Gujarat High Court

Mahendra @ Vicky Mathurbhai Somabhai ... vs State Of Gujarat on 9 June, 2025

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

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                          R/SCR.A/6392/2025                                     JUDGMENT DATED: 09/06/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                  R/SPECIAL CRIMINAL APPLICATION NO. 6392 of 2025


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE ILESH J. VORA

                     and
                     HONOURABLE MR.JUSTICE P. M. RAVAL

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                                  Approved for Reporting                      Yes           No

                     ==========================================================
                      MAHENDRA @ VICKY MATHURBHAI SOMABHAI VADHIYARI THROUGH
                                   LAXMIBEN MAHENDRA VADHIYARI
                                               Versus
                                      STATE OF GUJARAT & ORS.
                     ==========================================================
                     Appearance:
                     MS MAMTA S RAJPUT(13215) for the Applicant(s) No. 1
                     PUBLIC PROSECUTOR for the Respondent(s) No. 1
                     ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                              and
                              HONOURABLE MR.JUSTICE P. M. RAVAL

                                                        Date : 09/06/2025

                                                 ORAL JUDGMENT

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

1. The petitioner herein namely Mahendra @ Vicky

mathurbhai Somabhai Vadhiyari came to be

preventively detained vide the detention order dated

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23.04.2025 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 learned counsel Ms. Mamta S.

Rajput and Mr. Jay 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,

1985 and therefore, where the offences alleged to

have been committed by the detunue have no bearing

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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?

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7. The order impugned was executed upon the petitioner

and presently he is in Jail. In the grounds of detention,

a reference of three criminal cases i.e. (i) for the

offence under Section 331(4), 305A and 54 of BNS

dated 05.12.2024 with Sarkhej Police Station and (ii)

for the offence under Sections 331(3), 331(4), 305A

and 54 of BNS dated 17.01.2025 with Sharkhej Police

Station (iii) for the offence under Sections 331(3),

331(4), 305A and 54 of BNS dated 08.01.2025 with

Bavla 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 petitioner was

granted bail.

8. After careful consideration of the material, we are of

the considered view that on the basis of three criminal

cases, the authority has wrongly arrived at the

subjective satisfaction that the activities of the

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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' has been clearly laid down. Ramaswami, J. speaking for the Court observed as follows:

10. "Does the expression `public order' take in

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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

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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

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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