JUDGMENT G. N. PRASAD, J. These two applications have been heard together since they arise out of the same trial. Baliram Singh, the petitioner in Criminal Revision no. 1347, has been convicted under section 47 (a) of the Bihar and Orissa Excise Act and sentenced to undergo rigorous imprisonment for three months. A similar conviction has been recorded against Ramagya Pandey. the petitioner in Criminal Revision No. 1485, who has been sentenced to pay a fine of Rs. 300/- or, in default, to undergo simple imprisonment for three months There is also an order for confiscation of the vehicle, namely, a motor car bearing registered number UPL 2553 under section 66 of the Act. 2. Shortly stated, the prosecution case is that Triloki Rat Shrivastava, an Assistant Sub Inspector of Chapra Mofassil police station, camping at Sarha, noticed in the early hours of the 5th April, 1965 that a motor vehicle was coming from Khaira side at a high speed and proceeding towards Chapra town. This aroused his suspicion and he got the railway level crossing closed. The car came and stopped, and by the time the Assistant Sub-Inspector reached the car, the occupants, including the driver, numbering in all three, left the vehicle and fled away. No trace of any of the three occupants of the car could be had. But the car was searched in presence of witnesses and a huge quantity of contraband Nepali Ganja was seized from the vehicle. The quantity seized was found to weigh 3 quintals 12 kilograms and 300 grams. After investigation, both the petitioners were put on trial, upon the footing that petitioner Baliram Singh was the driver of the offending car and petitioner Ramagya Pandey was the owner thereof. 3. Both the petitioners pleaded not guilty and set up a defence of innocence. Petitioner Baliram Singh disputed the prosecution case that he was the driver of the vehicle or that he was a driver in employment of petitioner Ramagya Pandey. Petitioner Ramagya Pandey took substantially two defences; (i) that the vehicle belonged to his grand-son, and (ii) that the driver, namely. petitioner Baliram Singh, had taken the car to Chapra with his permission for purposes of repairs, but he did not return, and on the following morning it was learnt that the vehicle had been seized by the Police. 4. Petitioner Ramagya Pandey took substantially two defences; (i) that the vehicle belonged to his grand-son, and (ii) that the driver, namely. petitioner Baliram Singh, had taken the car to Chapra with his permission for purposes of repairs, but he did not return, and on the following morning it was learnt that the vehicle had been seized by the Police. 4. Both the petitioners having been convicted as aforesaid, have moved this Court separately. 5. So far as petitioner Baliram Singh is concerned, it is manifest that there is no legal evidence to the effect that he was the driver of the offending vehicle. Not a single prosecution witness has deposed to this effect. The courts below have convicted petitioner Baliram Singh on the basis of the statements of two defence witnesses whom petitioner Ramagya Pandey had examined in order to substantiate his defence that he had permitted the driver who, according to him also, was petitioner Baliram Singh to take the car to Chapra for the purposes of repairs. But it is manifest that neither the statement of a co-accused nor the statements of witnesses examined by the co-accused in support of his own defence can be a substitute for a total lack of evidence on the side of the prosecution about the fact that it was petitioner Baliram Singh who was driving the vehicle in question on the relevant morning. It is possible, as the trial court seems to think, that petitioner Baliram Singh held a driving license. But from the mere circumstance that he held a driving license, it would not be reasonable to jump to the conclusion that whatever the other petitioner Ramagya Pandey or his defence witnesses had said was true. As a matter of fact, in paragraph 28 of its judgment, the lower appellate court has made various comments against the veracity of the two defence witnesses examined by petitioner Ramagya Pandey, who have sought to implicate petitioner BaIiram Singh as the driver of the offending vehicle. Therefore, the conviction that has been recorded against petitioner Baliram Singh is not fit to be sustained at all. 6. Coming to the case of petitioner Ramagya Pandey, I find that there is no evidence at all to justify his conviction under section 47 (a) of the Bihar and Orissa Excise Act. Therefore, the conviction that has been recorded against petitioner Baliram Singh is not fit to be sustained at all. 6. Coming to the case of petitioner Ramagya Pandey, I find that there is no evidence at all to justify his conviction under section 47 (a) of the Bihar and Orissa Excise Act. Nobody has suggested that he was in the offending car or that he was in possession of the excisable articles in question. On this ground alone, his conviction under section 47 (a) must be set aside. 7. The only other question for consideration is whether the order of confiscation of the vehicle made under section 66 of the Act, is fit to be sustained. Upon the materials on the record, I have no manner of doubt that petitioner Ramagya Pandey was the owner of the car. Apart from the fact that the recorded owner of the car was his own minor grand-son, there is ample material on record to show that it was Ramagya Pandey who had moved and got the car released after its seizure by the police. But in order to justify an order of confiscation under Section 66 of the Act, it is essential that the owner thereof is proved to have been implicated in the commission of the offence. This is clear from the proviso appended to the section. In the instant case, there is nothing to justify the conclusion that the owner of the car has been proved to have been implicated in the commission of the offence. Therefore, the order of confiscation of the vehicle cannot be supported in law. 8. Both these applications are, accordingly, allowed. The conviction and the sentences of the petitioners are set aside and the order of confiscation of the vehicle is quashed. Application allowed.