TIRATH S/O LALABAHADUR MAURYA THROUGH NEERAJ LALBAHADUR MAURYAversusSTATE OF GUJARAT

     R/SCR.A/2051/2026                              JUDGMENT DATED: 02/03/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 2051 of 2026


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA

and
HONOURABLE MR.JUSTICE D. M. VYAS

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              Approved for Reporting              Yes          No

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        TIRATH S/O LALABAHADUR MAURYA THROUGH NEERAJ
                       LALBAHADUR MAURYA
                              Versus
                     STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR ARJUNSINGH B CHAUHAN(11510) for the Applicant(s) No. 1
MS. MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
       and
       HONOURABLE MR.JUSTICE D. M. VYAS

                             Date : 02/03/2026

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


1.       This petition is filed by the petitioner namely Tirath
Lalbahadur Maurya under Article 226 and 227 of the
Constitution of India challenging the detention                           order
detention           order   dated      03.02.2026       passed       by     the
Commissioner of Police, Surat City under Sub-Section 2

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     R/SCR.A/2051/2026                                 JUDGMENT DATED: 02/03/2026




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 through his
friend Neeraj Lalbahadur Maurya, challenged the legality
and validity of the aforesaid order.


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      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 offender and
his activities affected at the society at large. Hence, the



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     R/SCR.A/2051/2026                      JUDGMENT DATED: 02/03/2026




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
Surat 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?

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
he is in Central Jail, Ahmedabad. In the grounds of
detention, reference of one criminal case for the offences
punishable under Sections 65(A)(E), 98(2), 116(B) and 81
of the Prohibition Act registered with Udhna Police
Station against the petitioner on 11.01.2026.

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

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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;”

9.       After consideration of the available material, we are of
the considered view that on the basis of one 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 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:




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    “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
            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


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        R/SCR.A/2051/2026                                                                      JUDGMENT DATED: 02/03/2026




                          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
  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 03.02.2026 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)
  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 03/03/2026 12:31:06


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