From Uncertainty to Clarity under the Bharatiya Nagarik Suraksha Sanhita, 2023
For decades, Section 102 of the Code of Criminal Procedure, 1973 (CrPC) governed police powers relating to the seizure of property. Drafted in a vastly different era long before smartphones, cloud storage, and digital financial trails the provision offered broad authority but minimal procedural guidance.
With the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), this long-standing provision has been comprehensively restructured. What was once a single, compact clause has now been divided into Section 106 (power to seize) and Section 107 (procedure after seizure).
This change goes well beyond renumbering. It reflects a legislative shift towards greater transparency, procedural accountability, and recognition of modern forms of property, particularly digital and electronic assets.
POLICE SEIZURE UNDER CRPC SECTION 102: SCOPE AND LIMITATIONS
Under Section 102 CrPC, a police officer was empowered to seize any property alleged or suspected to be stolen, or found in circumstances creating suspicion of the commission of an offence. The provision also required the officer to report the seizure to the officer-in-charge of the police station.
However, the statute was largely silent on critical procedural aspects, including:
- documentation and inventory of seized property,
- custody and preservation,
- timelines for reporting to judicial authorities,
- handling of perishable or bulky items, and
- treatment of non-physical or digital property.
As a result, procedural clarity evolved through judicial interpretation rather than statutory guidance, leading to inconsistency and uncertainty.
(a) Absence of a Clear Procedural Framework
CrPC Section 102 attempted to combine substantive power and procedural safeguards within a single provision. This led courts to repeatedly issue supplementary directions on panchnamas, custody, and reporting often on a case-to-case basis.
(b) A Provision Rooted in the Physical Evidence Era
When Section 102 was drafted, criminal investigations primarily involved tangible items such as weapons or cash. The rise of cybercrime, digital fraud, online identity theft, and cryptocurrency-related offences significantly altered the evidentiary landscape. The statute, however, made no reference to digital property.
In State of Maharashtra v. Tapas D. Neogy (1999), the Supreme Court held that freezing a bank account amounts to “seizure” under Section 102, thereby expanding the meaning of “property.” While necessary, such judicial expansion underscored the inadequacy of the statutory framework and the need for legislative modernisation.
BNSS SECTIONS 106 AND 107: A STRUCTURED TWO-STEP FRAMEWORK
The BNSS addresses these long-standing concerns by separating the power to seize from the procedure to be followed thereafter. This structural reform is among the most significant changes introduced by the 2023 legislation.
Section 106 BNSS: Power to Seize Certain Property
Section 106 substantially retains the investigative power earlier found in CrPC Section 102, allowing police to seize property suspected to be stolen, fraudulently obtained, or linked to an offence. However, it introduces important clarifications:
- mandatory recording of reasons justifying the seizure,
- express recognition of electronic and digital property,
- a clearer nexus requirement between the property seized and the investigation, and
- alignment with broader BNSS safeguards such as documentation and witness involvement.
Unlike the earlier provision, the BNSS now explains how and why seizure powers must be exercised, not merely that they exist.
Section 107 BNSS: Procedure after Seizure
Section 107 fills the procedural vacuum that characterised CrPC Section 102. It statutorily mandates:
- preparation of a detailed seizure memo or panchnama,
- attestation by witnesses,
- furnishing a copy of the memo to the person from whom the property is seized,
- prompt reporting to the Magistrate with complete particulars,
- rules governing custody, preservation, and supervision of seized property, and
- procedures for attachment, forfeiture, and disposal, especially in cases involving proceeds of crime.
This provision transforms judicially evolved safeguards into statutory obligations.
JUDICIAL GUIDANCE SHAPING THE BNSS FRAMEWORK
Even prior to the BNSS, courts consistently emphasised the need for structured limits on seizure powers.
(a) Scope and Reasonableness of Seizure
The Supreme Court has repeatedly held that while seizure powers are wide, they are not unfettered. In Tapas D. Neogy, the Court clarified that intangible assets may fall within the scope of “property,” but only where the seizure is justified, documented, and directly connected to the alleged offence. Fishing or speculative seizures were expressly discouraged.
(b) Digital Evidence and Privacy Concerns
In more recent jurisprudence, particularly in the post Puttaswamy privacy era, courts have recognised that digital devices contain extensive personal data. Seizure of such devices effectively grants access to an individual’s private life, necessitating stricter safeguards.
Judicial directions calling for clear protocols on search, copying, retention, and access to digital data are reflected in the BNSS’s express inclusion of electronic property within seizure provisions.
WHY THE BNSS SPLIT MATTERS
The division of CrPC Section 102 into BNSS Sections 106 and 107 represents a conceptual reform, not a cosmetic change:
- Separation of power and procedure ensures justification and documentation are contemporaneous.
- Modernisation aligns statutory language with present-day investigative realities involving digital evidence.
- Transparency and citizen safeguards—such as furnishing seizure memos—reduce arbitrariness and facilitate judicial review.
If implemented faithfully, the BNSS framework is significantly more accessible and rights-oriented.
CONTINUING CHALLENGES AND CRITICISMS
Despite improved statutory clarity, several concerns remain.
(a) Police Training and Institutional Capacity
Effective implementation depends on training. Drafting meaningful, witness-attested panchnamas and handling digital evidence require specialised skills. Without adequate capacity-building, Section 107 risks being treated as a mere formality.
(b) Magistrate Oversight and Caseload Pressures
Mandatory reporting places additional responsibility on Magistrates. In overburdened jurisdictions, there is a risk of mechanical approvals or delays, particularly in time-sensitive investigations.
(c) Digital Evidence: The Missing Technical Detail
Although digital property is recognised, the BNSS does not prescribe technical standards for data imaging, hash verification, retention limits, or access control. In the absence of uniform protocols, concerns of over-seizure and misuse persist.
(d) Procedure versus Practice
Procedural safeguards are effective only when applied genuinely. Boilerplate reasons and template panchnamas may undermine the reform unless scrutinised by courts, supervisors, and defence counsel.
CONCLUSION
Sections 106 and 107 of the BNSS mark a decisive departure from the ambiguity of CrPC Section 102. By separating power from procedure, mandating documentation, strengthening judicial oversight, and recognising digital property, the BNSS aligns statutory law with constitutional principles and judicial guidance.
However, the success of this reform will ultimately depend on training, oversight, and faithful implementation. Clear statutory language, by itself, cannot prevent arbitrary seizures unless supported by institutional accountability.
Authored by,
Mantri Lakshmi Sanjana (Intern, Alliance University, Bangalore)
With guidance from Ananthakesavan V, Advocate – IPR & Litigation, RVR Associates