ASHOKKUMAR LOKUMAL LALVANIversusSTATE OF GUJARAT

     C/SCA/20330/2023                             JUDGMENT DATED: 12/02/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 20330 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA

and
HONOURABLE MR.JUSTICE D. M. VYAS

==========================================================

             Approved for Reporting              Yes          No

==========================================================
                        ASHOKKUMAR LOKUMAL LALVANI
                                   Versus
                          STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR BHAVIN S RAIYANI(3855) for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2,3,4
MR. PRANAV DHAGAT, ADDL. GOVERNMENT PLEADER for the
Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
       and
       HONOURABLE MR.JUSTICE D. M. VYAS

                             Date : 12/02/2026

                           ORAL JUDGMENT
               (PER : HONOURABLE MR.JUSTICE D. M. VYAS)


1.       Rule. Learned APP waives service of Rule for the
respondent – State.

2.       With the consent of the learned advocates appearing
for the respective parties, the present petition is taken up

                                  Page 1 of 6
     C/SCA/20330/2023                       JUDGMENT DATED: 12/02/2026




for final hearing today.

3.       The petitioner apprehends that the petitioner is likely
to be detained under the PASA Act on the pretext of F.I.R/s
for the offence punishable u/s 66(1)(b), 65(A)(E), 116B,
and 65(E) of the Prohibition Act.

4.       During the course of hearing, the State was directed to
place on record the detention order for Court’s perusal and
consequently, the State has placed on record the detention
order         bearing   No.PCB/DTN/PASA/440/2023                 dated
24.08.2023 passed by the Commissioner of Police,
Ahmedabad City. The same is taken on record.


5.       This Court has heard learned counsel for the petitioner
and learned APP for the respondent-State Authorities.

6.       Learned advocate for the petitioner vehemently argued
that there was no material available with the detention
authority to indicate as to how the public health or public
order or public tranquility was disturbed in any manner.
Thus, in absence of any such material on record, the order
of detention ought not have been passed.              It is further
submitted by learned advocate for the petitioner that the
impugned order is passed without application of mind and
prima facie the order is passed mechanically.

7.       On the other hand, learned APP, opposing the present
petition contended that the petitioner is habitual offender
and his activities affected at the society at large. Hence, the

                              Page 2 of 6
     C/SCA/20330/2023                       JUDGMENT DATED: 12/02/2026




Detaining Authority, considering the antecedents and past
activities of the petitioner, has passed the impugned order
with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order in the area of
Ahmedabad and lastly prayed to dismiss the present
petition.

8.       Having considered the facts as well as the submissions
made by the learned advocates appearing for the respective
parties, the core issue arises 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 or not?

9.       We have carefully gone through the order passed by
the concerned authority.            It appears that the order
impugned at pre-execution stage. In the grounds of
detention, reference of two criminal case for the offences
punishable under Sections 66(1)(b), 65(A)(E), 116B, and
65(E) of the Prohibition Act registered with different
Police Stations against the petitioner from 03.08.2022 to
26.05.2023 is made out.

9.1. In the impugned order, it is alleged that the activities
of the petitioner as a “bootlegger” affects adversely or are
likely to affect adversely the maintenance of public order as
explained under Section 3 of the Act of 1985. Undisputedly,
in the aforesaid alleged offences, the petitioner was granted

                              Page 3 of 6
  C/SCA/20330/2023                             JUDGMENT DATED: 12/02/2026




regular bail by the concerned court.

10.   Considering the impugned order, it appears that the
provisions of Section 2(b) of the Act of 1985 is referred by
the concerned authorities. Hence, the same is required to
be reproduced. The same reads as under:
      “2(b) "bootlegger"    means      a    person    who     distills,
      manufactures, stores, transports, imports, exports, sells or
      distributes any liquor, intoxicating drug or other intoxicant in
      contravention of any provision of the Bombay Prohibition
      Act, 1949 and the rules and orders made thereunder, or of
      any other law for the time being in force or who knowingly
      expends or applies any money or supplies any animal,
      vehicle, vessel or other conveyance or any receptacle or any
      other material whatsoever in furtherance or support of the
      doing of any of the things described above by or through any
      other person, or who abets in any other manner the doing of
      any such thing;”


