rs. 50,000/- with surety of like amount to the satisfaction of the Special Court.
19 . The bail application is accordingly allowed.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the period spent in police custody before judicial remand counts towards the 60-day limit for default bail under Section 167(2) Cr.P.C.
Whether the day of the initial remand order should be excluded when computing the period of remand for default bail.
Colour shows how this judgement treated each authority
State of M.P vs. Rustam & Ors.Explained¶11
State of M.P vs. Rustam & Ors., 1995 Supp (3) SCC 221 · Who else cites this
Dilawar vs. State of Haryana & Anr.Explained¶9
Dilawar vs. State of Haryana & Anr., (2018) 16 SCC 521 · Who else cites this
CBI vs. Anupam J. KulkarniExplained¶10
CBI vs. Anupam J. Kulkarni, (1992) 3 SCC 141 · Who else cites this
Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr.Applied¶12
Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr., (2013) 3 SCC 77 · Who else cites this
Chaganti Satyanarayana & Ors. vs. State of Andhra PradeshDistinguished¶15
Chaganti Satyanarayana & Ors, vs. State of Andhra Pradesh, reported in AIR 1986 SC 2130 · Who else cites this
1 provisions across 1 enactments
Lalkhawngaiha
State of Mizoram
Michael Zothankhuma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
