Judgment :- 1. The petitioner is the owner of a 1976 Model Bajaj Tempo Diesel Driven Van, KLC-7977, costing (according to him) about Rs. 66,000/-. On the ground that it was used for carrying 2250 m. litres of illicit arrack, the 4th respondent as per his Ext. P2 order of 121977 confiscated it under S.67B (2) of the Abkari Act, 1077. The 3rd respondent as per Ext P3 order dismissed the appeal against Ext. P2 order. The 2nd respondent, likewise, as per Ext P4 order dismissed the revision against the confiscation. The confiscation of the van as aforesaid is challenged here. 2. The van used to carry passengers on hire from Payyannur Railway Station to Payyannur town. On 30 81976, the Excise Inspector, Payyannur and party stopped it in front of the Central U.P. School, Payyannur and inspected it. At that time besides its driver there was also a passenger by name Kunhikannan in it While it is the case of the respondents that the Excise Inspector on inspection found the illicit arrack in sealed bottles kept covered in a bed sheet in the tool box of the van. the petitioner with reference to the recorded statements of the passenger and the driver, and also the passenger application for permission to compound the offence for Rs 300/-contends that the same was seized from the passenger. On 3 91976 Kunhikannan submitted an application praying for clemency and his statement was recorded then. In this application and this statement he said that the seized arrack was with him and that neither the petitioner nor the driver had any information or knowledge about it. The driver, in his statement, also recorded on '3-9-1976, denied any knowledge about the arrack in the van On 28-10-1976 Kunhikannan sought for sanction to compound the offence for Rs. 300/- and the 4th respondent accepting the recommendation of the Excise Inspector in that behalf by order dated 8-11-1976 accorded sanction for the same 3. The driver, in his statement, also recorded on '3-9-1976, denied any knowledge about the arrack in the van On 28-10-1976 Kunhikannan sought for sanction to compound the offence for Rs. 300/- and the 4th respondent accepting the recommendation of the Excise Inspector in that behalf by order dated 8-11-1976 accorded sanction for the same 3. S.67B(2) and 67C(i) of the Act reads: "67B(2) Where an authorised officer seizes and detains any property specified in sub-section (i) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof." "67C(i) No order confiscating any property shall be made under S.67B unless the person from whom the same is seized (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) is given a reasonable opportunity of being heard in the matter." 4. In order that he may order confiscation of any property specified is S.67B(1) - on I y a property so specified is liable to confiscation by an abkari officer the authorised officer has to be satisfied of two matters: (i) that an offence under the Act has been committed in respect of or by means of that property; and (ii) such property, that is, the property in respect of or by means of which an offence under the Act has been committed, is liable to confiscation under the Act. In other words, from being satisfied of the first requirement, it does not follow that he can order confiscation, without being further satisfied, that on the facts and in the circumstances of the case, the property in question is liable to confiscation Mark, S 67B (2) is only permissive and not obligatory. In other words, from being satisfied of the first requirement, it does not follow that he can order confiscation, without being further satisfied, that on the facts and in the circumstances of the case, the property in question is liable to confiscation Mark, S 67B (2) is only permissive and not obligatory. Relying on State of M. P v. Azad Bharat Finance Co (AIR. 1967 SC. 276) and Commercial Credit Corporation (P) Ltd. v. Union of India (1975 KLT SN 33) I have held so. in Vijayan v. Asst. Excise Commr. (1980 KLT. 45). The very fact that the drastic action of ordering confiscation is to depend upon the satisfaction of the authorised officer in that behalf would go to show that the provision is only an enabling one and not a mandatory one. 5. In considering the question of confiscation of a property under S.67B(2) of the Act, one of the factors to be taken into account by the authorised officer is as to whether the same would operate harshly, in the sense, that such an action is grossly disproportionate to the abkari offence which was committed in respect of or by means of that property. In this connection the decision of the Supreme Court in Sat Pal v. State of Haryana ( (1979) 3 SCC. 322) can usefully be noticed. The provision considered therein is S.7(i)(b) of the Essential Commodities Act, 1955. That section is as follows: "Any property in respect of which the order has been contravened or such part thereof as to the Court may seem fit including any packages, coverings or receptacles, in which the property is found and any animal, vehicle, vessel or other, conveyance used in carrying the property, shall be forfeited to the Government: Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property or any packages, coverings or receptacles or any animal, vehicle, vessel or other conveyance it may for reasons to be recorded, refrain from doing so." The Supreme Court said as follows: "A perusal of the section and also of the proviso clearly shows that the Court has undoubtedly a discretion in suitable cases for reasons to be recorded for not imposing the penalty of confiscation. In the instant case there are special circumstances which clearly attract the application of the proviso and the order of confiscation ought not to have been passed by the Magistrate. To begin with, the appellant was not a party to the proceedings as he was not given an opportunity to show cause to the Court the circumstances under which the order of confiscation could be passed. Secondly, the truck of the appellant was a very valuable property and to order its confiscation merely because an attempt was made to export cattle fodder through it, would indeed be a very harsh order so as to work serious injustice to the appellant. Thirdly, there is no evidence to indicate that the truck which was used to carry the fodder was hired with the knowledge or concurrence of the appellant. Having regard to these special circumstances we are clearly of the opinion that this was a fit case in which the Court ought to have exercised its discretion under the proviso in not imposing the penalty of confiscation." 