Common Order:

1. The question involved in these Criminal Miscellaneous Cases is whether, for the purpose of deciding an application for default bail, the period prescribed by law for filing of the charge sheet is to be reckoned from the date of the formal arrest of the accused or from the date the accused is first remanded to judicial custody.

2. These cases are filed by accused Nos.1 and 2 in S.C. No.390 of 2026 pending on the file of the Court of the Additional Sessions Judge-I, Ernakulam (for short, 'Trial Court'), arising out of Occurrence Report No.5 of 2025 registered by the Narcotics Control Bureau, Cochin Zonal Unit, Ernakulam — the respondent. Since both cases arise from the same crime and the challenge is against the same order, they are heard together and are being disposed of by this common order.

3. The petitioners contend that, pursuant to the permission granted by the Trial Court, the respondent formally arrested them in the present occurrence on 24.09.2025 for allegedly committing the offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). According to the petitioners, the statutory period of 180 days stipulated for completing the investigation and filing the charge sheet (complaint) expired on 22.03.2026. As the respondent failed to file the complaint within the statutory period, the petitioners acquired the indefeasible right to be released on statutory bail as laid down under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'BNSS') read with Section 36A (4) of the NDPS Act. Although they filed applications before the Trial Court for the above relief, the same were dismissed by Annexure-6 common order. The impugned order is manifestly erroneous and warrants interference by this Court.

4. I have heard Sri. Shaijan C. George, the learned counsel appearing for the petitioners, and Sri. R. Vinu Raj, the learned Special Public Prosecutor appearing for the respondent.

5. Sri. Shaijan C. George submitted that the respondent had obtained permission from the Trial Court to effect the petitioners' formal arrest, and accordingly the petitioners were formally arrested on 24.09.2025. Consequently, the respondent was statutorily obliged to complete the investigation and file the complaint on or before 22.03.2026, which was the 180th day. Admittedly, the complaint was filed only on 23.03.2026, i.e., on the 181st day. Significantly, on the very same day, the petitioners had filed applications for statutory bail, as their indefeasible right under Section 187(3) of the BNSS had crystallised. Nonetheless, the Trial Court dismissed the applications. The learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in Manoj v. State of Madhya Pradesh [(1999) 2 SCR 402], Enforcement Directorate, Government of India v. Kapil Wadhawan and Another [(2024) 7 SCC 147], and Dhanraj Aswani v. Amar S. Mulchandani and Another [(2024) 10 SCC 336] to fortify his submissions, and prayed that the cases be allowed.

6. Sri. R. Vinu Raj stoutly opposed the cases. He contended that the impugned order is perfectly legal and calls for no interference. According to the learned Special Public Prosecutor, the period prescribed for filing the complaint commences not from the date of the formal arrest of the accused, but from the date of first remand to judicial custody in the concerned case. Although the petitioners were formally arrested on 24.09.2025, they were remanded to judicial custody in the present crime only on 13.10.2025. Hence, the complaint filed on 23.03.2026 was well within the statutory period of 180 days. Therefore, the petitioners had not acquired the right to default bail. The learned Special Public Prosecutor placed reliance on the decisions of the Hon'ble Supreme Court in Dhanraj Aswani v. Amar S. Mulchandani and Another (supra) and State of West Bengal v. Dinesh Dalmia [(2007) 5 SCC 773], as also the decision of the High Court of Madras in State by Inspector of Police, Anti Land Grabbing Special Cell, City Crime Branch, Tiruchirappalli v. K.N. Nehru and Others [2011 SCC OnLine Mad 1984], to support his submissions.

7. Having regard to the rival submissions, particularly with respect to the chronology of events and the orders passed by the Trial Court, this Court called for the trial court records to verify the factual sequence and ascertain the correctness of the respective contentions.

8. The records reveal that the respondent filed Crl.M.P. No.4379 of 2025 before the Trial Court on 19.09.2025 seeking permission to record the formal arrest of the petitioners in the present crime. By order dated 22.09.2025, the Trial Court, taking note of the fact that the petitioners were already in judicial custody in O.R. No.6 of 2025 registered by the respondent, permitted the respondent to record the petitioners’ formal arrest in the presence of the Superintendent of the High Security Prison, Viyyur, on or before 27.09.2025. Pursuant thereto, the respondent formally arrested the petitioners on 24.09.2025 and submitted a report before the Trial Court on 07.10.2025 evidencing the arrest. After that, the respondent filed Crl.M.P. No. 4777 of 2025 seeking an order of judicial remand in the present case. In compliance with the production warrant, the petitioners were produced before the Trial Court on 13.10.2025; the application was allowed, and the petitioners were remanded to judicial custody in the present case. The proceedings sheet reveals that the remand is being extended from time to time.

