GULAM MUSTUFA @ INAYAT IBRAHIMBHAI KHATKI THRO ISMAILBHAI IBRAHIMBHAI KHATKIversusSTATE OF GUJARAT

     R/SCR.A/199/2026                       ORDER DATED: 23/01/2026




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CRIMINAL APPLICATION NO. 199 of 2026

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      GULAM MUSTUFA @ INAYAT IBRAHIMBHAI KHATKI THRO
              ISMAILBHAI IBRAHIMBHAI KHATKI
                           Versus
                 STATE OF GUJARAT & ANR.
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Appearance:
MR MOIZ S QURESHI(12981) for the Applicant(s) No. 1
MR ADITYASINH JADEJA, ADDL. PUBLIC PROSECUTOR 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 : 23/01/2026

                         ORAL ORDER
          (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)


1.     This petition is filed by the petitioner namely Gulam
Mustufa Urfe Inayat Ibrahimbhai Khatki through his
brother Ismailbhai Ibrahimbhai Khatki under Article 226
and 227 of the Constitution of India challenging the
detention order detention order dated 02.01.2026 passed
by the       Commissioner of Police, Vadodara City under
Sub-Section 1 of Section 3 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/199/2026                      ORDER DATED: 23/01/2026




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 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 execution upon the detenue
and presently she is detained in the Central Jail, Surat.

5.     On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual offender and
her 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
Vadodara 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


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     R/SCR.A/199/2026                            ORDER DATED: 23/01/2026




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 petitioner and presently she is in
Central Jail, Surat. In the grounds of detention, reference
of two criminal case for the offences punishable under
Sections 325, 115(2), 118(1)(2), 189(2), 191(2)(3), 190,
125, 352, 296(b) and 54 of BNS, Sections 11(1)(1) and
11(1)(h) as well as Sections 5(1), 6(b), 8(1)(2) and 10 of
Prevention of Cruelty to Animals Act, 1960 and Section
135 of G. P. Act registered with Jawaharnagar Police
Station        against   the   petitioner     from   14.01.2025            to
19.10.2025 is made out.

7.1. In the impugned order, it is alleged that the activities
of the detenue as a “cruel 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(bbb) of the Act of 1985 is referred by
the concerned authorities. Hence, the same is required to

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     R/SCR.A/199/2026                        ORDER DATED: 23/01/2026




be reproduced. The same reads as under:

      "cruel person" means a person, who either by himself or
      as a member or leader of a gang, habitually commits or
      attempts to commit or abets the commission of an
      offence punishable under section 8 of the Bombay
      Animal Preservation Act, 1954;"

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.”

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R/SCR.A/199/2026                           ORDER DATED: 23/01/2026




  …..

  “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
          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

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        R/SCR.A/199/2026                                                                      ORDER DATED: 23/01/2026




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


11.        Accordingly, this petition stands allowed. The order
impugned dated 02.01.2026 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.


                                                                                                   (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 23/01/2026 15:07:12




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