[Cites 10, Cited by 0]
Gujarat High Court
Kazimali @ Wasim Yunusali @ Saiyedsaab ... vs State Of Gujarat on 23 February, 2026
NEUTRAL CITATION
R/SCR.A/1510/2026 JUDGMENT DATED: 23/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1510 of 2026
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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KAZIMALI @ WASIM YUNUSALI @ SAIYEDSAAB SAIYED
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SS SAIYED(3690) for the Applicant(s) No. 1
MR. CHINTAN DAVE, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 23/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE D. M. VYAS)
[1] The present petition is filed by Kazimali @ Wasim
Yunusali @ Saiyedsaab Saiyed through his brother-in-
law Shahnawaj Haiderali Saiyed (hereinafter referred
to as "the detenue") came to be preventively detained
vide the detention order dated 17.01.2026 passed by
the Director General of Police, C.I.D Crime and
Railways, Gandhinagar, as a Illicit Traffic as defined
under Section 2(e) of The Prevention of Illicit Traffic In
Narcotic Drugs And Psychotropic Substance Act, 1988
(hereinafter referred to as 'the Act of 1988).
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[2] By way of this petition, the petitioner has challenged
the legality and validity of the aforesaid order.
[3] Heard learned advocates appearing for the
respective parties.
[4] Learned advocate for the petitioner has averred in
his application 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 stated in the application by the
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] It was also apprised from the application that the
impugned order was execution upon the detenue and
presently he is detained in the Special Jail,
Bhuj(Palara).
[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 Gandhinagar and lastly
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R/SCR.A/1510/2026 JUDGMENT DATED: 23/02/2026
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prayed to dismiss the present petition.
[6] Having considered the facts as well as the grounds
raised in the application and submissions made by the
learned APP appearing for the authorities, the core 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 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 detenue and presently
he is in Special Jail, Bhuj(Palara). In the grounds of
detention, reference of two criminal cases for the
offences punishable under Sections 8(c), 21(b) and
29 of the NDPS Act registered with various Police
Stations against the detenue from 08.08.2023 to
04.05.2025 was made out.
[7.1] In the impugned order, it is alleged that the activities
of the detenue as a "Illicit Traffic" affects adversely or
are likely to affect adversely the maintenance of public
order as explained under Section 3 of the Act of 1988.
[8] Considering the impugned order, it appears that the
provisions of Section 2(e) of the Act of 1988 is referred by
the concerned authorities. Hence, the same is required to
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R/SCR.A/1510/2026 JUDGMENT DATED: 23/02/2026
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be reproduced. The same reads as under:
"(e) "illicit traffic", in relation to narcotic drugs and
psychotropic substances, means-
(i) cultivating any coca plant or gathering any
portion of coca plant;
(ii) cultivating the opium poppy or any cannabis
plant;
(iii) engaging in the production, manufacture,
possession, sale, purchase, transportation,
warehousing, concealment, use or consumption,
import inter-State, export inter-State, import into
India, export from India or ranshipment, of
narcotic drugs or psychotropic substances;
(iv) dealing in any activities in narcotic drugs or
psychotropic substances other than those
provided in sub-clauses (i) to (iii); or
(v) handling or letting any premises for the carrying
on of any of the activities referred to in sub-
clauses (i) to (iv),
other than those permitted under the Naroctic Drugs
and Psychotropic Substances Act, 1985 (61 of 1985) or
any rule or order made, or any condition of any licence,
term or authorisation issued, thereunder and includes-
(1) financing, directly or indirectly, any of the
aforementioned activities:
(2) abetting or conspiring in the furtherance of or in
support of doing any of the aforementioned
activities; and
(3) harbouring persons engaged in any of the
aforementioned activities."
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[9] After consideration of the available material, we are
of the considered view that on the basis of offence under
the Act of 1988, 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
Dhanya M. v. State of Kerala and others reported in
AIR 2025 Sc 2868. In para-9 and para-21 of the said
decision, the Hon'ble Supreme Court has observed as
under:-
"9. It is well settled that the provision for preventive
detention is an extraordinary power in the hands of
the State that must be used sparingly. It curtails the
liberty of an individual in anticipation of the
commission of further offence(s), and therefore, must
not be used in the ordinary course of nature. The
power of preventive detention finds recognition in
the Constitution itself, under Article 22(3)(b).
However, this Court has emphasized in Rekha v.
State of Tamil Nadu3 that the power of preventive
detention is an exception to Article 21 and, therefore,
must be applied as such, as an exception to the main
rule and only in rare cases."
.....
"21. This Court in SK. Nazneen (supra), had
observed that the State should move for cancellation
of bail of the detenu, instead of placing him under
the law of preventive detention, which is not the
appropriate remedy. Similarly, in Ameena Begum v.
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State of Telengana9 , this Court observed :
"59. ... It is pertinent to note that in the three
criminal proceedings where the detenu had been
released on bail, no applications for cancellation of
bail had been moved by the State. In the light of the
same, the provisions of the Act, which is an
extraordinary statute, should not have been resorted
to when ordinary criminal law provided sufficient
means to address the apprehensions leading to the
impugned detention order. There may have existed
sufficient grounds to appeal against the bail orders,
but the circumstances did not warrant the
circumvention of ordinary criminal procedure to
resort to an extraordinary measure of the law of
preventive detention."
60. In Vijay Narain Singh v. State of Bihar [Vijay
Narain Singh v. State of Bihar, (1984) 3 SCC 14 :
1984 SCC (Cri) 361] , Hon'ble E.S. Venkataramiah, J.
(as the Chief Justice then was) observed : (SCC pp.
35-36, para 32)
32. ... It is well settled that the law of preventive
detention is a hard law and therefore it should be
strictly construed. Care should be taken that the
liberty of a person is not jeopardised unless his case
falls squarely within the four corners of the relevant
law. The law of preventive detention should not be
used merely to clip the wings of an accused who is
involved in a criminal prosecution. It is not intended
for the purpose of keeping a man under detention
when under ordinary criminal law it may not be
possible to resist the issue of orders of bail, unless
the material available is such as would satisfy the
requirements of the legal provisions authorising such
detention. When a person is enlarged on bail by a
competent criminal court, great caution should be
exercised in scrutinising the validity of an order of
preventive detention which is based on the very
same charge which is to be tried by the criminal
court." (Emphasis supplied)"
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[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 17.01.2026 (original date of detention is
22.01.2026) 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.
(N.S.SANJAY GOWDA,J)
(D. M. VYAS, J)
YASH ARORA
