Why preventive detention now needs more than a police confession

The Supreme Court judgment concerning Mulla Afroz, an accused in the November 2024 Sambhal violence, opened with an unusual personal tribute. Before turning to the legality of his year-long preventive detention under the National Security Act, 1980 (NSA), Justice Dipankar Datta paid homage to Ritwik Deswal. The Law Clerk-cum-Research Associate had died four days before what would have been his 27th birthday.

Under the heading “In Memoriam”, Justice Datta recorded that the judgment bore the “quiet and indelible imprint of his final labours”. The Bench, also comprising Justice Sheel Nagu, dedicated what it described as its final collaboration with the young researcher to his memory, integrity, and commitment to the law.

The judgment then turned to the question of personal liberty, and on September 29, 2026, the Supreme Court quashed Afroz’s preventive detention, ordered his release unless required in another case, and imposed Rs 10 lakh as costs on the Uttar Pradesh government, to be paid to him within a month. Afroz had already obtained bail in all the criminal cases arising from the incident, and the Court concluded that, in the circumstances, “the process was made the punishment”.

What was the Sambhal case about?

The case arose from violence on November 24, 2024, during a court-ordered survey of the Shahi Jama Masjid in Sambhal, Uttar Pradesh, in which four people were killed. The survey followed a civil suit claiming that the 16th-century mosque stood at the site of an earlier Hari Har temple.

Afroz was not named in the initial First Information Report (FIR) registered on the day of the violence. Police arrested him 54 days later, on January 17, 2025, and took him into custody in several related cases. During police custody, a confessional statement was said to have been recorded and a .32 bore pistol was allegedly recovered.

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He obtained bail from the Allahabad High Court in one case on September 9, 2025. While he remained in judicial custody in the other cases, the Sambhal District Magistrate invoked Section 3(2) of the NSA on October 13, 2025, and ordered his preventive detention. The State government later confirmed the detention for one year. By June 2026, Afroz had secured bail in all the criminal cases in which he had been implicated.

The Allahabad High Court upheld the detention on June 8, 2026, after accepting that the District Magistrate had formed the required “subjective satisfaction”, the legal expression used for the authority’s assessment that detention is necessary to prevent future prejudicial conduct. Afroz then approached the Supreme Court.

Can police confession justify preventive detention?

The central legal question was whether the State could rely on a confession made to the police to justify preventive detention. Afroz consistently maintained that the confession attributed to him had been extracted through torture and threats to his life. The Supreme Court found that the State had neither refuted this allegation in its reply affidavit nor satisfactorily dealt with it in its written submissions, and therefore found no basis to treat the statement as voluntary.

The Bench examined Article 20(3) of the Constitution, which protects an accused from being compelled to incriminate himself, together with Section 23 of the Bharatiya Sakshya Adhiniyam, 2023, which generally excludes confessions made to police officers from proof against an accused. It reasoned that if criminal law regards a police confession as inherently suspect when deciding guilt, using the same statement as the basis for detention without trial requires closer scrutiny.

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The Court consequently held that a confession made before a police officer cannot, by itself and without independent supporting material, provide the subjective satisfaction necessary to sustain preventive detention. In Afroz’s case, where the allegation of coercion remained unanswered, the confession could not be relied upon.

The ruling goes beyond applying that principle to one detention order. The Bench examined earlier Supreme Court decisions, including Aruna Kumari v Government of Andhra Pradesh (1988) and Senthamilselvi v State of Tamil Nadu (2006), which had appeared to permit reliance on confessional statements. It held that the relevant observations were obiter, meaning they did not constitute the binding legal rule in those cases because the precise question now before the Court had not been directly decided there.

The Bench also overruled, to this extent, the Full Bench decision of the Madras High Court in Suman v State of Tamil Nadu (1986), which had permitted a confession made to the police to be considered as relevant material for preventive detention.

Why did other material fail to sustain detention?

Once the confession was taken out of the equation, the Court examined whether independent material could still sustain Afroz’s detention. The detention grounds referred to CCTV footage and video recordings that supposedly enabled investigators to identify him as a principal architect of the violence, yet the recordings were absent from the 22 documents relied upon by the detaining authority. They had neither been supplied to Afroz nor produced before the Allahabad High Court or the Supreme Court. The Bench also questioned why, if investigators possessed contemporaneous footage implicating Afroz, the police waited 54 days after the incident to arrest him; the judgment records that no satisfactory answer was forthcoming.

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There was another unexplained strand involving mobile-phone communications allegedly exchanged between Afroz and a person described as his “Boss”. The detention grounds said that data on Afroz’s phone had been erased, but did not explain how the alleged messages had then been retrieved. Neither the phone nor the purported communications formed part of the material relied upon for detention.

The Court was equally critical of treating the filing of a chargesheet as confirmation of Afroz’s involvement. A chargesheet records the investigating agency’s conclusion that there is sufficient material to prosecute a person; it is neither a finding of guilt nor conclusive proof of involvement in the alleged offence.

Was NSA order used to keep Afroz in jail after bail?

The detention order also raised a wider question about the use of preventive detention after bail. It referred to information that Afroz might obtain bail and could then engage in further violence. On the material before it, the Supreme Court concluded that the detention appeared to be an attempt to frustrate a judicial order granting bail and keep him in custody through another route. On those facts, the order had assumed a punitive rather than preventive character.

The Court did not hold that preventive detention automatically becomes impermissible because criminal cases are pending or because an accused has obtained bail. It expressly reaffirmed the Constitution Bench decision in Haradhan Saha v State of West Bengal (1975), which recognises that preventive detention and criminal prosecution occupy different fields. The authority must, however, have relevant material showing why detention is independently necessary to prevent future prejudicial conduct.

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In Afroz’s case, the same occurrence and substantially overlapping investigative material had been used for the criminal prosecution and the preventive detention. The Bench said that when the ordinary criminal process is already under way, resort to the extraordinary power of preventive detention must satisfy a “correspondingly higher degree of scrutiny”. The material must demonstrate a need to prevent future conduct rather than merely reinforce allegations already being tried through the criminal process.

What does Rs 10 lakh order signify?

The Court formally described the Rs 10 lakh as costs to be made over to Afroz, rather than calculating damages for each day of detention. Even so, the direction is closely tied to its finding that he had suffered a substantial loss of liberty despite obtaining bail in all the connected criminal cases. The order therefore adds a monetary consequence to the Court’s conclusion that the preventive detention could not survive constitutional scrutiny.

Afroz’s criminal cases will continue independently because the Supreme Court expressly said it was expressing no view on their merits and directed that the prosecutions proceed according to law without being influenced by observations in the preventive-detention judgment.

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What the ruling changes is the threshold for sustaining detention on material produced through the criminal investigation. An uncorroborated police confession cannot become the sole foundation for preventive detention, and the State cannot simply reproduce allegations from an ongoing prosecution when invoking an exceptional power aimed at preventing future conduct. Where bail has already entered the picture, the judgment requires courts to examine with greater care whether preventive detention is serving its stated purpose or functioning as a second route to custody.