DANISHBHAI HANIFBHAI KANDIYA (MAJODI) THRO. UMAR HANIFBHAI KANDIYAversusSTATE OF GUJARAT

      R/SCR.A/17233/2025                        ORDER DATED: 19/01/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 17233 of 2025

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DANISHBHAI HANIFBHAI KANDIYA (MAJODI) THRO. UMAR HANIFBHAI
                        KANDIYA
                          Versus
                 STATE OF GUJARAT & ORS.
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Appearance:
MR M N SHAIKH(11323) for the Applicant(s) No. 1
MS SAHISTA S KHOKHAR(11116) for the Applicant(s) No. 1
MR. ROHAN SHAH, 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 : 19/01/2026
                     ORAL ORDER
 (PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

[1]      The present petition is 0led by Danishbhai Hanifbhai
Kandiya (Majodi) through his brother, namely Umar Hanifbhai
Kandiya (hereinafter referred to as “the detenue”) came to be
preventively detained vide the detention order dated 06.12.2025
passed by the Director General of Police, C.I.D Crime and
Railways, Gandhinagar, as a Illicit Tra>ic as de0ned under
Section 2(e) of The Prevention of Illicit Tra>ic 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.


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[4]      Learned advocate for the petitioner has averred in his
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 Sabarmati Central Jail, Ahmedabad.


[5]      On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual o>ender and his
activities a>ected 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 Rajkot 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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      R/SCR.A/17233/2025                                ORDER DATED: 19/01/2026




[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 Sabarmati
Central Jail, Ahmedabad. In the grounds of detention, reference
of one criminal cases for the o>ences punishable under Sections
8(c), 20(b) and 29 of the NDPS Act, 1985 dated 15.02.2024 with
Bhaktinagar Police Station, Rajkot City against the detenue was
made out.


[7.1] In the impugned order, it is alleged that the activities of
the detenue as a “Illicit Tra>ic” a>ects adversely or are likely to
a>ect 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 tra>ic", 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



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      R/SCR.A/17233/2025                                 ORDER DATED: 19/01/2026




                    narcotic drugs or psychotropic substances;

          (iv)      dealing in any activities in narcotic drugs or psychotropic
                    substances other than those provided in sub-clauses (i) 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)       0nancing, 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 o>ence 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 o>ences 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


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R/SCR.A/17233/2025                                ORDER DATED: 19/01/2026




   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 (nds 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 su#icient means to
   address the apprehensions leading to the impugned detention
   order. There may have existed su#icient 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


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    R/SCR.A/17233/2025                                               ORDER DATED: 19/01/2026




       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 su>icient
for holding that the alleged activities of the detenue have either
a>ected adversely or likely to a>ect 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 06.12.2025 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.)
DHARMENDRA KUMAR


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: KUMAR DHARMENDRA(HC01071), GOV, at High Court of Gujarat on 19/01/2026 17:07:07




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