What did the Supreme Court say about preventive detention based on custodial confession? | Explained

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File photo of prisoners sitting in a cell of Tihar Jail in New Delhi. | Photo Credit: AFP

The story so far: The Supreme Court on September 29, 2026 set aside a preventive detention order under the National Security Act, 1980, holding that a confession made to a police officer cannot, by itself and without independent supporting material, form the basis for such an order.

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 case arose from the violence that broke out in Sambhal, Uttar Pradesh, on November 24, 2024, during a survey of a mosque. Four people were killed and several FIRs were registered.

The accused was arrested nearly two months after the incident, on January 17, 2025, in connection with other FIRs. While he was in custody, police recorded a confessional statement from him, pursuant to which a .32-bore pistol was allegedly recovered.

He was subsequently granted bail in one of the cases. On October 13, 2025, however, the District Magistrate of Sambhal passed an order directing his preventive detention under Section 3(2) of the NSA. The detention was later confirmed by the State government for a further period of 12 months. By June 2026, he had obtained bail in all the criminal cases relating to the incident. The accused challenged the detention before the Allahabad High Court, but the petition was dismissed. He then approached the Supreme Court.

One of his principal arguments was that the detention order rested on an extra-judicial confession allegedly obtained through torture and threats. The State, on the other hand, argued that a confession could be considered by a detaining authority and that preventive detention was different from a criminal prosecution. The Supreme Court ultimately set aside the detention order and the confirmation order.

Preventive detention means detaining a person without a trial and conviction by a court. Its purpose is to prevent a person from committing an offence in the near future rather than punishing for a past offence.

Under Section 3(2) of the National Security Act, the Central or State government can order detention if it is satisfied that detention is necessary to prevent a person from acting in a manner prejudicial to the security of the State, maintenance of public order, or maintenance of essential supplies and services.

In a criminal prosecution, the State alleges that a person committed an offence and must establish guilt through the criminal process. Preventive detention operates on the basis of an apprehended future threat. The Supreme Court noted that although preventive detention is preventive rather than punitive, the power remains subject to constitutional safeguards and judicial review.

Not by itself. The Supreme Court held that a confession made before a police officer cannot, without independent material to support it, form the basis for the “subjective satisfaction” required to sustain a preventive detention order. The court said, “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 court examined the issue against Article 20(3) of the Constitution, which protects an accused from being compelled to be a witness against themselves, and Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

Section 23 generally provides that a confession made to a police officer cannot be proved against an accused, subject to the exceptions contained in the provision. The Supreme Court reasoned that “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.”

Preventive detention is constitutionally recognised, but Article 22 contains specific safeguards. Under Article 22(5), a person detained under a preventive-detention law must be informed of the grounds on which the detention order has been made and given the earliest opportunity to make a representation against it.

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. An irrelevant or legally unusable ground can therefore affect the validity of the detention because a detenue cannot effectively challenge an allegation which in law, cannot sustain the detention in the first place.

It therefore set aside the Allahabad High Court judgment and the detention and confirmation orders, and directed his release unless his custody was required in another case. The court also imposed ₹10 lakh in costs on the State.

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