2026 INSC 1067 Page 1 of 41

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 4310 OF 2026

[Arising out of SLP (CRL.) NO. 12534 OF 2026]

MULLA AFROZ …APPELLANT

VERSUS

UNION OF INDIA AND ORS. …RESPONDENTS

J U D G M E N T

DIPANKAR DATTA, J.

I. IN MEMORIAM

1. Human life is fragile. Yet, in the ordinary course of living, we seldom

pause to recognise just how fleeting it is; and when life finally confronts

us with that fragility, the realisation often comes too late. On that note,

at the very outset, we begin on an unconventional premise. One of our

dearest Law Clerks-cum-Research Associates, Ritwik Deswal, left for his

heavenly abode 4 days short of his 27

th

birthday, which happens to be

today. As we pronounce this judgment, which bears the quiet and

indelible imprint of his final labours, we wish to record our deep

appreciation for the invaluable research assistance rendered by him in

the build-up to the preparation of this judgment. His untimely demise

Page 2 of 41

has left an excruciatingly deep void in our lives. Even in his final hours,

his thoughts remained firmly anchored in the pursuit of truth and the

service of justice. It is, therefore, with profound personal sorrow and

grief that we dedicate this final collaboration to his memory, his integrity,

his enduring commitment to the law, his love for academia, and his other

great qualities of head and heart.

II. THE CHALLENGE

2. This appeal, by special leave, challenges the judgment and order dated

8

th

June, 2026

1

whereby the High Court of Judicature at Allahabad

2

dismissed the writ petition

3

filed by the appellant. An order dated 13

th

October, 2025

4

issued by the District Magistrate, Sambhal, Uttar

Pradesh

5

ordering the appellant’s preventive detention under the

National Security Act, 1980

6

assailed in the writ petition was thus

upheld.

III. FACTUAL MATRIX

3. The genesis of the present proceedings lies in an incident that occurred

on 24

th

November, 2024 in connection with survey of a mosque at

Sambhal. During the course of the survey, violence erupted resulting in

the death of 4 (four) persons. An FIR, being Case Crime No. 333 of 2024,

came to be registered on the same day. Subsequently, several other

1

impugned judgment

2

High Court

3

Habeas Corpus Writ Petition No. 179 of 2026

4

detention order

5

detaining authority

6

NSA

Page 3 of 41

FIRs

7

were also lodged in relation to the said incident. Although the

appellant was not named in Case Crime No. 333 of 2024, he was

arrested approximately 54 (fifty-four) days later, on 17

th

January, 2025

to be precise, and was also taken into custody in connection with the

other FIRs. During the course of such custody, a confessional statement

of the appellant is stated to have been recorded. Pursuant thereto, a .32

bore pistol was allegedly recovered.

4. On 9

th

September, 2025, the appellant was granted bail by the High

Court in connection with Case Crime No. 340 of 2024. However, while

the appellant continued to remain in judicial custody in relation to the

other FIRs, the detaining authority exercising power conferred by

Section 3(2)

8

of the NSA passed the detention order on 13

th

October,

2025. Appellant thereafter submitted a representation against the

detention order from the district jail, which came to be rejected by the

detaining authority on 31

st

October, 2025 on the ground of delay in its

submission. The representations thereafter preferred before the State

Government as well as the Central Government also met the same fate.

7

Case Crime Nos. 306, 337, 338, 339 and 340 of 2024

8

(2) The Central Government or the State Government may, if satisfied with respect to

any person that with a view to preventing him from acting in any manner prejudicial to

the security of the State or from acting in any manner prejudicial to the maintenance of

public order or from acting in any manner prejudicial to the maintenance of supplies and

services essential to the community it is necessary so to do, make an order directing that

such person be detained.

Explanation.—For the purposes of this sub-section, “acting in any manner prejudicial to

the maintenance of supplies and services essential to the community” does not include

“acting in any manner prejudicial to the maintenance of supplies of commodities essential

to the community” as defined in the Explanation to sub-section (1) of section 3 of the

Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act,

1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on

any ground on which an order of detention may be made under that Act.

Page 4 of 41

5. Subsequently, upon receipt of the report of the Advisory Board, the State

Government exercising power under Section 12 of the NSA confirmed

the detention order and directed continuance of the detention for a

further period of 12 (twelve) months vide its order dated 28

th

November,

2025

9

. In the meantime, and by June, 2026, the appellant had secured

bail from the High Court in all the criminal cases wherein he had been

implicated.

