RAMESH @ JIVAN HIRABHAI BHARWAD THROUGH LALJI NARANBHAI BHARWADversusDISTRICT MAGISTRATE

     R/SCR.A/2316/2026                          ORDER DATED: 09/03/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 2316 of 2026

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 RAMESH @ JIVAN HIRABHAI BHARWAD THROUGH LALJI NARANBHAI
                         BHARWAD
                           Versus
                DISTRICT MAGISTRATE & ORS.
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Appearance:
MR RAJAN N THACKER(12656) for the Applicant(s) No. 1
MR RAKESH B SHARMA(2521) for the Applicant(s) No. 1
MR JAY MEHTA APP for the Respondent No. 2
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
       and
       HONOURABLE MR. JUSTICE R. T. VACHHANI

                           Date : 09/03/2026

                            ORAL ORDER
             (PER : HONOURABLE MR. JUSTICE ILESH J. VORA)


1.   The petitioner came to be preventively detained vide
     the detention order dated 09.02.2026 (11.02.2026)
     passed by the District Magistrate, Kutch-Bhuj, 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.

3.   This Court has heard learned counsel Mr. Rajan
     Thacker and Mr. Jay Mehta, learned Additional Public
     Prosecutor for the respective parties.




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4.   Learned advocate for the detenue submits that the
     grounds of detention has no nexus to the “public
     order”, but is a purely a matter of law and order, as
     registration of the o;ence cannot be said to have
     either a;ected adversely or likely to a;ect adverse the
     maintenance of public order as contemplated under
     the explanation sub-section (4) of Section 3 of the Act
     of 1985 and therefore, where the o;ences alleged to
     have been committed by the detunue have no bearing
     on the question of maintenance of public order and his
     activities could be said to be a prejudicial only to the
     maintenance of law and order and not prejudicial to
     the maintenance of public order.

5.   On the other hand, learned State Counsel opposing
     the      application    contended          that,    the     detenue           is
     habitual o;ender and his activities a;ected at the
     society at large. In such set of circumstances, 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 Kutch-Bhuj.

6.   Having          considered   the       facts       as   well      as         the
     submissions made by the respective parties, the issue
     arise as to whether the order of detention passed by
     the Detaining Authority in exercise of his powers

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     R/SCR.A/2316/2026                                    ORDER DATED: 09/03/2026




     under the provisions of the Act of 1985 is sustainable
     in law?


7.   The order impugned was executed upon the petitioner
     and presently he is in Jail. In the grounds of detention,
     a reference of two criminal cases i.e. (i) for the o;ence
     under Sections 65(A), 65(E), 98(2), 81, 83, 116(B)
     dated 28.05.2024 with Samakhiyari Police Station, (ii)
     for the o;ence under Sections 65(A), 65(E), 98(2), 81,
     83, 116(B) dated 16.09.2025 with “A” Gandhidham
     Division            Police   Station,         registered    against            the
     petitioner under the Prohibition Law was made and
     further it is alleged that, the activities of the detenue
     as a “bootlegger” a;ects adversely or are likely to
     a;ect adversely the maintenance of public order as
     explained under Section 3 of the Act of 1985.
     Admittedly, in said o;ences, the petitioner was
     granted bail.

8.   After careful consideration of the material, we are of
     the considered view that on the basis of aforesaid
     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
     opinion, the said two o;ences do not have any bearing
     on the maintenance of public order. In this connection,


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R/SCR.A/2316/2026                                ORDER DATED: 09/03/2026




we may refer to the decision of the Apex Court in the
case of Piyush Kantilal Mehta Vs. Commissioner
of Police, Ahmedabad, 1989 Supp (1) SCC 322,
wherein, the detention order was made on the basis
of the registration of the two prohibition o;ences. The
Apex Court after referring the case of Pushkar
Mukherjee Vs. State of Bengal, 1969 (1) SCC 10,
held and observed that mere disturbance of law and
order        leading       to   detention     order    is    thus          not
necessarily suCcient for action under preventive
detention Act.          Paras-17 & 18 are relevant to refer,
which read thus:

   “17. In this connection, we may refer to a decision of
   this Court in Pushkar Mukherjee v. State of West
   Bengal, where the distinction between `law and
   order' and `public order' has been clearly laid down.
   Ramaswami, J. speaking for the Court observed as
   follows:

                    10. "Does the expression `public order'
                    take in every kind of infraction of order or
                    only    some       categories     thereof?       It     is
                    manifest that every act of assault or
                    injury to speci/c persons does not lead to
                    public disorder. When two people quarrel
                    and /ght and assault each other inside a
                    house or in a street, it may be said that

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R/SCR.A/2316/2026                                        ORDER DATED: 09/03/2026




                    there is disorder but not public disorder.
                    Such cases are dealt with under the
                    powers       vested            in      the       executive
                    authorities       under         the       provisions            of
                    ordinary criminal law but the culprits
                    cannot be detained on the ground that
                    they were disturbing public order. The
                    contravention of any law always a2ects
                    order but before it can be said to a2ect
                    public      order,        it    must          a2ect            the
                    community or the public at large. In this
                    connection we must draw a line of
                    demarcation           between             serious            and
                    aggravated        forms         of     disorder         which
                    directly a2ect the community or injure
                    the public interest and the relatively
                    minor breaches of peace of a purely local
                    signi/cance          which           primarily          injure
                    speci/c      individuals            and      only       in      a
                    secondary sense public interest. A mere
                    disturbance of law and order leading to
                    disorder is thus not necessarily su4cient
                    for action under the Preventive Detention
                    Act but a disturbance which will a2ect
                    public order comes within the scope of
                    the Act."




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R/SCR.A/2316/2026                    ORDER DATED: 09/03/2026




   18. In the instant case, the detaining authority, in
   our opinion, has failed to substantiate that the
   alleged anti- social activities of the petitioner
   adversely a2ect or are likely to a2ect adversely the
   maintenance of public order. It is true some
   incidents of beating by the petitioner had taken
   place, as alleged by the witnesses. But, such
   incidents, in our view, do not have any bearing on
   the maintenance of public order. The petitioner may
   be punished for the alleged o2ences committed by
   him but, surely, the acts constituting the o2ences
   cannot be said to have a2ected the even tempo of
   the life of the community. It may be that the
   petitioner is a bootlegger within the meaning of
   section 2(b) of the Act, but merely because he is a
   bootlegger he cannot be preventively detained
   under the provisions of the Act unless, as laid down
   in sub-section (4) of section 3 of the Act, his
   activities as a bootlegger a2ect adversely or are
   likely to a2ect adversely the maintenance of public
   order We have carefully considered the o2ences
   alleged against the petitioner in the order of
   detention and also the allegations made by the
   witnesses and, in our opinion, these o2ences or the
   allegations cannot be said to have created any
   feeling of insecurity or panic or terror among the
   members of the public of the area in question giving


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         R/SCR.A/2316/2026                                                             ORDER DATED: 09/03/2026




              rise to the question of maintenance of public order.
              The         order          of       detention               cannot,             therefore,               be
              upheld.”

  9.      For the reasons recorded, we are of the considered
          opinion that, the material on record are not suCcient
          for holding that the alleged activities of the detenue
          have either a;ected adversely or likely to a;ect
          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.

  10. Accordingly, this petition stands allowed. The order
          impugned dated 09.02.2026 (11.02.2026) 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.

                                                                                              (ILESH J. VORA,J)




                                                                                           (R. T. VACHHANI, J)
  P.S. JOSHI


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 09/03/2026 12:40:26




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