YASH @SANJAYBHAI ISHWARBHAI SANKABHAI DESAIversusSTATE OF GUJARAT

     R/SCR.A/1393/2026                                  JUDGMENT DATED: 19/02/2026




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
       R/SPECIAL CRIMINAL APPLICATION NO. 1393 of 2026

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE D. M. VYAS
=============================================
             Approved for Reporting                   Yes          No

=============================================
            YASH @SANJAYBHAI ISHWARBHAI SANKABHAI DESAI
                               Versus
                      STATE OF GUJARAT & ANR.
=============================================
Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
MS. MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
=============================================
 CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
       and
       HONOURABLE MR.JUSTICE D. M. VYAS

                            Date : 19/02/2026

                          ORAL JUDGMENT
              (PER : HONOURABLE MR.JUSTICE D. M. VYAS)


1.       The      detenue   herein     namely        Yash    @     Sanjaybhai
Ishwarbhai Sankabhai Desai                         came to be preventively
detained vide the detention order dated 23.01.2026 passed
by the District Magistrate, Patan as a dangerous person as
de9ned 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 through his father namely
Ishwarbhai S/O Shankabhai Desai, the detenue has challenged



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the legality and validity of the aforesaid order.


3.       This Court has heard learned advocate for the petitioner
and learned APP for the respondent-State Authorities.


4.       Learned advocate for the petitioner vehemently argued
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 petitioner and
presently he is detained in the Sub Jail, Dahod.


5.       On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual oFender and
his activities aFected 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 of Patan and
lastly prayed to dismiss the present petition.


6.       Having considered the facts as well as the submissions


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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?


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 detained in
Sub Jail, Dahod. In the grounds of detention, reference of
two criminal cases for the o9ences punishable under
Sections 310(1), 310(2), 310(5), 190, 191(2), 191(3),
110, 189(2), 221, 334(1), 296(b), 351(3) and 121(1) of
the BNS and under Sections 135 of the GP Act and
under Sections 3(1)(R), 3(2)(5)A and 3(2)(5) of the
Atrocities Act registered with various police stations
against the detenue from 07.03.2025 to 24.12.2025 is made
out.


7.1. In the impugned order, it is alleged that the activities of
the detenue as a “dangerous person” aFects adversely or are
likely to aFect adversely the maintenance of public order as
explained under the provisions of the the Act of 1985.
Undisputedly, in the aforesaid alleged oFences, the detenue
was granted bail by the concerned court.


8.       Considering the impugned order, it appears that the
provisions of Section 2(c) of the Act of 1985 is referred by the
concerned authorities.     Hence, the same is required to be


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reproduced. The same reads as under:


         “(c) "dangerous person" means a person, who either by
         himself or as a member or leader of a gang, during a period of
         three successive years, habitually commits, or attempts to
         commit or abets the commission of any of the o ences
         punishable under Chapter XVI or Chapter VIII or Chapter XVI
         (except section 354, 354A, 354B, 354C, 354D, 376, 376A,
         376B, 3376C, 376D, or 377) or Chapter XVII or Chapter XXII of
         the Indian Penal Code or any of the o ences punishable under
         chapter V of the Arms Act, 1959;”


9.       After consideration of the available material, we are of
the considered view that on the basis of two 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
considered opinion, the said oFences 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 o ence(s), and
         therefore, must not be used in the ordinary course of nature.
         The power of preventive detention 2nds 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.”

         …..


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      “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 su<cient means to address the
              apprehensions leading to the impugned detention order.
              There may have existed su<cient 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 reasons recorded, we are of the considered


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opinion that, the material on record are not suMcient for
holding that the alleged activities of the detenue have either
aFected          adversely           or      likely       to     aFect         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 23.01.2026 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.




                                                                 (N.S.SANJAY GOWDA,J)



                                                                                (D. M. VYAS, J)
YASH ARORA


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: YASH ARORA(HC02369), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 19/02/2026 18:23:38




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