The burden of proof is on the owner to disprove mens rea, and the state of mind of the offender is immaterial in the context of welfare legislation. The owner is presumed guilty until he proves innocence.

1. The question which arises in this referred Original Petition is as regards the validity of an order of confiscation made under S.67B of the Abkari Act. 1077 (the 'Act') A lorry (No. MED 4734) belonging to the petitioner was confiscated by Ext P3 order of the Assistant Excise Commissioner, Trichur, dated 27-10-1979 This order was confirmed in appeal by Ext. P5 order of the Joint Commissioner of Excise, Trivandrum, dated 12-12-1979 and in revision by Ext. P7 order of the Board of Revenue dated 26-2-1980. Exts. P3, P5 and P7 are challenged by the petitioner.

2. The petitioner's vehicle was proceeding on the Palghat-Trichur road on 7-8-1979. It was stopped and checked by the Excise Inspector at about 2 p. m. at Erumpupalam. The documents produced by the driver in charge of the vehicle showed that the vehicle was expected to carry 140 bags of potatoes. However, instead of the potatoes, the officer found 30 iron drums, each having a capacity of 230 litres, concealed underneath certain articles. The drums were seized It was found that they contained 6000 litres of rectified spirit and that they were carried without a permit The petitioner was not personally present in the lorry, but his brother was at the wheel. In addition to his brother, there were three other passengers in the lorry among whom was S. A Sulthan, s/o Syed Abdul Rahiman, of Bangalore. The offence alleged against the passengers were compounded at Rs. 1000/-each in terms of S.67 of the Act.

3. The petitioner challenges the order of confiscation contending that he was not in control of the vehicle at the relevant time and that he had taken sufficient care and precaution before the vehicle left Bangalore to see that no contraband articles were loaded. According to the petitioner's counsel, a vehicle is not liable to be confiscated unless the prosecution has proved mens rea on the part of the owner. In support of this contention, Counsel seeks to rely upon certain observations of Vadakkel J. in Vijayan v. Asst. Excise Commissioner, Cannanore (1980 KLT. 45) and Sasidharan v. State of Kerala (1980 KLT 671). It has to be noticed that the learned Judge did not say that the prosecution has the burden to prove mens rea. In fact it was pointed out by the learned Judge that the burden was upon the owner of the vehicle to disprove mens rea. Vadakkel J , however, stated that mens rea was a relevant ingredient to constitute the offence which attracts the power to confiscate under the Act. The two decisions were confirmed in appeal. Speaking for the Division Bench Eradi C. J (as he then was) referred to the argument of the Advocate General that in the matters arising under S.67B it was not correct to say that proof of mens rea on the part of the owner/agent/person in charge of the conveyance was a pre-requisite for attracting liability to confiscation, and stated:

"There is force in the above contention advanced by the learned Advocate General." (1981 KLT. 366).

No view was, however, expressed by the Division Bench as to the relevance of mens rea to constitute an offence under the Act. The Division Bench dismissed the appeals principally for the reason that, in regard to public passenger vehicles like stage carriages and vans authorised to operate scheduled services on the concerned routes on the strength of permits issued by the Road Transport Authorities, the mere fact that a passenger had without the knowledge and connivance of the owner or agent concealed on his person or in his luggage a contraband article would not necessarily mean that the vehicle was used for carrying such contraband article and the exercise of power of confiscation in such circumstances, without more, would not be justified The offending passenger, in such circumstances, cannot he said to have had the minimal control over the operation of the vehicle so as to treat the vehicle itself as having been used in the commission of the offence. The Court then painted out:

"In our opinion, a conveyance can