IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 11228 of 2009(W) -------------------------- PETITIONER(S): --------------- ANITHA RAMESAN W/O. RAMESAN, RAMESWARAM HOUSE, V.T.NAGAR-38, ERUKUNNAM, MANIKANTESWARAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): --------------- 1. THE EXCISE COMMISSIONER, OFFICE OF THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 2. THE ADDITIONAL EXCISE COMMISSIONER, OFFICE OF THE ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, OFFICE OF THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.11228 of 2009 ================== Dated this the 6th day of April, 2009 J U D G M E N T A vehicle bearing Reg. No.KL-1AP-4502 was seized by the police, which contained 1225 ltrs. of spirit. An offence has been charged and the vehicle has been handed over to the Excise Authorities for further proceedings under the Abkari Act. The 3rd respondent initiated proceedings under the Section 67B of the Abkari Act. One Smt.Jyothi Shankar, sought release of the vehicle on the ground that she is the owner of the vehicle. On enquiry with the Joint Regional Transport Officer, the 3rd respondent understood that the registered owner of the vehicle is Smt.Anitha Ramesan, the petitioner herein. Therefore, notice was issued to the petitioner under Section 67B of the Abkari Act. The petitioner submitted Ext.P3 explanation taking the stand that the vehicle was sold to Smt.Jyothi Shankar for a consideration of Rs.2,90,000/-. The said Smt.Jyothi Shankar issued a post dated cheque bearing date 15.11.2007. According to the petitioner, when the cheque was presented, the same was returned dishonoured on the ground that there is no balance in that account. The petitioner claimed that since for unpaid sale consideration, the petitioner has a charge on the vehicle and since the petitioner is not in any way involved in the illicit transport of spirit, the petitioner is entitled to get release of the 2 vehicle to herself. However, the explanation of the petitioner did not find favour with the 3rd respondent who passed Ext.P4 order confiscating the vehicle. The petitioner filed an appeal before the 2nd respondent, which was dismissed by Ext.P5 order. The petitioner is challenging Exts.P4 and P5 orders in this writ petition. 2. Heard counsel for the petitioner and the learned Government Pleader. 3. This writ petition is liable to be dismissed for more than one ground. Both the petitioner as well as Smt.Jyothi Shankar admit that the vehicle has been sold to Smt.Jyothi Shankar. If that be so, the petitioner's remedy lies in recovering the consideration from Smt.Jyothi Shankar. In fact the petitioner herself admits that she has filed a criminal complaint against the said Jyothi Shankar, under Section 38 of the Negotiable Instruments Act on the dishonoured cheque. Strangely, Smt.Jyothi Shankar is not made a party to the writ petition. 4. Even otherwise, when the petitioner has parted with possession of the vehicle without getting registration changed from her name, it was her duty to see that adequate precautions were taken to see that the vehicle is not used for any illegal purposes, particularly under the Abkari Act. This is particularly so, since the alleged sale is 3 on 7.6.2007 and the seizure is on 14.7.2007. The petitioner has not also explained the circumstances under which for a sale on 7.6.2007 a postdated cheque was issued, that too, for payment on 15.11.2007, more than 5 months after handing over possession of the vehicle. The petitioner has not done anything to prove that the petitioner has taken adequate precautions to see that the vehicle is not put to illegal use. Under Section 67C(2) it is the onus of the petitioner to prove that she took adequate precautions to see that the vehicle is not used for any illegal purposes under the Abkari Act. Having not discharged her onus, she cannot successfully claim that she is entitled to release of the vehicle and challenge the confiscation proceedings. In the above circumstances, I do not find anything wrong with the impugned orders and accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge