Expedited Forfeiture and Attachment of “Proceeds of Crime” u/s 107 of BNSS 

Section 107 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, establishes a robust framework to combat the use of criminal proceeds. It empowers courts to attach, forfeit, and distribute property believed to have been derived from criminal activities. This provision addresses procedural gaps in previous laws by enabling swift action during investigations while balancing due process rights. The section’s primary goal is to ensure that crime victims can potentially recover losses and that ill-gotten gains are promptly removed from offenders’ possession. 

Provisions under Section 107 

The section lays out specific measures for identifying and managing proceeds of crime, including attachment, forfeiture, and eventual restoration or distribution. 

• Investigating officers, upon obtaining approval from senior authorities such as the Superintendent or Commissioner of Police, may apply to the Court or Magistrate to attach properties suspected to be proceeds of crime. The officer’s belief in the criminal origin of the property forms the basis of the application. 

• Once the court or magistrate is satisfied with the application, a show cause notice is issued to the property holder. The individual is granted 14 days to justify why an attachment order should not be issued. Notices must also be served to individuals holding property on behalf of the accused. 

• The court evaluates the responses to the notice, considers the evidence, and provides an opportunity for hearings before passing an attachment order. In cases of non-compliance or failure to appear, an ex parte order may be issued. 

• To prevent the disposal or transfer of properties, courts may pass interim attachment orders without issuing a prior notice. These orders remain effective until final orders are passed after hearings. 

• If the property is determined to be proceeds of crime, the District Magistrate is directed to distribute it among affected persons within 60 days. Surplus or unclaimed proceeds are forfeited to the government. 

Comparison with Other Statutes 

Section 107 introduces significant differences from similar provisions in other laws, particularly the Prevention of Money Laundering Act (PMLA), 2002, and the Code of Criminal Procedure, 1973 (CrPC). 

• Unlike the PMLA, which mandates written reasons for belief and imposes a 90-day limit, BNSS allows attachment during the investigation phase without such constraints. 

• Section 107 empowers courts to initiate attachment based solely on “reason to believe,” without needing explicit proof that proceeds will be concealed or transferred, as required under PMLA. 

• The PMLA specifies that properties may be disposed of only after the trial concludes, whereas BNSS provides flexibility for disposal or distribution even during the investigation phase. 

Safeguards and Constitutional Considerations

While Section 107 enhances the efficiency of dealing with criminal lawyer proceeds, it incorporates safeguards to uphold natural justice: 

• Courts must issue show cause notices before attachment. 

• Procedural fairness is ensured through hearings and the opportunity for affected parties to present their case. 

• Ex parte interim orders, although permitted, are subject to subsequent hearings for validation. 

Concerns arise regarding potential conflicts with Article 300A of the Constitution, which protects property rights and mandates that laws affecting property must be “just, fair, and reasonable.” Additionally, the lack of clear guidelines for determining rightful claimants or a precise definition of “proceeds of crime” under BNSS may lead to interpretative ambiguities. 
Section 107 reflects an intent to provide states with tools for the expeditious disposal and distribution of proceeds of crime while addressing victims’ restitution needs. However, the absence of well-defined procedural checks, particularly for disposal before a trial’s conclusion, raises questions about the provision’s fairness and alignment with constitutional protections. 

Conclusion 

Section 107 of the BNSS, 2023, seeks to fortify mechanisms for addressing proceeds of crime by expediting attachment and distribution processes, thus benefiting victims and strengthening state enforcement capabilities. However, the provision must be implemented with rigorous adherence to procedural fairness to withstand judicial scrutiny and safeguard constitutional rights. Establishing detailed guidelines and ensuring alignment with existing jurisprudence will be critical to achieving its legislative intent effectively and equitably.