6. Aggrieved by the order of detention which he perceived to be illegal and

in breach of law, the appellant invoked the writ jurisdiction of the High

Court assailing both the detention and confirmation orders. He prayed

for issuance of a writ of habeas corpus directing his release from custody

forthwith upon quashing of the orders impugned in the writ petition.

7. Before the High Court, the appellant raised several contentions assailing

the detention order. It was urged that a bare perusal of the

communication addressed by the detaining authority to the

Superintendent of Jail would reveal that neither the detention order nor

the grounds of detention had been furnished to the appellant, in breach

of the mandate of Article 22 of the Constitution and the procedural

safeguards engrafted in the NSA. It was further contended that the

appellant had been falsely implicated in the criminal cases solely on the

basis of an extra-judicial confession allegedly extracted by the police

through torture and threats to his life. The appellant also questioned the

recovery of a .32 bore pistol pursuant to his arrest, contending that the

9

confirmation order

Page 5 of 41

same did not accord with the medical evidence relating to the deceased

persons, whose deaths were attributed to .315 bore bullets.

8. The writ petition, however, came to be dismissed by a Division Bench of

the High Court by the impugned judgment. While so dismissing, the High

Court examined the scope of Article 22 of the Constitution and relied

upon several decisions of this Court governing preventive detention. It

observed that whether a particular act threatens the maintenance of

public order or the security of the State is necessarily a question to be

determined on the facts and circumstances of each case. It further held

that since an order of preventive detention is founded on an

apprehended threat and not on proof of guilt, no rigid or objective

parameters can be prescribed, and the power of detention is to be

exercised on the subjective satisfaction of the detaining authority. It also

observed that an order of preventive detention partakes the character

of an administrative action and, therefore, judicial review is confined to

examining the decision-making process and the application of mind by

the detaining authority rather than the correctness of the satisfaction

recorded. Applying the aforesaid principles, it was held that the

subjective satisfaction recorded by the detaining authority was justified

and did not disclose non-application of mind. It further noticed that the

appellant himself had admitted in the writ petition that 22 (twenty-two)

documents forming the basis of the detention order had been supplied

to him. On such reasoning, the High Court concluded that the detention

order and confirmation order were founded on relevant and objective

Page 6 of 41

material and that no case had been set up warranting exercise of its

extraordinary writ jurisdiction.

9. Aggrieved by the aforesaid judgment of the High Court, the appellant

has carried the same in appeal before this Court.

IV. CONTENTIONS OF THE PARTIES

10. Mr. Divyesh Pratap Singh, learned counsel for the appellant has assailed

the impugned judgment as well as the detention and confirmation order

on the following grounds:

a. Materials referred to in the impugned detention order were not

furnished to the appellant.

b. The detention order has been resorted to solely to defeat the

release of the appellant who has otherwise been granted bail in all

the cases registered against him. Reliance was placed on the

decision of this Court in Ameena Begum v. State of

Telangana

10

and Annu @ Aniket v. Union of India

11

in support

of the aforesaid submission.

c. The existence of multiple cases per se is no ground to pass the

detention order. Furthermore, the detention order merely contains

an ipse dixit regarding the imminent possibility of the appellant

being released on bail without any reliable or cogent material

supporting such satisfaction and must disclose release having

direct nexus with disturbance of public order. Reference in this

10

(2023) 9 SCC 587

11

Criminal Appeal No. 2920 of 2025

Page 7 of 41

regard has been made to Vijay Kumar Rajpoot @ Vijju v. State

of Chhattisgarh

12

, Rekha v. State of Tamil Nadu

13

and

Roshini Devi v. State of Telangana

14

.

d. There is clear non-application of mind by the detaining authority

and the confirming authority along with the State and Central

Governments, which rejected the representations made by the

detenu.

e. The foundation of the detention order as well as the implication

and incarceration of the appellant under multiple criminal cases

rests on an extra-judicial confession obtained through torture and

threat of murder in violation of the mandate of Article 20(3) of the

Constitution. Such confessional statement is inadmissible under

Section 23 of the Bharatiya Sakshya Adhiniyam, 2023

15

(erstwhile

Section 25 of the Indian Evidence Act, 1872

16

) and cannot form

grounds for detention or incarceration. Reliance was placed on

Pebam Ningol Mikoi Devi v. State of Manipur

17

in support of

the aforesaid submission.

f. The factual panorama laid out in the FIRs at best constitutes a law-

and-order situation and does not amount to breach of public order.

