E-Filing After 5 PM Counts as Next Day: Kerala HC Grants Default Bail in NDPS Case

Kerala High Court holds that a charge-sheet e-filed at 6:02 PM on the sixtieth day falls outside the statutory period, entitling accused to default bail under Section 187 BNSS.

The High Court of Kerala has granted default bail to two accused persons in an NDPS case after finding that the police charge-sheet, though electronically filed on the sixtieth day of their custody, was submitted at 6:02 PM — after court hours — and must therefore be treated as filed on the next working day. Dr. Justice Kauser Edappagath, sitting singly at Ernakulam, delivered the order on 1 June 2026 in Bail Application No.1503 of 2026. The judgment also settles a recurring question under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): whether the shift in language from “not less than ten years” in the Code of Criminal Procedure to “ten years or more” in Section 187 BNSS changes the sixty-day or ninety-day threshold for default bail in cases under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court held it does not.

The Arrest and the Charge-Sheet Timeline

Aboobacker Siddique (Accused No.1) and Abdul Rouf M. (Accused No.4) were arrested on 30 December 2025 and remanded to judicial custody the same day. The allegation in Crime No.789/2025 of Adhur Police Station, Kasaragod District, is that on that evening at 7:00 PM, the two applicants and a fifth accused were found in possession of 4.22 grams of MDMA at Heaven Homestay, Koppala, Adhur Panchayat. The offences alleged are under Sections 22(b) and 29 of the NDPS Act.

The Sessions Court, Kasaragod, had earlier rejected their bail application by order dated 3 March 2026 in CRMP No.7 of 2026. The applicants then approached the High Court under Section 483 of the BNSS seeking regular bail.

At the hearing, counsel for the applicants confined the argument to a single point: the final report was not filed within sixty days of arrest, and the applicants are therefore entitled to default bail. The prosecution countered on two fronts — first, that the e-filing on 28 February 2026 (the sixtieth day) was timely; and second, that the applicable period was ninety days, not sixty, because Section 22(b) of the NDPS Act carries a maximum punishment of ten years.

Sixty Days or Ninety Days: The Statutory Language Dispute

Section 187(3) of the BNSS replaces the default bail proviso in Section 167(2) of the Code of Criminal Procedure. Under the old Code, the ninety-day period applied to offences punishable with death, life imprisonment, or “imprisonment for a term of not less than ten years.” The BNSS substitutes this with “imprisonment for a term of ten years or more.”

The Senior Public Prosecutor, Sri M.C. Ashi, argued that this change in wording was deliberate and meaningful. If the two expressions meant the same thing, there would have been no reason for the legislature to alter the language. He urged that the ninety-day period should apply to Section 22(b) of the NDPS Act, which carries a maximum of ten years, and that earlier Kerala High Court decisions holding otherwise required reconsideration.

The Court rejected that argument. It traced the interpretation of the old expression to the Supreme Court's majority ruling in Rakesh Kumar Paul v. State of Assam [(2017) 15 SCC 67]. In that case, the accused faced charges under Section 13(1) of the Prevention of Corruption Act, 1988, punishable with a minimum of four years and a maximum of ten years. The Supreme Court held that “not less than ten years” means the offence must carry a minimum sentence of ten years — it cannot include offences where ten years is only the maximum. Accordingly, the sixty-day period applied, and the accused was entitled to default bail.

Dr. Justice Kauser Edappagath found that the BNSS formulation “ten years or more” carries the same meaning. A plain reading of Section 187(3)(i) BNSS shows that the ninety-day period applies only where the offence is punishable with death, life imprisonment, or a minimum sentence of ten years. The sixty-day and ninety-day framework remains intact. The distinction crystallised in Rakesh Kumar Paul has been carried forward into Section 187(3) BNSS.

Two earlier single-bench decisions of the Kerala High Court had already reached this conclusion. In Mohammed Sajjid v. State of Kerala (2025 (2) KLT 73), the Court compared the phraseology in Section 187(3)(i) BNSS with Section 167(2)(a)(i) CrPC and held that statutory bail accrues on sixty days for offences under Section 22(b) of the NDPS Act. In Athul v. State of Kerala (2025 KHC 1934), another single bench followed that ruling. The Karnataka High Court in State of Karnataka by Kavoor Police Station v. Kalandar Shafi (2024 KHC OnLine 5417) took the same view.

The prosecution also relied on Sayyad S.A. v. State of Kerala (2025 (6) KHC 591), where a single bench held that the ninety-day period applied to an offence under Section 310(2) of the Bharatiya Nyaya Sanhita, 2023, punishable with life imprisonment or rigorous imprisonment up to ten years. Dr. Justice Kauser Edappagath distinguished that case: Section 310(2) BNS includes life imprisonment as a possible sentence, which squarely brings it within Section 187(3)(i) BNSS. Section 22(b) of the NDPS Act does not provide for life imprisonment. The Sayyad S.A. dictum was therefore inapplicable.

The Court summarised the position: the ninety-day benchmark applies only where the offence carries the death penalty, life imprisonment, or a minimum sentence of ten years. Offences punishable with imprisonment that may extend up to ten years, but with no minimum threshold, fall within the sixty-day category. Section 22(b) of the NDPS Act, carrying a maximum of ten years with fine and no minimum term, belongs to the sixty-day category.

The E-Filing Question: When Is a Charge-Sheet Actually Filed?

Having settled the sixty-day question, the Court turned to whether the prosecution had met even that deadline. The applicants were remanded on 30 December 2025. The sixtieth day fell on 28 February 2026. The prosecution's case was that the final report was electronically filed on that day and was therefore within time. The physical copy reached the trial court only on 2 March 2026, but the prosecution argued that the e-filing date governs.

The Court agreed that the date of electronic filing is the relevant date for computing limitation, by virtue of Rule 13 of the Electronic Filing Rules for Courts (Kerala), 2021. Rule 13(2) provides that, for computing limitation, the date of electronic filing shall be reckoned as the date on which the action is electronically received in the Registry within the prescribed time (Indian Standard Time).

The phrase “within the prescribed time” was the pivot. The Court read Rule 13 alongside Rules 4 and 5 of the Criminal Rules of Practice, Kerala, 1982. Rule 4 fixes court office hours as 10:30 AM to 5:00 PM on working days. Rule 5 fixes sitting hours as 11:00 AM to 5:00 PM.

Reading these provisions together, the Court held that electronic filings received up to 5:00 PM are treated as instituted on that day. A filing received after 5:00 PM is deemed instituted only on the next working day. The final report in this case was e-filed on 28 February 2026 at 6:02 PM — confirmed by a report called from the trial court. That filing, having been made after 5:00 PM, must be reckoned as instituted on 1 March 2026. That date falls beyond the sixty-day period from 30 December 2025.

The applicants were therefore entitled to statutory default bail. The Court declined to reconsider Mohammed Sajjid and Athul, finding no ground to depart from those decisions.

Outcome

Dr. Justice Kauser Edappagath allowed Bail Application No.1503 of 2026 and directed that Aboobacker Siddique and Abdul Rouf M. be released on default bail subject to the following conditions:

• Each applicant shall execute a bond for Rs.1,00,000 (Rupees One Lakh) with two solvent sureties for the like sum each, to the satisfaction of the jurisdictional Magistrate or Court.
• The applicants shall not commit any offence of a like nature while on bail.
• They shall not contact any prosecution witness directly or indirectly, or attempt to tamper with evidence or influence any witness or person connected with the investigation.
• They shall not leave the State of Kerala without the permission of the trial court.
• Any application for modification, deletion of bail conditions, or cancellation of bail on grounds of violation shall be filed before the jurisdictional court.