JUDGMENT : R K. Dash, J. - The order of the learned Judicial Magistrate, First Class, Kujang, rendered in Misc. Case No. 7 of 1998 refusing the Petitioner's prayer to release the trawler seized by the police in course of investigation in G.R. Case No. 485 of 1997 in his favour has been assailed in the present revision. 2. For better appreciation of the question involved, a few facts giving rise to the present revision may be stated thus: One Bhagaban Malla availed a loan from the State Bank of India and purchased a fishing trawler. Nabaghana Mana, opposite party No. 2 herein, Balakrushna Samal and Ors. stood as guarantors. The said trawler was named as "Indumati" and was registered bearing registration No. OCM (T)163. For not repaying the loan the Bank instituted O.S. No. 142 of 1983-11 in the Court of the Subordinate Judge (now Civil Judge, Senior Division), Puri. In the said suit the guarantors who were arrayed as Defendants filed petition for appointment of receiver in respect of the said trawler which upon hearing was dismissed. On the allegation of committing theft of the said trawlers, Bhagaban Malla instituted ICC No. 49 of 1985 in the Court of the Judicial Magistrate, First Class, Kujang, against the guarantors under Sections379 and 411 read with Section 34, Indian Penal Code, 1860. During pendency of the said criminal case the learned Magistrate passed orders directing possession of the trawler to be given to the complainant. Against the said order, Criminal Revision No. 422 of 1987 was preferred in this Court. Upon hearing the parties, interim custody of the trawler was given to the said complainant. Aggrieved by the said order the guarantors approached the Hon'ble Supreme court by filing petition for Special Leave to Appeal (Criminal) No. 2571 of 1987. Their Lordships upon hearing disposed of the said SLP with the following observation: We direct that possession of the trawler shall be handed over by the Petitioners to the Court if the Subordinate Judge, Puri within three weeks from today and the trawler shall thereafter be retained in the custody of that Court. Upon such possession being given to it, the Court will arrange in auction inviting the parties to bid for the occupation and use of the trawler for one year. Upon such possession being given to it, the Court will arrange in auction inviting the parties to bid for the occupation and use of the trawler for one year. Before the expiry of that period of one year, the parties will be entitled to make fresh bids for the occupation and use of the trawler for the following year. This arrangement will continue during the pendency of the suit filed by the Bank. The amounts so deposited shall be paid to the Bank as and when realised. 3. In obedience to the above direction and the learned Subordinate Judge, Puri put the trawler to auction on 1.3.88 and the present opposite party No. 2 Nabaghana Malla being the highest bidder was given possession of the said trawler for one year. Out of the bid amount of Rs. 20,000/- he deposited Rs. ll,000/- in two instalments. As it transpires, after expiry of the period of one year, No. fresh auction was held in terms of the Supreme Court's direction. After having taken possession, opposite party No. 2 entrusted the trawler to his brother-in-law Padma Charan Samal who is the son of Balakrishna Samal, one of the guarantors. It is alleged that without his knowledge Shri Samal registered the said trawler first in the name of his father and after his death in the name of his wife Chapala Kumari Sasmal and renamed it as "Maa Mangala". When whereabouts of the said trawler was not traced out and Shri Sasmal betrayed the trust, he approached the learned Subordinate Judge, Puri and then lodged F.I.R. before the Inspector in charge, Paradeep Police Station which was registered as Paradeep P.S. Case No. 265 (28) dated 22.11.1997. In course of investigation the police seized the trawler in question from Balaramgadi fishing-base in the district of Balasore. The Petitioner claiming to be the owner of the said trawler approached the learned Magistrate by filing a petition u/s 457, Cr.P.C. to release the same in his favour. That prayer having been rejected, he has approached this Court by filing the present revision. 4. Shri K.N. Jena, learned Counsel appearing for the Petitioner strenuously contended that since the Petitioner was in lawful possession of the fishing trawler ''Laxmi Thakurani" learned Magistrate should have released the same in his favour. That prayer having been rejected, he has approached this Court by filing the present revision. 4. Shri K.N. Jena, learned Counsel appearing for the Petitioner strenuously contended that since the Petitioner was in lawful possession of the fishing trawler ''Laxmi Thakurani" learned Magistrate should have released the same in his favour. He went on the argue that the registration book and other relevant documents revealed that the Petitioner is the real owner of the trawler in question and there being No. doubt about its identity there is absolutely No. justifiable reason on the part of the learned Court below to reject the petition filed u/s 457, Code of Criminal Procedure. 5. Controverting the aforesaid submission, Shri J. Patnaik, learned Counsel appearing for opposite party No. 2, would contend that the seizure list available on record would indicate that the fishing trawler in question bore the registration No. OCM (T) 163 which was partly erased and overwritten as OCM (T) 1765 and named as IILaxmi Thakurani". According to Shri Patnaik, Padma Charan Sasmal, nephew of the present Petitioner, having taken possession of the trawler got it registered as OCM (T) 163 and named it as "Maa Mangala", although its original name was "Indumati". So it was Shri Sasmal who in order to retain possession of the said trawler took the Petitioner to his confidence and managed to erase the registration number and the name to create a doubt in the mind of the Court about its identity so that it may not be possible to say that it was the very same trawler which was entrusted to him by opposite party No. 2, the receiver. Taking all these aspects into consideration coupled with the report of the Assistant Director of Fisheries (Marine), Kujang, that the fishing trawler in question was "Indumati" which was subsequently named as "Maa Mangala", the learned Magistrate has rightly held that the Petitioner is not entitled to possession thereof. 