Police confession alone cannot sustain NSA detention, Supreme Court holds, imposing Rs 10 lakh costs
Justices Dipankar Datta and Sheel Nagu set aside the Sambhal NSA detention, holding an involuntary police confession cannot found preventive detention, and ordered Uttar Pradesh to pay Rs 10 lakh.
A man held under the National Security Act, 1980 for the violence that followed a mosque survey at Sambhal has been ordered released, with the Supreme Court holding that a confession made to the police cannot by itself support the subjective satisfaction a detaining authority must reach. Justices Dipankar Datta and Sheel Nagu set aside the Allahabad High Court judgment of 8 June 2026, the detention order of 13 October 2025 passed by the District Magistrate, Sambhal, and the State Government’s confirmation order of 28 November 2025. The Court found that the material said to implicate Mulla Afroz — CCTV footage and mobile messages — was never supplied to him or produced in court, and that the detention had been timed to defeat bail. It imposed costs of Rs 10 lakh on the State.
A survey, four deaths, and an arrest fifty-four days later
The proceedings trace back to 24 November 2024, when violence erupted during the survey of a mosque at Sambhal in Uttar Pradesh. Four persons died. Case Crime No. 333 of 2024 was registered the same day, and several more FIRs followed — Case Crime Nos. 306, 337, 338, 339 and 340 of 2024.
Mulla Afroz was not named in the first FIR. He was arrested fifty-four days later, on 17 January 2025, and taken into custody in connection with the other FIRs as well. During that custody a confessional statement was said to have been recorded, and a .32 bore pistol was said to have been recovered on its strength.
On 9 September 2025 the High Court granted him bail in Case Crime No. 340 of 2024. He remained in judicial custody in the other matters. A month after that bail order, on 13 October 2025, the District Magistrate passed a detention order under Section 3(2) of the NSA. His representation from the district jail was rejected on 31 October 2025 on the ground that it had been submitted late; representations to the State and Central Governments met the same fate. After the Advisory Board reported, the State Government confirmed the detention on 28 November 2025 and directed that it continue for twelve months. By June 2026 he had secured bail in every criminal case in which he was implicated.
He moved the Allahabad High Court for habeas corpus, arguing that neither the detention order nor the grounds had been furnished to him, that the confession had been extracted by torture and threats to his life, and that the recovery of a .32 bore pistol did not sit with the medical evidence, which attributed the four deaths to .315 bore bullets. A Division Bench dismissed the petition. It held that preventive detention rests on an apprehended threat rather than proof of guilt, that no rigid parameters can be prescribed, and that judicial review goes to the decision-making process rather than the correctness of the satisfaction recorded. It also noted his own admission in the petition that twenty-two documents forming the basis of the order had been supplied to him.
Two questions the Court set for itself
Appearing for the appellant, Mr Divyesh Pratap Singh argued that the detention was resorted to solely to defeat bail, that multiple pending cases are no ground in themselves, and that the confession was inadmissible under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 and barred by Article 20(3) of the Constitution. Additional Solicitor General Mr Nataraj defended the orders, relying on Haradhan Saha v. State of West Bengal for the proposition that a pending prosecution or a grant of bail is no bar to preventive detention, on Kamarunnisa v. Union of India for detention of a person already in custody, and on Aruna Kumari v. Government of A.P. and Senthamilselvi v. State of T.N. for the use of confessional material.
The Court recorded that the appeal would have partly succeeded on technical grounds, and that despite a fair concession from the ASG it chose to decide the matter on the merits. It framed two issues: whether a detention order can rest on an extra-judicial confession, and whether the constitutional and statutory safeguards had been complied with so as to make the material relied upon legally valid.
Reconciling precedents that struck discordant notes
On the first question the Court found the authorities apparently in conflict, and set out to reconcile them. It did so by applying the law on how precedents are to be read — K.T.M.T.M. Abdul Kayoom v. CIT, where Hidayatullah, J. warned against deciding cases by matching the colour of one against another; Regional Manager, Food Corporation of India v. Pawan Kumar Dubey, on the ratio being the rule deducible from the application of law to the facts; and Goodyear India Limited v. State of Haryana, that a decision on a question not argued is not a precedent.
Read that way, the Court held, Aruna Kumari and Senthamilselvi gave the State no assistance. In neither case had the detention order been challenged on the ground that it rested on the detenu’s confession. That, the Court said, was a crucial and distinctive fact, and the observations about confessional statements in those judgments were obiter and not the ratio. Khatri (IV) v. State of Bihar was confined to the use of statements under Section 161 of the CrPC in writ proceedings, a different question. E. Subbulakshmi v. State of Tamil Nadu spoke of a voluntary confessional statement, and of a confession that was not the sole basis for the satisfaction.
The Court then laid down the test. A contention that a confession made to the police can found a detention order must be examined on the twin anvil of Section 23 of the Bharatiya Sakshya Adhiniyam and Article 20(3) of the Constitution. A confession to a police officer is presumed tainted and vulnerable to coercion, threat, inducement or promise; Section 23 admits only two exceptions, a confession before a magistrate made according to law, and one leading to the discovery of a fact. If such a confession is too tainted to prove guilt, its use as the substantive basis for preventive detention demands deeper scrutiny. Drawing on Kartar Singh v. State of Punjab and on Pebam Ningol Mikoi Devi v. State of Manipur, the Court reasoned that an irrelevant ground cannot legitimately enter into a detaining authority’s satisfaction, because that would validate a detention founded on material the law itself regards as unreliable, contrary to Article 22(5).
