Gujarat High Court

Salimbhai Sulemanbhai Movar vs District Magistrate on 13 November, 2025

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                             R/SCR.A/14428/2025                                     JUDGMENT DATED: 13/11/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    R/SPECIAL CRIMINAL APPLICATION NO. 14428 of 2025

                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
                        and
                        HONOURABLE MR.JUSTICE D. M. VYAS
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                                      Approved for Reporting                      Yes           No

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                                                  SALIMBHAI SULEMANBHAI MOVAR
                                                              Versus
                                                   DISTRICT MAGISTRATE & ORS.
                        ==========================================================
                        Appearance:
                        JUCKY LUCKY CHAN(8033) for the Applicant(s) No. 1
                        MS MONALI BHATT, APP for the Respondent(s) No. 2
                        ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
                                and
                                HONOURABLE MR.JUSTICE D. M. VYAS

                                                              Date : 13/11/2025

                                             ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE D. M. VYAS)

1. The petitioner herein namely Salimbhai Sulemanbhai

Movar came to be preventively detained vide the detention

order dated 18/10/2025 passed by the District Magistrate,

Surendranagar, 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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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 for the petitioner

and learned APP for the respondent-State Authorities.

4. Learned advocate for the petitioner vehemently argued

that there was no material available with the detention

authority to indicate as to how the public health or public

order or public tranquility was disturbed in any manner.

Thus, in absence of any such material on record, the order of

detention ought not have been passed. It is further submitted

by learned advocate for the petitioner that the impugned

order is passed without application of mind and prima facie

the order is passed mechanically.

4.1. Learned advocate for the petitioner further submitted

that the impugned order was executed upon the petitioner

and presently he is detained in the Special Prison, Palara

Bhuj.

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5. On the other hand, learned APP, opposing the present

petition contended that the detenue is habitual offender and

his activities affected at the society at large. Hence, 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 and lastly prayed to dismiss the present

petition.

6. Having considered the facts as well as the submissions

made by the learned advocates appearing for the respective

parties, the core issue arises 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 or not?

7. We have carefully gone through the order passed by the

concerned authority. It appears that the order impugned was

executed upon the petitioner and presently he is detained in

Special Prison, Palara, Bhuj. In the grounds of detention,

reference of four criminal cases for the offences punishable

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under Sections 65(A)(A), 65(A)(E), 81, 98(2), 116(B) of

the Prohibition Act registered with various police

stations against the petitioner from year 2024 to 2025 is

made out.

7.1. In the impugned order, 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. Undisputedly, in the

aforesaid alleged offences, the petitioner was granted regular

bail by the concerned court.

8. Considering the impugned order, it appears that the

provisions of Section 2(b) of the Act of 1985 is referred by the

concerned authorities. Hence, the same is required to be

reproduced. The same reads as under:

"2(b) "bootlegger" means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material

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whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing;"

9. After consideration of the available material, we are of

the considered view that on the basis of four 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 considered opinion, the said offences do

not have any bearing on the maintenance of public order. In

this regard, we would like to refer 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:

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"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 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."

10. For the aforesaid reasons, we are of the considered

opinion that, the material available 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.

11. Accordingly, this petition stands allowed. The order

impugned dated 18/10/2025 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.

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