SURAJ @ RAVI ASHRAM DIVAKAR THRO KOMALBEN SURAJ DIVAKARversusSTATE OF GUJARAT

      R/SCR.A/17447/2025                        ORDER DATED: 20/01/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 17447 of 2025

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 SURAJ @ RAVI ASHRAM DIVAKAR THRO KOMALBEN SURAJ DIVAKAR
                           Versus
                  STATE OF GUJARAT & ORS.
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Appearance:
MR ARVIND K THAKUR(2322) for the Applicant(s) No. 1
MR. H. J. ACHARYA(14484) for the Applicant(s) No. 1
MS. MITALI A. THAKUR(18722) for the Applicant(s) No. 1
MR. VINAY B. VISHEN, 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 : 20/01/2026
                     ORAL ORDER
 (PER : HONOURABLE MR. JUSTICE ILESH J. VORA)


[1]      The petitioner herein, namely Suraj @ Ravi Asharam
Divakar, has <led the present petition through his wife, namely
Komalben Suraj Divakar under Articles 226 and 227 of the
Constitution of India, challenging the detention order             dated
19.12.2025 passed by the Police Commissioner, Ahmedabad
City, as a “bootlegger” as de<ned 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.




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      R/SCR.A/17447/2025                         ORDER DATED: 20/01/2026




[3]      This Court has heard learned counsel 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      public health, 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 has been passed
without application of mind and, prima facie, appears to have
been 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 Surat Jail, Surat.


[5]      On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual oJender and his
activities have aJected 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.




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      R/SCR.A/17447/2025                     ORDER DATED: 20/01/2026




[6]      Having considered the facts as well as the submissions
made by the learned advocates appearing for the respective
parties, the core issue that arises is 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 impugned order was
executed upon the petitioner and presently he is in Surat Jail,
Surat. In the grounds of detention, reference of three criminal
cases for the oJences punishable under Sections 65(a)(e), 81,
98(2) and 116(b) of the Prohibition Act registered with various
police stations against the petitioner from 23.09.2024 to
14.09.2025 is made out.


[7.1] In the impugned order, it is alleged that the activities of
the detenue, as a “bootlegger”, aJect adversely or are likely to
aJect adversely the maintenance of public order as explained
under Section 3 of the Act of 1985. Undisputedly, in the
aforesaid alleged oJences, the petitioner was granted bail by
the concerned court.


[8]      Considering the impugned order, it appears that the
provisions of Section 2(b) of the Act of 1985 have been referred
to by the concerned authorities. Hence, the same is required to
be reproduced. The same reads as under:-


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      R/SCR.A/17447/2025                                ORDER DATED: 20/01/2026




         “2(b) "bootlegger" means a person who distills, manufactures,
         stores, transports, imports, exports, sells or distributes any
         liquor, intoxicating drug or other intoxicant in contravention of
         any provision of the Bombay Prohibition Act, 1949 and the
         rules and orders made thereunder, or of any other law for the
         time being in force or who knowingly expends or applies any
         money or supplies any animal, vehicle, vessel or other
         conveyance or any receptacle or any other material
         whatsoever in furtherance or support of the doing of any of the
         things described above by or through any other person, or who
         abets in any other manner the doing of any such thing;”


[9]      After consideration of the available material, we are of the
considered view that on the basis of three cases, the authority
has wrongly arrived at the subjective satisfaction that the
activities of the detenue could be termed as acting in a manner
‘prejudicial to the maintenance of public order’.                        In our
considered opinion, the said oJences 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 Dhaya
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 o0ence(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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   R/SCR.A/17447/2025                                ORDER DATED: 20/01/2026




      …..

      “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 su0icient means to
      address the apprehensions leading to the impugned detention
      order. There may have existed su0icient 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 aforesaid reasons, we are of the considered
opinion that, the material available on record is not suJicient to


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      R/SCR.A/17447/2025                                                ORDER DATED: 20/01/2026




 hold that the alleged activities of the detenue have either
 aJected adversely or are likely to aJect adversely the
 maintenance of public order, and therefore, the subjective
 satisfaction arrived at by the detaining authority cannot be said
 to be legal, valid or in accordance with law.


 [11] Accordingly, this petition stands allowed. The order
 impugned dated 19.12.2025 passed by the respondent authority
 is hereby quashed. We direct that the detenue 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 20/01/2026 14:38:45




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