On the facts, the Court noted that the appellant had consistently maintained, both before the High Court and before it, that the statement was made under torture and threats of death. Neither the reply affidavit nor the written submissions refuted that averment. The confession could therefore not be regarded as voluntary, and could not have been relied upon.
That conclusion carried a consequence for a Full Bench decision of the Madras High Court. In Suman v. State of Tamil Nadu, that Court had answered a reference by holding a confession to a police officer to be relevant material for a detaining authority, with the weight left to the authority. Because Suman did not have the benefit of Kartar Singh, decided later, the Supreme Court overruled it to that extent. It added the qualification that where the authority has relied on material besides the confession, the court must ascertain whether the detention can be sustained on that other material; what it ruled out was a confession standing alone.
The CCTV footage that never reached the file
The Court therefore turned to the rest of the grounds disclosed under Section 8 of the NSA, and to the list of twenty-two documents relied upon.
Paragraph 8 of the grounds recorded that CCTV footage and video recordings had been viewed and analysed, that ninety-five accused had surfaced from them, and that further investigation identified the appellant as the principal architect who had incited the crowd. The footage, the Court observed, was the sheet anchor of that allegation — and it did not appear among the twenty-two documents. It had not been furnished to the appellant, nor produced before the High Court, nor before the Supreme Court. Reliance on material neither supplied nor disclosed could not be sustained. The Court added a question of its own: if the agency held contemporaneous footage showing the appellant’s role, it defied reason that he was arrested fifty-four days after the first FIR. No satisfactory answer was forthcoming.
The same paragraph relied on mobile communications between the appellant and a person described as his “Boss”, said to reveal a larger conspiracy. Yet the grounds also recorded that the phone recovered from him had its data erased by him, and it was not the authority’s case that the erased messages were retrieved. Neither the phone nor the messages formed part of the relied-upon documents, and nothing was placed on record to substantiate that the communications existed at all.
A detention timed to the bail order
Paragraphs 12 to 15 of the grounds rested on information from police officials about discussions inside the jail, to the effect that the appellant had applied for bail and, once released, planned large-scale violence. On that premise the authority recorded its satisfaction that his release would disturb public order. What was evident, the Court held, was that the detention was an attempt to frustrate the judicial order granting bail and to keep him in custody by another route; such a detention is not preventive but punitive.
The Court also treated the earlier bail order as a circumstance the detaining authority was bound to weigh. Where a person is already in custody and preventive detention is invoked, scrutiny must be more exacting, and the bail granted on 9 September 2025 — a month before the detention order — could not be viewed in an isolated compartment. It applied Vijay Narain Singh v. State of Bihar, where a three-judge Bench held that the law of preventive detention is a hard law to be strictly construed, and should not be used to clip the wings of an accused facing prosecution or to hold a person when bail cannot be resisted under ordinary criminal law. The recent decision in Annu @ Aniket v. Union of India had followed it.
Haradhan Saha, a Constitution Bench decision, was expressly not doubted. The Court said the fields of preventive and punitive detention are distinct and that pending criminal proceedings are no bar in themselves; its reliance on the other authorities was for the limited purpose of testing the material and the circumstances against Pebam Ningol Mikoi Devi and Ameena Begum v. State of Telangana.
Examined that way, the requisite nexus between the material and the satisfaction recorded was found to be conspicuously absent. Having reached that conclusion, the Court said it did not need to decide whether the offences were of a nature affecting national security or public order. It added that the mere existence of multiple cases cannot per se ground a detention order without cogent and reliable material, which did not appear to exist.
The Court closed its reasoning on the character of the power. Preventive detention authorises curtailment of liberty not for what has been done but for what is apprehended, and operates as a departure from Article 21, to be invoked with the utmost circumspection in the rarest of cases. Quoting Rekha v. State of Tamil Nadu, it noted that in substance a detention order of a year is a year’s imprisonment, whatever it is called. Here the State asserted that the order was not meant to punish the appellant for the incident of 24 November 2024, which was already the subject of a charge-sheet. But the order was substantially founded on the very material gathered in that investigation, so the distinction between the punitive and preventive jurisdictions had, in substance, become blurred.
A dedication on the first page
The judgment opens on what the Bench itself called an unconventional premise. Under the heading “In Memoriam”, it records the death of one of the Court’s Law Clerks-cum-Research Associates, Ritwik Deswal, four days short of his twenty-seventh birthday — which fell on the day of pronouncement. The Bench wrote that the judgment bears the imprint of his final labours, and dedicated it to his memory and his commitment to the law.
Order
The High Court judgment of 8 June 2026, the detention order of 13 October 2025 and the confirmation order of 28 November 2025 were all set aside. The appellant was directed to be released forthwith unless his custody was required in connection with any other case, and the appeal was allowed on those terms.
The Court noted that the detention, confirmed for a year, was by then close to expiry, and that the appellant had suffered considerable loss of liberty even after being granted bail in all the cases arising from the incident. In those circumstances, it said, the process was made the punishment. It imposed costs of Rs 10 lakh on the State, to be made over to the appellant within a month of the judgment. Pending miscellaneous applications were disposed of. The Court recorded that it expressed no opinion on the merits of the criminal cases, which would proceed in accordance with law uninfluenced by any observation in the judgment.