6. No doubt, the provision considered by the Supreme Court has a proviso thereto which is to the effect that the" court may, for reasons to be recorded, refrain from doing so (from confiscating), but this is of no consequence, in so far as, even in the absence of such a proviso, S.67B (2) is not obligatory but only permissive or enabling wherefore, the authorised officer is given a discretion to exercise his power or not. It is also immaterial that the provision in the Essential Commodities Act, 1955 considered by the Supreme Court, concerned the judicial power of the court to order confiscation, for the exercise of the power to confiscate any property, be it that such power is conferred on court to be exercised in proceedings that come before it, or be it that it is conferred on executive authorities, is a drastic action depriving the citizen of his property (and in cases like the one on hand and going by the pleadings of the petitioner, depriving him of his means of livelihood) to be resorted to only after a good deal of deliberation and on a judicious exercise of discretion that is vested in the conferee of the power. 7. 7. Considering the scope of the expression 'If the Secretary of State is satisfied in S.68 of the Education Act, 1944, in Education, Sec. v. Tameside B. C. (1977 A C. 1014) (CA) Lord Denning saidi "Much depends on the matter about which the Secretary of State has to be satisfied. If he is to be satisfied on a matter of opinion, that is one thing. But if he has to be satisfied that someone has been guilty of some discreditable or unworthy or unreasonable conduct, that is another. To my mind, if a statute gives a minister power to take drastic action if he is "satisfied" that a local authority has acted or is proposing to act improperly or unreasonably, then the minister should obey all the elementary rules of fairness before he finds that the local authority is guilty or before be takes drastic action overruling them. He should give the party affected notice of the charge of impropriety or unreasonableness and a. fair opportunity of dealing with it. I am glad to see that the Secretary of State did so in this case. He had before him the written proposals of the new council and he met their leaders. In addition, however, the minister must direct himself properly in law. He must call his own attention to the matters be is bound to consider. He must exclude from his consideration matters which are irrelevant to that which; he has to consider and the decision to which he comes must be one which is reasonable in this sense: that it is, or can be, supported with good reasons or at any rate is a decision which a reasonable person might reasonably reach. (at p. 1025) Lord Wilberforce in the appellate decision of the House of Lords in the same case said: "The section is framed in a "subjective" form if the Secretary of State "is satisfied". This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgement. But I do not think that they go further than that. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgement. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v. ASLEF (No. 2) (1972) 2 Q B. 455, per Lord Denning M. R., at p. 493," (ibid at p. 1047). The design of the Act in relation to confiscation of any property by the authorised officer, as revealed by S.67B(2) and 67C(1), is such that it enshrines the wholesome principles stated by Lord Denning in the above mentioned case and accepted by the House of Lords 8. Relying on S.67C(2) of the Act, the learned Government Pleader, argued that in this case the onus of proof was upon the petitioner who is the owner of the conveyance which was sought to be (and was) confiscated to 'prove to the satisfaction of the authorised officer that it was used in carrying' the offending article 'without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of it and that each of them had taken all reasonable and necessary precautions against such use'. I had occasion to point out in Vijayan v. Asst. Excise Commr. I had occasion to point out in Vijayan v. Asst. Excise Commr. (1980 KLT 45) that the Act makes a departure from the strict-liability-theory stated by Lord Hewart C. J. in De Keyser v. British Railway Traffic and Electric Co (1936 (1) K. B. 224) by enabling the owner of a conveyance, and only him, to prevent its confiscation by proving to the satisfaction of the authorised officer that the conveyance was used without his knowledge and connivance, and also without the knowledge and connivance of his agent and the person in charge of it, and' further that each of them had taken all reasonable and necessary precautions against such use and thus requiring an element of guilty mind in any one of them the owner, his agent, or the person in charge of it, to constitute the conveyance an offending article liable to confiscation, but casting the burden of proof of absence thereof on the