Oral Order:

1. The petitioner has challenged the Order dated 19th November, 2004 of the Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, confirmed in Revision by the Sessions Court Greater Mumbai by an Order dated 5th April 2008 rejecting the prayer of the Deputy Director of Income Tax - the petitioner herein, for return of an amount seized from the custody of the respondent No. 1 Nagorao Malku Ghadge under Section 124 of The Bombay Police Act, 1951.

2. The relevant facts of the matter begin with the seizure of an amount of Rs.80,57,680/- and jewellery worth Rs.2,18,920/- from the possession of the respondent No.1 Nagorao on 21st May 2001 in the course of a search of his house by the DCB CID i.e. State Police. Nagorao was prosecuted under Section 124 of The Bombay Police Act and called upon to account for possession of the cash and the jewellery. He gave a satisfactory explanation to the Magistrate in accordance with the provisions of law. Accordingly he was acquitted on 7th May 2004 under that Act. Since Section 124 entails punishment only if such a person fails to account for such possession. Section 124 of The Bombay Police Act reads as follows:

“124. Possession of property of which no satisfactory account can be given.- Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he failed to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term [which may extend to one year but shall not, except for reasons to be recorded in writing, be less than one month and shall also be liable to fine which may extend to [five thousand rupees].”

3. During the pendency of the trial, the Income Tax Department which had received information from the Police issued Warrant of Authorisation on 22nd May 2001 under Section 132-A of the Income Tax Act authorising four of its officers to require the Senior Police Inspector Unit -5 Crime Branch, CID to deliver the aforesaid assets, books of accounts, etc. to such authorised officers. Apparently, the authorisation could not be given effect to against the Sr. Police Inspector, Unit – 5, Crime Branch, CID, who was required to deliver the said assets to the authorised officer since the assets had passed into the custody of the court and the court had deposited the jewellery and the amount in Fixed Deposit in State Bank of India, where they are lying even at this moment.

4. During the trial one of the authorised officer Deputy Director of Income Tax moved an application for return of the seized cash and jewellery along with relevant records of the case for the purposes of assessment under Section 451 of the Criminal Procedure Code. That application was rejected by the Court for want of details and because the Department had not come to the conclusion that the property is unaccounted or undisclosed. The application was thus dismissed as a premature application. The Sessions Court confirmed that order and granted liberty to the authorised officer to make a fresh application along with other relevant record.

5. Accordingly, another application was made on 1st August 2002 for the purpose along with a fresh authorisation again requiring the Senior Police Inspector, Unit – 5 Crime Branch, CID, to deliver the assets, books of account etc. to the authorised officer by the Income Tax Department. However, the trial came to an end and the respondent No.1 Nagorao was acquitted on 7th May 2004.

6. The application under Section 451 of the Cr.P.C. was pressed on behalf of the petitioner as an application under Section 452 of the Criminal Procedure Code which the trial court rejected. The rejection has been confirmed by the Sessions Court in Appeal. Those orders are challenged in this writ petition.

7. Ms. Malhotra, the learned counsel for the petitioner submitted that th