Justice Dipankar Datta, Justice K. Vinod Chandran, Supreme Court

The Supreme Court has held that while detaining authorities may rely on other independent material, a confessional statement made to a police officer, without any substantive grounds or corroborative evidence, cannot be relied on as the sole ground for passing an order of detention.

The Court has set aside an order of preventive detention passed under the National Security Act, 1980 (NSA) against an accused in the Sambhal communal violence case. The court also imposed exemplary costs of ₹10 lakh on the State of Uttar Pradesh.

Reaffirming that protection against self-incrimination is a paramount fundamental right reflected in Section 23 of the Bharatiya Sakshya Adhiniyam (BSA), the court observed that using preventive detention merely to defeat bail granted in underlying criminal cases turns the legal process into punishment.

The Bench of Justice Dipankar Datta and Justice Sheel Nagu held, "Law is, however, well settled that if the detaining authority has relied upon other materials apart from the confessional statement, the Court has to ascertain whether the detention can be upheld based on such other materials. At the same time, we reiterate that a mere confessional statement of the detenu (without any other substantive grounds or material) cannot be relied on as the sole ground for passing an order of detention."

Advocate Divyesh Pratap Singh appeared for the Appellant, while ASG KM Natraj appeared for the Respondents

Brief Facts 

An appeal was filed assailing the judgment passed by the Allahabad High Court whereby it dismissed the writ petition filed by the Appellant herein against an order for preventive detention under the National Security Act, 1980.

The matter pertained to the communal violence that erupted in Sambhal following a court-ordered survey of the Shahi Jama Masjid, which resulted in the death of four persons.

The Appellant was arrested approximately 54 days after the incident, allegedly pursuant to a custodial confession recorded by the investigating authorities.

In September, 2025, the Appellant was granted bail. However, while the appellant continued to remain in judicial custody in relation to the other FIRs, the detaining authority exercising power conferred by Section 3(2)8 of the NSA passed the detention order.

The Appellant thereafter submitted a representation against the detention order from the district jail, which came to be rejected by the detaining authority on the ground of delay in its submission. The representations thereafter preferred before the State Government as well as the Central Government also met the same fate.


Contentions of the Parties

The Appellant contended that the materials referred to in the impugned detention order were not furnished to him. it was further argued that the detention order has been resorted to solely to defeat the release of the appellant who has otherwise been granted bail in all the cases registered against him.

It was also argued that the existence of multiple cases per se is no ground to pass the detention order. It was added that there was clear non-application of mind by the detaining authority and the confirming authority, along with the State and Central Governments, which rejected the representations made by the detenu.

Per Contra, the Respondents submitted that the act of the appellant disturbed public order and the occurrence, which forms the basis of criminal cases, led to the death of 4 persons as well as injuries to police personnel. It further led to the shutdown of the internet and other services in the Sambhal area.

It was argued that a confessional statement can form the basis of a detention order and the same when relied upon by a detaining authority cannot be equated to confessional statements in judicial proceedings. Detention under the NSA is a preventive and not a punitive action and the detaining authority has only to form subjective satisfaction on the basis of materials before it. Therefore, the judicial scrutiny of the order of the detaining authority would be minimal. 

Observations/Findings of the Court

There were two issues for the consideration of the Court, i.e., first, whether an order of detention can be based on an extra-judicial confession; and second, whether procedural safeguards as envisaged under the Constitution and the NSA have been complied with and consequently whether the material relied upon by the detaining authority is legal and valid for passing an order of preventive detention.

For the first issue, the Court referred to the judgments namely Aruna Kumari v. Govt. of A.P [1988 SC], Senthamilselvi v. State of T.N. and Anr [2006 SC], E. Subbulakshmi v. State of Tamil Nadu and Ors. [2017 SC], K.T.M.T.M. Abdul Kayoom v. CIT [1962 SC], Regional Manager, Food Corporation of India v. Pawan Kumar Dubey [1976 SC] and Goodyear India Limited v. State of Haryana [1990 SC].

