Preventive Detention Cannot Rest on an Unreliable Confession

The Supreme Court's judgment in Mulla Afroz v. Union of India is an important decision on the limits of preventive detention under the National Security Act, 1980 (NSA). The case deals with an important question: Can a person's alleged confession to the police be used as the basis for preventive detention? The Court answered that a police confession cannot, by itself and without independent supporting material, form the basis of such detention. The judgment also emphasises that preventive detention cannot be used as a substitute for ordinary criminal proceedings or as a way of keeping a person in custody after bail has been granted.

Background of the Case

The case arose from the violence that took place in Sambhal, Uttar Pradesh, on 24 November 2024 during a survey of a mosque. Four people died in the violence and several criminal cases were registered.

Mulla Afroz was not named in the first FIR. He was arrested approximately 54 days later, on 17 January 2025, in connection with other FIRs. During his custody, the police claimed that he made a confessional statement, following which a .32 bore pistol was allegedly recovered.

On 9 September 2025, Afroz was granted bail in one of the criminal cases. However, on 13 October 2025, the District Magistrate, Sambhal, passed an order directing his preventive detention under Section 3(2) of the NSA. The detention was subsequently confirmed by the State Government for twelve months. By June 2026, Afroz had obtained bail in all the criminal cases against him.

Afroz challenged the detention before the Allahabad High Court, but his petition was dismissed. The High Court relied on the principle of "subjective satisfaction" of the detaining authority. It held that the detention was based on relevant material. Afroz therefore approached the Supreme Court.

The Main Issues Before the Supreme Court

The Supreme Court broadly considered two questions.

First, whether an extra-judicial confession made before the police could form the basis of preventive detention.

Second, whether the material relied upon by the detaining authority was legally valid and whether the constitutional and statutory safeguards relating to preventive detention had been followed.

Protection Against Self-Incrimination

The Court began with Article 20(3) of the Constitution, which protects an accused person from being compelled to be a witness against himself.

The Court also considered Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The provision generally prevents a confession made to a police officer from being proved against an accused, subject to the limited exceptions recognised by law.

The Supreme Court reasoned that if a confession made to the police is treated with suspicion even in a criminal trial, it requires even greater caution when it is sought to be used to deprive a person of liberty through preventive detention.

Afroz had consistently alleged that his confession was obtained through threats and torture. Importantly, the Court noted that the State had not effectively refuted this allegation. Therefore, the Court concluded that the confession could not be treated as voluntary.

The Court ultimately held that a police confession cannot, by itself and without independent supporting material, provide the foundation for the subjective satisfaction required for preventive detention.

Preventive Detention Is Not Punishment

One of the most important aspects of the judgment is the Court's discussion of the difference between preventive detention and punitive detention.

Preventive detention is intended to prevent a person from engaging in conduct considered prejudicial to public order or national security in the future. It is not supposed to punish a person for an offence that has already occurred.

The State argued that the criminal cases and the preventive detention proceedings were legally separate. The Supreme Court accepted that criminal proceedings and preventive detention can, in principle, exist simultaneously. However, the Court stressed that the existence of criminal proceedings does not give the State an unrestricted power to use preventive detention.

In the present case, the same incident and substantially the same material were being used both for the criminal proceedings and for preventive detention. The Court therefore found that the distinction between preventive and punitive detention had become blurred.

The Court also found that the detention appeared to be an attempt to prevent Afroz from obtaining the benefit of bail. It observed that where a person has already been granted bail, the State must exercise particularly careful scrutiny before subsequently resorting to preventive detention.

Problems With the Other Material

The Supreme Court did not stop at the confession. It examined the other material relied upon by the detaining authority.

The detention order referred to CCTV footage and videos which allegedly helped identify Afroz as a principal participant in the violence. However, those recordings were not included among the 22 documents relied upon by the authority and were not supplied to Afroz. They were also not produced before the High Court or the Supreme Court.

The Court held that material which has neither been supplied to the detenu nor disclosed before the Court cannot properly sustain a preventive detention order.

The detention order also referred to alleged communications between Afroz and a person described as his "Boss". However, the authorities had stated that the data on Afroz's mobile phone had been erased, while failing to explain how these alleged communications were subsequently obtained. Neither the phone nor the alleged messages formed part of the material supplied to the detenu. The Court therefore found this ground unreliable as well.

The Court further clarified that merely filing a chargesheet does not establish guilt. A chargesheet represents the investigating agency's conclusion that there is sufficient material to proceed against an accused; it is not a judicial finding of guilt.

The Supreme Court's Decision

After examining the entire record, the Supreme Court held that there was no sufficient and legally sustainable nexus between the material relied upon and the detention order. The Court therefore set aside the Allahabad High Court judgment, the detention order and the confirmation order.

Afroz was directed to be released unless his custody was required in another case. The Court also imposed costs of ₹10 lakh on the State, payable to Afroz within one month.

Conclusion

Mulla Afroz v. Union of India reinforces an important constitutional principle: personal liberty cannot be curtailed merely because the State considers a person dangerous or because criminal allegations against him are serious. Preventive detention is an exceptional power and must remain connected to its preventive purpose.

The judgment does not decide whether Afroz is guilty or innocent of the criminal allegations arising from the Sambhal violence. Those criminal proceedings are to continue independently. What the Supreme Court decided was narrower but significant: the State must rely on lawful, relevant and properly disclosed material when it seeks to deprive a person of liberty through preventive detention.

The judgment therefore strengthens the importance of Articles 20(3), 21 and 22 of the Constitution and reminds authorities that "subjective satisfaction" does not mean unchecked satisfaction. Even where the State possesses wide preventive powers, those powers remain subject to constitutional safeguards, judicial review and the basic requirement that the material relied upon must have a rational connection with the need for detention.

The full judgment is available through the Supreme Court of India website, and the complete text can also be accessed here.