1. The respondents Nos.3 and 4, although served with the notice issued by this Court, yet have chosen not to remain present before this Court either in person or though an advocate and oppose this application.

2. Rule returnable forthwith. Mr. Devnani, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1 and Mr. Radhesh Vyas, the learned counsel, waives service of notice of rule for and on behalf of the respondent No.2.

3. By this application under Article 227 of the Constitution of India, the applicant-Deputy Director of Income Tax calls in question the legality and validity of the order dated 4th October, 2017 passed by the J.M.F.C, Kathor, District: Surat below Exh.3 (Muddamal Application) in connection with the first information report being C.R. No.I-253 of 2016 registered with the Kamrej Police Station, Surat for the offence punishable under sections 34, 120B, 394A read with 114 of the Indian Penal Code, which on conclusion of the investigation and filing of the charge-sheet, culminated in the Criminal Case No.726 of 2017 in the Court of the JMFC, Kathor, Taluka: Kamrej, District: Surat. It appears from the materials on record that the respondent No.2, namely, Shaukatali Imamhussain Shaikh lodged a first information report, referred to above, in connection with a robbery of Rs.13,00,000/- in cash. In the course of the investigation, the police recovered the amount of Rs.13,00,000/- in cash from the possession of the accused persons. As a huge amount of currency was seized by the police as a Muddamal, the Investigating Officer one Shri M.B. Tomar, In-charge Police Inspector, Kamrej Police Station, Surat addressed a letter dated 11.01.2017 to the Deputy Director of Income Tax (Inv.)-II, Surat in this regard. It appears that two applications came to be filed in the court of the J.M.F.C, Kathor being Exhibits-3 and 6 respectively under the provisions of sections 451/457 of the Cr.P.C. These two applications were filed for interim release and possession of the currency seized by the police. Exh.3 came to be filed by the Income Tax Department, whereas Exh.6 came to be filed by the original first informant, i.e,. the respondent No.2 herein.

4. The J.M.F.C, Kathor, by a common order, rejected both the applications. The department thought fit to challenge the order passed by the J.M.F.C directly before this Court without filing any revision application before the Sessions Court, whereas on the other hand, the first informant thought fit to file a revision application before the sessions court. The revision application before the Sessions Court is pending as on date.

5. Mr. M.R. Bhatt, the learned senior counsel appearing for the applicant submitted that having regard to the nature of the Muddamal, i.e, cash worth Rs.13,00,000/-, the court should have handed over the cash to the Income Tax Department. The learned senior counsel submitted that the department is claiming custody of the cash on the ground that the same is an unaccounted money and is subjected to investigation/assessment under the provisions of the Income Tax Act. Mr. Bhatt, the learned senior counsel invited the attention of this Court to section 132 of the Income Tax Act. It is submitted that under section 132 of the Income Tax Act, on a requisition being made under sub-section (1), the officer or the authority, referred to in clause (a) or clause (b) or clause (c), as the case may be, of the sub-section shall deliver the books of account, other documents or assets to the requisitioning officer either forthwith or when such officer or the authority is of the opinion that it is no longer necessary to retain the same in his or its custody. According to Mr. Bhatt, once the warrant of authorization is issued against any person, then the seized amount is required to be retained by the Income Tax Authority and without taking over of the said amount, no further proceedings can be initiated against any person, from whose custody,