12

(2026) SCC OnLine 1726

13

(2011) 5 SCC 244

14

(2026) 7 SCC 302

15

BSA

16

IEA

17

(2010) 9 SCC 618

Page 8 of 41

Support was sought to be drawn from Dr. Ram Manohar Lohia

v. State of Bihar

18

in this behalf.

g. Lastly, the prolonged incarceration violates right to life and

personal liberty of the appellant as enshrined under Article 21 of

the Constitution.

11. Per contra, Mr. Nataraj, learned Additional Solicitor General representing

the respondents defended the detention and confirmation orders, as well

as the judgment of the High Court by arguing as follows:

a. The act of the appellant disturbed public order and the occurrence,

which forms the basis of criminal cases, led to death of 4 (four)

persons as well as injuries to police personnel. It further led to

shutting down of internet and other services in the Sambhal area.

These acts satisfy the requirements under Section 3(2) of the NSA

inasmuch they are acts prejudicial to the maintenance of public

order and to the maintenance of supplies and services essential to

the community. Reliance was placed upon Arun Ghosh v. State

of West Bengal

19

to contend that acts of the detenu caused

disturbance of public order.

b. The pendency of criminal cases or the fact that the detenu has been

released on bail is no bar to an order of preventive detention.

Reliance was placed on Haradhan Saha v. State of West

Bengal

20

. Furthermore, a detention order may be validly passed

18

AIR 1966 SC 740

19

(1970) 1 SCC 98

20

(1975) 3 SCC 198

Page 9 of 41

against a person in custody in terms of the decision in

Kamarunnisa v. Union of India

21

.

c. Detention under the NSA is a preventive and not a punitive action

and the detaining authority has only to form subjective satisfaction

on the basis of materials before it. Therefore, the judicial scrutiny

of the order of the detaining authority would be minimal. Reliance

was placed upon Aruna Kumari v. Govt. of A.P

22

and State of

Punjab v. Sukhpal

23

to buttress this point.

d. A confessional statement can form the basis of a detention order

and the same when relied upon by a detaining authority cannot be

equated to confessional statements in judicial proceedings.

Reliance was placed on Aruna Kumari (supra) and Khatri (IV) v.

State of Bihar

24

and a Full Bench decision of Madras High Court

in Suman v. State of Tamil Nadu

25

in support of this aforesaid

submission.

e. Where an order of detention has been made on multiple grounds,

the order shall be deemed to have been made separately on each

of those grounds. Such an order shall not be deemed to be invalid

or inoperative merely because one or some of the grounds are

vague, non-existent, not relevant, not connected or not

21

(1991) 1 SCC 128

22

(1988) 1 SCC 296

23

(1990) 1 SCC 35

24

(1981) 2 SCC 493

25

1986 SCC OnLine Mad 104

Page 10 of 41

proximately connected with the person detained, or invalid for any

other reason.

V. ANALYSIS

12. We have heard the parties and perused the impugned judgment, as well

as the materials on record.

13. This appeal would have partly succeeded on a couple of technical

grounds. Despite Mr. Nataraj’s fair concession, we have proceeded to

decide the appeal purely on the merits of the rival contentions.

14. Broadly, two issues arise for our consideration: first, whether an order

of detention can be based on an extra-judicial confession; and second,

whether procedural safeguards as envisaged under the Constitution and

the NSA have been complied with and consequently whether the

material relied upon by the detaining authority is legal and valid for

passing an order of preventive detention.

A. WHETHER AN ORDER OF PREVENTIVE DETENTION CAN BE BASED UPON AN

EXTRA-JUDICIAL CONFESSIONAL STATEMENT ?

15. At the outset, we consider it essential to bear in mind the constitutional

protection given to any accused against self-incrimination. Article

20(3)

26

of the Constitution guaranteeing that, apart from being a

fundamental right, forms a foundational principle of Indian criminal

jurisprudence.

26

20. ***

(3) No person accused of any offence shall be compelled to be a witness against himself.