owner. I do not think that this provision which enables an owner of a conveyance to prevent its confiscation on the ground that though by means of it and its user an abkari offence has been committed, it was so used without the knowledge and connivance of the owner, his agent and the person in charge of it and despite all reasonable and necessary precautions taken by each of them against such use, would dispense with the obligation cast upon the authorised officer to be satisfied of the existence of the facts that constitute an abkari offence and also of the facts and circumstances that would make the conveyance liable to confiscation. Such satisfaction as regards the commission of an offence by use of the conveyance in question, and on being satisfied of the commission of an abkari offence as aforesaid further, as regards its liability to be confiscated on the part of the authorised officer taking into account the relevant facts and upon a proper self-direction as to those facts is a condition precedent for him for invoking' his power to confiscate any property be it a conveyance or not. 9. 9. In short, where exercise of a power is dependent upon the satisfaction of certain requirements on the part of the conferee of such power, and such satisfaction is to be arrived at by him not simply as a matter of his opinion because such exercise of power would adversely affect the rights of a citizen, then, he shall subject the facts and circumstances obtained in each case to an objective test, the standard and measure of such test being that of a reasonable person acting reasonably, and decide to act or not. He Shafi in that process omit to take into account all irrelevant,. considerations and shall not exclude from such consideration any material fact It is for him to evaluate the facts and circumstances and draw reasonable inferences therefrom, and such evaluation cannot be interfered with by this Court unless it is perverse. But it is essential that he shall apply his mind and satisfy himself for good reasons that a given case is one where he shall act in exercise of his power. The question for consideration is as to whether the 4th respondent has so satisfied himself or has failed to do so. 10. After setting out the sequence of events and giving a brief history of the case, 4th respondent in Ext. P2 order discussed the matter as follows: "In response to the show cause notice they appeared on 24-1-1977. But the case was posted for hearing on 25-1-77. No explanation was received from the party in writing. On 25-1-1977 the Asst. Excise Commissioner has recorded their statement. The owner of the vehicle Sri. M.V. Sasidharan in his statement says that arrack seized was not from the tool box but from a passenger. He did not deny that the arrack seized was from the vehicle and he partially admitted the offence. In the statement recorded from the Driver Sri. K J. Janardhanan, he says that the arrack seized was from a passenger and he also partially admits the offence. The records show that the tempo Van was carrying 2250 m. litres of illicit arrack and it was kept concealed in the tool box of the van and two accused were arrested. The Tempo Van K. L. C. 7977 which was carrying the illicit arrack has thus become liable to confiscation under S.65 of the Abkari Act." And, so he confiscated the van. 11. The Tempo Van K. L. C. 7977 which was carrying the illicit arrack has thus become liable to confiscation under S.65 of the Abkari Act." And, so he confiscated the van. 11. The 4th respondent has not considered the case set up by the petitioner that the illicit arrack was not seized from the tool box. The files reveal that the passenger, the driver and the petitioner right through maintained that the contraband article was seized from the person of the passenger. Kunhikannan submitted an application before the Excise Inspector on 3-9-1976 confessing his guilt and praying for clemency. Therein he said that on alighting at the Payyanur Railway Station from an Express train coming from Mangalore he got into the van to go to Payyannur town, that he had with him three bottles of Mysore arrack which was seized by the Excise Inspector and that neither the driver nor the owner of the van had any information about the same. His statement recorded on 3-9-1916 by the Excise Inspector is also on the same lines. On 3-9-1976 he also filed Ext. P1 application before the 4th respondent. Therein he stated that he entered the van with three bottles of arrack concealed in a bag On 28-10-1976 he gave a statement before the Excise Inspector, stating that he is the offender and that he is prepared to compound the offence for Rs. 300/-. The Excise Inspector recommended compounding of the case as against him for Rs. 300/-and the 4th respondent by order dated 8-11-1976 accorded sanction for such compounding. Thus the case against the passenger ended 12. The records' on which reliance has been placed by the 4th respondent seem to be the mahazar prepared by the Excise Inspector at the time of search and seizure. The Proviso to S 36 of the Act requires that the persons called upon to attend and witness a search shall include at least two persons neither of whom is an Abkari Officer, Police or Village Officer. I should presume, and it is submitted so by the learned Government Pleader, that the mahazar has been attested by such independent witnesses. The Proviso to S 36 of the Act requires that the persons called upon to attend and witness a search shall include at least two persons neither of whom is an Abkari Officer, Police or Village Officer. I should presume, and it is submitted so by the learned Government Pleader, that the mahazar has been attested by such independent witnesses. However, it