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17. Referring to it, a Single Judge of this Court in Tupakula Appa Rao vs. State of A.P.3 in the context of, what is meant by custody, else to entertain anticipatory bail, by referring to Niranjan Singh (supra) particularly at para-7, and another expression of the Apex Court subsequent to it in Raghbir Singh v. State of Haryana4 in relation to the period of set off under Section 428 Cr.P.C, besides that of State of Maharashtra & another. v. Najakat Alia Mubarak Ali5 that is also in relation to any entitlement to set off under Section 428 Cr.P.C. referring also to Raghbir Singh(supra), besides that of Government of Andhra Pradesh v. A.V.Rao6 and the Full Bench expression of Allahabad High Court in Shabbu v State of Uttar Pradesh7 among other in its observing by this Court in Tupakula Appara Rao (supra), from para 'b' onwards that Niranjan Singh(supra) dealt with the meaning of 2002 (1) ALD (Crl.) 67 (AP) 1984(4) SCC 348 2001 (6) SCC 311 AIR 1987 SC 1096 1982 Crl.J. 1757 custody appearing only in Section 439 Cr.P.C. in its paras 7 to 9 and State through Central Bureau Investigation v. Dawood Ibrahim Kaskar8 dealt with custody appearing in Sections 309(2) and 167 Cr.P.C. in its saying accused in custody appearing in Section 309(2) Cr.P.C. refers and relates to accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him, but not an accused who is subsequently arrested in course of further investigation as in first category of cases he can be remanded to judicial custody only in view of Section 309(2) Cr.P.C. and he who comes under second category will be governed only by Section 167 Cr.P.C., so long as further investigation continues and in respect of the scope of Section 167 Cr.P.C. Court which had taken cognizance of the offence may exercise its power in respect of the offences to detain the accused in police custody, subject to fulfillment of the requirements and the limitation of Section 167 Cr.P.C. From Niranjan Singh and Dawood Ibrahim Kaskar (supra) it is obvious that one need not be arrested and produced before the Court for the purpose of remand and to judicial custody of the Court. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. However, his physical control or atleast physical presence coupled with submission to the jurisdiction and orders of Court is a sine qua non. Be it on the production by the investigating agency or on his own volition of the (2000) 10 SCC 438 accused surrendering himself to the custody of the Court, unless one is in custody, his request for bail cannot be considered in terms of Section 439 Cr.P.C.

24. For more clarity coming to the wording of section 167 Cr.P.C with no need of reproduction but for in gist, whenever any person is arrested and detained in custody is the commencement of sub- section (1) of the second so physical presence is required in such cases is settled expression of the Apex Court in Kulkarni. The said judgment also was discussed by this Court in Crl.P.No.12687 dated 19.12.2018.

25. As referred supra, once physical presence of the accused for purpose of accepting the remand to judicial custody is a pre- requisite for the first remand of the first 7/15 days viz., if it is by Executive Magistrate having no jurisdiction for the 7 days and if it is a Judicial Magistrate or the Designated Court of original jurisdiction first 15 days with interchangeable either judicial custody or police custody only within that period as well laid down in Anupam J. Kulkarni supra. Thus, the custody for the purpose of bail application of even without physical custody from the interpretation given in Niranajan Singh no way available for purpose of taking to judicial remand under Section 167 Cr.P.C. and equally for purpose of set off under Section 428 Cr.P.C., but for as observed by the learned Single Judge in Tupakula Appa Rao (supra) referring to the Full Bench judgment of the Allahabad High Court in Shabbu supra if at all any benefit of set off under Section 428 Cr.P.C. available and if so when from that too on showing deliberate negligence of the part of the police officials.

38. From this it can be concluded from the catena of expressions supra that the custody for the purpose of bail is entirely different to the custody for the purpose of judicial remand with police custody and judicial custody interchangeable if any for first remand under Section 167 Cr.P.C. and equally for the purposes of any set off contemplated by Section 428 Cr.P.C. from the notable differences pointed out supra; so far as Section 167 Cr.P.C., concerned, without physical production of the arrested person within 24 hours from the time of arrest by police, excluding the journey as contemplated by Section 57 read with 167 Cr.P.C., the judicial remand cannot be accepted and it is only for the further custody extension up to the outer limit of 60/90 days depending upon the gravity of the offence punishable up to 10 years, which inclusive of 10 years or above, as the case may be, within which the investigation to be completed that can be extended from time to time without even physical production and that can be included by video linkage facility. Thereby it cannot be accepted of the contention of accused that for the purposes of the remand also he is deemed in judicial custody under Section 167 Cr.P.C.

39. Now coming to consider whether the accused is entitled to any period of set off under Section 428 Cr.P.C.?

Even so far as the entitlement of benefit under Section 428 Cr.P.C., it is not automatic without actual remand to the case on hand from the physical production under Section 167 Cr.P.C. or on production as per P.T. Warrant under Section 267 Cr.P.C. However, the officers if deliberately withheld from production knowingly, then only depending upon the facts as observed in Tupakula Appa Rao referring to the Full Bench of Allahabad High Court in Shabbu of 1982 (supra), from each case to consider depending upon its own facts.