JUDGMENT:- Heard Mr. Manish R. Bhatt, learned Advocate for the applicant, Mr. K. P. Raval, learned Addl. P.P. for the respondent No.1 State and Mr. Yogesh Lakhani, learned Advocate for the respondent No.2.

2. An information was received by the office of the applicant Income Tax Department regarding seizure of cash amounting to Rs.20 lacs 9-6-2004 by the Athwa Police, Surat from the possession of two persons namely Mohd. Sarfaraz Mithani and Mohd. Maqsood Mithani. An offence was registertd at Athwaline Police Station vide C.R. No.9 of 2004 and Athwa Police also informed, the Income Tax Department regarding the seizure of cash amount of Rs.20 lacs. On the basis of this information, the present applicant made an inquiry regarding source of cash seized by Athwa Police. During inquiry, Income Tax Department recorded the statement of respondent No.2 under Sec.131 of the Income Tax Act and in his statement he claimed that the cash seized by Police Authorities belonged to Shri. Babubhai Kishan Pawar, a resident of Kaldar, Village-Dhulia, District-Maharashtra. He has also stated that this cash was sent to respondent No.2 for purchase of some unidentified land at Surat, he has also stated that he was unaware of any details except that one Shri. Ayubbhai had brought this cash from Maharashtra and the same was handed over to his sons in the parking of Jash Market, Ring Road, Surat. At the end of the inquiry, Income Tax Department found that no satisfactory explanation was given by the respondent No.2 and other connected persons regarding amount of Rs.20 lacs. Thereafter, the respondent No.2 submitted an application before the learned Third Judicial Magistrate, First Class, Surat under Sec451 of the Code of Criminal Procedure and prayed that cash amount of Rs.20 lacs seized by Athwa Police be handed over to him as it was seized firm his possession and police has not made any report that amount was received through illegal activities or used in any activities against the nation. Shfi. Rajiv Agrawal, Deputy Director of Income-tax, Surat also made claim for the said seized amount by submitting application dated 29th June, 2004 contending therein that the Income Tax Department, Surat being a complainant has reason to believe that said amount is unaccounted money, and as such, said amount is subject to investigation by Income Tax Department under the provisions of Income Tax Act and Rules. It is also stated that on the said amount of interest and penalty would be leviable on the said amount. Therefore, under the provisions of Income-tax Act, 1961 including Secs.132, 132-A and 69-A the Income Tax Department is the best person to be entitled to take and to retain the said cash amount of Rs.20 lacs not only pending the conclusion of the criminal trial of the case, but also, in connection with the Income-tax proceedings under the provisions of Income Tax Act, 1961.

After hearing both the parties and learned Addl. P.P. learned J.M.F.C. has rejected the claim of the present petitioner and ordered to hand over Rs.14 lacs to the respondent No.2 and remaining 6 lacs was ordered to be handed over to Deputy Director of Income Tax and imposed, certain conditions vide order dated 21-8-2004. Against the said order, the present revision application is preferred by the present applicant.

3. It is submitted by Mr. Bhatt, learned Advocate for the applicant that learned Magistrate has erred in not appreciating the provisions of Sec.457 of the Code of Criminal Procedure in its true perspective, he has also submitted that learned Magistrate has committed an error in not properly appreciating the provisions of Sec.132-A of the Income Tax Act.

4. Mr. Raval, learned Addl. P.P. has also supported the case put forward by the applicant and prayed for allowing the revision application.

5. Mr. Yogesh Lakhani, learned Advocate for the respondent No.2 has opposed the admission of revision application and supported the judgment under challenge and submitted that the impugned judg

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