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Judgment
S.H.Vora, J
By way of present petition, under Article 226 and 227 of the Constitution of India, the petitioner has made following prayers in terms of para - 13(B) and 13(C):-
"13(B) Your Lordship be pleased to issue a writ of mandamus or certiorari and/or any other appropriate writ, order or direction in the nature of mandamus or certiorari quashing and setting aside order dated 10.05.2019 passed by Ld. Sessions Judge, Ahmedabad (Rural), in Criminal Revision Application No.61 of 2019 as well as order dated 28.03.2019 passed by Ld.JMFC, Sanand and thereby, further be pleased to grant custody of his CNG Rickshaw on appropriate terms and conditions in the interest of justice.
13(C) Your Lordships be pleased to direct Police Inspector, Sanand Police Station to grant custody of CNG Rickshaw bearing Registration No.GJ.01-TB-0625 to present petitioner on appropriate terms and conditions, till pending admission, hearing and final disposal of this petition."
Learned APP upon instructions of Shri Mahendrasinh Janaksinh, ASI, Sanand GIDC Police Station states at bar that offending vehicle was carrying contraband liquor less than 10 liters.
Having heard submissions made at bar, it appears that the Courts below refused to return Muddamal vehicle in view of provisions of section 98(2) of Gujarat Prohibition Act and Rule 9 framed under the said Act, inasmuch as, the interim custody of the vehicle carrying more than 10 liters liquor cannot be released.
Without taking this issue any further, the Courts below rejected the application without considering the fact that the vehicle in question was used for the offence carrying liquor i.e. much less than 10 liters. On this count only, the Courts below ought to have granted interim custody to the registered owner of the vehicle i.e. petitioner herein.
Resultantly, present petition is hereby allowed. The impugned order dated 10.05.2019 passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Revision Application No.61 of 2019 as well as order dated 28.03.2019 passed by learned JMFC, Sanand is hereby quashed and set aside with a direction to the respondent authorities to immediately release the muddamal vehicle - CNG Rickshaw bearing registration No.GJ-01-TB-0625 on the following conditions that:-
(i) The petitioner shall file an undertaking on oath before the learned trial Court that he shall not transfer, alienate or part with possession of the vehicle till conclusion of the trial and further, produce the vehicle as and when the Court directs him to do so.
(ii) The petitioner shall not change the colour and scheme of the vehicle.
(iii) Before release of the vehicle, the police authority