MOHAMMADASHFAK S/O. MOHAMMAD YUNUSH SHAIKH THRO. AAFRINBANU MOHAMMAD ASHFAK SHAIKHversusSTATE OF GUJARAT

      R/SCR.A/221/2026                           ORDER DATED: 28/01/2026




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 221 of 2026

==========================================================
 MOHAMMADASHFAK S/O. MOHAMMAD YUNUSH SHAIKH THRO.
       AAFRINBANU MOHAMMAD ASHFAK SHAIKH
                      Versus
             STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1
MR. PRANAV DHAGAT, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================

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

                         Date : 28/01/2026

                         ORAL ORDER
          (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)


[1]     The present petition is filed by Mohammadashfak S/o.
Mohammad Yunush Shaikh through his wife Aafrinbanu
Mohammad Ashfak Shaikh              (hereinafter referred to as “the
detenue”) came to be preventively detained vide the detention
order dated 31.12.2025 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.




                               Page 1 of 6
      R/SCR.A/221/2026                           ORDER DATED: 28/01/2026




[3]     Heard learned advocates appearing for the respective
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 arise as to whether
the order of detention passed by the Detaining Authority in


                              Page 2 of 6
       R/SCR.A/221/2026                               ORDER DATED: 28/01/2026




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),
22(b) and 29 of the NDPS Act, 1985 dated 24.06.2024 with
Athvalines 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;

          (iii)     engaging in the production, manufacture, possession,
                    sale,   purchase,    transportation,   warehousing,
                    concealment, use or consumption, import inter-State,



                                     Page 3 of 6
      R/SCR.A/221/2026                                   ORDER DATED: 28/01/2026




                   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. 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


                                     Page 4 of 6
R/SCR.A/221/2026                               ORDER DATED: 28/01/2026




  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
  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



                             Page 5 of 6
          R/SCR.A/221/2026                                                                      ORDER DATED: 28/01/2026




             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 31.12.2025 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 28/01/2026 16:04:38




                                                              Page 6 of 6