BHIKHABHAI ZALABHAI BHARWAD THRO. DINESHBHAI ZALABHAI BHARWADversusSTATE OF GUJARAT

     R/SCR.A/2488/2026                            JUDGMENT DATED: 02/03/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 2488 of 2026

FOR APPROVAL AND SIGNATURE:

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

             Approved for Reporting              Yes         No

==========================================================
     BHIKHABHAI ZALABHAI BHARWAD THRO. DINESHBHAI ZALABHAI
                            BHARWAD
                              Versus
                    STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS MAHIMA H BRAHMBHATT(11279) for the Applicant(s) No. 1
MS SACHI H BAROT(13081) for the Applicant(s) No. 1
MS MONALI BHATT, APP for the Respondent(s) No. 1
==========================================================

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

                             Date : 02/03/2026

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


1.       The detenue herein namely             Bhikhabhai         Zalabhai
Bharwad came to be preventively detained vide the detention
order dated 13/02/2026 passed by the District Magistrate,
Gandhinagar, as a dangerous person as de ned under
Section 2(c) of the Gujarat Prevention of Anti-social Activities
Act, 1985 (herein after referred as ‘the Act of 1985).


2.       By way of this petition through his brother, the detenue

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has challenged the legality and validity of the aforesaid order.


3.       This Court has heard learned advocate 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 executed upon the petitioner
and presently he is detained in the Palara Khas Jail, Khavda
road, Bhuj-Kutch.


5.       On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual o2ender and
his activities a2ected 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.


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6.       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?


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 detained in
Palara Khas Jail, Khavda road, Bhuj-Kutch. In the
grounds of detention, reference of three cases for the
o&ences punishable under Sections 54, 115(2), 117(2),
329(1), 351(2), 351(3), 352, 189(2), 189(4), 190, 191(2),
191(3) of BNS, 2023 registered with various police
stations against the detenue from 12/05/2025 to 04/01/2026
is made out.


7.1. In the impugned order, it is alleged that the activities of
the detenue as a “dangerous person” a2ects adversely or are
likely to a2ect adversely the maintenance of public order as
explained under the provisions of the the Act of 1985.
Undisputedly, in the aforesaid alleged o2ences, the detenue
was granted bail by the concerned court.


8.       Considering the impugned order, it appears that the
provisions of Section 2(c) of the Act of 1985 is referred by the
concerned authorities.     Hence, the same is required to be


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reproduced. The same reads as under:


         “(c) "dangerous person" means a person, who either by
         himself or as a member or leader of a gang, during a
         period of three successive years, habitually commits, or
         attempts to commit or abets the commission of any of
         the o ences punishable under Chapter XVI or Chapter
         VIII or Chapter XVI (except section 354, 354A, 354B,
         354C, 354D, 376, 376A, 376B, 3376C, 376D, or 377) or
         Chapter XVII or Chapter XXII of the Indian Penal Code
         or any of the o ences punishable under chapter V of the
         Arms Act, 1959;”

9.       After consideration of the available material, we are of
the considered view that on the basis of three 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 considered opinion, the said o2ences 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 o ence(s), and therefore, must not be used in the
         ordinary course of nature. The power of preventive
         detention 2nds 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


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    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
            su icient means to address the apprehensions
            leading to the impugned detention order. There
            may have existed su icient 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 resist the issue of orders


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                     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 reasons recorded, we are of the considered
 opinion that, the material on record are not su2icient for
 holding that the alleged activities of the detenue have either
 a2ected             adversely             or       likely         to     a2ect          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 13/02/2026 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.




                                                                     (N.S.SANJAY GOWDA,J)




                                                                                       (D. M. VYAS, J)
 ILA


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: ILA PRAFULKUMAR PATEL(HC00194), Principal Pvt Secretary, at High Court of Gujarat on 03/03/2026 11:28:27




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