The Court observed that Aruna Kumari (supra) and Senthamilselvi (supra) tend to support the contention that a confessional statement may be relied upon to make an order of preventive detention, but, in none of the said two cases had the detention order been challenged on the ground that the same was based upon the confessional statement of the detenu.

It added that the observations made in respect of the use of confessional statements in justifying preventive detention orders were merely obiter dicta and cannot be treated as the ratio decidendi.

"It has been the consistent case of the appellant, both before the High Court as well as before this Court, that he was subjected to torture and threats of death; and, it is under this compulsion that he made the confessional statement. We have perused the reply affidavit as well as the written submissions submitted on behalf of the respondents to trace their response. Neither in the reply affidavit do we find such averment of the appellant being refuted nor do the written submissions shed any light on this aspect. Therefore, by no stretch of imagination, can the confessional statement of the appellant be seen as voluntary in nature", the Court held.

The Court reiterated that the protection against self-incrimination is a fundamental right of paramount constitutional significance and it is this constitutional guarantee that finds statutory reflection in Section 23 of the BSA.

"A confession made before a police officer is presumed to be tainted and vulnerable to the influences of coercion, threat, inducement or promise. Section 23 of the BSA unequivocally embodies this principle by providing that no confession made to a police officer shall be proved against an accused. The provision recognises only two limited exceptions, namely, where the confession is made before a magistrate in accordance with law, or where it leads to the discovery of a fact, to the extent permitted by law. The legislative command is, therefore, clear: a confessional statement made before the police is not regarded as trustworthy evidence and is generally excluded from consideration against the maker thereof", it added.

The Court held that a confessional statement made before a police officer cannot, by itself, and in the absence of any independent material lending support thereto, constitute a basis for forming the subjective satisfaction necessary to sustain an order of preventive detention. To permit such a course would be to allow a detention order to rest upon a foundation which the law itself regards with suspicion and excludes from evidentiary consideration. 

On the second issue, the Court noted that no material was placed on record to substantiate the existence of such communications. It was added that the detaining authority appeared to have proceeded on the footing that the filing of the chargesheet confirms the involvement of the appellant in the commission of the incident, including the alleged murders, and consequently established disturbance of public order.

The Court also observed that the State must remain faithful to the rationale underlying preventive detention jurisprudence.

"If an order of detention is sought to be justified as a preventive measure, the material relied upon must demonstrably establish the necessity of preventing future prejudicial conduct and not merely reinforce allegations which already form the subject matter of an ongoing criminal prosecution. In the present case, that distinction has not been maintained", it was held.

The Court observed that the Appellant suffered considerable loss of liberty, even while being granted bail in all the cases relating to the incident in which he featured as an accused. In such circumstances, the process was made the punishment.

Accordingly, the Court concluded that the impugned judgment was not sustainable in law, and therefore, was set aside.

Cause Title: Mulla Afroz v. Union of India & Ors. [Neutral Citation: 2026 INSC 1067]

Appearances:

Appellant: Advocate on Record Deepak Singh, Advocate Divyesh Pratap Singh, Advocate Shubham Jaiswal, Advocate Vikrant Singh, Advocate Vikas Srivastava, Advocate Sonal Kushwaha, Advocate Amit Sangwan, Advocate Abhinav Sharma, Advocate Satyavrat Awasthi, Advocate Tanvi Saran

Respondents: Additional Solicitor General K.M. Nataraj, Senior Additional Advocate General Sharan Dev Singh Thakur, Advocate on Record Arvind Kumar Sharma, Advocate on Record Ruchira Goel- 2477, Advocate Nachiketa Joshi, Advocate Medha Pushkarna, Advocate Mrigna Shekhar, Advocate Anuj Udupa, Advocate Ishaan Sharma, Advocate Dr. Arun Kumar Yadav, Advocate Indira Bhakar, Advocate Krithi Ballal, Advocate Sharanya, Advocate Rishika Rishabh, Advocate Isha Sharna

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