The Period During Which An Accused Has Been Enlarged On Bail Cannot Be Computed While Calculating The Period Of Custody For The Purposes Of Considering The Default Bail: High Court of J&K and Ladakh

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  • Post published:March 30, 2022
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The Court has observed that the period during which an accused has not been in custody or has been enlarged on bail cannot be computed while calculating the period of custody for the purposes of considering the default bail plea.

The Court further observed that a Court while exercising the discretion of granting bail even for a limited period imposes conditions under Section 439(1)(a), then an accused is released from custody on execution of bonds but  imposition of such conditions cannot by any stretch of imagination be construed to mean that accused person is in custody.

Facts:

The petitioner was found allegedly in possession of commercial quantity of the contraband drug and in this connection an FIR No.14/2021 for commission offences under Section 8/21 of NDPS Act came to be registered at Police Station, Parimpora.

The petitioner had moved an application for grant of default bail before the learned Principal Sessions Judge, Srinagar, on 04.08.2021, contending therein that the investigating agency has failed to produce the charge sheet against him despite lapse of 180 days and, as such, he is entitled to compulsive bail.

The trial Court while passing the impugned order had observed that;

“Even though the charge sheet was not produced by the investigating agency within the stipulated period of 180 days from the date of arrest of the petitioner, yet because the petitioner was on interim bail with effect from 24.05.2021 to 08.07.2021, as such, after excluding the said period, the petitioner has been in custody only for 140 days, thus, he is not entitled to grant of default bail.”

Being aggrieved, the petitioner challenged the order passed by learned Principal Sessions Judge, Srinagar, whereby the petitioner’s application for grant of default bail was dismissed.

Submissions on behalf of the Petitioner:

The petitioner contended that the period during which he was released on interim bail should be treated as period under custody for the purpose of counting the total period for which the petitioner has been in custody, where after his plea for grant of default bail should be considered.

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The petitioner further contended that that the grant of temporary bail in favour of the petitioner would not alter the situation as according to him, the interim bail granted to the petitioner was subject to certain conditions and his release was not unfettered.

The petitioner also contended that custody of an accused released on bail is deemed to be the custody of the Court and, as such, the whole period, without excluding the period during which the petitioner was on interim bail has to be taken into account while considering his application for grant of default bail.

Observations of the Court:

The Court said that the short question which is required to be determined in this revision petition is as to whether the period during which the petitioner was enlarged on temporary bail is required to be excluded while determining the total period during which he has been in custody in the subject FIR.

With regard to the contention of the petitioner that an accused released on conditional interim bail is deemed to be in the custody of the Court.

In this regard, the Court observed that;

“10. The contention of learned counsel for the petitioner that an accused released on conditional interim bail is deemed to be in the custody of the Court, is preposterous, so far as its application to determination of the matter relating to computation of total period of custody for the purpose of granting of default bail, is concerned”

The Court referred to the judgment relied upon by the learned Sessions Judge in Gautam Navlakha vs. National Investigation Agency, 2021 SCC Online SC 382 wherein it has been laid down that broken periods of custody have to be counted while computing the total period of custody undergone by an accused for the purpose of considering his default bail plea, which in other words means that the period during which an accused has not been in custody or has been enlarged on bail cannot be computed while calculating the period of custody for the purposes of considering the default bail plea.

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The Court further observed that a Court while exercising the discretion of granting bail even for a limited period imposes conditions under Section 439(1)(a), then an accused is released from custody on execution of bonds but imposition of such conditions cannot by any stretch of imagination be construed to mean that accused person is in custody. By imposition of such conditions, the physical custody of the accused does not vest with the Court as his movement is not in any way restricted. It cannot be stated that he was in physical custody of the Court so as to claim the computation of such period in reckoning the period of 180 days of detention to acquire the statutory right under proviso to sub-section (2) of Section 167 Cr. P. C read with Section 36A(4) of the NDPS Act.

The Court while upholding the order passed by the learned Sessions Judge dismissed the instant petition.

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Case Details:
Amir Hassan Mir versus UT Of J&K & Anr | Crl R. No.19/2021
Coram: Justice Sanjay Dhar
Bench: Srinagar
M/S: M. Assim ud Din and Rabinder Singh, Advocates, appeared for the Petitioner.
Mr. Sajad Ashraf, GA, appeared for the respondents
Date of Judgment: 28.03.2022