JUDGMENT : B.K. Patel, J. - This appeal, purported to have been filed by the State u/s 378 of the Code of Criminal Procedure. (for short the 'Code of Criminal Procedure.'), is directed (Seek) him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for six month, under (Seek) Section 18 and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/-, in default to undergo rigorous imprisonment for three months, u/s 20(b)(i) of the N.D.P.S. Act. 2. The prosecution case is that the deceased- Respondent was a licensed bhang dealer. On 02.11.1993 P.W.13 the Sub-Divisional Police Officer, Jharsuguda received information that he was in unlawful possession of huge quantity of ganja, bhang and opium and he was engaged in sale thereof in his house. Having observed the formalities prescribed for search, P.W.13 in presence of P.W.1 the Tahasildar of Rengali, P.W.3 the Assistant Conservator of Forest of Rengali, P. Ws. 6 and 7 two independent witnesses, P.W.8 the S.I. of Police of Rengali Out Post and P.W. 11 the Officer-in-charge of Katarbaga Police Station conducted raid of the house of deceased- Respondent. 261.7 Kg. of ganja, 46.5 Kg. of bhang and 445 grams of opium as well as cash amounting to Rs. 5,68,412.55 p. recovered on search from the house of the deceased- Respondent were seized. P.W.2 the S.I. of Excise of Rengali being called identified the recovered contraband to be bhang, ganja and opium. Services of P.W.9 a photographer was availed for taking photographs of the recovered articles. P.W. 12 the Superintendent of Police, Sambalpur who arrived at the spot supervised the search and seizure. P.W.13 prepared sample packets of the seized ganja, bhang and opium and drew up F.I.R. Ext.7 at the spot. The seized articles and sample packets were kept in a safe custody. P.W.11 registered the case and P.W.13 continued with the investigation in course of which witnesses were examined. Sample contraband packets were sent for chemical examination to the Regional Forensic Science Laboratory, Sambalpur. On 04.01.1994 P.W.13 made over charge of investigation to P.W.4 the Additional Superintendent of Police, Sambalpur who on completion of investigation submitted charge-sheet against the deceased- Respondent. The deceased- Respondent pleaded denial to the charge framed against him for commission of offences under which he was convicted. On 04.01.1994 P.W.13 made over charge of investigation to P.W.4 the Additional Superintendent of Police, Sambalpur who on completion of investigation submitted charge-sheet against the deceased- Respondent. The deceased- Respondent pleaded denial to the charge framed against him for commission of offences under which he was convicted. His plea in course of examination u/s 313 of the Code of Criminal Procedure. was that only cash amounting to Rs. 5,68,412.55 p. was recovered from his house. In order to substantiate the charge prosecution examined fourteen witnesses.P. Ws. 1 to 4, 6, 7, 8 to 13 have already been introduced.P. Ws. 5 and 10 were independent witnesses and P.W. 14 was a police constable.P. Ws. 6 and 7 as well as P. Ws. 5 and 10 did not support the prosecution. Also, P. Ws. 2, 10 and 14 are not material witnesses. The trial court, in recording the judgment and conviction, relied upon the evidence of material witnesses P. Ws. 1, 3, 4, 8, 11, 12 and 13 as well as material objects produced in court and chemical examination report received from the laboratory. 3. It appears that by interim order dated 17.06.1996 passed in Misc. Case No. 4 of 1996 arising out of this appeal it was directed by this Court that to retain a sum of Rs. 1,50,000/- out of seized cash and to return the balance cash to the deceased- Respondent subject to the deceased- Respondent filing a written undertaking in the form of an affidavit to redeposit the amount if and when directed by any competent court. 4. In assailing the direction of the learned trial court for return of seized cash to the deceased- Respondent it was contended by the learned Counsel appearing for the State that charge under Sections 18 and 20(b)(i) of the N.D.P.S. Act was framed against the deceased- Respondent on the allegation that he was found to be in possession of as well as selling of opium and ganja. The learned trial court having held the charge to have been established, and the deceased- Respondent having not adduced any evidence to account for the seized cash, there was no basis to direct for return of seized cash to the deceased- Respondent. It was argued that seized cash was liable for confiscation u/s 62 of the N.D.P.S. Act. The learned trial court having held the charge to have been established, and the deceased- Respondent having not adduced any evidence to account for the seized cash, there was no basis to direct for return of seized cash to the deceased- Respondent. It was argued that seized cash was liable for confiscation u/s 62 of the N.D.P.S. Act. It was further contended by the learned Counsel for the State that the deceased- Respondent having been held to have been found to be in possession of opium and ganja as alleged, the seized cash has to be presumed to be sale proceeds of ganja and opium. In this context, learned Counsel for the State sought support from provisions under Sections 35 and 54 of the N.D.P.S. Act. 5. In reply, it was contended by the learned Counsel for the legal heirs of the deceased- Respondent that confiscation of contraband u/s 62 of the N.D.P.S. Act can be made only when recovered cash is found to be sale proceeds of contraband sold by an accused. There being no evidence whatsoever adduced by the prosecution to indicate that the deceased- Respondent used to sell ganja or opium, the learned trial court rightly directed for return of seized cash. learned Counsel for the legal heirs of the deceased- Respondent also assails the maintainability of this appeal u/s 378 of the Code of Criminal Procedure. which provides for appeal in case of acquittal. It was argued that as the impugned judgment is a judgment of conviction, the appeal is liable to be rejected summarily. 