BRIJESH @ BHINDI BALIRAM KUSHWAH THRO. BALIRAM HUKUMSINGH KUSHWAHversusPOLICE COMMSSIONER

     R/SCR.A/17270/2025                         ORDER DATED: 19/01/2026




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CRIMINAL APPLICATION NO. 17270 of 2025

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       BRIJESH @ BHINDI BALIRAM KUSHWAH THRO. BALIRAM
                    HUKUMSINGH KUSHWAH
                             Versus
                  POLICE COMMSSIONER & ORS.
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Appearance:
MR BH SOLANKI(5353) for the Applicant(s) No. 1
MR. ROHAN SHAH, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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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 detenue herein namely Brijesh @ Bhindi Baliram
Kushwah came to be preventively detained vide the detention
order dated 24.11.2025 passed by the Commissioner of Police,
Ahmedabad City, 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 through his father namely Baliram
Hukumsingh Kushwah, the detenue has challenged 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.


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     R/SCR.A/17270/2025                          ORDER DATED: 19/01/2026




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 Bhuj Jail.


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 in the area of Ahmedabad and
lastly prayed to dismiss the present petition.


6.      Having considered the facts as well as the submissions
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


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     R/SCR.A/17270/2025                         ORDER DATED: 19/01/2026




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 Bhuj
Jail. In the grounds of detention, reference of two criminal cases
for the offences punishable under Sections 303(2) of the BNS
registered with various Police Station against the detenue on
05.09.2025 is made out.


7.1. In the impugned order, 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 the provisions of the the Act of 1985. Undisputedly, in the
aforesaid alleged offences, 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
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 offences
        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 offences
        punishable under chapter V of the Arms Act, 1959;”



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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 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
        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


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                 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 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 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


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      R/SCR.A/17270/2025                                                                       ORDER DATED: 19/01/2026




authority cannot be said to be legal, valid and in accordance
with law.


11.        Accordingly, this petition stands allowed. The order
impugned dated 24.11.2025 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)
Mehul Desai
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MEHULKUMAR BHIMABHAI DESAI(HCD0075), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 19/01/2026 17:48:46




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