1. What is the significance of the expression "or his bail has been cancelled" used in Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, while adjudicating an application for statutory bail?

2. The petitioner is the first accused in Crime No.78 of 2024 registered by the Excise Enforcement and Anti-Narcotic Special Squad, Kottayam, alleging the commission of offences punishable under Sections 20(b) (ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act" for brevity).

3. The prosecution case, in brief, is that on 19.06.2024 the petitioner, along with the co-accused, after hatching a conspiracy, had procured and transported 4.065 kilograms of dried ganja. The accused were arrested on the spot with the contraband.

4. The petitioner was remanded to judicial custody on 20.06.2024. Thereafter, by Annexure-1 order, the learned Special Judge for NDPS Act Cases, Thodupuzha ("Special Court", for short), enlarged the petitioner on bail, subject to conditions. The petitioner was directed not to commit any offence during the currency of the bail.

5. Subsequently, the Erumapetty Police Station registered Crime No.892 of 2024 against the petitioner and others for allegedly committing the offences punishable under Sections 20(b)(ii)(B), 22(b) and 29 of the NDPS Act. Consequent to the registration of the second crime, the prosecution filed an application before the Special Court to cancel the bail granted to the petitioner in the first crime. The Special Court allowed the application. Pursuant thereto, the petitioner was rearrested and remanded to judicial custody on 17.10.2025.

6. The petitioner thereafter approached this Court for bail. However, the application was dismissed on the finding that the petitioner had abused the liberty granted to him by getting involved in another crime.

7. According to the petitioner, despite his re-arrest and continued judicial custody, the Investigating Officer failed to complete the investigation and file the final report within the period prescribed under Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS” for short). Though the petitioner moved the Special Court for statutory bail, the application was dismissed by the impugned Annexure-6 order. The final report was eventually filed on 30.03.2026, long after the expiry of the statutory period. The petitioner contends that he is entitled to be released on default bail.

8. Sri. Sadik Ismayil, the learned counsel appearing for the petitioner, submitted that Parliament has consciously introduced the expression "whether such person has not been released on bail or his bail has been cancelled” in Section 187(2) BNSS. According to the learned counsel, the said legislative departure is significant. It manifests the legislature's intention that, even where an accused has earlier been enlarged on bail on the merits of the application, and such bail order is subsequently cancelled, the investigating agency remains under a statutory obligation to complete the investigation within the period prescribed by law. The cancellation of bail does not obliterate the legislative mandate governing the period of investigation. The learned counsel further contended that the right to statutory bail is no longer a statutory privilege, but an indefeasible fundamental right.

9. On the contrary, Sri. C.S. Hrithwik, the learned Senior Public Prosecutor, submitted that the petitioner, having abused the conditions of the bail order by committing yet another offence under the NDPS Act, is disentitled to statutory bail. According to the learned Public Prosecutor, an accused who has forfeited the confidence of the Court by misusing the liberty granted to him cannot subsequently seek to take advantage of the default committed by the investigating agency. He placed reliance on the decisions of this Court in Nishil v. Station House Officer and Another [2007 (4) KHC 336] and Arshom P.M. v. State of Kerala and Another [2022 KHC 517], wherein it was held that once bail granted to an accused is cancelled on account of the misuse of liberty, a fresh claim for statutory bail cannot be founded by reckoning the period of detention after such re-arrest. He contended that the principles laid down in the above decisions continue to govern the field even after the coming into force of the BNSS.

10. The Special Court had initially enlarged the petitioner on bail on the grounds that the investigation had progressed, that the petitioner had no criminal antecedents, and that the contraband allegedly involved was only of an intermediate quantity. The petitioner was nevertheless directed not to commit any criminal offence.

11. It is undisputed that the petitioner was subsequently implicated in another NDPS case, whereupon the prosecution successfully got the petitioner’s bail cancelled. This Court also declined to enlarge the petitioner on bail.

12. Pursuant to the cancellation of the bail, the petitioner was re-arrested and remanded to judicial custody on 17.10.2025. The offences alleged against the petitioner are punishable with imprisonment extending up to ten years.

