This is a revision petition under Ss. 397 and 401 of the Criminal Procedure Code, preferred by the Assistant Collector of Central Excise, Salem, Integrated Divisional Office, Salem, against the order of the learned Sub-Divisional Judicial Magistrate, Sankari in C. C. 367 of 1978 directing the return of M.Os. 4 to 9 and 14 to the first accused, respondent herein.


2.The prosecution was laid by the Assistant Collector Excise, alleging that the respondent herein, viz. first accused along with another contravened the provisions of the Gold (Control) Act and was thus liable to be punished under Ss. 85 and 87 of, the said Act. The learned Magistrate while disposing of the case convicted the first accused and sentenced him to imprisonment till the rising of court and to pay a fine of Rs. 200. The second accused, who is not a party to this petition, was found not guilty. While disposing of the said case, M.Os. 4 to 9 and 14, were ordered to be returned to the first accused after the appeal time is over. The complainant, viz, the Assistant Collector, Excise, is aggrieved by this order of return of property and has come forward with this revision.


3.I have heard learned counsel for both parties. According to the learned counsel for the revision petitioner, the learned Magistrate erred in directing the return of properties when the aforesaid mentioned items had been confiscated by the Excise Department in adjudication proceedings. It is also urged that the order of the lower court is contrary to the Bench judgment of our High Court reported inCollector of Customsv.Kisrilal, 1977 L.W. Cr. 72, wherein it is stated that when the goods had been validly confiscated under law, it will not be open to the Criminal Court to ignore that fact and make an order regarding the disposal of the property. It is further stated that an order of confiscation duly made can only be altered or set aside by the authorities as contemplated under the Act and cannot be interfered with by the original Court.A. As against this, learned counsel for the respondent submits that an appeal against this Division Bench ruling is now pending disposal before the Supreme Court. But that is not very relevant for the purpose of disposal of this revision petition, since this court is governed by the Division Bench ruling cited supra. In other words, till the Bench decision of this court is modified or set aside

, the ruling has to be followed. Following the said ruling, the order of the learned Magistrate directing return of the properties, viz. M.Os. 4 to 9 and 14 to the respondent herein (first accused) is set aside and the order in the adjudication proceedings will prevail.