Gujarat High Court

Mohmedzarfan Mohmedikhlaq Shaikh ... vs Commissioner Of Police on 9 June, 2025

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

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                          R/SCR.A/6372/2025                                         JUDGMENT DATED: 09/06/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                  R/SPECIAL CRIMINAL APPLICATION NO. 6372 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

                     ==========================================================
                            MOHMEDZARFAN MOHMEDIKHLAQ SHAIKH THROUGH SHAIKH
                                     MOHMED SARJIL MOHMED IKHLAD
                                                Versus
                                     COMMISSIONER OF POLICE & ORS.
                     ==========================================================
                     Appearance:
                     MR M I SHAIKH(13791) for the Applicant(s) No. 1
                     MR MOHDDANISH M BAREJIA(10612) for the Applicant(s) No. 1
                     PUBLIC PROSECUTOR for the Respondent(s) No. 2
                     ==========================================================

                        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 Mohmedzarfan

Mohmedikhlaq Shaikh came to be preventively

detained vide the detention order dated 27.02.2025

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passed by the police commissioner, Ahmedabad, 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 learned counsel Mr. M.I. Sheikh

with Ld. Advocate Mr. Mohddanish M. Barejia and Mr.

L.B. Dabhi, 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

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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 one criminal case i.e. (i) for the offence

under Sections 65(a), 65(e), 116(B), 98(2),81 dated

17.01.2025 with Ranip 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 one

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 one offences do not have any

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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 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

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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 order. It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses.

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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

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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