13. In view of the mandate under Section 187 BNSS, the Investigating Officer is obliged to complete the investigation and file the complaint (charge sheet) within sixty days from the date of such re-arrest, namely, on or before 17.12.2025. Nonetheless, the final report was filed only on 30.03.2026.

14. It is here that the significance of the expression "or his bail has been cancelled" in Section 187(2) BNSS comes into play, and whether, notwithstanding the cancellation of the petitioner's earlier bail order, is he entitled to statutory bail upon the investigating agency failing to complete the investigation within the period prescribed by law.

15. To examine the above point, it becomes necessary to compare Section 167(2) of the Code of Criminal Procedure (“CrPC”, for short) and Section 187(2) BNSS. The provisions read as follows:

                     “167. Procedure when investigation cannot be completed in twenty-four hours:

                     (1) *** *** ***

                     (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

                     (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

                     (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

                     (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

                     (b) no Magistrate shall authorise detention of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.

                     (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.”

                     “187. Procedure when investigation cannot be completed in twenty-four hours.

                     (1) xxx

                     (2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.”

                     (emphasis supplied)

16. A comparative analysis of Section 167(2) CrPC and Section 187(2) BNSS reveals that the latter is not a mere reproduction of the former. The legislature has consciously departed from the language employed in Section 167(2) CrPC by, inter alia, introducing the following expression:

                     "after taking into consideration whether such person has not been released on bail or his bail has been cancelled."

17. The insertion of the above words constitutes a substantial alteration from Section 167(2) CrPC, in the context of this case.

18. Section 167 CrPC and Section 187 BNSS embody a significant procedural safeguard in criminal jurisprudence. They impose a statutory obligation upon the investigating agency to complete the investigation within a prescribed period, failing which the continued incarceration of the accused loses legislative sanction. The object of the provision is neither to reward an accused nor to penalise the investigating agency. Rather, it strikes a delicate balance between society's legitimate interest in effective criminal investigation and the equally compelling constitutional imperative to protect an individual's personal liberty against indefinite detention. The provision is thus designed to ensure diligence by the investigating agency and to prevent the prolonged incarceration of an undertrial.

19. BNSS is a comprehensive legislative enactment intended to modernise criminal procedure while preserving the constitutional values that have evolved through decades of judicial interpretation.

20. Whenever the Parliament consciously departs from the language employed in an earlier enactment, such departure is presumed to be deliberate and purposeful. Every word employed by the legislature must be presumed to have been inserted with a definite legislative purpose, and every provision must be interpreted to give meaningful effect to each expression used.

21. Equally well settled is the principle that the statutes regulating personal liberty deserve a liberal and purposive construction. The constitutional guarantee under Article 21 requires that, where two interpretations exist, the Court may adopt the one that advances liberty rather than the one that enlarges executive power. Procedural safeguards enacted to protect personal liberty are not to be interpreted narrowly or technically; they are intended to serve as effective restraints on the arbitrary deprivation of liberty.

22. Criminal jurisprudence proceeds on the foundational premise that every accused is presumed innocent until proved guilty. While investigation is undoubtedly an indispensable part of criminal administration, it cannot be used to authorise indefinite incarceration. The State undoubtedly possesses the authority to investigate offences, but such authority is accompanied by a corresponding obligation to investigate with reasonable expedition.

23. It is in the above constitutional and statutory backdrop that the expression "or his bail has been cancelled" occurring in Section 187(2) BNSS requires interpretation.

24. The Court cannot simply ignore these words or CRL.MC NO. 3180 OF 2026 treat them as legislative surplusage. Had Parliament intended to continue the legal position prevailing under Section 167(2) CrPC without alteration, there was absolutely no necessity to introduce the above additional expression. The deliberate insertion of these words necessarily indicates an intention to address a situation which was not expressly contemplated under the CrPC.

25. The Court is therefore duty-bound to assign to the newly inserted expression a construction that furthers the legislative purpose rather than one that renders it meaningless.

26. In my considered view, the expression "his bail has been cancelled" recognises the legal reality that an accused, who was once enlarged on regular bail but is subsequently re-committed to judicial custody upon cancellation of such bail, continues to remain within the statutory framework governing investigation. The cancellation of bail undoubtedly restores the accused to custody; however, it does not extinguish the statutory obligations resting upon the investigating agency. The investigating officer does not acquire an unrestricted licence to continue the investigation indefinitely merely because the accused had earlier misused the concession of bail. Equally, the cancellation of bail cannot operate to suspend or dilute the statutory discipline imposed upon the investigating agency under Section 187 BNSS.

