Gujarat High Court
Maheshbhai Vanrajbhai Khachar Thro … vs State Of Gujarat on 10 March, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/2949/2025 ORDER DATED: 10/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2949 of 2025
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MAHESHBHAI VANRAJBHAI KHACHAR THRO VANRAJBHAI JESURBHAI
KHACHAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
MS SWETA P BAROT(10181) for the Applicant(s) No. 1
MR JAY MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/03/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. The petitioner herein namely Maheshbhai Vanrajbhai
Khachar came to be preventively detained vide the detention
order dated 24.01.2025 (actual date of detention is
19.02.2025) passed by the District Magistrate, Surendranagar,
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 learned counsel Mr. Pawan Barot
and Mr. Jay Mehta, learned Additional Public Prosecutor for the
respondent State.
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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 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 Surendranagar.
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 registered against the
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applicant (i) for the offence punishable under Sections 109,
352, 351(3), 61(2), 189(2), 191(2), 191(3) and 190 of BNSS,
2023 and Section 3(2)(v) of The Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act and Sections
25(1-b)(a) and 27 of Arms Act and Section 135 of G.P. Act
dated 15.09.2024 registered with Sayla Police Station and (ii)
for the offence punishable under Sections 307, 323, 325, 387,
504, 506(2) of IPC and Section 135 of G.P. Act dated
09.08.2023 registered with Botad Rural Police Station 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
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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’
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
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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 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
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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.
10. Accordingly, this petition stands allowed. The order
impugned dated 24.01.2025 (actual date of detention is
19.02.2025) 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)
(SANDEEP N. BHATT,J)
TAUSIF SAIYED
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