The Supreme Court today(September 29) held that authorities can't pass a preventive detention order solely relying on the confessional statement of the accused. It thereby quashed the detention of Mulla Afroz, who was accused of being the mastermind behind the 2024 Sambhal violence, under the National Security Act, 1980."Therefore, we are of the considered opinion that a confessional...
The Supreme Court today(September 29) held that authorities can't pass a preventive detention order solely relying on the confessional statement of the accused. It thereby quashed the detention of Mulla Afroz, who was accused of being the mastermind behind the 2024 Sambhal violence, under the National Security Act, 1980.
"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."
In this case, the accused was arrested 54 days after the violence had erupted. During custody, a confessional statement was recorded by the police, based on which a 0.32 bore pistol was allegedly recovered. Quashing his illegal detention, a bench comprising Justice Dipankar Datta and Justice Sheel Nagu held that since the confessional statement solely formed the basis for the subjective satisfaction of the detaining authority, it is unsustainable in the eyes of law.
The bench considered that throughout the proceedings, the appellant had alleged that he was subjected to torture and death threats and that he made the confession out of compulsion. However, these allegations were not refuted by the State. In such a situation, by no stretch of imagination can it be assumed that he made the statement voluntarily.
The bench noted that when an extrajudicial confession is treated as inadmissible in criminal cases for the purpose of determining guilt, it clearly can't form the basis for 'subjective satisfaction' that the detaining authority needs to arrive at while passing the detention order. Holding anything contrary strikes at the heart of protection enshrined under Article 22(5).
"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 bench discussed that Article 22 of the Constitution mandates two valuable rights to the detenue: to be given the grounds of detention and the right to be afforded the earliest opportunity of making a representation. Both rights can only be meaningfully exercised when the grounds on which the detention is based are relevant, definite, and capable of being effectively answered.
"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."
When can confessional statements be relied upon?
It stated that whether a confessional statement before police can form the basis of the preventive detention order or not has to be tested on the twin anvil of Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and Section 20(3) of the Constitution, which guarantees protection against self-incrimination.
Based on this, the judgment authored by Justice Datta stated that if the criminal jurisprudence consistently treats the extra-judicial confession as "inherently suspect" and "unreliable" for the purpose of criminal trial, how can it form a substantive basis for preventive detention?
"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 bench looked at previous precedents such as Aruna Kumari v. Govt. of A.P(1988) and Senthamilselvi v. State of T.N. and Another(2006), which were relied upon by the State of Uttar Pradesh to argue that a confessional statement can form the basis of a detention order. However, it said that in both cases the detention wasn't challenged on grounds that it was based on confessional statements. Moreover, the Court found that the observations that confession can form the basis of the detention order were merely obiter dicta in these two cases.
Headnote
Constitution of India — Article 20(3), Article 22(5) — Bharatiya Sakshya Adhiniyam, 2023 — Section 23 — Preventive detention based on extra-judicial confession made to police — Inadmissibility and invalidity - A confessional statement made before a police officer cannot, by itself and in the absence of independent material lending support thereto, constitute the basis for forming the subjective satisfaction necessary to sustain an order of preventive detention - Under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (analogous to Section 25 of the Indian Evidence Act, 1872), confessions made before police officers are inherently suspect and excluded from evidence - If such a confession is too tainted to be received in evidence for proving guilt, it cannot legitimately constitute a valid ground for preventive detention, particularly when procured under alleged threat or torture in violation of Article 20(3) - Under Article 22(5) of the Constitution, the inclusion of an irrelevant or legally impermissible ground strikes at the root of the detenu's right to make an effective representation and vitiates the subjective satisfaction of the detaining authority. [Relied on Kartar Singh v. State of Punjab, (1994) 3 SCC 569; Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 9 SCC 618; Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424; Distinguished from Senthamilselvi v. State of T.N., (2006) 5 SCC 676; E. Subbulakshmi v. State of T.N., (2017) 1 SCC 757; Paras 15, 30–36, 38–39]
National Security Act, 1980 — Section 3(2), Section 8 — Scope of Judicial Review — Non-disclosure and non-supply of foundational material - Where the grounds of detention asserted that the detenu was identified as the mastermind via CCTV footages and call records with a "Boss," but neither the CCTV recordings nor the call records/mobile data formed part of the 22 documents relied upon or supplied to the detenu or produced before the Court, reliance on such undisclosed material is fatal to the detention order - A detention order cannot be founded on material that was never furnished to the detenu. [Relied on Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 9 SCC 618; Ameena Begum v. State of Telangana, (2023) 9 SCC 587; State of Rajasthan v. Talib Khan, (1996) 11 SCC 393; Paras 44–48]
National Security Act, 1980 — Section 3(2) — Mere filing of charge-sheet and pendency of criminal cases — Invocation of preventive detention to defeat bail — Subversion of criminal process - The mere filing of a charge-sheet amounts only to an opinion of the investigating agency and does not constitute conclusive proof of guilt or disturbance of public order - While the pendency of a criminal prosecution is not an absolute bar to preventive detention (Haradhan Saha v. State of West Bengal affirmed), invoking preventive detention on the very same allegations when an accused has obtained or is likely to obtain bail demonstrates that the power was used punitively rather than preventively, seeking to subvert judicial orders of bail - The mere existence of multiple cases is not per se a ground for detention absent cogent, proximate material showing an imperative need to prevent future prejudicial activity - Impugned detention order and confirmation set aside with costs of Rs. 10 Lakh imposed on the State. [Relied on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244; Paras 49–59, 63–69]
Case: Mulla Afroz v. Union of India & Ors. | SLP(Crl) No. 012534 / 2026
Citation : 2026 LiveLaw (SC) 999