P. Ubaid, J.

The petitioner's vehicle No.TN/60/5055 is involved in a crime registered under the Kerala Protection of River Banks and Regulation of Removal of Sand Act (the Sand Act). The Sub Inspector of Police, Payyanur seized the said vehicle when river sand was being transported in the said vehicle illegally. On seizure the vehicle was produced by the Sub Inspector before the Sub Divisional Magistrate, Thalassery. It is not known whether the fact of seizure was reported to the Judicial First Class Magistrate Court having jurisdiction over that area. Any way the petitioner herein made an application before the Sub Divisional Magistrate for interim custody of the vehicle. The Sub Divisional Magistrate allowed the application on conditions. One condition is that the petitioner shall deposit 30% of the value of the vehicle assessed by the committee headed by the District Collector, and the other condition is that petitioner shall furnish bank guarantee for the other 70% of the value. The said order passed by the Sub Divisional Magistrate, Thalassery on 26.12.2014, in proceedings G2-15342/2013 is under challenge herein. The petitioner challenges the said order on two grounds. One is that the Sub Divisional Magistrate has in fact no power to order interim custody, and the other is that if at all such a power is there, the condition imposed by the Sub Divisional Magistrate is really unreasonable and onerous.

2. The learned counsel for the petitioner raised a serious question that Sub Divisional Magistrate has no power under the law to order interim custody of the vehicle seized under the Sand Act, and such power can be exercised only by the Judicial First Class Magistrate having jurisdiction over the area, under Section 451 Cr.P.C. The matter is covered by Section 23A of the Sand Act. This provision will indicate that the power of the Sub Divisional Magistrate as regards the property is seized under the Sand Act is only to order confiscation under Sub Section 4. Sub Section 1 of Section 23 A provides that where any property is seized under Section 23, the officer seizing such property shall, within 48 hours of such seizure, make a report of such seizure before the Judicial Magistrate having jurisdiction and also before the Sub Divisional Magistrate having jurisdiction over the area, whether prosecution proceedings have been initiated or not. The last part of Sub Section 1 provides that if seizure is made by any officer other than a police officer the fact of seizure shall be reported to the Station House Officer of the Police Station having jurisdiction over the area, and on getting such report the police officer shall take steps under Section 102 of the Code of Criminal Procedure. Thus the provision is very clear that when the fact of seizure is reported to the Police Station under Section 23A (1) of the Sand Act, or even when such seizure is made by the police officer having powers under the law, the police officer will have to take necessary steps under Section 102 Cr.P.C. This means that the fact of seizure will have to be reported to the Judicial Magistrate having jurisdiction, and if possible the property should be produced before the Judicial Magistrate. The law no where provides that the property shall be produced before the Sub Divisional Magistrate.

3. Sub Section 2 to Section 23A of the Sand Act provides that where a report of seizure is received under Sub Section 1 by a Judicial Magistrate having jurisdiction, steps there on, not contrary to the provisions of the Sand Act, shall be taken by the Judicial Magistrate as per the provisions of the Code of Criminal Procedure. It is further provided that if there is a claim for the property for interim custody, the Judicial Magistrate can release the property to the right person on appropriate conditions, and if there is no such claim, or if the claim is not satisfactory, the property shall be subject to confiscation under Sub Section 4. Thus it is very clear power t