The Calcutta High Court has reaffirmed that bail conditions cannot be so onerous as to render personal liberty illusory. In a significant ruling, the Court set aside excessively stringent surety requirements imposed on an accused under the NDPS Act, emphasizing that constitutional guarantees under Article 21 demand practical, not symbolic, access to bail.
Background & Facts
The Dispute
The petitioner, Hero Sarkar, was arrested in connection with NCB Crime No. 26/NCB/KOL/2023 dated 26.08.2023 under Section 8(c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The case, registered as NDPS Case No. 46 of 2023 before the Additional Sessions Judge (NDPS), Cooch Behar, involved allegations of possession and trafficking of prohibited substances.
Key Facts
- The petitioner was arrested on 26.08.2023 following a raid by the Narcotics Control Bureau (NCB)
- The trial court had not completed evidence recording even after more than a year
- As of the date of the impugned order, one witness remained to be examined
- The petitioner had previously approached the Calcutta High Court for bail on 28.03.2025, which was rejected but with liberty to apply for regular bail before the trial court if the trial could not be completed within six months
- No six-month period had elapsed by the time of the bail application before the trial court
- The petitioner is a person of ordinary means with no significant assets or financial backing
Procedural History
- 26.08.2023: Arrest of petitioner by NCB in Crime No. 26/NCB/KOL/2023
- 28.03.2025: Calcutta High Court dismissed interim bail plea but granted liberty to apply for regular bail before trial court if trial not completed within six months
- 23.09.2025: Additional Sessions Judge (NDPS), Cooch Behar granted interim bail but imposed onerous conditions:
- Bond of Rs. 50 lakhs
- Three sureties:
- Surety No. 1: Court-registered surety for Rs. 10 lakhs
- Surety No. 2: Property deed worth Rs. 10 lakhs within Kotwali Police Station jurisdiction, held by a permanent resident
- Surety No. 3: Government-employed professional (professor, government doctor, or government school teacher)
- 23.03.2026: Revisional application filed before Calcutta High Court challenging the bail conditions
Relief Sought
The petitioner sought modification of the bail conditions imposed on 23.09.2025, arguing they were unaffordable, impractical, and effectively denied bail. The petitioner requested release on a reasonable bond with locally feasible sureties, consistent with the liberty granted by the High Court on 28.03.2025.
The Legal Issue
The central question was whether a trial court may impose bail conditions that are so financially and practically unattainable for an ordinary citizen that they amount to a de facto denial of liberty, despite a higher court’s explicit grant of liberty to apply for bail.
Arguments Presented
For the Petitioner
Counsel for the petitioner argued that the conditions imposed were not merely stringent but absurd and unconstitutional. Relying on Arnesh Kumar v. State of Bihar and Siddharam Satlingappa Mhetre v. State of Maharashtra, counsel contended that bail is the rule and jail the exception. The requirement of a property deed worth Rs. 10 lakhs and a government-employed surety was not only rare but discriminatory against persons of modest means. The conditions violated the principle of proportionality and rendered the liberty granted by the High Court meaningless.
For the Respondent
The Additional Solicitor General for the NCB conceded that the conditions were indeed onerous and may not be fulfillable by an ordinary citizen. While defending the trial court’s intent to ensure appearance, the respondent acknowledged that the conditions went beyond what was reasonably necessary to secure the accused’s presence in court.
The Court's Analysis
The Court observed that the liberty granted on 28.03.2025 was not a mere procedural formality but a substantive constitutional safeguard. The trial court’s order, while technically granting bail, imposed conditions that were impossible for the petitioner to meet. The Court held that such conditions are not merely inconvenient - they are unconstitutional.
"It is settled law that such onerous conditions cannot be imposed by a court while granting bail or other reliefs pertaining to personal liberty of an individual that cannot be fulfilled by such individual."
The Court emphasized that the right to personal liberty under Article 21 is not contingent on financial capacity. The requirement of a property deed as surety, particularly one tied to a specific jurisdiction and ownership by a permanent resident, was found to be arbitrary and lacking any nexus to the purpose of bail - ensuring appearance in court. The Court further noted that the trial court’s order paid only "lip service" to the High Court’s directive.
The Court rejected the notion that seriousness of the offence under the NDPS Act justifies disproportionate conditions. It cited State of Rajasthan v. Balchand and Kalyan Chandra Sarkar v. Rajesh Ranjan to affirm that the nature of the offence does not override the fundamental right to liberty.
The Verdict
The petitioner succeeded. The Calcutta High Court modified the bail conditions imposed on 23.09.2025. The petitioner shall be released on interim bail for four weeks on furnishing a bond of Rs. 30,000 with three sureties, each of equal amount, one of whom must be local. The condition requiring a property deed (Clause d) is replaced with a requirement that the petitioner inform the investigating officer and trial court of his residential address post-bail. All other conditions remain unchanged. The Chief Judicial Magistrate, Cooch Behar, is directed to accept necessary documents within four weeks from the date of this order.
What This Means For Similar Cases
Bail Conditions Must Be Practical, Not Symbolic
- Practitioners must challenge bail orders imposing property-based sureties, especially where the accused lacks financial means
- Courts cannot use financial thresholds to effectively deny bail under the guise of "stringent conditions"
- The burden is on the court to justify why a Rs. 50 lakh bond is necessary when a Rs. 30,000 bond suffices for appearance
Liberty Granted by Higher Courts Cannot Be Circumvented
- Trial courts must interpret higher court directives in good faith
- Granting bail with impossible conditions is a violation of the spirit of the higher court’s order
- Any attempt to circumvent liberty granted by a superior court may attract contempt proceedings
NDPS Cases Do Not Automatically Justify Harsher Bail Terms
- The gravity of an NDPS offence does not override the constitutional presumption of innocence
- Courts must apply the same proportionality test to bail conditions in NDPS cases as in other offences
- Financial conditions must be tailored to the accused’s means, not the severity of the charge
