Judgment : Oral Judgment: 1. The first one is an application for restoration. For the reasons stated in the application, the Criminal Application No.1731/1997 is restored in the interest of justice and is being finally heard in view of "Madhurmilan Syntex Ltd. and others V/s Union of India & Anr." 2007 AIR SCW 1971. 2. So far as the main application is concerned, the applicant impugns the order rendered by the Learned Sessions Judge, Jalgaon in Criminal Revision Application No.31/1997 and that of Judicial Magistrate (F.C.) in Criminal Miscellaneous Application No.217/1996. 3. The applicant was chargesheeted as accused in commission of offence u/s 4 and 5 of the Bombay Prevention of Gambling Act, 1887. The prosecution alleged that at his residential house the applicant indulged in gambling game called "Kalyan Matka". He was accepting bets for money on the figures, from customers. The police carried out raid on the 3rd floor of the residential premises, where the applicant was found accepting money from customers. An amount of Rs.81,787/-was recovered from his residential premises, along with chitthis, on which certain figures were written, two writing pads and ball pens etc. 4. The learnedJudicial Magistrate (F.C.) discharged the applicant u/s 258 of the Code of Criminal Procedure in view of Common Cause Judgment 1966 (2) Crimes 114 (SC). The learned Judicial Magistrate (F.C.), however, directed that the cash amount, recovered from his house, shall be confiscated to the state and remaining worthless property shall be destroyed. The applicant filed an application on the same day (Exhibit-C), which was registered as Criminal Miscellaneous Application No.217/1996. He prayed for restoration of the cash amount seized from his residential house to him. His application was rejected by the learned Judicial Magistrate (F.C.), Bhusawal. He preferred Criminal Revision Application No.31/1997, which came to be dismissed. 5. Heard. 6. The impugned order, rendered by the learned Judicial Magistrate (F.C.), only shows that the order for disposal of property was rendered under provisions of the Code of Criminal Procedure. The learned Magistrate held that since the applicant was not acquitted on merits, the money recovered could be forfeited and confiscated to the Government. The learned Sessions Judge held that appeal, provided u/s 454, could be filed only within 30 days and the appeal was not filed within one month and, therefore, the Revision Application, even if it was to be converted into appeal, was barred by limitation. The learned Sessions Judge held that appeal, provided u/s 454, could be filed only within 30 days and the appeal was not filed within one month and, therefore, the Revision Application, even if it was to be converted into appeal, was barred by limitation. The learned Sessions Judge also noticed that there was no delay condonation application filed. Therefore, the Revision Petition came to be dismissed. It appears that the impugned order was rendered by the learned Magistrate on 23.12.1996, whereas the Revision Application was filed on 18.01.1997. Obviously, it was filed within the period of one month, after passing of the impugned order dated 23.12.1996. The appeal period was counted by the learned Sessions Judge from the date of original order dated 05.10.1996 because in the same course the confiscation order was passed. Thus, the appeal could be preferred on or before 05.11.1996, which was not so done. 7. Mr. Agrawal would submit that the confiscation could not be effected under general provisions of the Code of Criminal Procedure in view of specific provisions u/s 8 of the Bombay Prevention of Gambling Act. He refers to certain observations in Ramprasad Chhaganlal Agrawal V/s State of Maharashtra (1950-91) 2 B.Cr.C.492) and Ramchandra Shankar Ghone V/s State of Maharashtra (1990 Mh.L.J.112). It is important to note that the confiscation order was rendered by the learned Judicial Magistrate (F.C.) on 05.10.1996 and on the same day the applicant submitted application for recalling of the order regarding confiscation. His such application (Criminal Miscellaneous Application No.217/1996) was not decided on the same day. The applicant challenged the order dated 23.12.1996 within a period of one month, by filing Revision Application. Naturally, the applicant was aggrieved by the order dated 23.12.1996. Had his application been allowed, there was no occasion for him to prefer Revision Application. Consequently, I am of the opinion that the Revisional Court took rather dogmatic view while dismissing the Revision Application on technical plea of limitation. 8. What appears from the record is that when the criminal prosecution was stopped u/s 258 of the Code of Criminal Procedure, the applicant was not heard, as regards the question of disposal of the property. The learned Judicial Magistrate (F.C.) ordered confiscation of the cash amount without giving opportunity to the applicant to make any submission. So his immediate conduct was to request the learned Magistrate to recall such order. The learned Judicial Magistrate (F.C.) ordered confiscation of the cash amount without giving opportunity to the applicant to make any submission. So his immediate conduct was to request the learned Magistrate to recall such order. Considering these aspects, dismissal of the Revisional Application, on technical pleas, was improper. 9. Coming to the merits, it may be said that confiscation of the cash amount or any article seized, could be only u/s 8 of the Bombay Prevention of Gambling Act. It is a special enactment and, therefore, general provisions, contained in Section 452 of the Code of Criminal Procedure are not attracted. The confiscation may be allowed when it is proved that the money, seized from possession of the accused, is "instrument of gambling" or used in the course of alleged gambling game. Forfeiture of the money, in absence of any evidence to show that it was an instrument of gambling, is illegal. For, such confiscation would fall out side pale of section 8 of the Bombay Prevention of Gambling Act. In this view of the matter, when the proceedings were stopped u/s 258 of the Code of Criminal Procedure and the amount was not found to be connected with the alleged gambling game called "Kalyan Matka" and could not be branded as "instrument of gambling", the confiscation is illegal. 10. For the reasons aforestated, the application is allowed and the impugned orders are quashed. The amount so seized from the applicant’s house is directed to be restored to him.