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The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, introduced Section 107, which deals with properties which are “proceeds of crime”. Until recently, this term was known by its mention either in the Prevention of Money Laundering Act (PMLA), 2002, or in the chapter, ‘Reciprocal Arrangements for Assistance in Certain Matters and Procedure for Attachment and Forfeiture of Property’, under the erstwhile Code of Criminal Procedure (CrPC). While the provisions of attachment of property of a person absconding under Sections 82 and 83 of the CrPC are also replicated under Sections 84 and 85 of the BNSS (with some minor changes), the provision in Section 107 of the BNSS did not feature in the CrPC. Section 107 of the BNSS gives unbridled powers to the court to not only attach any property (on the request of the police during investigation), but also to forfeit the proceeds of crime to the government under certain conditions.
No preconditions
Under this section, any police officer making an investigation, with the approval of the Superintendent of Police or the Commissioner of Police, may make an application to the court for the attachment of property if he has reason to believe that the property is derived or obtained as a result of a criminal activity.
The PMLA says where an officer has reason to believe that a person is in possession of any proceeds of crime, the officer should record the reason for such belief in writing. If the officer has reason to believe at “such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime, he may, by order in writing, provisionally attach such property for a period not exceeding 90 days.” There is no such condition prescribed under Section 107 of the BNSS. Further, while the property may be attached by an authorised officer only after forwarding the report to a magistrate under Section 173 of the CrPC (i.e., on completion of investigation), the property under Section 107 of the BNSS may be attached during the investigation itself.
The PMLA provides that the property involved in money laundering shall be disposed of by the Adjudicating Authority only on the conclusion of a trial of the offence. However, Section 107 of the BNSS is silent about the stage of disposal of such property. It says that if the court or magistrate “finds the attached or seized properties to be the proceeds of crime”, it shall order the District Magistrate “to rateably distribute such proceeds of crime to the persons who are affected by such crime”. In case there are no claimants or there is any surplus after satisfying the claimants, such proceeds of crime shall stand forfeited to the government.
An entire chapter of the BNSS deals with the disposal of property. These provisions replicate the CrPC provisions except that Section 497 of the BNSS mandates the court or the magistrate to take a photo or video of the property to enable these to be used as evidence during trial or inquiry. The Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (2003) had dealt with the jurisdiction of the court to record evidence promptly to avoid tampering, so that the police or the court would not be required to keep the article in safe custody and the owner of the article would not suffer.
This chapter deals with contingencies such as the custody and disposal of property pending trial, the disposal of property at the conclusion of the trial, and restoration of possession of immovable property. Even if the property is perishable, it may be sold, but the final disposal is to be done only on the conclusion of trial or inquiry by the court.
Safeguards
Section 107 of the BNSS requires the court to issue a show-cause notice returnable within 14 days on why an order of attachment of property (i.e., proceeds of crime) shall not be made. If the person concerned does not represent his case, the court may proceed to pass the ex parte order. Further, if the court finds the attached properties to be the proceeds of the crime and it orders the District Magistrate to distribute the property to its claimants, the District Magistrate shall distribute such property within 60 days of the order. There are no guidelines for the District Magistrate to identify the claimants to do the needful. Thus, theoretically, the proceeds of crime or property may be disposed of in about three months of time, without the investigation or trial coming to an end. This section is silent about the stage at which the court or the magistrate has to take this call.
Article 300A of the Constitution says “no person shall be deprived of his property save by authority of law”. It has been given the status of a basic human right. It is also a settled principle that “law” means a validly enacted law which is just, fair, and reasonable.
There is no provision in the BNS which defines or deals with the ‘proceeds of crime’ except for the use of similar terms in sections dealing with ‘organised crime’ and ‘terrorist act’. The legislative intent of introducing Section 107 in the BNSS appears to be to empower States (as the PMLA is a Central Act) to undertake expeditious disposal and distribution of the proceeds of crime to its rightful claimants. But it is fraught with legal and practical problems. While identifying the rightful claimants may not be easy for the investigating officer, final disposal of such property by the court without a proper trial does not appear to be a just, fair, and reasonable procedure.
R.K. Vij is a former Indian Police Service officer.
Published – September 24, 2024 12:56 am IST
