JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard learned counsel for the parties. 2. On 1.12.1994 while making a routine checking of vehicles by the police authorities of Police Station Dohrighat, district Mau, a sum of Rs. 1,85,000/- was found in possession of one Nazre Alam, who was travelling by Yamha Motor Cycle No. UP-50 A/1534. On inquiry, he stated that money belonged to his maternal uncle Gurfan son of Hafiz Sultan, who had given to him for delivering the same to Sri Wazir Ahmed, resident of Nai Bazar, Chauri Chaura. The statement of opposite party 1 was found incorrect, on inquiry made by Station Officer, Dohrighat and it was found that Wazir Ahmed was not residing at Chauri Chaura, rather he is residing in Saudi Arabia. 3. Consequently, police authorities wrote a letter to Income Tax Officer, Mau informing seizure of money and three loose papers from the possession of opposite party-1. 4. Thereupon, Income Tax Department proceeded under the provisions of Income Tax Act 1961 (hereinafter referred as Act 1961). Warrant of authorization under Section 132-A (1) of Act 1961 was issued authorizing Assistant Director, Income Tax (Investigation), Gorakhpur, Income-Tax Officer (C.I.B.), Gorakhpur and Income Tax Officer, Mau for requisition of Rs. 1,85,000/- from Station Officer, Dohrighat who had seized money from possession of opposite party 1. In pursuance of warrant of authorization issued by Director, Income Tax (Investigation) Kanpur, the aforesaid money was requisitioned by Income Tax Officer (C.I.B.) Gorakhpur from Station Officer Dohrighat and thereafter, a draft demand was drawn in favour of Commissioner, Income Tax, Allahabad P.D. Account from Punjab National Bank Dohrighat. 5. The opposite party 1 filed application before Additional Chief Judicial Magistrate requesting for release of aforesaid money. It was rejected vide order dated 28.1.1995. 6. Thereafter, opposite party 1 and 2 preferred Criminal appeal before District and Sessions Judge, Mau. Appeal was registered as Criminal Appeal No. 3 of 1995. District and Sessions Judge, Mau allowed appeal, set aside order passed by Additional Chief Judicial Magistrate, Mau dated 28.1.1995 and directed Station Officer, Dohrighat to return money to appellants 1 and 2. 7. 6. Thereafter, opposite party 1 and 2 preferred Criminal appeal before District and Sessions Judge, Mau. Appeal was registered as Criminal Appeal No. 3 of 1995. District and Sessions Judge, Mau allowed appeal, set aside order passed by Additional Chief Judicial Magistrate, Mau dated 28.1.1995 and directed Station Officer, Dohrighat to return money to appellants 1 and 2. 7. Respondents 1 and 2 had not impleaded Income Tax Department either before the Additional Chief Judicial Magistrate when they filed application for release of the money, registered as Case No. 41 of 1995 nor impleaded the said department in Criminal Appeal No. 3 of 1995, which was allowed by Sessions Judge, Mau vide impugned judgement dated 29.7.1995. Only State was impleaded as opposite party and Government Advocate appointed by the State of U.P. to represent State appears to have been heard by the Courts below. Release application was filed under Section 194 of Motor Vehicle Act 1988. Session Court considered the matter observing that accused was taken in custody by police under the Provisions of Motor Vehicle Act and when made search of the person of accused under Section 51 Cr.P.C., recovered Rs. 1,85,000/-. It is also observed that a warrant under Section 132-A of Act, 1961 requisitioning the money seized by police, it was incumbent upon police to first seek permission of Judicial Magistrate under Section 457 Cr.P.C. to transfer money otherwise the police was not competent to do it. With regard to proceeding of Income Tax department no document was produced by the police authorities before Court below. 8. Learned counsel appearing for revisionist contended that Section 457 Cr.P.C. has wrongly being relied by Session Judge for reason that Act 1961 is a special Act and shall override otherwise provisions of Cr.P.C. Once requisition has been made by Income Tax authority under Section 132A, Magistrate is not entitled to go on for an inquiry into nature of assets and ownership etc.. In support he placed reliance on a decision of this Court in Union of India v. Judicial Magistrate (Eastern Railway), Mughal Sarai and another, 1983 (140) ITR 553. 9. From record it transpires that police on a routine checking of vehicles on 1.12.1994 found a sum of Rs. 1,85,000/- with Nazre Alam opposite party 1, who was travelling by Yamha Motor Cycle No. UP-50A/1534. 