R/SCR.A/5346/2026 ORDER DATED: 27/04/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 5346 of 2026 ====================================== BHAVESHBHAI BHOJABHAI KODIYATAR THRO BHARATBHAI BHOJABHAI KODIYATAR Versus STATE OF GUJARAT ====================================== Appearance: MR. NIPUL H GONDALIA(6894) for the Applicant(s) No. 1 MR. L.B. DABHI, APP for the Respondent(s) No. 1 ====================================== CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 27/04/2026 ORAL ORDER (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. The petitioner came to be preventively detained vide the detention order dated 11.04.2026 passed by the respondent authority, as a bootlegger as de昀椀ned under Section 2(b) of the Gujarat Prevention of Anti-social Activities Act, 1985 (herein after referred as ‘the Act of 1985). 2. By way of this petition, the petitioner has challenged the legality and validity of the aforesaid order. 3. This Court has heard learned counsel and learned Additional Public Prosecutor for the respective parties. 4. Learned advocate for the detenue submits that the grounds of detention has no nexus to the “public order”, but is a purely a matter of law and order, as registration of the o昀昀ence cannot be said to have either a昀昀ected adversely or likely to a昀昀ect R/SCR.A/5346/2026 ORDER DATED: 27/04/2026 adverse the maintenance of public order as contemplated under the explanation sub-section (4) of Section 3 of the Act of 1985 and therefore, where the o昀昀ences alleged to have been committed by the detunue have no bearing on the question of maintenance of public order and his activities could be said to be a prejudicial only to the maintenance of law and order and not prejudicial to the maintenance of public order. 5. On the other hand, learned State Counsel opposing the application contended that, the detenue is habitual o昀昀ender and his activities a昀昀ected at the society at large. In such set of circumstances, the Detaining Authority, considering the antecedents and past activities of the detenue, has passed the impugned order with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. 6. Having considered the facts as well as the submissions made by the respective parties, the issue arise as to whether the order of detention passed by the Detaining Authority in exercise of his powers under the provisions of the Act of 1985 is sustainable in law? 7. The order impugned was executed upon the petitioner and presently he is in Jail. In the grounds of detention, a reference of one criminal case as mentioned in the impugned detention order and further it is alleged that, the activities of the detenue as a “bootlegger” a昀昀ects adversely or are likely to a昀昀ect adversely the maintenance of public order as explained under Section 3 of the Act of 1985. Admittedly, in said o昀昀ences, the petitioner was granted bail. Page 2 of 5 R/SCR.A/5346/2026 ORDER DATED: 27/04/2026 8. After careful consideration of the material, we are of the considered view that on the basis of aforesaid cases, the authority has wrongly arrived at the subjective satisfaction that the activities of the detenue could be termed to be acting in a manner ‘prejudicial to the maintenance of public order’. In our opinion, the said two o昀昀ences do not have any bearing on the maintenance of public order. In this connection, we may refer to the decision of the Apex Court in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad, 1989 Supp (1) SCC 322, wherein, the detention order was made on the basis of the registration of the two prohibition o昀昀ences. The Apex Court after referring the case of Pushkar Mukherjee Vs. State of Bengal, 1969 (1) SCC 10, held and observed that mere disturbance of law and order leading to detention order is thus not necessarily su昀昀icient for action under preventive detention Act. Paras-17 & 18 are relevant to refer, which read thus: “17. In this connection, we may refer to a decision of this Court in Pushkar Mukherjee v. State of West Bengal, where the distinction between `law and order' and `public order' has been clearly laid down. Ramaswami, J. speaking for the Court observed as follows: 10. "Does the expression `public order' take in every kind of infraction of order or only some categories thereof? It is manifest that every act of assault or injury to speci昀椀c persons does not lead to public disorder. When two people quarrel and 昀椀ght and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always a昀昀ects order but before it can be said to a昀昀ect public order, it must a昀昀ect the community or the public at large. In this connection we must draw a line of demarcation between serious and R/SCR.A/5346/2026 ORDER DATED: 27/04/2026 aggravated forms of disorder which directly a昀昀ect the community or injure the public interest and the relatively minor breaches of peace of a purely local signi昀椀cance which primarily injure speci昀椀c individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily su昀昀icient for action under the Preventive Detention Act but a disturbance which will a昀昀ect public order comes within the scope of the Act." 18. In the instant case, the detaining authority, in our opinion, has failed to substantiate that the alleged anti- social activities of the petitioner adversely a昀昀ect or are likely to a昀昀ect adversely the maintenance of public order. It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such incidents, in our view, do not have any bearing on the maintenance of public order. The petitioner may be punished for the alleged o昀昀ences committed by him but, surely, the acts constituting the o昀昀ences cannot be said to have a昀昀ected the even tempo of the life of the community. It may be that the petitioner is a bootlegger within the meaning of section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of section 3 of the Act, his activities as a bootlegger a昀昀ect adversely or are likely to a昀昀ect adversely the maintenance of public order We have carefully considered the o昀昀ences alleged against the petitioner in the order of detention and also the allegations made by the witnesses and, in our opinion, these o昀昀ences or the allegations cannot be said to have created any feeling of insecurity or panic or terror among the members of the public of the area in question giving rise to the question of maintenance of public order. The order of detention cannot, therefore, be upheld.” 9. For the reasons recorded, we are of the considered opinion that, the material on record are not su昀昀icient for holding that the alleged activities of the detenue have either a昀昀ected adversely or likely to a昀昀ect adversely the maintenance of public order and therefore, the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law. Page 4 of 5 R/SCR.A/5346/2026 ORDER DATED: 27/04/2026 10. Accordingly, this petition stands allowed. The order impugned dated 11.04.2026 passed by the respondent authority is hereby quashed. We direct the detenue to be set at liberty forthwith, if he is not required in any other case. Rule is made absolute accordingly. Direct service permitted. (ILESH J. VORA, J.) (NISHA M. THAKORE, J.) AMAR RATHOD.../sfs/27.04 Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: AMAR KANTILAL RATHOD(HC01074), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 27/04/2026 17:14:15