1. A vehicle belonging to the revision petitioner was seized by the Sub Inspector of Police, Attingal under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'the Act'), when he found red earth being transported in the said vehicle in violation of Section 4(1A) of the Act. On seizure, the Sub Inspector, suo motu, registered a crime against the revision petitioner. However, seizure of the property was not reported to the learned Magistrate having jurisdiction. When nothing proceeded further at the hands of the police, the revision petitioner moved the learned Judicial First Class Magistrate Court-I, Attingal with CMP No. 3612/2014 under Section 457 Cr.P.C, for getting custody of the vehicle seized by the police. The vehicle involved is a tipper lorry bearing No. KL-16-H-54. Seizure was made by the police on 21.07.2014.

2. The application filed by the revision petitioner under Section 457 Cr.P.C. was resisted by the prosecution on the contention that the fact of seizure has already been reported to the District Collector, and that the vehicle is liable for confiscation by the District Collector. The legal objection raised by the prosecution is that the court will have no role when the matter is reported to the District Collector for confiscation proceedings.

3. Finding that seizure of property has not been reported to the court, or that presently there is no complaint by the police and that the District Collector, Thiruvananthapuram has already initiated proceedings, the learned Magistrate dismissed the application filed under Section 457 Cr.P.C., by order dated 11.08.2014. Aggrieved by the said order, the claimant has come out in revision.

4. On the preliminary legal objection raised by the other side regarding maintainability of revision, the learned counsel submitted that the impugned order passed by the trial court cannot be treated as an order under Section 451 Cr.P.C. because, there is no complainant or enquiry before the court, and that, some definite orders will have to be passed by the court for proper and legal custody of the property in view of the legal position settled by this Court in Joshy v. The State [1986 CRI.L.J. 263(1)]. In the said case, this Court held that when claim for custody of property is made in a situation where no inquiry or trial is pending before the court, the claim will have to be treated as one under Section 457 Cr.P.C., and orders passed under Section 457 Cr.P.C. in such a situation can be questioned in revision under Section 397 Cr.P.C.

5. Pending this proceeding, this Court directed the learned Public Prosecutor to ascertain and report whether the police has initiated legal action, or has filed complaint against the petitioner under the Act.

6. The learned Public Prosecutor cited a decision of the Orissa High Court in Shri Aswini Kumar Patra v. State of Orissa [2005(1)OLR 402] under a similar Act, and submitted that once property in such a factual situation is produced before the authorised officer for proper proceedings, orders cannot be passed by the court under Section 457 Cr.P.C. That was a case where the property involved was produced before the authorised officer for appropriate legal proceedings. But here, the District Collector is not the authorised officer in view of the provision contained in Section 21(4A), that any property seized under Section 21(4) shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under Sub Section (1), and shall be disposed of in accordance with the directions of such court. Here is a case where the property was seized by the police under Section 21(4) of the Act, and any order regarding property, including confiscation orders will have to be passed by the court having jurisdiction. In a case where prosecution is pending, and the offence is compounded as provided under Section 23A of the Act, orders regarding property can be passed by the competent court. Wh