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The Supreme Court held that authorities cannot pass an order of preventive detention by relying only on an extra-judicial confessional statement made to a police officer. A Bench of Justice Dipankar Datta and Justice Sheel Nagu set aside an Allahabad High Court judgment. That judgment had dismissed a habeas corpus petition challenging the detention of Mulla Afroz under Section 3(2) of the National Security Act, 1980 (NSA).
The Court ordered that the appellant be released forthwith, unless his custody is required in connection with any other case. It also directed the State to pay costs of ₹10 lakh to the appellant within one month.
Background
On November 24, 2024, violence broke out during a survey of a mosque at Sambhal. Four people died.
The appellant was not named in the first FIR (Case Crime No. 333 of 2024). He was arrested 54 days later, on January 17, 2025. He was also taken into custody in connection with the other FIRs.
A confessional statement of the appellant is said to have been recorded during this custody. A 32 bore pistol was allegedly recovered because of it.
On September 9, 2025, the High Court granted him bail in Case Crime No. 340 of 2024.
He was still in judicial custody in the other cases when the District Magistrate, Sambhal, passed the detention order on October 13, 2025.
The State Government confirmed the order on November 28, 2025, for 12 months.
By June 2026, the appellant had bail in all the criminal cases against him.
On June 8, 2026, a Division Bench of the High Court dismissed his writ petition. It held that the detaining authority’s subjective satisfaction was justified.
Police Confession Alone Cannot Justify Detention:
The appellant had said all along that he made the confession under torture and threats of death. The State’s reply affidavit and written submissions did not deny this. The Court found that the statement could not be seen as voluntary.
Justice Datta, who wrote the judgment, held:
“The question which, thus, presents itself is, whether a statement, which the law treats as irrelevant for determining guilt, can nevertheless constitute a ground for forming the subjective satisfaction necessary to sustain an order of preventive detention. We think not!”
The Court then held:
“Therefore, we are of the considered opinion 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.”
The Court also noted what happens when the authority relied on other material too:
“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.”
Irrelevant Grounds Weaken Article 22(5):
The Court said Article 22(5) gives a detained person two rights:
- To be told the grounds of detention as soon as may be.
- To get the earliest opportunity to make a representation.
These rights can only be used meaningfully when the grounds are relevant, definite and capable of being answered effectively.
Justice Datta held:
“The inclusion of an irrelevant ground, no less than the inclusion of a vague or obscure ground, strikes at the heart of the protection guaranteed by Article 22(5). Ergo, a detenu cannot be expected to make an effective representation against allegations which, in the eyes of law, are incapable of sustaining the detention itself. Where the subjective satisfaction of the detaining authority is founded, wholly or in part, on material that is legally irrelevant, the constitutional safeguard stands impaired. An order of preventive detention resting upon such irrelevant allegations must, for that reason alone, be rendered unsustainable.”
Article 20(3), Section 23 BSA and Overruling of Suman
The Court held that this argument must be tested against two things: Article 20(3) of the Constitution, and Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). Section 23 is similar to Section 25 of the Indian Evidence Act, 1872.
Justice Datta noted:
“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.”
The Court held that the remarks in Aruna Kumari v. Govt. of A.P. (1988) and Senthamilselvi v. State of T.N. (2006) about using confessions for detention were obiter dicta. That means they were side remarks, not the basis of the decision. In neither case had the detention been challenged on the ground that it rested on the detainee’s confession.
The Court overruled the Madras High Court Full Bench decision in Suman v. State of Tamil Nadu (1986), but only on its conclusion about using confessions to justify detention:
“We hold that the conclusion in respect of the question concerning the use of confessional statements in justifying detention orders rendered in Suman (supra) cannot be sustained, and are accordingly overruled to that extent.”
Material Not Supplied, the Chargesheet, and Bail
The Court then looked at the other material.
CCTV and video footage. The grounds cited this footage to identify the appellant as the “mastermind”. But it was not given to him, and it was not among the 22 documents relied upon. Justice Datta held:
“Reliance upon material which has neither been supplied nor disclosed cannot be sustained. Consequently, this circumstance cannot be regarded as furnishing a valid basis for the detention order.”
Mobile communications with a “Boss”. The grounds also record that the appellant had erased the data on his phone. Neither the phone nor the messages were part of the relied upon documents. The Court said it could not hold that these allegations were a valid or relevant ground.
The chargesheet. The Court held that filing a chargesheet is only the end of an investigation and the investigating agency’s opinion. It is not a finding of guilt, and it is not conclusive proof of involvement. The detaining authority also had not explained how a chargesheet, by itself, confirms the appellant’s participation or a disturbance of public order.
Information about jail discussions. Police officials said that, in jail, the appellant was allegedly planning large scale violence once he got bail. The Court held:
“What is evident therefrom is that the impugned detention is an attempt to frustrate the judicial order granting bail, and to keep the detenu in custody by another route. Such a detention is not preventive but punitive and appears intended to subvert the order granting bail.”
The Court further held that the State’s line between punitive and preventive powers had become blurred:
“In the facts of the present case, we find that the distinction sought to be maintained by the State between the punitive and preventive jurisdictions has, in substance, become blurred.”
Concluding on the detention order, Justice Datta held:
“We are unable to persuade ourselves to sustain the detention order as legal and valid. The requisite nexus between the material relied upon and the satisfaction recorded by the detaining authority is conspicuously absent.”
Final Order and ₹10 Lakh Costs:
The Court set aside the High Court judgment, the detention order and the confirmation order. It directed:
“Appellant shall be released forthwith, unless his custody is required in connection with any other case. The appeal is, accordingly, allowed on the aforesaid terms.”
The Court made clear that it gave no opinion on the pending criminal cases:
“We make it clear that we express no opinion whatsoever on the merits of the criminal case(s), which shall proceed in accordance with law uninfluenced by any observation contained in this judgment.”
The Court noted that the appellant had already lost a lot of liberty, even though he had been granted bail in all the cases. It observed:
“In such circumstances, the process was made the punishment.”
On costs, the Court directed:
“We consider it prudent to impose costs of Rs.10 lakh on the State for being made over to the appellant within a month from the date of this judgment.”
