High Court of Gujarat
MAHESH S/O. GULABRAO NIKUM THRO. LALITABAI GULABRAO NIKUMversusSTATE OF GUJARAT
- Disposal
- 58-RULE ISSUED & RULE ABSOLUTE/ALLOWED @FH
Holding
The detention order is illegal and cannot be sustained as the detaining authority failed to demonstrate that the petitioner’s bootlegging activities affected or were likely to affect public order.
Summary
Mahesh was preventively detained on 29‑04‑2026 by the Surat Police Commissioner under the Gujarat Prevention of Anti‑social Activities Act, 1985 as a bootlegger. He challenged the detention, arguing that his alleged offences pertained only to law and order and did not affect public order as required by Section 3(4) of the Act. The State contended that his habitual offending threatened public order in Surat. The Court examined the material, noting that the detention was based on a single prohibition case and that the alleged offences did not create a feeling of insecurity or panic in the community. Relying on Supreme Court precedents (Piyush Kantilal Mehta v. Commissioner of Police and Pushkar Mukherjee v. State of Bengal), the Court held that mere disturbance of law and order is insufficient for preventive detention. Consequently, the Court quashed the detention order and ordered the petitioner’s release.
Issues considered
- Whether the detention order under the Gujarat Prevention of Anti‑social Activities Act, 1985 is valid when the alleged activities are only a matter of law and order and not public order.
- Whether the detaining authority satisfied the requirement of Section 3(4) that the petitioner’s activities affect or are likely to affect public order.
- Whether a bootlegger can be preventively detained without proof of impact on public order.
Legislation cited
- Gujarat Prevention of Anti-Social Activities Act, 1985s. 2(b), s. 3(4)
Subjects
preventive detentionpublic orderlaw and orderbootleggingGujarat Prevention of Anti‑social Activities Actjurisprudencepreventive detention law
Judgment
R/SCR.A/6487/2026 ORDER DATED: 06/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6487 of 2026
==========================================================
MAHESH S/O. GULABRAO NIKUM THRO. LALITABAI GULABRAO NIKUM
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR GAURAV S THUMMAR(13022) for the Applicant(s) No. 1
MS ASMITA PATEL APP for the Respondents
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 06/05/2026
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
Rule. Learned APP waives service of Rule on behalf of
respondent State. By consent, Rule is fixed forthwith.
1. The petitioner came to be preventively detained vide
the detention order dated 29.04.2026 passed by the
Police Commissioner, Surat, 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 petitioner has challenged
the legality and validity of the aforesaid order.
3. This Court has heard learned counsel Mr. G.S.
Thummar and Ms. Asmita Patel, learned Additional
Public Prosecutor for the respective parties.
Page 1 of 7
R/SCR.A/6487/2026 ORDER DATED: 06/05/2026
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 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
of 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 Surat.
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
Page 2 of 7
R/SCR.A/6487/2026 ORDER DATED: 06/05/2026
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 one criminal case for the offence under
Sections 65(A)(E), 98(2), 81, 83, 116(B) dated
22.02.2026 with Bhestan Police Station, registered
against the petitioner under the Prohibition Law was
made and further 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.
Admittedly, in 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 one
prohibition 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
opinion, the said two 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
Page 3 of 7
R/SCR.A/6487/2026 ORDER DATED: 06/05/2026
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
Page 4 of 7
R/SCR.A/6487/2026 ORDER DATED: 06/05/2026
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 the
Page 5 of 7
R/SCR.A/6487/2026 ORDER DATED: 06/05/2026
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 maintenance of public order.
The order of detention cannot, therefore, be
Page 6 of 7
R/SCR.A/6487/2026 ORDER DATED: 06/05/2026
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 29.04.2026 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 06/05/2026 12:26:32
Page 7 of 7
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "preventive detention"Sign in to search