BHAVESHBHAI @ BHOLO GOVINDBHAI KOTAR THRO. SURESHBHAI LAKHABHAI KOTARversusSTATE OF GUJARAT

     R/SCR.A/17529/2025                          ORDER DATED: 20/01/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 17529 of 2025
==========================================================
 BHAVESHBHAI @ BHOLO GOVINDBHAI KOTAR THRO. SURESHBHAI
                   LAKHABHAI KOTAR
                         Versus
                STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS DRASHTY N BUDHANI(13855) for the Applicant(s) No. 1
MR VINAY B VISHEN, APP for the Respondent(s) No. 1
==========================================================
 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 detenue herein namely Bhaveshbhai @ Bholo
Govindbhai Kotar came to be preventively detained vide the
detention detention order dated 22.12.2025 passed by the
District       Magistrate,    Bhavnagar, 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 detenue has challenged the
legality and validity of the aforesaid order through his uncle.

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


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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 detenue and
presently he is detained in the Special Jail, Bhuj.


5.      On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual o2ender and
his activities a2ected 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 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 not?




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     R/SCR.A/17529/2025                          ORDER DATED: 20/01/2026




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 Special
Jail, Bhuj. In the grounds of detention, reference of two case
for the o#ences punishable under Sections 65(A)(E),
116(B), 98(2)             and 81    of the Prohibition        Act and
registered with Talaja police station against the detenue
from 28.04.2025 to 03.08.2025 is made out.


7.1. In the impugned order, it is alleged that the activities of
the detenue as a “bootlegger” a2ects adversely or are likely
to a2ect adversely the maintenance of public order as
explained under Section 3 of the Act of 1985.


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


        “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;”




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     R/SCR.A/17529/2025                             ORDER DATED: 20/01/2026




9.      After consideration of the available material, we are of
the considered view that on the basis of two 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 considered opinion, the said o2ences 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
        o2ence(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 su2icient means to address the


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                 apprehensions leading to the impugned detention
                 order. There may have existed su2icient 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 are not
su2icient for holding that the alleged activities of the detenue
have either a2ected adversely or likely to a2ect 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 22.12.2025 passed by the respondent


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      R/SCR.A/17529/2025                                                              ORDER DATED: 20/01/2026




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)
OMKAR

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: OMKAR CHHAGANLAL MAHAWAR(HC00201), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 20/01/2026 14:24:38




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