UPESH @KANO SHANTIBHAI SARVAIYA THRO SARVAIYA RADHIKABEN UPESHKUMARversusSTATE OF GUJARAT

     R/SCR.A/6118/2026                          ORDER DATED: 07/05/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 6118 of 2026

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UPESH @KANO SHANTIBHAI SARVAIYA THRO SARVAIYA RADHIKABEN
                     UPESHKUMAR
                         Versus
                STATE OF GUJARAT & ORS.
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Appearance:
MR DHAVAL J MAKWANA(12857) for the Applicant(s) No. 1
MR HARDIKKUMAR J JAISUR(13777) for the Applicant(s) No. 1
MS KRINA CALLA, 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 : 07/05/2026

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



1.     The petitioner herein namely Upesh @ Kano Shantibhai
Sarvaiya came to be preventively detained vide the detention
order dated 24.04.2026 passed by the Police Commissioner,
Ahmedabad, as a “dangerous person” as defined under
Section 2(c) 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 Mr.D.J. Makwana, learned counsel
for the petitioner and Ms.Krina Calla, learned APP for the
respondent State.

4.     Learned advocate for the detenue submits that the


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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 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 in
the area of Ahmedabad.

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 applicant
and presently he is in Jail. In the grounds of detention, a
reference of two criminal cases i.e. (I) for the offences
punishable under Sections 119(1), 204, 351(2) and 61(2) of the



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BNS and (II) for the offences punishable under Sections 308(4),
115(2), 204, 61(2) of the BNS, registered against the applicant
under the Indian Penal Code was made and further it is alleged
that, the activities of the detenue as a “dangerous 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.     After careful consideration of the material, we are of the
considered view that on the basis of two 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
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'


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   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."




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        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 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 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



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     satisfaction arrived at by the detaining authority cannot be
     said to be legal, valid and in accordance with law.

     10.        Accordingly, this petition stands allowed. The order
     impugned               dated          24.04.2026                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)
     Rakesh




Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: RAKESH MAHESHKUMAR KOSHTI(HC00950), Principal Pvt. Secretary, at High Court of Gujarat on 07/05/2026 12:05:42




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