ORDER Heard both the parties. 2. The above revision is directed against the order dated 8.2.1995 in C.C.No.144 of 1992 on the file of the learned Judicial Magistrate, Dharapuram, wherein the petitioner was acquitted, but a sum of Rs.10, 100 which was recovered from him was confiscated. 3. The learned counsel for the petitioner invited my attention that the petitioner was acquitted by the order of the learned Judicial Magistrate dated 8.2.1995. The learned counsel for the petitioner, placing reliance on, (i) N Madhavan v. State of Kerala N Madhavan v. State of Kerala, A.I.R. 1979 S.C. 1829: (1979)4 S.C.C.1: (1979)1 S.C.C. (Crl.) 883 and (ii) Hemraj v. Rustomji Hemraj v. Rustomji, A.I.R. 1953 S.C. 503 contends that the said sum of Rs.10, 100 which was seized from the petitioner, in the above criminal case should be refunded to him and therefore challenges the order of confiscation of the said sum of Rs.10, 100 passed by the learned Judicial magistrate in his order dated 8.2.1995. 4. Per contra, learned Government Advocate contends that assuming the order of confiscation passed by the learned Judicial Magistrate, by exercising power under Sec.452, Crl.P.C. is erroneous; the only remedy for the petitioner is to prefer an appeal under Sec.454, Crl.P.C. Since the petitioner has failed to prefer an appeal under Sec.454, Crl.P.C. he is not entitled to seek relief by way of revision, which is barred under Sec.401(4), Crl.P.C. 5. I have given careful consideration to the submissions of both the sides. 6. In N. Madhavan v. State of Kerala N. Madhavan v. State of Kerala, A.I.R. 1979 S.C. 1829 the Apex Court has held as follows: “One of such well-recognised principles is that when after an inquiry or trial the accuses is discharged or acquitted, the court should normally restore the property of class (a) or (b) to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt-as in the instant case-that the property in question was seized from the custody of such accused and belonged to him.” 7. In the light of the decision of the Apex Court, I am satisfied that the petitioner is entitled for the refund of the amount, which was seized from him and therefore, the confiscation ordered by the learned Judicial Magistrate is illegal. In the light of the decision of the Apex Court, I am satisfied that the petitioner is entitled for the refund of the amount, which was seized from him and therefore, the confiscation ordered by the learned Judicial Magistrate is illegal. But, with regard to the contention of the learned Government Advocate that the petitioner ought to have preferred an appeal only under Sec.454(2), Crl.P.C. and therefore, having failed to prefer an appeal under Sec.454(2), Crl.P.C., the petitioner is not entitled to prefer a revision under Sec.401(4) cannot be accepted in view of Sec.401(5) which reads as follows; “401(4) where under this Code an appeal lies and no appeal is brought no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” 8. Therefore, in the instant case, since I am satisfied that the petitioner has preferred the above revision on an erroneous belief that no appeal lies on the order of confiscation dated 8.2.1995, I hereby direct the learned Judicial Magistrate to refund the said sum of Rs.10, 100 within three months from the date of receipt of a copy of this order. 9. In the result, revision petition is allowed with direction. B.S.-----Revision petition allowed.