Preventive Detention Can't Be Solely Based On Custodial Confession: Supreme Court
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.
Case: Mulla Afroz v. Union of India & Ors. | SLP(Crl) No. 012534 / 2026
Citation : 2026 LiveLaw (SC) 999