Page 11 of 41

16. That apart, no court while examining a challenge to an order of

preventive detention ought to proceed without bearing in mind Article

22

27

of the Constitution.

17. After perusing the grounds of detention given by the detaining authority

forming part of the reply affidavit filed on behalf of the respondents, it

27

22. Protection against arrest and detention in certain cases.-

(1) No person who is arrested shall be detained in custody without being informed, as

soon as may be, of the grounds for such arrest nor shall he be denied the right to consult,

and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the

nearest magistrate within a period of twenty-four hours of such arrest excluding the time

necessary for the journey from the place of arrest to the court of the magistrate and no

such person shall be detained in custody beyond the said period without the authority of

a magistrate.

(3) Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive

detention.

(4) No law providing for preventive detention shall authorise the detention of a person for

a longer period than three months unless—

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be

appointed as, Judges of a High Court has reported before the expiration of the said period

of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond

the maximum period prescribed by any law made by Parliament under sub-clause (b) of

clause (7); or

(b) such person is detained in accordance with the provisions of any law made by

Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing

for preventive detention, the authority making the order shall, as soon as may be,

communicate to such person the grounds on which the order has been made and shall

afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred

to in that clause to disclose facts which such authority considers to be against the public

interest to disclose.

(7) Parliament may by law prescribe—

(a) the circumstances under which, and the class or classes of cases in which, a person

may be detained for a period longer than three months under any law providing for

preventive detention without obtaining the opinion of an Advisory Board in accordance

with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be

detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a)

of clause (4).

Page 12 of 41

is clear that the extra-judicial confessional statement of the appellant is

one of the basic planks on which the detention order rests.

18. The question as to whether such a statement can form the basis of an

order of preventive detention has led to decisions which, seemingly,

strikes discordant notes. Therefore, we propose to reconcile the

seemingly conflicting views in this judgment.

19. Respondents have relied upon the decision in Aruna Kumari (supra) to

contend that confessional statements can form the basis for detention

orders. Furthermore, they have also relied upon this decision to support

the contention that the detaining authority only has to form subjective

satisfaction which is not amenable to strict standards of judicial scrutiny.

The relevant paragraph from the said decision, on which reliance is

heavily placed, is reproduced hereinbelow:

8. … Before examining the point urged on behalf of the petitioner on

merits, it must be pointed out that this Court while considering

petitioner's writ application is not sitting in appeal over the detention

order, and it is not for us to go into and assess the probative value of

the evidence available to the detaining authority. Of course, a

detention order not supported by any evidence may have to be

quashed, but that is not the position here. There was clearly sufficient

material before the District Magistrate to justify the forming of his

opinion as stated earlier. The question was not raised in the writ

petition filed before the High Court, and the plea based upon the

brand of cement was belatedly taken in the case and has been dealt

with at some length in the judgment of the High Court which is under

challenge in the special leave petition. We do not consider it

necessary to repeat them but we would mention briefly the argument

of the learned Advocate General which appears to be well founded.

Our attention was drawn to the gatepass (page 154 of the paper-

book of the writ petition) showing the issuance of the levy cement

“to the contractor”, that is, Madhava Rao, which was signed by

Mohammad Chand on behalf of the Railways and Babu, Madhava

Rao's employee. This does not mention the name of Eswara Rao, the

other employee of the contractor. It is not denied on behalf of the

detenu that he has been executing many contract works for the

Railways, and therefore it cannot be presumed that the same

Page 13 of 41

consignment was the subject matter of the gatepass as well as the

certificate relied upon on behalf of the petitioner. The point now urged

on the basis of the brand of cement was taken on behalf of the

petitioner belatedly as mentioned earlier. Besides, the detenu

accepted the allegations against himself in his statement recorded

under Section 161 of the Code of Criminal Procedure. It is true that

it may not be a legally recorded confession which can be used as

substantive evidence against the accused in the criminal case, but it

cannot be completely brushed aside on that ground for the purpose

of his preventive detention. The records further show that the oral

evidence of the watchman and the labourer engaged in the house

construction proved that it was the levy cement issued to the detenu

which was being diverted at his instance. Before closing this chapter

it may be re-stated that the sufficiency of the materials available to

the detaining authority is not to be examined by the court.

