V.B. Raju, J.
1. This is an appeal against an order passed by the learned City Magistrate, IVth Court, Ahmedabad, confiscating the Muddamal Articles in Criminal Case No. 1580 of 1965, wherein the appellant, who was the original accused, was acquitted. The notification purporting to be issued under Section 4 of the Spirituous Preparations (Inter State Trade and Commerce) Control Act, 1955, by the Central Government is not in accordance with Section 4 of the said Act, which section reads as under:
4. Other preparations containing alcohol may be notified as spirituous preparations.
If the Central Government la satisfied, after making such inquiry in this behalf as it may think fit and after taking into account such representations as may be made in the matter, that control of interstate trade and commerce in any preparation containing alcohol other than a preparation referred to in Sub-clause (i) or Sub-clause (ii) of Clause (d) of Section 2 is necessary in the public interest, it may, by notification in the Official Gazette, declares such preparation to be a spirituous preparation within the meaning of this Act and thereupon the provisions of this Act shall apply thereto.
The notification issued by the Ministry of Commerce, Central Government, on 27th April 1965, reads as under:
Whereas the Central Government is satisfied that control of inter-State trade and commerce in Eau-de-cologne is necessary in the public interest;
Now, therefore, in exercise of the powers conferred by Sea. 4 of the Spirituous Preparations (Inter-State Trade and Commerce) Control Act, 1955 (89 of 1955), the Central Government hereby declares Eau-decologne to be a spirituous preparation within the meaning of that Act.
Unless the Central Government is satisfied that the preparation is a preparation containing alcohol other than a preparation referred to in Sub-clause (i) or Sub-clause (ii) of Clause (d) of Section 2, and unless the Central Government is further satisfied that in respect of such preparation control of inter-state trade and commerce is necessary in the public interest, a notification cannot be made under Section 4 of the said Act. Moreover, there is no provision for confiscation in the Act, and the order of confiscation is not proper when the appellant is acquitted.
2. The appeal is, therefore, allowed and the -order of confiscation is set aside the property should be returned to the person from whom it was taken,