Reclaiming Liberty in the era of Economic Offences: Case Analysis of Directorate of Enforcement vs Roop Bansal & Ors

The right to personal liberty is not merely a legal principle but a constitutional cornerstone, etched into the very fabric of our democracy through Article 21 of the Indian Constitution. It is a principle so fundamental that the framers of the world’s longest written constitution ensured its primacy as a non-derogable right. Yet, despite decades of progressive jurisprudence that has fortified this ideal, the unfortunate reality is that liberty often becomes the first casualty in the face of prosecutorial overreach, particularly under special statutes like the Prevention of Money Laundering Act, 2002 (PMLA).

The recent judgment in Directorate of Enforcement vs. Roop Bansal & Ors., once again underscores this paradox. It presents a case study of how individuals, especially those of stature or reputation, can be embroiled in high-profile prosecutions under the guise of combating economic crime, while the presumption of innocence and the right to bail are routinely sidestepped.

In Directorate of Enforcement vs. Roop Bansal & Ors., we witness a disturbing pattern. Reputationally sound individuals are named in PMLA cases despite tenuous links to the offence. Once this happens, the media frenzy ensures prolonged attention, and investigative agencies resist bail to perpetuate custodial narratives under the garb of “public interest” and “economic offences being cancerous to society.”

This, however, is not justice; it is detention by perception, not evidence.

The judgment highlights several failures:

• Non-disclosure and suppression by the ED during investigation.

• Bail being denied or delayed despite non-fulfilment of statutory thresholds under PMLA.

• Courts being kept in the dark, not in control, by prosecuting agencies. The very spirit of Section 45 of the PMLA, though stringent, is often invoked mechanically, without properly applying the judicial mind to the twin conditions, which must be assessed based on prima facie evidence and likelihood of guilt, not just the gravity of the allegation.

Indian jurisprudence has long upheld the principle that arrest and incarceration must be the exception, not the norm. The Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab (1980) laid down the law on anticipatory bail with striking clarity, followed by Gurcharan Singh v. State (Delhi Administration) for regular bail, both of which stressed that liberty cannot be curtailed unless compelling reasons exist.

Later, in the landmark Arnesh Kumar v. State of Bihar (2014), the Supreme Court further tightened the leash on arbitrary arrests. It ruled that offences punishable with less than seven years of imprisonment do not warrant immediate arrest unless the accused fails to comply with a notice under Section 41A of the Code of Criminal Procedure (CrPC). This was meant to prevent misuse of arrest powers. Yet ironically, it is often disregarded in practice.

Despite these clear directives, the judicial application of bail jurisprudence remains inconsistent, particularly at the trial court level. In many cases, bail is denied without proper engagement with the guidelines laid down by the apex court, a systemic malaise that further emboldens investigating agencies.

This trend becomes graver when special laws like PMLA are invoked. The moment the allegation involves financial crime or economic offences, bail is treated as taboo, even when the evidentiary material is largely documentary in nature. It is forgotten that the nature of the offence does not eclipse the constitutional mandate of liberty and due process.

Globally, even in grave financial crime cases, bail is the norm. Jurisdictions like the UK and USA often impose hefty financial bonds, attach properties, or impose strict surveillance to ensure compliance, but do not keep undertrials in jail merely based on the seriousness of allegations.

Why can't India adopt a similar model? When the evidence is documentary, and the accused has deep roots in society, why must liberty be sacrificed at the altar of deterrence? A robust surety mechanism can serve both ends, protect liberty and ensure accountability.

It is time our judiciary, especially at the trial court level, reclaims the spirit of liberty jurisprudence. Bail orders must become instruments of constitutional compliance, not tools of executive convenience.

The Prevention of Money Laundering Act, as I have previously argued, requires a structural overhaul. Until then, judicial officers must display more independence and less fear of optics, particularly when media noise threatens to cloud legal reasoning.

The Roop Bansal (including Basant and Pankaj Bansal) case is not just a case involving allegations of financial lapses; it is a reminder of how fragile liberty becomes when laws meant to regulate crime are turned into weapons of coercion. Let us not forget: liberty once lost is seldom easily regained.

About the author: Tarun Gaur is an Advocate practicing before the Delhi High Court. He heads The Chambers of Tarun Gaur, Advocates.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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