BHARGIRATH@BANTI BHIKHABHAI SWAMIJI PRAJAPATI THRO PRAJAPATI NITESHKUMAR RAMESHBHAIversusSTATE OF GUJARAT

     R/SCR.A/17511/2025                                 ORDER DATED: 20/01/2026




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CRIMINAL APPLICATION NO. 17511 of 2025

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     BHARGIRATH@BANTI BHIKHABHAI SWAMIJI PRAJAPATI THRO
             PRAJAPATI NITESHKUMAR RAMESHBHAI
                            Versus
                  STATE OF GUJARAT & ORS.
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Appearance:
MR VIRAL J VYAS(6233) for the Applicant(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Applicant(s) No. 1
MR. VINAY B. VISHEN, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
       and
       HONOURABLE MR. JUSTICE R. T. VACHHANI

                              Date : 20/01/2026

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


1.      This      petition   is   filed    by     the   petitioner      namely
Bhagirath @ Banti Bhikhabhai Swamiji Prajapati through
his friend Prajapati Niteshkumar Rameshbhai under
Article 226 and 227 of the Constitution of India challenging
the detention             order detention order dated 25.12.2025
passed by the Commissioner of Police, Ahmedabad City
under Sub-Section 2 of Section 3 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.


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


4.      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.


4.1. Learned advocate for the petitioner further submitted
that the impugned order was execution upon the detenue
and presently he is detained in the Bhuj Jail.

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
Ahmedabad and lastly prayed to dismiss the present
petition.

6.      Having considered the facts as well as the submissions


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     R/SCR.A/17511/2025                          ORDER DATED: 20/01/2026




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?

7.      We have carefully gone through the order passed by
the concerned authority.             It appears that the order
impugned was executed upon the petitioner and presently
he is in Bhuj Jail. In the grounds of detention, reference of
two criminal case for the offences punishable under
Sections 65(A)(E), 98(2), 81 and 116(b) of the Prohibition
Act registered with Harni Police Station against the
petitioner from 26.04.2024 to 14.11.2025 is made out.

7.1. In the impugned order, it is alleged that the activities
of the detenue 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
regular bail by the concerned court.

8.      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,


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     R/SCR.A/17511/2025                           ORDER DATED: 20/01/2026




        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;”


9.      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 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. 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


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R/SCR.A/17511/2025                              ORDER DATED: 20/01/2026




   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 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


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        R/SCR.A/17511/2025                                                                       ORDER DATED: 20/01/2026




                        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 25.12.2025 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 20/01/2026 14:36:00




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