9. From record it transpires that police on a routine checking of vehicles on 1.12.1994 found a sum of Rs. 1,85,000/- with Nazre Alam opposite party 1, who was travelling by Yamha Motor Cycle No. UP-50A/1534. He explained that money belonged to his maternal uncle Gurfan, who had given to him for delivering to one Wazir Ahmed, friend of Gurfan. Statement of Nazre Alam opposite party 1 was found correct on inquiry made by Station Officer, Dohrighat. Sri Wazir Ahmed was not found residing at Chauri Chaura the address disclosed by opposite party 1 but is residing abroad i.e. Saudi Arabia. Police consequently informed about aforesaid assets and some loose document found from the possession of opposite party 1 to Income Tax Officer, Mau vide letter dated 3.12.1994. Income Tax Officer in his turn sent a letter to Assistant Director, Income Tax, Gorakhpur requesting for immediate action in matter. Director, Income Tax issued warrant of authorisation under Section 132-A (1) of Act 1961 on 12.12.1994 authorising Sri S.N. Srivastava, Assistant Director of Income Tax (Investigation) Gorakhpur, Sri Janardan Tripathi, Income Tax Officer (C.I.B.), Gorakhpur and Sri Bharat, Income Tax Officer, Mau as ‘Authorised Officers’ to requisition Rs. 1,85,000/- from Police Station, Dohrighat. Consquently, on 13.12.1994 Sri Janardan Tripathi, Income Tax Officer (C.I.B.) Gorakhpur requisitioned Rs. 1,85,000/- from Police Station, Dohrighat, who prepared a Demand draft in favour of Commissioner, Income Tax, Allahabad P.D. Account from Punjab National Bank Dohrighat and remitted assets which was seized by the Income Tax Department on 1.12.1994. On 15.12.1994 Additional Director, Income Tax, Gorakhpur enquired from Income Tax Officer, Mau about issuance of notice under Rule 112-A of Income Tax Rules read with Section 132 of Act 1961. A notice under rule 112 was issued on 19.12.1994 to opposite party 1, served on 26.12.1994. Date fixed for inquiry was 28.12.1994. Opposite party 1 sought adjournment which was granted fixing 3.1.1995. Opposite party 1 vide letter dated 3.1.1995 informed Income Tax Officer that money belonged to his maternal uncle and not to him. On 23rd March, 2015 a notice under Section 132(5) of Act was issued. On 30th March, 1995 statement of opposite party 1 was recorded. Another notice was issued on 5.4.1995 fixing 10.4.1995. Opposite party 1 vide letter dated 3.1.1995 informed Income Tax Officer that money belonged to his maternal uncle and not to him. On 23rd March, 2015 a notice under Section 132(5) of Act was issued. On 30th March, 1995 statement of opposite party 1 was recorded. Another notice was issued on 5.4.1995 fixing 10.4.1995. No reply was given by opposite party 1 to notice dated 5.4.1995, hence Income Tax Officer, Mau passed order under Section 132(5) read with Rules 111 and 112 of Income Tax Rules, 1962 for seizure of money requisitioned from Station Officer, Dohrighat on 13.12.1994. This order under Section 132(5) was served on opposite party 1 on 10.4.1995. Order under Section 132(5) was passed by Income Tax Officer after taking prior permission of Deputy Commissioner, Income Tax, Gorakhpur. Income Tax Officer created a liability of Rs. 1,98,966/-, which included tax interest and penalty for the year 1995-96 as the amount seized under Section 132(5) was less than total tax liability. An objection against order under Section 132(5) was filed by opposite party 1 under Section 132(11). 10. In the meantime, it appears that opposite party 1 and 2 filed an application under Section 194 of Motor Vehicles Act before Additional Chief Judicial Magistrate, Mau requesting for release of assets/money i.e. Rs. 1,85,000/- seized from possession of opposite party 1. Application was rejected by Additional Chief Judicial Magistrate vide order dated 28.1.1995 holding that assets having been requisitioned and seized by Income Tax Officer, Magistrate has no jurisdiction and this order was set aside by Sessions Judge, Mau by impugned judgement dated 29.7.1995. Section 132A(1)(c), 2 and 3 relevant for this purpose reads as under: “132A. (1) Where the [Principal Director General or] Director General or [Principal Director or] Director] or the [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner], in consequence of information in his possession, has reason to believe that- (a). . . . . . .. . . (b) . .. . . . . . . . (1) Where the [Principal Director General or] Director General or [Principal Director or] Director] or the [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner], in consequence of information in his possession, has reason to believe that- (a). . . . . . .. . . (b) . .. . . . . . . . (c) Any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian Income Tax Act, 1922 (11 of 1922), or this Act by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, then, the [Principal Director General or] Director General or [Principal Director or] Director] or the [Principal Chief Commissioner or] Chief Commissioner or [ Principal Commissioner or] Commissioner] may authorize any [Additional Director, Additional Commissioner,][Joint Director], [Joint Commissioner], [Assistant Director [or Deputy Director]], [ Assistant Commissioner [ or Deputy Commissioner] or Income Tax Officer] (hereafter in this section and in sub-section (2) of Section 