6. Section 457, Code of Criminal Procedure envisages that the Magistrate can release the property seized by the police to the person entitled to the possession thereof. The word "possession" occurring in the said section means lawful possession and not unlawful. 6. Section 457, Code of Criminal Procedure envisages that the Magistrate can release the property seized by the police to the person entitled to the possession thereof. The word "possession" occurring in the said section means lawful possession and not unlawful. The expression "entitled to the possession" means that the property should be made over to the person who was in lawful possession and not merely who was in possession, for a man may be in possession but not entitled to it. So lawful possession is sine qua non for determining the question of release of the seized property. Mere ownership is not sufficient enough to say that the owner is entitled to possession of the property though it has some relevance and the same will be considered along with other factors In certain situations one may not be the owner of the property, but if he was in lawful possession when it was seized, then he is entitled to possession thereof. Take for example, owner of a vehicle parted with its possession to a person by a written agreement and under certain conditions and that person violated the terms and conditions of the agreement, resulting in initiation of a criminal proceeding by the owner during investigation of which the vehicle was seized. In such a situation though the person from whom the vehicle was seized is not the owner, but since he was in lawful possession, he is entitled to its custody and owner's right is only to seek remedy against him under civil law. This being the legal position, one who asks the Court to make over possession of the property to him, burden lies upon him to prove that he was in lawful or rightful possession and as such, is entitled to the same. Santosh Kumar Dash Vs. The State of Orissa and Another. This being the settled position of law it is for the Petitioner in the present case to establish that he was in lawful possession of the trawler in question when it was seized. Santosh Kumar Dash Vs. The State of Orissa and Another. This being the settled position of law it is for the Petitioner in the present case to establish that he was in lawful possession of the trawler in question when it was seized. From the narration effects and submissions made by the learned Counsel for respective parties it appears that there is serious dispute about identity of the trawler, inasmuch as whether it is the very same trawler which was initially named as 'Indumati' and subsequently 'Maa Mangala', the ownership of which belongs to opposite party No. 2, or it is the trawler by name 'Laxmi Thakurani' belonging to the Petitioner. The description of the trawler given in the seizure list as indicated above coupled with the letter of the A.D.F., Kujang, as borne out from the impugned order speak volume against the claim of the Petitioner. From the above what prima facie appears is that the trawler in question belongs to opposite party No. 2 which he purchased on availing loan from the Bank and named it as 'Indumati' and subsequently Padmacharan Sasmal renamed it as 'Maa Mangala'. So the claim of the Petitioner that it is his trawler which he registered in his name and named it as 'Laxmi Thakurani' is not established from the available materials on record. This observation of mine is for the limited purpose of deciding entitlement of possession of the trawler in question and therefore, uninfluenced by such observation, the trial Court will decide the case and pass necessary orders regarding disposal of the trawler in accordance with law at the conclusion of the trial. 7. While rejecting the Petitioner's prayer, learned Magistrate directed to put the seized trawler "in auction between Petitioner and the opposite party No. 2 and to deposit the bid amount every month till conclusion of the trail. As indicated earlier the trawler was put to auction pursuant to the direction of the Hon'ble Supreme Court and opposite party No. 2 being the only bidder took possession of the same and deposited a sum of Rs. ll,000/- in two instalments out of the total bid amount of Rs. 20,000/-. The period of auction though was for one year, but he continued to retain possession since No. further auction was held. ll,000/- in two instalments out of the total bid amount of Rs. 20,000/-. The period of auction though was for one year, but he continued to retain possession since No. further auction was held. This being the conduct of one of the parties, if highest bidder is directed to deposit the auction money on monthly basis, then it may so happen that after taking possession he may discontinue the deposit after a month or so. I, therefore, feel that it would be just and proper to put the trawler in auction on yearly basis fixing the upset price at Rs. 30,000/- with further condition that the highest bidder shall deposit the bid amount at a time, whereupon possession of the trawler will be delivered. The bid amount so deposited be paid to the State Bank of India, Plaintiff in T.M.S. No. 142 of 1983 of the Court of the Subordinate Judge, Puri. 8. With the above modification of the impugned order, the revision is dismissed. Final Result : Dismissed