HUSEN RASULBHAI JAMMIYANA THRO AKBARHUSEN ABDULKARIM SHAIKHversusSTATE OF GUJARAT

     R/SCR.A/261/2026                           ORDER DATED: 29/01/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 261 of 2026
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 HUSEN RASULBHAI JAMMIYANA THRO AKBARHUSEN ABDULKARIM
                        SHAIKH
                         Versus
                STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS. DEVAL I. MODI(19346) for the Applicant(s) No. 1
VALIMOHAMMED PATHAN(6383) 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    Husen       Rasulbhai
Jammiyana came to be preventively detained vide the
detention order dated 29.12.2025 passed by the Police
Commissioner, Ahmedabad City, as a bootlegger as
defined under Section 2(b) 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 detenue has challenged the
legality and validity of the aforesaid order through his friend.

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



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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 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 and
lastly prayed to dismiss the present petition.


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?




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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 Bhuj Jail.
In the grounds of detention, reference of one case for the
offences punishable under Sections 65(A)(E), 116(B)
and 81 of the Prohibition Act, registered with Vejalpur
police station against the detenue on 19.10.2025 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.

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,
         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

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the considered view that on the basis of one 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
      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



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                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 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 29.12.2025 passed by the respondent



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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)
OMKAR

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: OMKAR CHHAGANLAL MAHAWAR(HC00201), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 29/01/2026 14:10:34




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