Order.- In this application filed under section 520, Criminal Procedure Code, the mention of a few facts leading to this petition becomes necessary. C.C. No. 32 of 1959 on the file of the Judicial First Class Magistrate, Kurnool, was filed against one Abdul Rahiman alleging that he as the driver and owner of lorry A.P.Q. 283 committed an offence relating to the contravention of clause (2) of the Andhra Charcoal Transport Control Order, 1956, read with section 11(1) of the Andhra Essential Articles Control and Requisitioning (Temporary Powers) Act, 1956 (V of 1956). It was alleged that Abdul Rahiman transported 104 bags of charcoal from Loddipalli to the firewood depot of Premji Bhai at Kurnool on 29th October, 1958. The learned Magistrate acquitted the accused as in his view, the prosecution failed to prove that that lorry was driven by the accused on the night in question. The learned Magistrate also found that the defence story that these 104 bags of charcoal were sold by D.W. 3 (petitioner herein) to Premji Bhai (D.W. 2) cannot be believed as the learned Magistrate found the evidence of these two witnesses to be untrustworthy. The Magistrate was clearly of the opinion that the accused has not contravened clause (2) of the Andhra Charcoal Transport Control Order, 1956. As to the charcoal bags, the learned Magistrate, however, felt that since they were transported without a valid permit, the sale proceeds of the said charcoal which came to Rs. 430 should be confiscated to the State. This order of the learned Magistrate was questioned in Crl.M.P. No. 124 of 1959 before the Sessions Judge, Kurnool. The learned Sessions Judge has opined that the Magistrate has not specified in the provision of law under which confiscation has been ordered. The learned Sessions Judge found that the order is not certainly under section 11(1) of the Andhra Essential Articles Control and Requisitioning (Temporary Powers) Act, 1956; but justified the order of confiscation as one which the learned Magistrate could have passed under section 517, Criminal Procedure Code. Venkata Reddi, who was examined as D.W. 3 in the said C.C. 32 of 1959, filed this application under section 520, Criminal Procedure Code and questioned the order of the learned Sessions Judge upholding the order of the Judicial First Class Magistrate, Kurnool, confiscating to the State the sum of Rs. Venkata Reddi, who was examined as D.W. 3 in the said C.C. 32 of 1959, filed this application under section 520, Criminal Procedure Code and questioned the order of the learned Sessions Judge upholding the order of the Judicial First Class Magistrate, Kurnool, confiscating to the State the sum of Rs. 430 which is the sale proceeds of the said 104 charcoal bags. The learned Public Prosecutor argued supporting the order of confiscation and relied upon section 11(1) of Act V of 1956 and contended that even if the accused is acquitted of the offence charged with, still the order of confiscation could be said to have been made validly as such an order is sustainable by virtue of the latter portion of sub-section (1) of section 11 of Act V of 1956. That section reads thus: “11(1). If any person contravenes any Order made under section 3 or section 4 or continued under section 8, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; and if the Order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the Order has been contravened, shall be forfeited to the State Government: Provided that where the contravention is of an Order relating to an essential article which contains an express provision in this behalf, the Court shall make such direction, unless for reasons to be recorded in writing, it is of opinion that the direction should not be made in respect of the whole or, as the case may be, a part of the property.” It may be mentioned that sub-section (2) of section 11 of the Act is made for another contingency where forfeiture of the seized property takes place even though any prosecution for an offence has not been instituted, and therefore it is not relevant for the present purpose. Therefore, reading sub-section (1) of section 11 of the Act as a whole and also giving to the conjunction and found in that sub-section its due importance, the forfeiture of the property in respect of which the Court is satisfied that an Order under section 3 or section 4 or continued under section 8 should be in respect only when the Court finds that the person has contravened any such Order and has been punished therefor. Further, it is clear that an order of forfeiture cannot be made by the Court unless that penalty is also provided for in any Order made under the sections mentioned above. It thus becomes clear that under section 11(1) of the Act, it is the Court which finds the accused guilty of contravention of the Order which provides also for confiscation or forfeiture that can not only punish the accused but also forfeit the property to the State. But, if it is found that the Order made under any of those sections does not provide for the forfeiture of the property, it would not, in my view, be competent for a Court to