High Court of Gujarat
ROHITBHAI @ MOTO ROHIT MOHANBHAI VAJA THROUGH BAMBHANIYA RAKESH BHANABHAIversusSTATE OF GUJARAT
- Disposal
- 38-RULE ABSOLUTE/ALLOWED @ FH
Holding
The detention order is illegal and is quashed because the material on record does not satisfy the requirement of a threat to public order under the Act.
Summary
The petitioner, Rohitbhai Vaja, challenged a detention order dated 01.01.2026 issued by the District Magistrate under the Gujarat Prevention of Anti‑social Activities Act, 1985, invoking Articles 226 and 227 of the Constitution. He argued that no material was placed before the authority to show that his alleged bootlegging activities disturbed public order, and that the order was passed mechanically. The State contended that the petitioner was a habitual offender whose conduct threatened public order. The High Court examined the order, noting that only two criminal cases under the Prohibition Act, for which bail had been granted, were cited, and found no evidence of a threat to public order. Relying on Supreme Court precedents emphasizing the extraordinary nature of preventive detention, the Court held that the material was insufficient to satisfy the statutory requirement of a threat to public order. Consequently, the detention order was quashed and the petitioner was directed to be released.
Issues considered
- Whether the detention order under the Gujarat Prevention of Anti‑social Activities Act, 1985 is valid in the absence of material showing a disturbance to public order.
- Whether the detaining authority's subjective satisfaction can be upheld when only prior criminal cases, for which bail was granted, are cited.
- Whether preventive detention is an appropriate remedy when ordinary criminal law provides sufficient mechanisms.
Legislation cited
Subjects
preventive detentionpublic orderGujarat Prevention of Anti‑social Activities Actbootleggingbailconstitutional challengeArticle 226Article 227
Judgment
R/SCR.A/291/2026 ORDER DATED: 29/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 291 of 2026
==========================================================
ROHITBHAI @ MOTO ROHIT MOHANBHAI VAJA THROUGH
BAMBHANIYA RAKESH BHANABHAI
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS. ALKA B VANIYA(6945) for the Applicant(s) No. 1
MR. RONAK RAVAL, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
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. This petition is filed by the petitioner namely
Rohitbhai @ Moto Rohit Mohanbhai Vaja through his
friend Bambhaniya Rakesh Bhanabhai under Article 226
and 227 of the Constitution of India challenging the
detention order detention order dated 01.01.2026 passed
by the District Magistrate, Gir-Somnath under Sub-
Section 2 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/291/2026 ORDER DATED: 29/01/2026
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 he 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
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 of
Gir-somnath 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
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R/SCR.A/291/2026 ORDER DATED: 29/01/2026
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, Surat. In the grounds of detention,
reference of two criminal case for the offences punishable
under Sections 65(E), 98(2), 99 and 81 of the Prohibition
Act registered with Navabandar Marine Police Station
against the petitioner 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. Undisputedly,
in the aforesaid alleged offences, the petitioner was granted
regular bail by the concerned court.
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,
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R/SCR.A/291/2026 ORDER DATED: 29/01/2026
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 two 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:
“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
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R/SCR.A/291/2026 ORDER DATED: 29/01/2026
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
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
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R/SCR.A/291/2026 ORDER DATED: 29/01/2026
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
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 29/01/2026 14:48:59
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