JUDGMENT

R. N. BISWAL, J. — This revision has been preferred against the order dated 2.3.2005 passed by the J.M.F.C., Barbil in C.M.C. No. 34 of 2005 arising out of G.R.Case No. 32 of 2005 wherein he rejected the petition filed under Section 457 Cr.P.C. by the petitioner holding that he lacked jurisdiction to release the Tipper bearing Registration No. OR-09C-9617 in his interim custo¬dy.

2. Bereft of unnecessary details the fact leading to filing of this revision is that on 22.1.2005 during night hours while the aforesaid vehicle was being used in transportation of 15 metric tons of iron ores from Karakhandra Jungle, the S.I. of Police, Barbil Police Station intercepted it. On demand when the driver failed to produce any authority for transportation of the said iron ores, the S.I. seized the same alongwith the tipper and registered P.S.Case No. 12 dated 22.1.2005 for the offence under Sections 379/411/34, IPC read with Section 12 of the Orissa Minerals (Prevention of Theft, Smuggling and Other Unlawful Activities) Act (hereinafter referred to as ‘the Act’) giving rise to the aforesaid G.R.Case.

3. During pendency of the said case, the petitioner claim¬ing himself to be the owner of the tipper filed a petition under Section 457, Cr.P.C. before the J.M.F.C. Barbil with a prayer to release it in his interim custody. The Magistrate rejected the petition since by the time of passing the impugned order, the vehicle had already been handed over to the Deputy Director of Mines, Joda (Competent Authority) for necessary action at his end and as such it was no more there at the P.S.and because of the provision of confiscation contained under Section 16 of the Act.

4. Being aggrieved with the said order, the petitioner has preferred this Criminal revision as mentioned earlier.

5. Learned counsel appearing for the petitioner submitted that the application under Section 457, Cr.P.C. was filed before the learned J.M.F.C., Barbil on 2.2.2005 when the vehicle was very much lying at Barbil P.S.premises. Instead of releasing it in interim custody of the petitioner the Magistrate directed the S.I. of Police, on 28.2.2005 to handover it to the Deputy Direc¬tor of Mines, Joda which is illegal. He further submitted that no confiscation proceeding has yet been started.

6. In this context it will be profitable to quote Sub-sections (1)(2) and (3) of Section 16 of the Act, which read as follows :

“16. Seizure of property liable to confiscation - (1) When there is reason to believe that an offence has been commit¬ted in respect of any mineral, such mineral, together with all tools, vehicles or other conveyances used in committing any such offence may be seized by an officer authorised by the Government in that behalf (hereinafter referred to as the authorised offi¬cer) or a Police Officer.

(2) Every officer seizing any property under this section shall place on such property a mark in such manner as may be prescribed, indicating that the same has been so seized and shall as may be, except where the offender agrees in writing to get the offence compounded, either produce the property seized before the competent authority or make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

(3) Where any mineral seized under Sub-section (1) produced before the competent authority under Sub-section (2) and he is satisfied that an offence has been committed in respect thereof, he may order confiscation of the mineral so seized and produced, together with tools, vehicles or other conveyances used in committing such offence.”

7. So, as per Sub-section (1) of Section 16 of the said Act if there is reason to believe that any offence has been committed in respect of any mineral an Authorised Officer or a Police Officer can seize the minerals together with the vehicle, tools etc. used for commission of the offence. As per Sub-section (2) where the offence is not compounded the officer seizing