Gujarat High Court
Aakash S/O Rahul Shahu Thro Shahid Rahim … vs Secretary, Home Dept on 21 August, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/11319/2025 ORDER DATED: 21/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11319 of 2025
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AAKASH S/O RAHUL SHAHU THRO SHAHID RAHIM DESHMUKH
Versus
SECRETARY, HOME DEPT. & ORS.
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Appearance:
MR. RAAJEN D JADHAV(10026) for the Applicant(s) No. 1
MR VINAY VISHEN, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 21/08/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. The petitioner herein namely Aakash S/o. Rahul Shahu came to
be preventively detained vide the detention order dated 04.08.2025
passed by the Police Commissioner, Surat City, as a bootlegger as
defined 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 Mr.Raajen D. Jadhav learned counsel for
the petitioner and Mr.Vinay Vishen learned APP for the respondent-
State.
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
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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 of 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 Surat.
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
criminal case i.e. for the offences punishable under Sections 65(A)(E),
68, 81, 83, 84, 116(B), 98(2) of the Prohibition Act and Sections
111(2-B) and 111(3)(4) of the BNS, registered against the petitioner
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under the Prohibition Law was made and further it is alleged that, the
activities of the detenue as a “bootlegger” 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 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 prohibition 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 opinion, the said two 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’ has been
clearly laid down. Ramaswami, J. speaking for the Court
observed as follows:
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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
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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 04.08.2025 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)
(P. M. RAVAL, J)
Rakesh
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