27. To hold otherwise would permit the investigating agency to continue the investigation without any temporal limitation merely because the accused had once violated the conditions of bail. Such an interpretation would not only defeat the express language employed by Parliament but would also undermine the constitutional protection against prolonged incarceration embodied in Article 21.

28. The legislative intent underlying the newly inserted words therefore appears to be clear. Parliament has consciously recognised that even an accused whose bail has been cancelled remains entitled to invoke the statutory protection against prolonged investigation, provided the investigating agency fails to complete the investigation within the prescribed period. The right arising under Section 187 BNSS is directed not towards the conduct of the accused but towards the diligence of the investigating agency. The default contemplated by the provision is the State's default and not that of the accused.

29. This interpretation also harmonises with the constitutional philosophy that underlies the law relating to statutory bail. The liberty protected by Article 21 does not depend on the accused's criminal antecedents. Courts do grant statutory bail because the law commands that continued detention without completion of investigation cannot be sustained beyond the statutory period.

30. The above construction receives reinforcement from the whole line of decisions of the Hon'ble Supreme Court while interpreting Section 167(2) CrPC. Although those decisions arose under the CrPC, the constitutional principles governing statutory bail remain equally applicable when construing Section 187 BNSS. It is therefore necessary to examine the authoritative pronouncements of the Hon’ble Supreme Court on the right of the accused to statutory bail.

31. In Bikramjit Singh v. State of Punjab [(2020) 10 SCC 616], the Supreme Court emphatically held that the right accruing under Section 167(2) Cr.PC is not merely a statutory entitlement but an indefeasible right flowing from the guarantee of personal liberty under Article 21 of the Constitution.

32. Earlier, in Rajnikant Jivanlal and Another v. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532], the Supreme Court lucidly explained that an order granting statutory bail is founded exclusively upon the default committed by the investigating agency and not upon an evaluation of the merits of the prosecution case. Once the statutory period expires without the filing of the final report, the Magistrate loses the authority to authorise further detention and becomes duty-bound to release the accused on bail, provided he is prepared to furnish the requisite bond.

33. The constitutional dimension of the provision was further elaborated by the three-Judge Bench of the Hon’ble Supreme Court in Rakesh Kumar Paul v. State of Assam [(2017) 15 SCC 67], wherein the majority held that questions concerning personal liberty cannot be approached with technical rigidity. It is observed that procedural prescriptions must receive an interpretation that advances substantive justice, particularly when the consequence of an adverse interpretation would be the continued deprivation of liberty guaranteed under Article 21.

34. The principle was reiterated in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence [(2021) 2 SCC 485], where the Supreme Court held that the right to statutory bail accrues immediately upon the expiry of the prescribed period of investigation and continues until it is extinguished by the filing of the final report before the accused avails himself of that right. The Court reaffirmed that the right is absolute in nature once the statutory conditions stand fulfilled and is incapable of being defeated by considerations dehors the statute.

35. Again, in Satender Kumar Antil v. Central Bureau of Investigation and Another [(2022) 10 SCC 51], the Supreme Court highlighted the constitutional philosophy underlying the provision in the following words:

                     "39. Section 167(2) was introduced in the year 1978, giving emphasis to the maximum period of time to complete the investigation. This provision has got a laudable object behind it, which is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society. This is also another limb of Article 21. Presumption of innocence is also inbuilt in this provision. An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect."

36. The common thread running through the above decisions makes it crystal clear that the right to statutory bail is founded not upon the gravity of the offence, the antecedents of the accused or the Court's assessment of the prosecution case, but solely upon the failure of the investigating agency to complete the investigation within the period prescribed by law. Once that period expires, the legality of continued detention is determined not by the seriousness of the accusation but by the diligence—or the lack thereof—displayed by the investigating agency.

37. The learned Senior Public Prosecutor placed considerable reliance upon the decision of this Court in Arshom P.M.'s case to contend that an accused whose bail has been cancelled on account of misuse of liberty is disentitled from claiming statutory bail by reckoning the period of detention after such cancellation.