278D referred to as the requisitioning officer) to require the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer. (2) On a requisition being made under sub-section (1), the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, of that sub-section shall deliver the books of account, other documents or assets to the requisitioning officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody. (3) Where any books of account, other documents or assets have been delivered to the requisitioning officer, the provisions of sub-sections (4A) to (14) (both inclusive) of Section 132 and Section 132B shall, so far as may be, apply as if such books of account, other documents or assets had been seized under sub-section (1) of Section 132 by the requisitioning officer from the custody of the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub-section (1) of this section and as if for the words “the authorised officer” occurring in any of the aforesaid sub-sections (4a) to (14), the words “the requisitioning officer” were substituted.]” 11. Section 132(5) of Act 1961 reads as under: “5. Section 132(5) of Act 1961 reads as under: “5. Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in Sections 132A and 132B referred to as the assets) is seized under sub-section (1) or sub-section (1A), as a result of a search initiated or requisition made before the 1st day of July, 1995, the Income Tax Officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall, within one hundred and twenty days of the seizure, make an order, with the previous approval of the Joint Commissioner,- (i) estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such materials as are available with him; (ii) calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian Income-tax Act, 1922 (11 of 1922), or this Act; (iia) determining the amount of interest payable and the amount of penalty impossible in accordance with the provisions of the Indian Income-tax Act, 1922 (11 of 1922), or this Act, as if the order had been the order of regular assessment; (iii) specifying the amount that will be required to satisfy any existing liability under this Act and any one or more of the Acts specified in clause (a) of sub-section (1) of Section 230A in respect of which such person is in default or is deemed to be in default, and retain in his custody such assets/or part thereof as are in his opinion sufficient to satisfy the aggregate of the amounts referred to in clauses (ii), (iia)] and (iii) and forthwith release the remaining portion, if any, of the assets to the person from whose custody they were seized: Provided that if, after taking into account the materials available with him, the Income Tax Officer is of the view that it is not possible to ascertain to which particular previous year or years such income or any part thereof relates, he may calculate the tax on such income or part, as the case may be, as if such income or part were the total income chargeable to tax at the rates in force in the financial year in which the assets were seized and may also determine the interest or penalty, if any, payable or impassable accordingly: Provided further that where a person has paid or made satisfactory arrangements for payment of all the amounts referred to in clauses (ii), (iia) and (iii) or any part thereof, the Income Tax Officer may, with the previous approval of the Chief Commissioner or Commissioner, release the assets or such part thereof as he may deem fit in the circumstances of the case.” 12. It may be stated that Section 132 (5) has specifically been omitted w.e.f. 1.6.2002 but it was existing when proceedings of case in hand were initiated, hence its subsequent omission would not be affected. On a reading Section 132-A (1) (c), 2 and 3 read with Section 132(5) of Act 1961, I am clearly of opinion, if any assets has been seized by Police Officer, same can be requisitioned by Authorized Person under Section 132A and when amount is remitted and delivered to Authorized Person of Income Tax department, it would be deemed to be a seizure of assets under sub-section (1) of Section 132A by Requisitioned Officer and will be governed by other provisions of Act 1961. At the time when application was filed by opposite party-1 and 2 before Magistrate, Competent authority has already requisitioned assets under Section 132A from Police officials, who had thereafter delivered the same to competent authority of Income Tax department. So there was no occasion to seek release of such assets from police and that too without impleading Income Tax Department. Money so seized can be released by competent authority under provisions of Act 1961. 13. Thus, I am of the view that no application for release of money before Magistrate/Session Court under provisions of Cr.P.C. was maintainable. The order passed by Session Judge, thus, cannot be sustained. 14. Revision is allowed. 15. Impugned order passed by Session Judge, Mau is hereby set aside. ——————