11.   After consideration of the available material, we are of
the considered view that on the basis of two case, the
authority has wrongly arrived at the subjective satisfaction
that the activities of the petitioner could be termed to be
acting in a manner ‘prejudicial to the maintenance of public
order’. In our considered opinion, the said offences do not
have any bearing on the maintenance of public order.                        In
this regard, we would like to refer the decision of the Apex
Court in the case of Dhanya M. v. State of Kerala and
others reported in AIR 2025 SC 2868. In para-9 and para-
21 of the said decision, the Hon’ble Supreme Court has
observed as under:


                               Page 4 of 6
C/SCA/20330/2023                               JUDGMENT DATED: 12/02/2026




   “9. It is well settled that the provision for preventive
   detention is an extraordinary power in the hands of the
   State that must be used sparingly. It curtails the liberty of
   an individual in anticipation of the commission of further
   offence(s), and therefore, must not be used in the ordinary
   course of nature. The power of preventive detention finds
   recognition in the Constitution itself, under Article 22(3)(b).
   However, this Court has emphasized in Rekha v. State of
   Tamil Nadu3 that the power of preventive detention is an
   exception to Article 21 and, therefore, must be applied as
   such, as an exception to the main rule and only in rare
   cases.”
   …..
   “21. This Court in SK. Nazneen (supra), had observed that
   the State should move for cancellation of bail of the detenu,
   instead of placing him under the law of preventive detention,
   which is not the appropriate remedy. Similarly, in Ameena
   Begum v. State of Telengana9 , this Court observed :

            “59. … It is pertinent to note that in the three criminal
            proceedings where the detenu had been released on
            bail, no applications for cancellation of bail had been
            moved by the State. In the light of the same, the
            provisions of the Act, which is an extraordinary
            statute, should not have been resorted to when
            ordinary criminal law provided sufficient means to
            address the apprehensions leading to the impugned
            detention order. There may have existed sufficient
            grounds to appeal against the bail orders, but the
            circumstances did not warrant the circumvention of
            ordinary criminal procedure to resort to an
            extraordinary measure of the law of preventive
            detention.”

            60. In Vijay Narain Singh v. State of Bihar [Vijay
            Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984
            SCC (Cri) 361] , Hon'ble E.S. Venkataramiah, J. (as the
            Chief Justice then was) observed : (SCC pp. 35-36,
            para 32)

                   32. … It is well settled that the law of preventive


                               Page 5 of 6
        C/SCA/20330/2023                                                                      JUDGMENT DATED: 12/02/2026




                          detention is a hard law and therefore it should be
                          strictly construed. Care should be taken that the
                          liberty of a person is not jeopardised unless his case
                          falls squarely within the four corners of the relevant
                          law. The law of preventive detention should not be
                          used merely to clip the wings of an accused who is
                          involved in a criminal prosecution. It is not intended for
                          the purpose of keeping a man under detention when
                          under ordinary criminal law it may not be possible to
                          resist the issue of orders of bail, unless the material
                          available is such as would satisfy the requirements of
                          the legal provisions authorising such detention. When
                          a person is enlarged on bail by a competent criminal
                          court, great caution should be exercised in scrutinising
                          the validity of an order of preventive detention which is
                          based on the very same charge which is to be tried by
                          the criminal court.” (Emphasis supplied)”

  12.         For the aforesaid reasons, we are of the considered
  opinion that, the material available on record are not
  sufficient for holding that the alleged activities of the
  petitioner have either affected adversely or likely to affect
  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.

  13.         Accordingly, this petition stands allowed. The order
  impugned dated 24.08.2023 passed by the respondent
  authority is hereby quashed and set aside. Rule is made
  absolute accordingly. Direct service permitted.


                                                                                           (N.S.SANJAY GOWDA,J)


                                                                                                            (D. M. VYAS, J)
  Mehul Desai
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MEHULKUMAR BHIMABHAI DESAI(HCD0075), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 23/02/2026 18:13:05



                                                               Page 6 of 6