RAFIYUDDIN @ RAFIK @ DESHI SAHBUDDIN SHAIKH THRO. AMIRBIBI RAFIYUDDIN SHAIKHversusSTATE OF GUJARAT

      R/SCR.A/252/2026                         ORDER DATED: 29/01/2026




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 252 of 2026

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RAFIYUDDIN @ RAFIK @ DESHI SAHBUDDIN SHAIKH THRO. AMIRBIBI
                    RAFIYUDDIN SHAIKH
                           Versus
                  STATE OF GUJARAT & ORS.
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Appearance:
O I PATHAN(7684) for the Applicant(s) No. 1
MR. RONAK B. RAVAL, APP 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 : 29/01/2026

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


[1]     The detenue herein, namely Rafiyuddin @ Rafik @ Deshi
Sahbuddin Shaikh, came to be preventively detained vide
detention order dated 31.12.2025 passed by the Police
Commissioner, Ahmedabad City, as a “dangerous person” as
defined 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 wife, namely Amirbibi
Rafiyuddin Shaikh, the detenue has challenged the legality and
validity of the aforesaid order.




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[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     public health, public order or public
tranquility was disturbed in any manner. Thus, in the 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 has been passed
without application of mind and prima facie, the order appears
to have been 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 Vadodara Central Jail.


[5]     On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual offender and his
activities have affected 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.




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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 that arises is whether the order of
detention passed by the Detaining Authority in exercise of its
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 impugned order was
executed upon the detenue and presently he is detained in
Vadodara Central Jail. In the grounds of detention, reference of
three criminal cases for the offences punishable under Section
25(1)(b)(a) of the Arms Act, Sections 326, 323, 452, 506(2) and
114 of the IPC, Sections 115(2), 296(b) and 54 of the BNS and
Section 135(1) of the Gujarat Police Act registered with
Danilimada police stations against the detenue from 23.05.2023
to 12.12.2025 is made out.


[7.1] In the impugned order, it is alleged that the activities of
the detenue, as a “dangerous person”, affect adversely or are
likely to affect adversely the maintenance of public order as
explained under the provisions of the the Act of 1985.
Undisputedly, in the aforesaid alleged offences, 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


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concerned authorities.          Hence, the same is required to be
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 offences 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 offences 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 as 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 Dhaya
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 exception to Article 21 and,
        therefore, must be applied as such, as an exception to the main


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      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 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 reasons recorded above, we are of the considered
opinion that, the material on record is not sufficient to hold that

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the alleged activities of the detenue have either affected
adversely or are 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 impugned
order 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.)
DHARMENDRA KUMAR


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: KUMAR DHARMENDRA(HC01071), GOV, at High Court of Gujarat on 29/01/2026 14:12:31




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