forfeit even though the Court punishes the accused. It is therefore to be seen whether the order contains the clause in regard to forfeiture. It is found that the particular Order to which reference has been made by the prosecution and advened to by the Court of the Judicial First Class Magistrate, Kurnool, namely, the Order contained in the Notification in G.O. Ms. No. 1134 (Department of Industries, Co-operation and Labour) dated 30th May, 1956 of the Government of Andhra Pradesh does not contain any clause for forfeiture of the property. Therefore, having regard to this and also to the terms of section 11(1) of Act V of 1956, it should be held that the learned Sessions Judge has rightly held that there is no conviction under section 11 of Act V of 1956 and the confiscation is not also under that provision of law. I am, therefore, unable to accede to the argument of the learned Public Prosecutor. As already observed, the learned Judicial First Class Magistrate did not believe that these 104. bags of charcoal were transported by Venkata Reddi (D.W. 3) to D.W. 2 (Premji Bhai) from Loddipalli to the latter’s charcoal depot at Kurnool. The position then would be that the charcoal bags were merely found in the lorry at Premji Bhai’s charcoal depot when they were seized. Coupled with this, there is the fact that the accused has not claimed these bags. That would mean that there is no other claim to these bags except that of D.W. 2 or D.W. 3 as the case may be. Coupled with this, there is the fact that the accused has not claimed these bags. That would mean that there is no other claim to these bags except that of D.W. 2 or D.W. 3 as the case may be. But the learned Sessions Judge has found that Venkata Reddi (D.W. 3, the petitioner herein) who has no permit for dealing in charcoal, cannot claim these bags. Even then, it is not possible to deny that Premji Bhai or any other could acquire interest therein by virtue of a purchase made from the son of Venkata Reddi who seems to have had a license. Viewed in any manner, there could be little doubt that: the accused is not entitled to the charcoal bags and that some purchaser or licensee will be entitled thereto. It is therefore next to be seen whether even if after the purchase by Premji Bhai of these charcoal bags they were transported without the permit, whether such illegal transport without anyone being found guilty therefor could be taken notice of by the Judicial First Class Magistrate or the learned Sessions Judge in order to pass an order of confiscation. In my view, it may be when such a contingency arises action under sub-section (2) of section 11 of the Act may be called for; but having regard to the language of sub-section (1) of section 11, it is clear that no Court as such without trying and convicting the accused on any charge for transporting the charcoal without the permit, could pass an order forfeiting the property. It may be pointed out that though the accused has been charged with driving the lorry, neither Premji Bhai nor Venkata Reddi (petitioner herein) has been charged with the offence for transporting these bags without the permit. In such a case, it is not possible for any Court to pass the order of confiscation or to sustain an order under section 517, Criminal Procedure Code. In my view, the order of forfeiture is therefore illegal and cannot be sustained as has been rightly held by the learned Sessions Judge. Then remains the question as to what order should be passed in regard to the 104 charcoal bags which have been seized. In my view, the order of forfeiture is therefore illegal and cannot be sustained as has been rightly held by the learned Sessions Judge. Then remains the question as to what order should be passed in regard to the 104 charcoal bags which have been seized. As has been pointed out repeatedly, when the prosecution fails to prove the charge against the accused and the Excused himself does not claim the seized property and the person who figured as a witness in the case claims thereto, there is not much difficulty in finding the person to whom the property has to be restored. But there is yet another peculiar feature in this case. That is, Premji Bhai (D.W. 2) himself filed an affidavit stating that these bags have not been brought to his depot at his request though he made an attempt to purchase them. But it is not necessary for the purpose of this petition to ascertain whether the disclaimer by Premji Bhai (P.W. 2) is to be believed or not. It may be that the attitude of Premji Bhai was with a view to ward off other repercussions arising out of this matter. But one thing is made clear that though there was an alleged sale of the property seized by Venkata Reddi’s son to Premji Bhai, still Premji Bhai has no objection to the claim by D.W. 3 in respect of the charcoal bags. In this view, I consider the proper order to be made is to allow the amount of Rs. 430 to be paid to the petitioner Venkata Reddi (D.W. 3) on behalf of his son. For the above reasons, the order of the lower Court is set aside and the petition is allowed. A.S.R. ----- Petition allowed.