6. The deceased- Respondent has been convicted and sentenced for commission of offences under Sections 18 and 20(b)(i) of the N.D.P.S. Act. Therefore, it was rightly pointed out that the appeal filed u/s 378 of the Code of Criminal Procedure. is misconceived. However, Section 454 of the Code of Criminal Procedure. provides for appeal against orders passed under Sections 452 or 453 of the Code of Criminal Procedure. In the present case, the impugned order for return of the properties in the judgment has been passed at the conclusion of trial u/s 452 of the Code of Criminal Procedure. Therefore, despite misdescription of the present appeal to be u/s 378 of the Code of Criminal Procedure. it has to be construed to be an as appeal u/s 454 of the Code of Criminal Procedure. 7. Therefore, despite misdescription of the present appeal to be u/s 378 of the Code of Criminal Procedure. it has to be construed to be an as appeal u/s 454 of the Code of Criminal Procedure. 7. Section 62 of the N.D.P.S. Act provides for confiscation of sale proceeds of illicit drugs and substances. Prior to amendment by Act No. 9 of 2001, Section 62 of the N.D.P.S. Act read: Where any narcotic drug or psychotropic substance is sold by a person having knowledge or reason to believe that drug or substance is liable to confiscation under this Act, the sale proceeds thereof shall also be liable to confiscation. Under Section 62 of the N.D.P.S. Act any amount is liable to be confiscated only when it is found to be sale proceeds of contraband sold by the accused. Prosecution is, therefore, required to prove sale of contrabands by the accused. It is only the sale proceeds of illicit drug which can be confiscated and even for that prosecution has to prima facie prove that the said substance was sold by the accused. Confiscation is not permissible on the basis of surmises and presumptions. A bare reading of Section 62 of N.D.P.S. Act makes it clear that the prosecution has to have a prima facie evidence to link the seized amount with the sale proceeds of any drug. Before money recovered is confiscated as the sale proceeds of drugs the prosecution must establish that the accused received the money by selling drug. Mere recovery is not sufficient to establish the nexus. Similar view has been taken by the Delhi High Court in Jagwat Prasad v. Delhi Administration. 1993 Crl LJ 21. 8. In the present case none of the material witnesses testified regarding sale of the contraband by the deceased- Respondent. They simply deposed regarding seizure of cash. P.W.1 stated that cash was seized from the shop-cum-residence room of the deceased- Respondent. P.W.3 deposed that cash was recovered from the shop room in a wooden box as well as from the bed room. P.W.11 vaguely deposed that cash was recovered from the house of the deceased- Respondent. In course of cross-examination he expressed his inability to say as to which article was recovered from which room. P.W. 12 the Superintendent of Police deposed that cash was found kept in rice bags and tin containers inside the bed room of the deceased- Respondent. P.W.11 vaguely deposed that cash was recovered from the house of the deceased- Respondent. In course of cross-examination he expressed his inability to say as to which article was recovered from which room. P.W. 12 the Superintendent of Police deposed that cash was found kept in rice bags and tin containers inside the bed room of the deceased- Respondent. He explained that recovered cash was seized as the deceased- Respondent could not account for the money in the manner of any legal earning. As against such evidence, P.W. 13 the informant-investigating officer testified that he seized, among other things, one tin box containing Rs. 5,68,412.55 p. in government currency notes of different denomination and coins. He further testified in his examination-in-chief that cash was seized as it was suspected to be the sale proceeds of illegal sale of ganja and opium. However, in course of cross-examination P.W. 13 was constrained to state that he had no personal Knowledge about sale of ganja or opium by the deceased- Respondent. Also he had examined neither any witness who had purchased ganja or opium from the deceased- Respondent nor any witness claiming to have seen the sale of ganja or opium by the deceased- Respondent. It was further testified by (sic.) 9. categorically testified that during the course of investigation no substantive material could be collected to link sale of contraband articles by the deceased- Respondent and the charge was for possession of contraband articles. Presumption available to prosecution u/s 54 of the N.D.P.S. Act subsists till contrary is proved and u/s 35 of the N.D.P.S. Act can also be disproved by the defence, and, thus, is not unrebuttable. In the present case prosecution itself having admitted absence of any nexus between the seized cash and contrabands, there is no scope for confiscation thereof as sale proceeds of illicit drugs. 10. In view of the above, there is no infirmity in the order directing return of seized cash impugned in this appeal, Hence, the appeal is dismissed. Final Result : Dismissed