BHAVESHBHAI BHOJABHAI KODIYATAR THRO BHARATBHAI BHOJABHAI KODIYATARversusSTATE OF GUJARAT

     R/SCR.A/5346/2026                            ORDER DATED: 27/04/2026




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5346 of 2026
======================================
     BHAVESHBHAI BHOJABHAI KODIYATAR THRO
        BHARATBHAI BHOJABHAI KODIYATAR
                     Versus
               STATE OF GUJARAT
======================================
Appearance:
MR. NIPUL H GONDALIA(6894) for the Applicant(s) No. 1
MR. L.B. DABHI, APP for the Respondent(s) No. 1
======================================

CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA
       and
       HONOURABLE MS. JUSTICE NISHA M. THAKORE

                         Date : 27/04/2026

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

1.    The petitioner came to be preventively detained vide the
      detention order dated 11.04.2026 passed by the respondent
      authority, as a bootlegger as de昀椀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 and learned Additional
      Public Prosecutor for the respective parties.


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昀昀ence cannot
      be said to have either a昀昀ected adversely or likely to a昀昀ect


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     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昀昀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昀昀ender
     and his activities a昀昀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.


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 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 one criminal case as mentioned in the impugned detention
     order and further it is alleged that, the activities of the
     detenue as a “bootlegger” a昀昀ects adversely or are likely to
     a昀昀ect adversely the maintenance of public order as explained
     under Section 3 of the Act of 1985. Admittedly, in said
     o昀昀ences, the petitioner was granted bail.




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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昀昀ences do not have any bearing on
     the maintenance of public order. In this connection, 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昀昀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 su昀昀icient 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昀椀c persons does not lead to
                         public disorder. When two people quarrel and 昀椀ght
                         and assault each other inside a house or in a street,
                         it may be said that 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 a昀昀ects order but before it can be said to
                         a昀昀ect public order, it must a昀昀ect the community or
                         the public at large. In this connection we must draw
                         a line of demarcation between serious and


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     R/SCR.A/5346/2026                                 ORDER DATED: 27/04/2026




                         aggravated forms of disorder which directly a昀昀ect
                         the community or injure the public interest and the
                         relatively minor breaches of peace of a purely local
                         signi昀椀cance   which     primarily  injure    speci昀椀c
                         individuals and only in a secondary sense public
                         interest. A mere disturbance of law and order
                         leading to disorder is thus not necessarily su昀昀icient
                         for action under the Preventive Detention Act but a
                         disturbance which will a昀昀ect public order comes
                         within the scope of the Act."


        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 a昀昀ect or are likely to a昀昀ect 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 o昀昀ences committed by him but, surely, the acts
        constituting the o昀昀ences cannot be said to have a昀昀ected 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 a昀昀ect adversely or are likely to a昀昀ect adversely the
        maintenance of public order We have carefully considered the
        o昀昀ences alleged against the petitioner in the order of detention
        and also the allegations made by the witnesses and, in our
        opinion, these o昀昀ences 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 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 su昀昀icient for holding that
     the alleged activities of the detenue have either a昀昀ected
     adversely or likely to a昀昀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.




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      R/SCR.A/5346/2026                                                           ORDER DATED: 27/04/2026




10. Accordingly, this petition stands allowed. The order impugned
       dated 11.04.2026 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.)


                                                                  (NISHA M. THAKORE, J.)
AMAR RATHOD.../sfs/27.04

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: AMAR KANTILAL RATHOD(HC01074), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 27/04/2026 17:14:15




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