JUDGMENT - A.D. MANE, J.:---This application in revision is directed on a question as to the legality of an order of forfeiture of money seized from the house of the accused who is acquitted of the offence charged under the Gambling Act. 2. It appears that on 7th July, 1983 at about 10.30 a.m, the Police Head Constable of Umbraj Police Station acting on some information about illegally carrying on country liquor business, conducted a raid in the house of the petitioner and in search he seized certain articles suspected to be articles of gaming and also cash Rs. 10,111.25. Thereupon, the petitioner was prosecuted in Summary Case No. 1153 of 1983 for alleged offences punishable under sections 4, 5 and 12(a) of the Bombay Prevention of Gambling Act, 1887 (hereinafter referred to as the Act). On conclusion of the trial, the learned Judicial Magistrate, F.C. Patan, on deputation at Karad however, by his order dated 18th August, 1987 acquitted the petitioner, but at the same time directed that muddemal articles be destroyed and money seized by police from the house of the petitioner be credited to government by rejecting the petitioner's application for return of money. On an appeal being Criminal Appeal No. 97 of 1988, the learned Sessions Judge by his order dated 2nd August, 1988 confirmed the said order and dismissed the appeal. 3. Shri Mulla, the learned Counsel for the petitioner contends that the impugned order of forfeiture is contrary to law. It is his contention that the Court below committed an error of law in ordering the forfeiture in absence of any evidence to show that money seized was an "instruments of gaming" within the meaning of section 3 of the Act and, therefore, the money ought to have been returned to the petitioner. 4. There appears merit in the contention of Shri Mulla, the learned Counsel for the petitioner. Section 8 of the Act is the power conferring section and also gives discretion to the Magistrate for forfeiture. 4. There appears merit in the contention of Shri Mulla, the learned Counsel for the petitioner. Section 8 of the Act is the power conferring section and also gives discretion to the Magistrate for forfeiture. Section 9 provides that: "On conviction of any person for opening, keeping or using of common gaming house, or gaming therein or being present therein, or being present therein for the purpose of gaming, the convicting Magistrate may, therefore, order all the instruments of gaming found therein to be forthwith destroyed or forfeited and may also order all or any of the securities for money and other articles seized not being "instruments of gaming" to be sold and proceeds thereof with all money seized therein to be forfeited or in his discretion may order any part of such proceeds or other money to be paid to any person appearing to be entitled thereto." The term "instruments of gaming" is defined in section 3 of the Act, Section 3 provides that:--- "instruments of gaming" includes any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming and any winnings or prizes in money or otherwise distributed or intended to be distributed in respect of any gaming." On a plain reading of the definition of "instruments of gaming" a distinction is to be drawn between money which is the means of gaming and money which is not. In I.L.R. 56 Bom. 192 (Emperor v. Pyarelal Gokalprasad)1, a distinction is drawn between money which is a means of gaming and money which is not The combined reading of sections 3 and 8 of the Act, therefore, does not suggest that all moneys are "instruments of gaming". Only that money which falls within the definition of "instruments of gaming" becomes liable for forfeiture, in the sense that in section 8 of the Act, there is no general provision that money as such found upon persons keeping or using a common gaming house or gaming therein or being present therein for the purpose of gaming can be forefited. In other words, the provision in Section 8 of the Act restricts to money which falls under the definition of "instruments of gaming". In other words, the provision in Section 8 of the Act restricts to money which falls under the definition of "instruments of gaming". In the case of (Doongersi Awchar v. Emperor)2, A.I.R. 1940 Sind 22 on proper construction of section 8 of the Act, it has been held that:--- ".....When a Magistrate is dealing with money under the provisions of section 8, he must bear in mind the fact that all money found in the pockets of convicted persons cannot merely on ground be forfeited. Money so found can be forfeited if it is an instruments of gaming within the meaning of the Act, and the definition in section 3 is now so wide as to include any money which may be said to be connected with the gaming. There is, of course, no reason why money not connected with gaming should be forfeited under the Prevention of Gambling Act." 5. The incidental question which requires consideration is whether merely because the accused fails to account for money, money can be termed as "instruments of gaming" as has been held by Courts below. In Sind case cited supra it is laid down that prosecution must, of course, show that any particular money to be forfeited as a means of gaming falls within the definition of "instruments of gaming" in section 3 of the Act. Quite apart, section 7 of the Act relates to presumptive proof of keeping or gaming in common gaming house. But in case (State of Gujarat v. Jaganbhai Bhagwanbhai)3, A.I.R. 1966 S.C. 1633 it has been ruled that:--- ".....There is nothing in the Act to suggest that in order to prove that the articles seized are "instruments of gaming" it is the duty of the prosecution to examine an expert in every case. It is open to the prosecution to prove that the articles seized are instruments of gaming by proper evidence and it is not necessary to examine an expert for the purpose in each and every case." It is, therefore, absolutely necessary that there should be some evidence on record to show that money seized from the house of the petitioner was connected with gaming. In the instant case, no presumption can be raised merely because the money was found lying on the cot in the house of the petitioner at the time when police head constable raided his house. In the instant case, no presumption can be raised merely because the money was found lying on the cot in the house of the petitioner at the time when police head constable raided his house. It must be emphasized that the police head constable did so in his own accord without there being any reasonable ground for suspecting that money seized was "instruments of gaming". There is thus absolutely no evidence to connect money with the instruments of gaming within the provisions of section 3 r.w. section 8 of the Act. It is, therefore, perfectly clear that the impugned order of forfeiture cannot be supported in law. 6. Mr. Mulla. the learned Counsel for the petitioner raised another contention that the general provisions contained in section 452 be applied in the given case when the petitioner was entitled to return of money from whose possession it was seized. Generally, provisions of section 452 Cri.P.C. with regard to confiscation will not apply to a case under statute in which special provisions for forfeiture have been made. Section 8 of the Act contains specific provision for foreiture and hence this contention is not acceptable. Apart from that order of forfeiture of money on the ground that it has not been satisfactorily accounted for and is tained with suspicion is wrong. 7. The result is that the Revision Application succeeds. Rule is made absolute. The amount be returned to the petitioner. Rule made absolute. -----