ASHOK MENON, J.

1. The State is in appeal aggrieved by the judgment of the learned Single Judge in WP(C) No.7884/2012 modifying the confiscation order of a jeep involved in an abkari offence by substituting the confiscation with imposition of a fine of Rs.10,000/-.

2. The facts in brief are thus:-

The writ petitioner is the owner-cum-driver of a jeep which was intercepted by the Circle Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad and his men on 20.3.2010 and found to be transporting 10 litres of Indian Made Foreign Liquor without any valid documents. Crime No.14/2010 was registered for offences punishable under Sections 55(a), 55(i), 33(2) read with Section 63 of the Abkari Act 1077 (Kerala) ('the Act' for brevity). The Deputy Excise Commissioner, after hearing the petitioner, ordered confiscation of the jeep under the provisions of Section 67B2 of the Act vide Ext.P2 order. The petitioner challenged the order before the second respondent-Additional Excise Commissioner vide Ext.P3, in vain, and the confiscation was confirmed vide Ext.P4 order.

3. Aggrieved by the confiscation orders at Exts.P2 and P4, the petitioner approached this Court. The explanation offered by the petitioner was that as owner-cum-driver of the jeep, he had undertaken to transport some household articles and personal effects belonging to one Mr. Sabu and that he had no knowledge about the contents of the articles loaded in the jeep. The contention of the learned Government Pleader appearing for the State was that the petitioner, as owner-cum-driver and the person in charge of the vehicle, failed to discharge the burden cast on him under Section 67C of the Act. After hearing both sides and on perusal of records, it was found by the learned Single Judge that the petitioner being the owner-cum- .driver of the jeep, which is used for eking his livelihood, was to be offered some leniency and the confiscation of the vehicle which is the only means of his livelihood is disproportionate to the alleged offence committed. It is also noticed by the learned Single Judge that the learned Additional Sessions Judge had vide Ext.P5 judgment acquitted the accused. The confiscation order at Exts.P2 and P4 was modified substituting the confiscation to imposition of fine of Rs.10,000/- and the respondents were ordered to release the Bank Guarantee on payment of the aforesaid fine.

4. State is aggrieved by this judgment of the learned Single Judge and the learned Senior Government Pleader submits that the petitioner himself being the owner-cum-driver of the vehicle was under obligation to prove that the offence was committed without his knowledge or connivance and that he had taken all reasonable and necessary precaution against such use. The learned Senior Government Pleader relies on the decision in 2008 (2) KHC 952 : 2008 (2) KLJ 692 : 2008 (3) KLT 78 [Shaiju v. Assistant Excise Commissioner and another], in support of his argument and also distinguishes the decision of this Court in 2015 (1) KLT 218 [Ravichandran v. Excise Inspector] and prays that the impugned judgment be set aside and the order of confiscation of the vehicle be restored.

5. The learned counsel for the writ petitioner submits that the petitioner was not given an opportunity to cross examine the witnesses in the proceedings before the Deputy Excise Commissioner and therefore the confiscation is improper. The learned counsel relies on the decision in 2001 (1) KLT 840 [Lal v. Assistant Excise Commissioner] in support of her argument. The learned counsel also submits that the petitioner’s vehicle was hired by one Sabu for the purpose of transporting his personal effects and household articles and there is absolutely no material to show that the petitioner has knowledge concerning transportation of illicit liquor among those articles and that confiscation cannot be justified. In support of this argument, the learned counsel relies on the decision of this Court in 2015(4) KHC 253