High Court of Gujarat
MAHMADHUSEN HABIBBHAI KATARIYA THRO KATARIYA FATIMA MAHMADBHAIversusSTATE OF GUJARAT
- Disposal
- 38-RULE ABSOLUTE/ALLOWED @ FH
Holding
The detention order is illegal and must be set aside because the alleged activities do not affect public order.
Summary
Mahmadhusen Habibbhai Katariya was preventively detained on 18‑02‑2026 under Section 2(c) of the Gujarat Prevention of Anti‑social Activities Act, 1985 as a ‘dangerous person’. He challenged the detention, arguing that the alleged offences, recorded under the BNS Act, pertained only to law and order and did not affect public order. The State contended that his habitual offences threatened society and justified the detention. The Court examined the distinction between law‑and‑order disturbances and public‑order threats, relying on the Supreme Court’s rulings in Piyush Kantilal Mehta v. Commissioner of Police (1989) and Pushkar Mukherjee v. State of Bengal (1969). It held that the detaining authority failed to demonstrate that the petitioner’s activities adversely affected or were likely to affect public order, rendering the subjective satisfaction under Section 3(4) of the Act invalid. Consequently, the detention order was quashed and the petitioner was ordered to be released.
Issues considered
- Whether the detention order under Section 2(c) of the Gujarat Prevention of Anti‑social Activities Act, 1985 is valid when the alleged offences affect only law and order and not public order.
- Whether the detaining authority’s satisfaction meets the requirement of Section 3(4) that the activities adversely affect or are likely to affect public order.
Legislation cited
- Gujarat Prevention of Anti-Social Activities Act, 1985s. 2(c), s. 3(4)
Subjects
preventive detentionpublic orderlaw and orderGujarat Prevention of Anti‑social Activities Actdangerous personquashdetention orderSupreme Court precedent
Judgment
R/SCR.A/3017/2026 ORDER DATED: 23/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3017 of 2026
==========================================================
MAHMADHUSEN HABIBBHAI KATARIYA THRO KATARIYA FATIMA
MAHMADBHAI
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR NAVED MOHAMMAD A SHAIKH(12949) for the Applicant(s) No. 1
MS MEGHNA CHITALIYA APP for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 23/03/2026
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. The petitioner herein came to be preventively
detained vide the detention order dated 18.02.2026
passed by the respondent – authority 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, the petitioner has challenged
the legality and validity of the aforesaid order.
3. This Court has heard learned counsel appearing for
the petitioner and learned Additional Public Prosecutor
for the respective parties.
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R/SCR.A/3017/2026 ORDER DATED: 23/03/2026
4. Learned advocate for the detenue submits that the
grounds of detention has no nexus to the “public
order”, but is a purely a matter of law and order, as
registration of the o4ence cannot be said to have
either a4ected adversely or likely to a4ect adverse the
maintenance of public order as contemplated under
the explanation sub-section (4) of Section 3 of the Act,
1985 and therefore, where the o4ences alleged to
have been committed by the detunue have no bearing
on the question of maintenance of public order and his
activities could be said to be a prejudicial only to the
maintenance of law and order and not prejudicial to
the maintenance of public order.
5. On the other hand, learned State Counsel opposing
the application contended that, the detenue is
habitual o4ender and his activities a4ected at the
society at large. In such set of circumstances, 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.
6. Having considered the facts as well as the
submissions made by the respective parties, the issue
arise as to whether the order of detention passed by
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R/SCR.A/3017/2026 ORDER DATED: 23/03/2026
the Detaining Authority in exercise of his powers
under the provisions of the Act of 1985 is sustainable
in law?
7. The order impugned was executed upon the petitioner
and presently he is in Jail. In the grounds of detention,
a reference of four criminal cases registered under the
provisions of BNS Act, against the petitioner is made
and further it is alleged that, the activities of the
detenue as a “dangerous person” a4ects adversely or
are likely to a4ect adversely the maintenance of
public order as explained under Section 3 of the Act of
1985. Admittedly, in all the said o4ences, the
petitioner was granted bail.
