NURBANU @ NURI @ SHAISTHA W/O VASIM SHEKH AND D/O SAMIRKHAN THRO KHAN AFSANABI FARUKversusSTATE OF GUJARAT

      R/SCR.A/42/2026                          ORDER DATED: 21/01/2026




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 42 of 2026

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     NURBANU @ NURI @ SHAISTHA W/O VASIM SHEKH AND D/O
           SAMIRKHAN THRO KHAN AFSANABI FARUK
                            Versus
                  STATE OF GUJARAT & ORS.
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Appearance:
MR ARJUNSINGH B CHAUHAN(11510) for the Applicant(s) No. 1
MR. KRUTIK A. PARIKH, 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 : 21/01/2026

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


1.     The detenue herein namely Nurbanu @ Nuri @
Shaistha w/o. Vasim Shekh and D/o Samirkhan came to
be preventively detained vide the detention order dated
13.12.2025 passed by the Commissioner of Police, Surat
City, as a sexual offender as defined under Section 2(ha) of
the Gujarat Prevention of Anti-social Activities Act, 1985
(herein after referred as ‘the Act of 1985).


2.     By way of this petition through his father Khan
Mukhtar Ashir, the detenue has challenged the legality and
validity of the aforesaid order.



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     R/SCR.A/42/2026                                   ORDER DATED: 21/01/2026




3.    This Court has heard learned advocate 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 executed upon the petitioner
and presently he is detained in the Central Jail, Rajkot.


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
Surat and lastly prayed to dismiss the present petition.



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     R/SCR.A/42/2026                       ORDER DATED: 21/01/2026




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 detenue and presently he
is detained in Central Jail, Rajkot. In the grounds of
detention, reference of one criminal cases for the offences
punishable under Sections 137(2), 61(2), 64(2)(I), 64(2)
(M), 65(1), 75(2), 115(2), 143(2), 144(2), 351(3) and 54 of
BNS and Section 4, 5(l), 7, 8, 11, 12 and 16 of POCSO
registered with Limbayat Police Station              against the
detenue on 25.09.2025 is made out.


7.1. In the impugned order, it is alleged that the activities
of the detenue as a “Sexual Offender” 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(ha) of the Act of 1985 is referred by

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     R/SCR.A/42/2026                           ORDER DATED: 21/01/2026




the concerned authorities. Hence, the same is required to
be reproduced. The same reads as under:


      “(ha) “sexual offender” means a person, who commits or
      attempts to commit or abets the commission of any offence
      punishable under section 354, 354A, 354B, 354C, 354D,
      376, 376-A, 376-B, 376-C, 376-D or 377 of the Indian Penal
      Code or the Protection of Children from Sexual Offences Act,
      2012;”.


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:


      “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/42/2026                             ORDER DATED: 21/01/2026




 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/42/2026                                                                     ORDER DATED: 21/01/2026




                       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 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 13.12.2025 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 21/01/2026 15:37:47




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