MULLA AFROZ v. UNION OF INDIA AND ORS
2026 INSC 1067 · CRIMINAL APPEAL NO. 4310 OF 2026
Coram: Justice Dipankar Datta · Justice Sheel Nagu
A confessional statement made before a police officer cannot alone sustain an order of preventive detention in the absence of independent material.
No. A confessional statement made before a police officer cannot, by itself and in the absence of any independent material lending support, constitute a basis for the subjective satisfaction necessary to sustain an order of preventive detention. Such a contention is tested on the twin anvil of Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 and Article 20(3) of the Constitution, and where the detenu consistently says the statement was obtained under threat and torture it falls squarely in the teeth of Kartar Singh. The observations in Aruna Kumari and Senthamilselvi in favour of using confessions were merely obiter dicta, because in neither case was the detention order challenged on that ground, and the Full Bench decision in Suman was overruled to that extent.
Headnote
National Security Act, 1980 — s.3(2) — Bharatiya Sakshya Adhiniyam, 2023 — s.23 — Constitution of India — Arts.20(3), 22(5) — Preventive detention — Confessional statement before police officer — Subjective satisfaction —
National Security Act, 1980 — s.3(2) — Preventive detention — Confessional statement before police officer —
Held: A confessional statement made before a police officer cannot, by itself and without independent material lending support, form the basis of the subjective satisfaction needed to sustain an order of preventive detention. The Full Bench decision in Suman is overruled to that extent. (¶28, 36, 38)
Constitution of India — Art.22(5) — Preventive detention — Irrelevant ground — Effective representation —
Held further: An irrelevant ground cannot legitimately enter into the subjective satisfaction of the detaining authority, since a detenu cannot make an effective representation against allegations incapable of sustaining the detention. Other material relied upon must then be examined independently. (¶35, 39)
National Security Act, 1980 — Preventive detention — Bail — Punitive detention — Scrutiny —
Held further: A detention order that seeks to frustrate the judicial order granting bail is not preventive but punitive; where the person is already in custody or on bail, scrutiny of the detention order must be more exacting. (¶52, 53, 65)
National Security Act, 1980 — Preventive detention — Chargesheet — Multiple cases —
On facts, held: The mere filing of a chargesheet and the multiple pending cases did not sustain the detention order. Detention and confirmation orders set aside, release directed and costs of Rs.10 lakh imposed on the State. Appeal allowed. (¶50, 59, 67, 69)
In the Court's own words
Paragraph 28Informed by the law laid down in the aforesaid two decisions, we need to accordingly read the decisions in Aruna Kumari (supra), Senthamilselvi (supra), Khatri (supra) and Subbulakshmi (supra). We observe that Aruna Kumari (supra) and Senthamilselvi (supra) tend to support the contention that a confessional statement may be relied upon to make an order of preventive detention; interestingly though, in none of the said two cases had the detention order been challenged on the ground that the same were based upon the confessional statement of the detenu. This is a crucial and distinctive fact making a world of difference in terms of how the present issue before us is to be adjudicated. Thus, the observations made in respect of the use of confessional statements in justifying preventive detention orders were merely obiter dicta and cannot be treated as the ratio decidendi. The decisions in Aruna Kumari (supra) and Senthamilselvi (supra) turned on their own facts and are not direct authorities for the proposition that a confessional statement can form the basis of an order of preventive detention. Similarly, Khatri (supra) too did not deal with this question but was rather limited to the question of usage of statements under Section 161 of the Code of Criminal Procedure, 1973[^33] in writ proceedings, which is not an issue before this Court presently. Reliance on Subbulakshmi (supra) will also not be of any avail to the respondents as it very clearly talks about a voluntary confessional statement being the basis for a preventive detention order.
Paragraph 30As and when a contention is advanced that a confessional statement made before the police can form the basis of an order of preventive detention, such a contention has to be tested on the twin anvil of Section 23 of the BSA and Article 20(3) of the Constitution. The reason is not far to seek. The protection against self-incrimination is a fundamental right of paramount constitutional significance. It is this constitutional guarantee that finds statutory reflection in Section 23 of the BSA. Consistently, our criminal jurisprudence has treated confessions made before police officers as inherently suspect and unreliable for the purposes of a criminal trial. If such a confession is considered too tainted to be received in evidence for proving guilt, it follows, a fortiori, that its use as a substantive basis for preventive detention would require a deeper scrutiny.
Paragraph 31A 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.
Paragraph 33The aforesaid decision makes two principles abundantly clear. First, an accused enjoys the fundamental right against self-incrimination and cannot be compelled to be a witness against himself. Secondly, even where a confessional statement is procured by threats, coercion or inducement and recorded before a police officer, such statement is rendered inadmissible and irrelevant for the purposes of a criminal trial. 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!
Paragraph 36Therefore, 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. This especially holds true in the facts of the present case where the detenu has consistently stated that his confessional statement has been obtained under threat and torture making it fall squarely in the teeth of Kartar Singh (supra). On facts and in the circumstances, we hold that the confessional statement of the appellant could not have been relied upon by the detaining authority.
Paragraph 38Given our conclusion that a confessional statement by a detenu made before a police officer cannot constitute the sole basis for forming the subjective satisfaction necessary to sustain an order of preventive detention, as well as the fact that the decision in Suman (supra) did not have the benefit of considering the decision of this Court in Kartar Singh (supra) which was rendered later in time, 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.