38. The submission, though attractive at first blush, cannot be accepted because the decision in Arshom P.M’s case was rendered entirely within the statutory framework of Section 167(2) CrPC, at a time when the BNSS had not come into force. More importantly, the Court was not called upon to consider the legal effect of the expression "or his bail has been cancelled", which now forms an integral part of Section 187(2) BNSS.

39. The ratio of a precedent is necessarily confined to the statutory provision under consideration. When Parliament subsequently amends the law by consciously introducing language absent in the earlier enactment, the interpretative exercise necessarily assumes a different complexion. Judicial precedents interpreting an earlier statute cannot be mechanically transplanted into a materially altered legislative framework without examining the effect of the amendment. In that view of the matter, the law laid down in Arshom P.M.’s case cannot govern a case arising under Section 187 BNSS, which constitutes a deliberate legislative departure.

40. Equally, the decision in Nishil’s case stands on an entirely different footing. That decision concerned a situation in which an accused had already availed the benefit of statutory bail due to the investigating agency's default and thereafter misused the liberty granted to him. This Court held that once the benefit of default bail had been exhausted and subsequently forfeited by reason of the accused's own misconduct, he cannot claim the same statutory benefit for a second time.

41. The principle laid down therein remains unexceptionable. The present case, however, presents an entirely different factual and legal situation. The petitioner was initially enlarged on regular bail on merits. He had never availed the benefit of statutory bail. Consequently, the ratio in Nishil’s case has no application to the facts of the present case.

42. Having regard to the legislative departure introduced by Parliament in Section 187(2) BNSS, the constitutional philosophy underpinning the law relating to statutory bail, and the consistent jurisprudence of the Supreme Court recognising the right to default bail as an indefeasible facet of personal liberty under Article 21, this Court is of the considered opinion that the expression "or his bail has been cancelled" cannot be rendered otiose.

43. The cancellation of an earlier order of regular bail merely restores the accused to judicial custody. It neither enlarges the period prescribed for completing the investigation nor absolves the investigating agency of its statutory obligation to file the final report within the period stipulated under Section 187 BNSS.

44. In the present case, the petitioner was rearrested and remanded to judicial custody on 17.10.2025. The offences alleged are punishable with imprisonment extending up to ten years. Consequently, the investigating agency was obliged to file the final report within sixty days from the date of such remand. Admittedly, the final report was filed only on 30.03.2026, well beyond the statutory period. Before the filing of the final report, the petitioner had already invoked his right to statutory bail before the Special Court.

45. The statutory conditions having stood fully satisfied, the indefeasible right has accrued in favour of the petitioner and the subsequent filing of the final report has not extinguished his right to statutory bail. Therefore, the impugned order declining statutory bail to the petitioner is legally unsustainable.

46. Accordingly, the Criminal Miscellaneous Case deserves to succeed.

In the result, this Criminal Miscellaneous Case is allowed in the following terms:

(i) Annexure-A6 order passed by the learned Special Judge is set aside.

(ii) Annexure-A5 application is allowed.

(iii) The petitioner shall be released on bail on him executing a bond for a sum of ₹1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like amount to the satisfaction of the jurisdictional Special Court.

(iv) The release of the petitioner shall be subject to the following conditions:

(a) The petitioner shall appear before the Investigating Officer as and when required for the purpose of investigation.

(b) The petitioner shall not directly or indirectly induce, threaten, influence or promise any person acquainted with the facts of the case so as to dissuade such person from disclosing the facts before the Court or to interfere with the course of investigation or trial.

(c) The petitioner shall not tamper with the prosecution evidence in any manner whatsoever.

(d) The petitioner shall not involve himself in any offence while on bail.

(e) The petitioner shall surrender his passport, if any, before the jurisdictional Court at the time of execution of the bond. If he is not in possession of a passport, he shall file an affidavit to that effect before the said Court.

(f) In the event of violation of any of the above conditions, it shall be open to the jurisdictional Court to consider any application for cancellation of bail and pass appropriate orders in accordance with law.

(g) Any application seeking modification, relaxation or deletion of the above conditions shall be moved before and decided by the jurisdictional Court in accordance with law.