JUDGMENT B.B. Misra, J. - This is an application for revision of an order of the Sessions Judge, Azamgarh, confirming the order of a Magistrate, First Class, confiscating the car of the applicant under Section 72(e) of the U.P. Excise Act, and also giving the applicant an option to get the car released on payment Rs. 5,000/-. 2. The applicant is the owner of car No. USQ 8110, which is registered in her name as a private car. Her driver Mewa Lal took it to Azamgarh. When he was bringing back the car from Azamgarh, one Onkar Nath Pandey was sitting on the back seat of the car. At about 4 a.m. on August 3, 1966 the Excise Inspector Sri M. M. Siddiqi stopped it at the railway level crossing at Belaisa, about two miles from the city of Varanasi. On a search being taken, five bags of illicit Ganja were recovered, one on the front seat and two each on the back seat and in the luggage boot of the car. Each bag contained 20 kg. of Ganja. The applicant, the driver, and the occupier of the car were all prosecuted under Section 60(a) of the U.P. Excise Act. The Magistrate convicted the driver Mewa Lal and the occupier Onkar Nath Pandey under Section 60(a) of the Excise Act, but acquitted the applicant of that charge. He, however, ordered the confiscation of the car belonging the applicant under Section 72(e) of the U.P. Excise Act. He further ordered that the applicant was given an option to get the car released on payment of Rs. 5,000/ The learned Sessions Judge maintained the order passed by the Magistrate. 3. It is against the order under Section 72(e) of the U.P. Excise Act that the applicant has come up in revision to this Court. 4. Section 72 (1) (e) of the U.P. Excise Act reads as follows: "Whenever any offence punishable under this Act has been committed (a) .... (b) .... (c) .... (d) .... . (e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package, shall be liable to confiscation." 5. The expression `liable to confiscation' itself means that courts have been given discretion in the matter. Those words cannot be taken to mean that the conveyance must be confiscated in every case. (b) .... (c) .... (d) .... . (e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package, shall be liable to confiscation." 5. The expression `liable to confiscation' itself means that courts have been given discretion in the matter. Those words cannot be taken to mean that the conveyance must be confiscated in every case. Therefore, it will have to be seen if the discretion exercised by the courts below was proper. While acquitting the applicant of the charge under Section 60 (a) of the U.P. Excise Act the Magistrate had held that the evidence was insufficient to prove affirmatively that she was a privy to the transporting of the Ganja in her car. It has now to be seen as to how far the prosecution has led evidence to prove that she knew that her car would be used for transporting Ganja. Or, there are circumstances which go to show that she had such knowledge. There is no evidence whatsoever to establish that the applicant knew that her car would be used for transporting Ganja. The courts below have used one main circumstance to impute knowledge to the applicant about her car being taken for transporting Ganja. That circumstance was that no action was being taken by her after the car had been taken away by her driver and did not return till several days later. It is settled law that no circumstance can be used against an accused person unless he has been given an opportunity to explain it when he is examined under Section 342 Cr. P. C. From an examination of the statement of the applicant under Section 342 Cr. P.C. I find that the Magistrate did not put any question regarding that circumstance to the applicant. That being so, it would not be proper to use that circumstance against her. It would thus appear that it cannot be held that the applicant knew that her car would be used for transporting Ganja. Consequently, in my opinion, the applicant's car could not be liable to confiscation for want of knowledge on her part that it would be used for transporting illicit material. 6. However, the learned Sessions Judge placed reliance on a single Judge decision of this Court given by brother M. H. Beg, J. in Cr. Rev. No. 1077 of 1964, decided on August 10, 1964. 6. However, the learned Sessions Judge placed reliance on a single Judge decision of this Court given by brother M. H. Beg, J. in Cr. Rev. No. 1077 of 1964, decided on August 10, 1964. The learned Sessions Judge held that the principle deducible from that decision was that even if the owner of the conveyance was not proved to be a party to the transport of the contraband in, the vehicle, it may be confiscated. I do not think the above decision has gone to that length. The aforesaid decision does not say that the knowledge of the owner of the vehicle was not necessary. On the contrary, it said that the vehicle should be confiscated if there are strong reasons to believe that the contraband was being transported in the knowledge of the owner. In other words, according to that decision also, knowledge of the owner was necessary. Knowledge could be proved either by direct evidence or could be inferred from surrounding circumstances. In the present case it has been seen above that there is no direct evidence on the point. And the circumstance which the courts below have taken against the applicant cannot be so used because of the non-compliance of Section 342 Cr.P.C. 7. I am fortified in the view that I have taken by a decision of the Madras High Court reported in 44 Cr.L.J. 136, in re: G. N. Chakrapany Chettiar, wherein it has been held: - "......A conveyance ought not to be confiscated unless the owner knew or had reason to believe that his vehicle was likely to be used for such a purpose. That seems to be a very fair test for the Magistrate to apply when he has to consider whether or not he should order the confiscation of the vehicle." 8. For the reasons given above, the revision application is allowed.The order of confiscation of car No. USQ 8110 with the option that it shall be released on payment of Rs. 5,000/- is vacated.