The Police Can Seize Your Property Under a New Law. Here Is Why That Is a Problem.

Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives police and magistrates sweeping powers to attach and forfeit property suspected to be proceeds of crime. It has no clear procedure, no appeal mechanism, and no link to whether the accused is ever actually convicted. Legal experts are calling it unconstitutional. Here is why.

A Brand New Power With Almost No Guardrails

When India replaced the Code of Criminal Procedure, 1973 with the Bharatiya Nagarik Suraksha Sanhita, 2023 last year, most of the attention went to headline changes: new timelines, the shift from FIR to e-FIR, changes to bail provisions. But buried inside the new code is a provision that has received far less attention and arguably deserves far more.

Section 107 of the BNSS is an entirely new provision. It did not exist in the CrPC. It gives a police officer, with the approval of a Superintendent of Police or Commissioner of Police, the power to approach a court or magistrate and ask for the attachment of any property that the officer believes is derived from criminal activity.

Once an application is made, the court issues a show-cause notice giving the property owner 14 days to explain why their property should not be attached. If no satisfactory explanation is given, or if the person does not respond, the court can pass an ex parte attachment order. In cases where the court thinks that giving notice would defeat the purpose of the attachment, it can skip the notice entirely and pass an immediate interim order.

If the court ultimately finds the property to be proceeds of crime, it directs the District Magistrate to distribute those proceeds to victims within 60 days. Any amount not claimed is forfeited to the government.

On paper, this sounds like a useful tool to strip criminals of their ill-gotten gains and compensate victims. In practice, the provision is riddled with problems serious enough to put it in constitutional jeopardy.

The Four Problems That Make This Law Dangerous

Problem 1: No structured procedure at all

Every other Indian law that gives the government power to attach and forfeit property comes with a detailed, structured adjudicatory framework. The Prevention of Money-Laundering Act has an entire chapter, Chapter III, dedicated to attachment, adjudication, and confiscation procedure. The Customs Act provides for adjudication before a designated adjudicating authority. The NDPS Act has Chapter V-A specifically governing forfeiture of illegally acquired property. Even state-level laws like the Maharashtra Protection of Interest of Depositors Act create specialised designated courts with clear procedural rules.

Section 107 BNSS has none of this. It relies entirely on the subjective satisfaction of a police officer and a magistrate, with no framework specifying how that satisfaction is formed, what evidence is required, what standard of proof applies, or what process the adjudication must follow. Attaching someone's property is a serious step with lasting consequences. The law governing it cannot be this bare.

Problem 2: The scope is dangerously vague

The provision uses the phrase "any property" without defining what property means in this context. Movable property is defined in the BNS but immovable property is not. Does Section 107 authorise the police to seek attachment of someone's house, their agricultural land, their factory?

The Supreme Court, interpreting the CrPC's equivalent seizure power under Section 102, held in Nevada Properties v. State of Maharashtra that police cannot seize immovable property because doing so would give them sweeping power to dispossess on mere suspicion, and disputes over immovable property are fundamentally civil disputes that civil courts must resolve. That restraint does not appear in Section 107 BNSS.

Even more troubling is the question of which offences trigger the provision. Section 107 says "any criminal activity" or "commission of any offence." Does that mean only economic offences or all offences under the BNS? If a landlord and tenant get into a physical altercation over a rented property and criminal proceedings are initiated, can a police officer apply to attach the property under this provision? The language of the statute does not rule it out, and the consequences of an unrestrained reading would be absurd.

Problem 3: No connection to the outcome of the trial

This is the most constitutionally alarming gap. Under the PMLA, property that is attached during investigation cannot be forfeited until the accused is convicted. The forfeiture is connected to the outcome of the trial. Section 107 BNSS is completely silent on this question.

Reading the provision literally, it appears that the District Magistrate can distribute the "proceeds of crime" to victims within 60 days of a court order, regardless of whether the criminal trial has concluded, and regardless of whether the accused is ultimately convicted or acquitted.

What happens if the property is distributed to alleged victims and the accused is later acquitted? What happens if the police conclude after investigation that no offence was committed? The provision provides no answer. It does not require return of the property to the owner if the charges fail. The 60-day distribution timeline could make the situation irreversible well before any court has finally determined whether a crime was committed at all.

This effectively punishes the accused before guilt is established, which runs directly counter to the presumption of innocence.

Problem 4: No statutory appeal

Every other statute that provides for attachment and forfeiture of property also provides a statutory right of appeal against those orders. The PMLA has an Appellate Tribunal. The Customs Act has the Customs, Excise and Service Tax Appellate Tribunal. The NDPS Act has its own appeal mechanism.

Section 107 BNSS provides no appeal at all. A person whose property is attached under this provision has no statutory right to challenge that order before a higher forum. Their only recourse is to approach a superior court through its revisional or inherent jurisdiction, which is far more discretionary, expensive, and uncertain than a statutory appeal.

A statutory right of appeal is not a formality. It is a fundamental safeguard that gives content to the right to property and to the principles of natural justice. Its complete absence from Section 107 BNSS is not an oversight. It is a structural failure.

The Supreme Court Is Already Looking at This

Section 107 BNSS is not just being debated in legal journals. Its constitutional validity is already under challenge before the Supreme Court in Azad Singh Kataria v. Union of India (Criminal Writ Petition 461 of 2024). That petition and a batch of related challenges are pending adjudication.

The outcome of those proceedings will be closely watched. If the Court upholds the provision as it stands, it will create a significantly expanded attachment power with the structural problems identified above intact. If it reads down or strikes down the provision, or issues directions to the government to introduce proper procedural safeguards, it will be a significant vindication of the rights of property owners facing criminal allegations.

Until the Court decides, Section 107 BNSS remains in force. Police and magistrates can use it. And the safeguards that every analogous provision in Indian law provides are missing from it.

What You Should Know

If you or someone you know is facing the prospect of property attachment under Section 107 BNSS, several things are worth knowing immediately.

The show-cause notice, if one is issued, gives you only 14 days to respond. That is a hard deadline and missing it allows the court to proceed ex parte. Get legal advice before that window closes.

The absence of a statutory appeal does not mean you are without recourse. A writ petition to the High Court under Article 226, or an application under the High Court's inherent or revisional jurisdiction, are available routes to challenge an attachment order. They are less convenient than a statutory appeal but they are not non-existent.

And if your property is attached before you even receive notice, under the ex parte interim order provision, an immediate application to the same court or to the High Court seeking vacation of the interim order is available.

The legal challenge pending before the Supreme Court may produce clarifications that change how this provision operates. Until then, the law is as written and as problematic as described.

This blog is for general informational purposes and does not constitute legal advice. For guidance on property attachment proceedings, criminal law matters, or constitutional challenges, please contact our team.