GOPALBHAI @ROHIT RAMESHBHAI MALKIYA KOLI THRO MALAKIYA JASHUBEN RAMESHBHAIversusSTATE OF GUJARAT

     R/SCR.A/5711/2026                                ORDER DATED: 01/05/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 5711 of 2026

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  GOPALBHAI @ROHIT RAMESHBHAI MALKIYA KOLI THRO MALAKIYA
                  JASHUBEN RAMESHBHAI
                          Versus
                 STATE OF GUJARAT & ORS.
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Appearance:
MR KISHAN K NAYI(13080) for the Applicant(s) No. 1
MR LB DABHI APP for the Respondents
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
       and
       HONOURABLE MR. JUSTICE R. T. VACHHANI

                            Date : 01/05/2026

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


1.   The petitioner came to be preventively detained vide
     the detention order dated 13.04.2206 passed by the
     Police Commissioner, Rajkot, 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, the petitioner has challenged
     the legality and validity of the aforesaid order.

3.   This Court has heard learned counsel Mr. K. K. Nayi
     and Mr. LB Dabhi, learned Additional Public Prosecutor
     for the respective parties.




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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 offence cannot be said to have
     either affected adversely or likely to affect 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 offences 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 offender and his activities affected 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 in the area of Rajkot.

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
     the Detaining Authority in exercise of his powers

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     R/SCR.A/5711/2026                             ORDER DATED: 01/05/2026




     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 five criminal cases for the offences
     mentioned in the order of detention dated 21.03.2026,
     22.03.2026, 22.03.2026, 22.03.2026 and 23.03.2026
     with       Ajidem   Police      Station,   Rajkot     respectively,
     registered against the petitioner under the BNS was
     made and further it is alleged that, the activities of the
     detenue as a “dangerous person” affects adversely or
     are likely to affect adversely the maintenance of
     public order as explained under Section 3 of the Act of
     1985.        Admittedly,   in    all the said offences,                 the
     petitioner was granted bail.


8.   After careful consideration of the material, we are of
     the considered view that on the basis of five criminal
     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 offences 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



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R/SCR.A/5711/2026                                ORDER DATED: 01/05/2026




of Police, Ahmedabad, 1989 Supp (1) SCC 322,
wherein, the detention order was made on the basis
of the registration of the two prohibition offences. 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 sufficient 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 specific persons does not lead to
                    public disorder. When two people quarrel
                    and fight 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

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                    powers       vested            in      the       executive
                    authorities       under         the       provisions            of
                    ordinary criminal law but the culprits
                    cannot be detained on the ground that
                    they were disturbing public order. The
                    contravention of any law always affects
                    order but before it can be said to affect
                    public      order,        it    must          affect           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 affect the community or injure
                    the public interest and the relatively
                    minor breaches of peace of a purely local
                    significance         which           primarily          injure
                    specific     individuals            and      only       in      a
                    secondary sense public interest. A mere
                    disturbance of law and order leading to
                    disorder is thus not necessarily sufficient
                    for action under the Preventive Detention
                    Act but a disturbance which will affect
                    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


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R/SCR.A/5711/2026                                  ORDER DATED: 01/05/2026




          the       alleged   anti-     social    activities       of    the
          petitioner adversely affect or are likely to affect
          adversely the maintenance of public order. It is
          true some 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
          offences committed by him but, surely, the acts
          constituting the offences cannot be said to have
          affected 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 affect adversely or are likely to
          affect adversely the maintenance of public
          order We have carefully considered the offences
          alleged against the petitioner in the order of
          detention and also the allegations made by the
          witnesses and, in our opinion, these offences 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


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                     maintenance of public order. The order of
                     detention cannot, therefore, be upheld.”

9.      For the reasons recorded, we are of the considered
        opinion that, the material 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.

10. Accordingly, this petition stands allowed. The order
        impugned                    dated             13.04.2026                    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)
P.S. JOSHI


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 01/05/2026 12:13:54




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