Gujarat High Court
Nilesh Hamirbhai @ Bhupatbhai Mushar … vs State Of Gujarat on 17 February, 2026
NEUTRAL CITATION
R/SCR.A/1121/2026 JUDGMENT DATED: 17/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1121 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
and
HONOURABLE MR.JUSTICE D. M. VYAS Sd/-
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Approved for Reporting Yes No
✔
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NILESH HAMIRBHAI @ BHUPATBHAI MUSHAR THROUGH HARESH
HARMIBHAI MUCHHAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR AKBAR S SELOT(13003) for the Applicant(s) No. 1
MR KISHAN K NAYI(13080) for the Applicant(s) No. 1
MR. YUVRAJ BHRAMBHATT, APP 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 : 17/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE D. M. VYAS)
[1] The petitioner herein, namely Nilesh Hamirbhai @
Bhupatbhai Mushar, has filed the present petition through his
brother, namely Haresh Hamirbhai Muchhar under Articles 226
and 227 of the Constitution of India, challenging the detention
order dated 13.01.2026 passed by the District Magistrate,
Porbandar, as a “bootlegger” as defined under Section 2(b) of
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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 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 public health, 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 has been passed
without application of mind and, prima facie, appears to have
been 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 Ahmedabad Central Jail.
[5] On the other hand, learned APP, opposing the present
petition contended that the detenue is habitual offender and his
activities have affected society at large. Hence, the Detaining
Authority, considering the antecedents and past activities of the
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NEUTRAL CITATION
R/SCR.A/1121/2026 JUDGMENT DATED: 17/02/2026
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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 Porbandar 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 that arises is 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 impugned order was
executed upon the petitioner and presently he is in Ahmedabad
Central Jail. In the grounds of detention, reference of one
criminal cases for the offences punishable under Sections 65(e)
and 116(b) of the Prohibition Act registered with Ranavav police
stations against the petitioner on 07.08.2025 is made out.
[7.1] In the impugned order, it is alleged that the activities of
the detenue, as a “bootlegger”, affect 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 bail by
the concerned court.
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[8] Considering the impugned order, it appears that the
provisions of Section 2(b) of the Act of 1985 have been referred
to 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
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 one case, the authority has
wrongly arrived at the subjective satisfaction that the activities
of the detenue could be termed as 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 Dhaya
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), andPage 4 of 6
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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.
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
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on the very same charge which is to be tried by the criminal
court.” (Emphasis supplied)”
[10] For the aforesaid reasons, we are of the considered
opinion that, the material available on record is not sufficient to
hold that the alleged activities of the detenue have either
affected adversely or are 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 or in accordance with law.
[11] Accordingly, this petition stands allowed. The order
impugned dated 13.01.2026 passed by the respondent authority
is hereby quashed. We direct that the detenue be set at liberty
forthwith, if he is not required in any other case. Rule is made
absolute accordingly. Direct service permitted.
Sd/-
(N.S.SANJAY GOWDA, J.)
Sd/-
(D. M. VYAS, J.)
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