Gujarat High Court
Bachubhai @ Hamirbhai Gandabhai Khint … vs State Of Gujarat on 4 July, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/8799/2025 ORDER DATED: 04/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8799 of 2025
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BACHUBHAI @ HAMIRBHAI GANDABHAI KHINT (BHARWAD) THRO
HIRABHAI ANDABHAI BHARVAD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
MS MAITHLI MEHTA, 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 : 04/07/2025
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The petitioner herein namely Bachubhai @ Hamirbhai
Gandabhai Khint (Bharwad) came to be preventively
detained vide the detention order dated 16.5.2025
passed by the District Magistrate, Morbi 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).
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NEUTRAL CITATION
R/SCR.A/8799/2025 ORDER DATED: 04/07/2025
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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.M.M.Soni and
Ms.Maithli Mehta, 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 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.
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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 Morbi.
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 two criminal cases i.e. (i) for the offence
under Sections 65(a), 65(e), 116-B, 81, 98(2) of the
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NEUTRAL CITATION
R/SCR.A/8799/2025 ORDER DATED: 04/07/2025
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Prohibition Act dated 5.4.2025 with Maliya (Mi) Police
Station, (ii) for the offence under Sections 65(a), 65(e),
116-B, 81, 98(2) of the Prohibition Act dated 5.4.2025
with Maliya (Mi) Police Station, registered against the
petitioner 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 petitioner was
granted bail.
8. After careful consideration of the material, we are of
the considered view that on the basis of two
prohibition 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 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
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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:
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 underPage 5 of 8
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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
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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 satisfaction arrived at by the
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detaining authority cannot be said to be legal, valid
and in accordance with law.
10. Accordingly, this petition stands allowed. The order
impugned dated 16.5.2025 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)
H.M. PATHAN
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