MUNAF @ MUNNO S/O DADUBHAI MALEKBHAI KURESHI THRO. AAKIB AHEMADBHAI KURESHIversusSTATE OF GUJARAT

      R/SCR.A/3048/2026                         ORDER DATED: 23/03/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 3048 of 2026

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 MUNAF @ MUNNO S/O DADUBHAI MALEKBHAI KURESHI THRO. AAKIB
                   AHEMADBHAI KURESHI
                          Versus
                 STATE OF GUJARAT & ORS.
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Appearance:
MS KRUPA K BELADIYA(13979) for the Applicant(s) No. 1
MS MEGHNA CHITALIYA 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 : 23/03/2026

                             ORAL ORDER
              (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
[1]     The present petition is filed by the petitioner (hereinafter
referred to as “the detenue”) came to be preventively detained
vide the detention order dated 17.01.2026 passed by the
respondent – authority 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.


[3]     Heard learned advocates appearing for the respective
parties.

[4]     Learned advocate for the petitioner has averred in his



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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, Surat (Lajpor).


[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 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
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 Central Jail,
Surat (Lajpor). In the grounds of detention, reference of one
criminal cases for the offences punishable under the provisions
of the NDPS Act, 1985 with State Monitoring Cell 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,
                    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)


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                    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
        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


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  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
  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



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          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 17.01.2026 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 14:12:23




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