ARJUN S/O SANTOSH DIVARE THROUGH HIS MOTHER REKHA SANTOSH DIVAREversusSTATE OF GUJARAT

     R/SCR.A/1946/2026                            JUDGMENT DATED: 26/02/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 1946 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

==========================================================
       ARJUN S/O SANTOSH DIVARE THROUGH HIS MOTHER REKHA
                         SANTOSH DIVARE
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR MATAFER R PANDE(3952) for the Applicant(s) No. 1
MR KRUTIK A PARIKH, APP for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
       and
       HONOURABLE MR.JUSTICE D. M. VYAS

                             Date : 26/02/2026

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


1.       The detenue herein namely Arjun S/O Santosh Divare
came to be preventively detained vide the detention order
dated 10.01.2026 passed by the Police Commissioner,
Surat City as a ‘Dangerous Person’ as de ned 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, the detenue has challenged the
legality and validity of the aforesaid order through his

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     R/SCR.A/1946/2026                      JUDGMENT DATED: 26/02/2026




mother.


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 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 Central Jail, Ahmedabad.


5.       On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual o3ender and
his activities a3ected 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


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     R/SCR.A/1946/2026                      JUDGMENT DATED: 26/02/2026




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 in Central
Jail, Ahmedabad. In the grounds of detention, reference of
Two cases for the o)ences punishable under Sections
303(2), 309(6), 54 of the Bhartiya Nyay Sanhita, 2023
and Section 135(1) of the Gujarat Police Act, registered
with Dindoli police station against the detenue from
10.08.2025 to 12.11.2025 is made out.


7.1. In the impugned order, it is alleged that the activities of
the detenue as a “Dangerous Peron” a3ects adversely or are
likely to a3ect adversely the maintenance of public order as
explained under Section 2(c) of the Act of 1985. Undisputedly,
in the aforesaid alleged o3ences, the petitioner was granted
regular 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:


         “2(c) "dangerous person" means a person who either by


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     R/SCR.A/1946/2026                           JUDGMENT DATED: 26/02/2026




         himself or as a member or leader of a gang, habitually
         commits, or attempts to commit or abets the commission
         of any other o3ences 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 o3ences 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 o3ences 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
         o3ence(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,

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  R/SCR.A/1946/2026                              JUDGMENT DATED: 26/02/2026




      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 su3icient means to address the
              apprehensions leading to the impugned detention
              order. There may have existed su3icient 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
su3icient for holding that the alleged activities of the detenue
have either a3ected adversely or likely to a3ect adversely the


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     R/SCR.A/1946/2026                                                             JUDGMENT DATED: 26/02/2026




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 10.01.2026 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)
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 27/02/2026 14:49:26




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