does not appear, and there was no such case on behalf of the respondents, that the 4th respondent made any inquiries with these independent witnesses as regards the search It should here be noticed that the answer to the question as to whether the illicit arrack was kept concealed in the tool box of the van or it was with the passenger is a material and relevant fact in so far as different considerations would arise if it was with the passenger. See Vijayan v. Asst. Excise Commr. (1980 KLT. 45). After all the provision as regards the presence of two independent witnesses at the time of search as aforesaid is not an idle one with no object. The same is a salutory provision intended to protect citizen from being victimised and harassed by by foisted cases In my view an inquiry as regards the above said disputed question of fact with the independent attesting witnesses was necessary in the case on hand. 13. It is also to be noticed that the enquiry envisaged by S.67C(1) of the Act is also not a mere formality.Under the provision, the show-cause notice shall mention the grounds on which the property is proposed to be confiscated, and the person to whom it is issued is to be afforded an opportunity to submit a written representation, and further, a reasonable opportunity of being heard. I do not think that merely by putting certain questions to the person who in response to the show cause notice, appears at the time of hearing and eliciting from him answers thereto which will obviously be what have been already stated in the written representation submitted by him earlier and in denial of the grounds mentioned in the show cause notice, the authorised officer complies with the requirement of affording him a reasonable opportunity to be heard. Unless he is informed of the materials on which the grounds are rested and is afforded an opportunity to controvert these materials it cannot be said that a reasonable opportunity of being heard in the matter has been given to him. "A tribunal of this kind (Statutory Tribunal) is master of its own procedure, provided that the rules of natural justice are applied. Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it." T. A. Miller, Ltd. v. Min. of Housing (1968 (2) AER. 633) Except on being informed of as to who all are the attesting witnesses and what they said on being interrogated by the authorised officer, the person who appears for hearing pursuant to a show cause notice issued under S.67C(1)(a) to him, would not be in a position to comment on their evidence or to contradict it. In such cases he is not afforded reasonable opportunity of being heard in in the matter. The case on hand is one such case. 14. In view of what is stated above it has to be held that Ext. P2 order of confiscation cannot be sustained and has to be set aside I do so. 15. S.67E of the Act provides for an appeal against an order passed by the authorised officer under S.67B(2). That provision enables the appellate authority to make such further enquiry as may be necessary. Though Ext. P2 order was defective in that the authorised officer has not taken into account material facts and he did not afford reasonable opportunity to the petitioner to be heard in the matter, that authority upheld the same without any further enquiry and solely on the ground that 'the recovery was effected from the tool box where it could not have gone without the knowledge of the driver' and that'no evidence has been let in to challenge or disprove this recovery'. This order. Ext. P3, also cannot be sustained and all that is said about Ext. P2 order hereinbefore is applicable to that order. I therefore set aside that order too. 16. The revisional order, Ext. P4, is not in any way better. This order. Ext. P3, also cannot be sustained and all that is said about Ext. P2 order hereinbefore is applicable to that order. I therefore set aside that order too. 16. The revisional order, Ext. P4, is not in any way better. The revision has been dismissed without advertence to any of the material points and only on the ground that no new material was adduced in evidence by the petitioner nor any new argument advanced on his behalf. I set aside that order as well. 17. As is seen from Ext. P4 appellate order the Syndicate Bank, Payyannur Branch advanced a sum of Rs. 60,000/- on 3-9-1975 to the petitioner for purchasing this van under the self-employment scheme and till the seizure of it on 30-8-1976 he was repaying the instalments regularly. It is also stated in Ext. P4 that the manager of the Bank stated that the petitioner has no other means of livelihood and that there is no means to recover the defaulted amounts from him. The offence has been allowed to be compounded for Rs. 300/-so far as the passenger is concerned. In these circumstances, even assuming (without deciding) that the three bottles of illicit arrack were in the tool box of the van and that the driver had knowledge of that fact, it appears to me that confiscation of the van worth more than Rs. 60000/- purchased by the petitioner taking a loan from a Bank under the self-employment scheme is grossly disproportionate a punishment on him, who it has not been found had in any way connived in the carrying of the same or had any knowledge about it. Therefore I do not think that this is a case where I should remit back the case for re-enquiry. It appears that on account of his inability to furnish Bank guarantee or solvency certificate, the van has not been released to the petitioner and the same is with the respondents Consequently the respondents are directed to release the van to the petitioner forthwith. This petition is allowed as indicated above. In the circumstances of the case there shall be no order as regards costs.