9. The above facts unmistakably establish that, although the petitioners were formally arrested in the present occurrence on 24.09.2025, they were first remanded to judicial custody only on 13.10.2025. It is in the backdrop of these undisputed facts that the question of law formulated at the outset falls to be examined.

10. The controversy centres around the interpretation of Section 36A of the NDPS Act, which governs the period within which investigation is required to be completed in cases involving specified offences under the Act. It is apposite to extract the said provision, which reads as follows:

                  “36A. Offences triable by Special Courts.—

                  (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

                  (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

                  (b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

                  Provided that in cases which are triable by the Special Court where such Magistrate considers—

                  (i) when such person is forwarded to him as aforesaid;

                  or

                  (ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

                  (c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;

                  (d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

                  (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

                  (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under section 36.

                  (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”:

                  Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

                  (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.”

                  (emphasis supplied)

11. A plain reading of sub-section (4) of Section 36A makes it clear that, in respect of offences punishable under Sections 19, 24 and 27A of the NDPS Act and offences involving commercial quantity, the Legislature has consciously substituted the period of ninety days prescribed under Section 187 of the BNSS (corresponding to Section 167 of the Code of Criminal Procedure, 1973) with a period of one hundred and eighty days for completion of investigation. The proviso to the above sub-section further empowers the Special Court, on being satisfied that the investigation cannot be completed within the prescribed period and upon a report of the Public Prosecutor indicating the progress of the investigation, together with the specific reasons necessitating the continued detention of the accused, to extend the period for completion of investigation up to one year.

12. The legislative scheme embodied in Section 36A of the NDPS Act engrafts a special procedure governing investigation and detention in serious narcotic offences, thereby overriding the general provisions contained in the BNSS. Consequently, the indefeasible right of an accused to be released on statutory bail accrues only upon the expiry of the period of 180 days, or such extended period as permitted by the jurisdictional Court.

13. The crucial question, however, is whether the statutory period for default bail is to be reckoned from the date on which the accused is formally arrested in the crime or from the date the accused is first remanded to judicial custody. The question is no longer res integra in view of a consistent line of decisions of the Hon'ble Supreme Court and this Court.

14. In paragraph 51 of the decision in Pragyna Singh Thakur v. State of Maharashtra [2011 (10) SCC 445], the Hon'ble Supreme Court held that the relevant date for counting the 90-day period for filing the charge sheet is the date of the first order of remand and not the date of arrest.

15. The scope and ambit of the proviso to Section 167(2) CrPC was elaborately considered by the Hon’ble Supreme Court in Chaganti Satyanarayana and Others v. State of Andhra Pradesh [(1986) 3 SCC 141], wherein it declared as follows:

                  "20. The words used in proviso (a) are "no magistrate shall authorise the detention of the accused persons in custody", "under this paragraph", "for a total period exceeding i.e. 90 days / 60 days". Detention can be authorised by the magistrate only from the time the order of remand is passed. The earlier period when the accused is in the custody of a police officer in exercise of his powers under S.57 cannot constitute detention pursuant to an authorisation issued by the magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand.

                  *** *** *** ***

                  23. The legislature has consciously referred to the date of arrest in S.167(5) but has made no such reference in S.167(2) or proviso (a) thereto. If it was the intention of the legislature that the period of remand of 15 days in the whole envisaged in sub-section (2) or the total period of 90 days / 60 days prescribed in proviso (a) should be calculated from the date of arrest then the legislature would have expressly said so as it had done under S.167(5).

                  *** *** *** ***

                  25. Thus, in any view of the matter i.e. construing proviso

(a) either in conjunction with sub-section (2) of S.167 or as an independent paragraph, we find that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest."

16. The above principle was reiterated by the Hon’ble Supreme Court in State of West Bengal v. Dinesh Dalmia [(2007) 5 SCC 773] by holding that the period prescribed under Section 167(2) CrPC for completion of investigation and the entitlement to statutory bail must be reckoned with reference to the custody of the accused in the particular case under investigation. It is held that a "notional surrender" or the judicial custody of the accused in another criminal case cannot be treated as police or judicial custody in the subsequently registered case. The statutory period begins only when the accused is produced before the Magistrate in the concerned case and is remanded to custody therein. Any contrary interpretation would enable an accused involved in multiple cases to defeat legitimate custodial investigation and prematurely claim the benefit of statutory bail.

