JAGDISHBHAI @TIKU HAMIRBHAI BAMBHANIYA THRO VAJA VIJAY DAYABHAIversusSTATE OF GUJARAT

      R/SCR.A/260/2026                            ORDER DATED: 29/01/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 260 of 2026
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     JAGDISHBHAI @TIKU HAMIRBHAI BAMBHANIYA THRO VAJA VIJAY
                            DAYABHAI
                              Versus
                     STATE OF GUJARAT & ORS.
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Appearance:
MS. ALKA B VANIYA(6945) for the Applicant(s) No. 1
MR RONAK B RAVAL, APP 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 : 29/01/2026

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


1.      The      detenue   herein   namely      Jagdishbhai         @Tiku
Hamirbhai Bambhaniya came to be preventively detained
vide the detention order dated 01.01.2026 passed by the
District Magistrate, Gir Somnath, as a bootlegger as
defined 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 cousin
brother.

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 Central Jail, Vadodara.


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
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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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, Vadodara. In the grounds of detention, reference of two
cases for the offences punishable under Sections 65(E),
98(2), 99, and 81 of the Prohibition Act, registered with
Nava Bandar Marin police station against the detenue
from 19.10.2025 to 20.10.2025 is made out.


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.


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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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.”

       …..

       “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


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                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 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 01.01.2026 passed by the respondent


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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 29/01/2026 14:09:03




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