MUSABHAI ALLRAKHABHAI RADIYA THRO RADIYA ISMAIL ALARKHAversusSTATE OF GUJARAT

     R/SCR.A/5880/2026                          ORDER DATED: 05/05/2026




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
  R/SPECIAL CRIMINAL APPLICATION NO. 5880 of 2026
=========================================
  MUSABHAI ALLRAKHABHAI RADIYA THRO RADIYA ISMAIL
                      ALARKHA
                        Versus
                  STATE OF GUJARAT
=========================================
Appearance:
MR NIRAV C SANGHAVI(5950) for the Applicant(s) No. 1
MR UTKARSH SHARMA, APP for the Respondent(s) No. 1
=========================================
 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
        and
        HONOURABLE MR. JUSTICE R. T. VACHHANI

                         Date : 05/05/2026

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



1.     The petitioner came to be preventively detained vide the
detention order dated 12/04/2026 passed by the respondent
authority, as a “cruel person” as defined under Section 2(bbb) 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 APP 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 offence cannot be
said to have either affected adversely or likely to affect adverse the


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     R/SCR.A/5880/2026                                    ORDER DATED: 05/05/2026




maintenance of public order as contemplated under the explanation
sub-section (4) of Section 3 of the Act, 1985 and therefore, where
the offences 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 offender and his
activities affected 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 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?


7.     The order impugned was executed upon the applicant. 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 “cruel person” affects
adversely or are likely to affect adversely the maintenance of public
order as explained under Section 3 of the Act of 1985. Admittedly,
in all the said offences, the applicant was granted bail.


8.     The term ‘Cruel Person’ defined under Section 2(bbb) reads



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     R/SCR.A/5880/2026                               ORDER DATED: 05/05/2026




as under:

                "cruel person" means a person, who either by himself or as a
                member or leader of a gang, habitually commits or attempts
                to commit or abets the commission of an offence punishable
                under section 8 of the Bombay Animal Preservation Act,
                1954;"


9.   After careful consideration of the material, we are of the
     considered view that, there is no material placed before the
     authority to establish that the applicant was convicted of an
     offence punishable under Section 8 of the Bombay Animal
     Preservation Act, 1954 within a period of 3 years from the date
     of such conviction who either himself or as a member or leader
     of a gang, habitually commits or attempts to commit or abets
     the commission of the Bombay Animal Preservation Act, 1954.
     Thus, therefore, we are of the firm view that, the activities as
     alleged would not fall under the definition of ‘cruel person’.
     After careful consideration of the material, we are of the
     considered view that on the basis of said criminal 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 offences 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
     offences. 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 sufficient for action
     under preventive detention Act. Paras-17 & 18 are relevant to


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R/SCR.A/5880/2026                                ORDER DATED: 05/05/2026




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 specific
           persons does not lead to public disorder. When two people
           quarrel and fight 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 affects order but before it
           can be said to affect public order, it must affect 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 affect the community or
           injure the public interest and the relatively minor breaches
           of peace of a purely local significance which primarily injure
           specific individuals and only in a secondary sense public
           interest. A mere disturbance of law and order leading to
           disorder is thus not necessarily sufficient for action under
           the Preventive Detention Act but a disturbance which will
           affect 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 affect or are likely to affect 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 offences committed by him but, surely, the acts
   constituting the offences cannot be said to have affected 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 affect adversely or are likely to affect adversely the
   maintenance of public order We have carefully considered the
   offences alleged against the petitioner in the order of detention
   and also the allegations made by the witnesses and, in our
   opinion, these offences or the allegations cannot be said to have
   created any feeling of insecurity or panic or terror among the


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       R/SCR.A/5880/2026                                                                     ORDER DATED: 05/05/2026




            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.”


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 12/04/2026 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)



                                                                                          (R. T. VACHHANI, J)
Kaushal Rathod

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: KAUSHAL MAHESHBHAI RATHOD(HCD0078), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 05/05/2026 12:41:54




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