17. More recently, in Dhanraj Aswani v. Amar S. Mulchandani and Another [(2024) 10 SCC 336], the Hon'ble Supreme Court lucidly explained the legal consequences of a formal arrest of an accused who is already in judicial custody in another case. The Court held thus:

                  "56. As pointed out in the preceding paragraphs, a police officer can formally arrest a person in relation to an offence while he is already in custody in a different offence. However, such formal arrest doesn't bring the accused in the custody of the police officer as the accused continues to remain in the custody of the Magistrate who remanded him to judicial custody in the first offence. Once such formal arrest has been made, the police officer has to make an application under Section 267 of the CrPC before the Jurisdictional Magistrate for the issuance of a P.T. Warrant without delay. If, based on the requirements prescribed under Section 267 of the CrPC, a P.T. Warrant is issued by the jurisdictional Magistrate, then the accused has to be produced before such Magistrate on the date and time mentioned in the warrant, subject to Sections 268 and 269 respectively of the CrPC. Upon production before the jurisdictional Magistrate, the accused can be remanded to police or judicial custody or be enlarged on bail, if applied for and allowed."

18. This Court has consistently adopted the same interpretation. In Pramod Issac v. State of Kerala and Another [2009 (2) KHC 874], it was held as follows:

                  "13……………………………If the contention of the petitioner is accepted, a situation would arise that an accused person could not be detained in judicial custody in other cases if the period of sixty days or ninety days as mentioned in the proviso to S.167(2) is over in one case. There may be several cases against an accused. Sometimes, the allegations may be similar, but need not always be so. If it were to be held that after the expiry of the period of sixty days or ninety days, as the case may be, in one case, he cannot be detained at all in respect of the other cases, it would be contrary to the provisions of S.167. S.167 is aimed at completing the investigation at the earliest. It provides for releasing the accused on bail if the investigation is not completed within sixty days or ninety days, as the case may be. That is with reference to each case and that period cannot be tacked on or considered in respect of several other cases under investigation against the same accused. The accused has no right to say that investigation of all the cases against him should be completed within sixty days or ninety days, as the case may be, and if not, he should be released on bail in all the cases irrespective of the date of arrest in each case. That is not the purport and intent of S.167(2). Therefore, the petitioner is not also entitled to contend that he is entitled to be released on bail under S.439, based on the above interpretation placed by him."

19. Likewise, in Biju v. S.I. of Police, Erattupetta [2009 (4) KHC 877], this Court observed that an accused who is in judicial custody in one criminal case cannot, merely by reason of such custody, be deemed to be in judicial custody in every other case registered against him. Judicial custody is case-specific. Unless the investigating agency formally arrests the accused in the subsequent case and produces him before the competent Magistrate for appropriate orders of remand, the accused cannot be treated as being in custody in that case. Consequently, the grant of bail or continued detention in one case neither precludes nor dispenses with the necessity of a formal arrest and remand in another case. The decision emphasises that each criminal case has an independent legal identity for the purposes of arrest.

20. The legal position emerging from the above precedents admits of no ambiguity. A formal arrest effected in respect of an accused who is already in judicial custody in another case is only a procedural step signifying that the investigating agency has implicated the accused in the subsequent crime. Such formal arrest, by itself, neither divests the Magistrate of the custody already exercised in the earlier case nor places the accused in judicial custody in the subsequent case. The statutory period contemplated under Section 187 of the BNSS or Section 36A (4) of the NDPS Act commences only upon the accused being produced before the jurisdictional Court in the subsequent case and an order of remand is passed. It is, therefore, the date of the first remand in the concerned case, and not the date of formal arrest, that constitutes the starting point for reckoning the statutory period governing default bail.

21. In light of the above settled principles, the contention advanced on behalf of the petitioners cannot be accepted. Although the petitioners’ formal arrest in the present case was recorded on 24.09.2025, they were produced before the Trial Court and remanded to judicial custody only on 13.10.2025. The complaint was filed on 23.03.2026, i.e., within 161 days from the date of remand. Consequently, the indefeasible right contemplated under Section 36A (4) of the NDPS Act had not accrued to the petitioners on the date they moved their applications for statutory bail.

22. The Trial Court has rightly held that the petitioners are not entitled to statutory bail. The impugned common order does not suffer from any illegality, irrationality or impropriety warranting interference by this Court in exercise of its jurisdiction under Section 528 of the BNSS.

In the result, these Criminal Miscellaneous Cases fail and are accordingly dismissed. The Registry is directed to forthwith transmit the original records to the Trial Court.