8. After careful consideration of the material, we are of
the considered view that on the basis of aforesaid
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
opinion, the said o4ences do not have any bearing on
the maintenance of public order. In this connection,
we may refer to the decision of the Apex Court in the
case of Piyush Kantilal Mehta Vs. Commissioner
of Police, Ahmedabad, 1989 Supp (1) SCC 322,
wherein, the detention order was made on the basis
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R/SCR.A/3017/2026 ORDER DATED: 23/03/2026
of the registration of the two prohibition o4ences. The
Apex Court after referring the case of Pushkar
Mukherjee Vs. State of Bengal, 1969 (1) SCC 10
held and observed that mere disturbance of law and
order leading to detention order is thus not
necessarily su@cient for action under preventive
detention Act. Paras-17 & 18 are relevant to refer,
which read thus:
“17. In this connection, we may refer to a decision of
this Court in Pushkar Mukherjee v. State of West
Bengal, where the distinction between `law and
order' and `public order' has been clearly laid down.
Ramaswami, J. speaking for the Court observed as
follows:
10. "Does the expression `public order'
take in every kind of infraction of order or
only some categories thereof? It is
manifest that every act of assault or
injury to speci/c persons does not lead to
public disorder. When two people quarrel
and /ght and assault each other inside a
house or in a street, it may be said that
there is disorder but not public disorder.
Such cases are dealt with under the
powers vested in the executive
authorities under the provisions of
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R/SCR.A/3017/2026 ORDER DATED: 23/03/2026
ordinary criminal law but the culprits
cannot be detained on the ground that
they were disturbing public order. The
contravention of any law always a2ects
order but before it can be said to a2ect
public order, it must a2ect the community
or the public at large. In this connection
we must draw a line of demarcation
between serious and aggravated forms of
disorder which directly a2ect the
community or injure the public interest
and the relatively minor breaches of
peace of a purely local signi/cance which
primarily injure speci/c individuals and
only in a secondary sense public interest.
A mere disturbance of law and order
leading to disorder is thus not necessarily
su4cient for action under the Preventive
Detention Act but a disturbance which will
a2ect public order comes within the
scope of the Act."
18. In the instant case, the detaining authority,
in our opinion, has failed to substantiate that the
alleged anti- social activities of the petitioner
adversely a2ect or are likely to a2ect adversely
the maintenance of public order. It is true some
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R/SCR.A/3017/2026 ORDER DATED: 23/03/2026
incidents of beating by the petitioner had taken
place, as alleged by the witnesses. But, such
incidents, in our view, do not have any bearing
on the maintenance of public order. The
petitioner may be punished for the alleged
o2ences committed by him but, surely, the acts
constituting the o2ences cannot be said to have
a2ected the even tempo of the life of the
community. It may be that the petitioner is a
bootlegger within the meaning of section 2(b) of
the Act, but merely because he is a bootlegger
he cannot be preventively detained under the
provisions of the Act unless, as laid down in sub-
section (4) of section 3 of the Act, his activities
as a bootlegger a2ect adversely or are likely to
a2ect adversely the maintenance of public order
We have carefully considered the o2ences
alleged against the petitioner in the order of
detention and also the allegations made by the
witnesses and, in our opinion, these o2ences or
the allegations cannot be said to have created
any feeling of insecurity or panic or terror
among the members of the public of the area in
question giving rise to the question of
maintenance of public order. The order of
detention cannot, therefore, be upheld.”
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R/SCR.A/3017/2026 ORDER DATED: 23/03/2026
9. For the reasons recorded, we are of the considered
opinion that, the material on record are not su@cient
for holding that the alleged activities of the detenue
have either a4ected adversely or likely to a4ect
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.
10. Accordingly, this petition stands allowed. The order
impugned dated 18.02.2026 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.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
sompura
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MANISHKUMAR JYOTINDRA SOMPURA(HC00189), Principal Pvt. Secretary, at High Court of Gujarat on 23/03/2026 14:08:34
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