MAHENDRASINH S/O PAPPUSINH RAJPUT THROUGH PAPPUSINH RAJPUTversusSTATE OF GUJARAT

      R/SCR.A/17191/2025                                   ORDER DATED: 19/01/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CRIMINAL APPLICATION NO. 17191 of 2025

==========================================================
 MAHENDRASINH S/O PAPPUSINH RAJPUT THROUGH PAPPUSINH
                       RAJPUT
                        Versus
               STATE OF GUJARAT & ORS.
==========================================================
Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
MR. ROHAN SHAH, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
       and
       HONOURABLE MR. JUSTICE R. T. VACHHANI

                              Date : 19/01/2026

                           ORAL ORDER
            (PER : HONOURABLE MR. JUSTICE ILESH J. VORA)


[1]      The      present    petition    is       filed   by   Mahendrasinh
Pappusinh Rajput through his father Pappusinh Rajput
(hereinafter referred to as “the detenue”) came to be
preventively           detained   vide    the       detention      order      dated
19.11.2025 passed by the Director General of Police,
C.I.D Crime and Railways, Gandhinagar, as a Illicit
Traffic as defined under Section 2(e) of The Prevention of
Illicit Traffic In Narcotic Drugs And Psychotropic Substance
Act, 1988 (hereinafter referred to as ‘the Act of 1988).

[2]      By way of this petition, the petitioner has challenged
the legality and validity of the aforesaid order.


[3]      Heard learned advocates appearing for the respective

                                    Page 1 of 6
      R/SCR.A/17191/2025                     ORDER DATED: 19/01/2026




parties.

[4]      Learned advocate for the petitioner has averred in his
application 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 stated in the application by the learned advocate for
the petitioner that the impugned order is passed without
application of mind and prima facie the order is passed
mechanically.


[4.1] It was also apprised from the application that the
impugned order was execution upon the detenue and
presently he is detained in the Central Jail, Ahmedabad.


[5]      On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual offender and
his activities affected at the society at large. Hence, 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 in the area of
Gandhinagar and lastly prayed to dismiss the present
petition.

[6]      Having considered the facts as well as the grounds
raised in the application and submissions made by the
learned APP appearing for the authorities, the core issue


                              Page 2 of 6
      R/SCR.A/17191/2025                              ORDER DATED: 19/01/2026




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 or not?


[7]      We have carefully gone through the order passed by
the concerned authority. It appears that the order impugned
was executed upon the detenue and presently he is in
Central Jail, Ahmedabad. In the grounds of detention,
reference of one criminal cases for the offences punishable
under Sections 8(c), 18(c) and 29 of the NDPS Act, 1985
dated 19.09.2023 with Saroli Police Station, Surat
against the detenue was made out.


[7.1] In the impugned order, it is alleged that the activities
of the detenue as a “Illicit Traffic” affects adversely or are
likely to affect adversely the maintenance of public order as
explained under Section 3 of the Act of 1988.


[8] Considering the impugned order, it appears that the
provisions of Section 2(e) of the Act of 1988 is referred by
the concerned authorities. Hence, the same is required to be
reproduced. The same reads as under:

          “(e)      "illicit traffic", in relation to narcotic drugs and
                     psychotropic substances, means-

          (i)       cultivating any coca plant or gathering any portion of
                    coca plant;

          (ii)      cultivating the opium poppy or any cannabis plant;


                                    Page 3 of 6
      R/SCR.A/17191/2025                                   ORDER DATED: 19/01/2026




          (iii)     engaging in the production, manufacture, possession,
                    sale,    purchase,     transportation,     warehousing,
                    concealment, use or consumption, import inter-State,
                    export inter-State, import into India, export from India
                    or ranshipment, of narcotic drugs or psychotropic
                    substances;

          (iv)      dealing in any activities in narcotic drugs or
                    psychotropic substances other than those provided in
                    sub-clauses (i) to (iii); or

          (v)       handling or letting any premises for the carrying on of
                    any of the activities referred to in sub-clauses (i) to (iv),

          other than those permitted under the Naroctic Drugs and
          Psychotropic Substances Act, 1985 (61 of 1985) or any rule or
          order made, or any condition of any licence, term or
          authorisation issued, thereunder and includes-

          (1)       financing, directly or          indirectly,    any      of       the
                    aforementioned activities:

          (2)       abetting or conspiring in the furtherance of or in
                    support of doing any of the aforementioned activities;
                    and

          (3)       harbouring   persons     engaged        in     any      of       the
                    aforementioned activities.”


[9]      After consideration of the available material, we are of
the considered view that on the basis of offence under the
Act of 1988, 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 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.


                                      Page 4 of 6
   R/SCR.A/17191/2025                               ORDER DATED: 19/01/2026




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:-

      “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 detention is


                                 Page 5 of 6
        R/SCR.A/17191/2025                                                                       ORDER DATED: 19/01/2026




             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)”


 [10] 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
 detenue 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.


 [11] Accordingly, this petition stands allowed. The order
 impugned dated 19.11.2025 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)


                                                                                                 (R. T. VACHHANI, 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 19/01/2026 17:46:12


                                                              Page 6 of 6