(emphasis ours)

20. Respondents have similarly relied upon Khatri (supra) to clarify the

usage of statements made before a police officer by referring to the

following extract:

3. …If the statement made before a police officer in the course of an

investigation under Chapter XII is sought to be used in any

proceeding other than an inquiry or trial or even at an inquiry or trial

but in respect of an offence other than that which was under

investigation at the time when such statement was made, the bar of

Section 162 would not be attracted. This section has been enacted

for the benefit of the accused, as pointed out by this Court in

Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp 2

SCR 875, 890 : 1959 Cri LJ 1231] it is intended “to protect the

accused against the user of statements of witnesses made before the

police during investigation, at the trial presumably on the assumption

that the said statements were not made under circumstances

inspiring confidence”. This Court, in Tahsildar Singh case [AIR 1959

SC 1012 : 1959 Supp 2 SCR 875, 890 : 1959 Cri LJ 1231] approved

the following observations of Braund, J. in Emperor v. Aftab Mohd.

Khan [AIR 1940 All 291 : 188 IC 649 : 41 Cri LJ 647] :

“As it seems to us it is to protect accused persons from being

prejudiced by statements made to police officers who by

reason of the fact that an investigation is known to be on foot

at the time the statement is made, may be in a position to

influence the maker of it, and, on the other hand, to protect

accused persons from the prejudice at the hands of persons

who in the knowledge that an investigation has already

started, are prepared to tell untruths”

and expressed its agreement with the view taken by the Division

Bench of the Nagpur High Court in Baliram Tikaram Marathe v.

Page 14 of 41

Emperor [AIR 1945 Nag 1 : 46 Cri LJ 448 : 218 IC 294] that “the

object of the section is to protect the accused both against

overzealous police officers and untruthful witnesses”. Protection

against the use of statement made before the police during

investigation is, therefore, granted to the accused by providing that

such statement shall not be allowed to be used except for the limited

purpose set out in the proviso to the section, at any inquiry or trial

in respect of the offence which was under investigation at the time

when such statement was made. But, this protection is unnecessary

in any proceeding other than an inquiry or trial in respect of the

offence under investigation and hence the bar created by the section

is a limited bar. It has no application, for example in a civil proceeding

or in a proceeding under Article 32 or 226 of the Constitution and a

statement made before a police officer in the course of investigation

can be used as evidence in such proceeding, provided it is otherwise

relevant under the Indian Evidence Act. There are a number of

decisions of various High Courts which have taken this view and

amongst them may be mentioned the decision of Jaganmohan Reddy,

J. in Malakala Surya Rao v.G. Janakamma [AIR 1964 AP 198 : (1963)

2 Andh WR 485 : (1964) 1 Cri LJ 504] . The present proceeding

before us is a writ petition under Article 32 of the Constitution filed

by the petitioners for enforcing their Fundamental Rights under

Article 21 and it is neither an “inquiry” nor a “trial” in respect of any

offence and hence it is difficult to see how Section 162 can be invoked

by the State in the present case. The procedure to be followed in a

writ petition under Article 32 of the Constitution is prescribed in Order

XXXV of the Supreme Court Rules, 1966, and sub-rule (9) of Rule 10

lays down that at the hearing of the rule nisi, if the court is of the

opinion that an opportunity be given to the parties to establish their

respective cases by leading further evidence, the court may take such

evidence or cause such evidence to be taken in such manner as it

may deem fit and proper and obviously the reception of such

evidence will be governed by the provisions of the Indian Evidence

Act. It is obvious, therefore, that even a statement made before, a

police officer during investigation can be produced and used in

evidence in a writ petition under Article 32 provided it is relevant

under the Indian Evidence Act and Section 162 cannot be urged as a

bar against its production or use. The reports submitted by Shri L.V.

Singh setting forth the result of his investigation cannot, in the

circumstances, be shut out from being produced and considered in

evidence under Section 162, even if they refer to any statements

made before him and his associates during investigation, provided

they are otherwise relevant under some provision of the Indian

Evidence Act.

(emphasis ours)

21. The Full Bench decision of the Madras High Court in Suman (supra) has

extensively dealt with this issue. Relevant paragraphs therefrom are

reproduced hereinbelow:

Page 15 of 41

61. The provisions of the Evidence Act do not regulate the

consideration of the material which is put before the detaining

authority for consideration in order to decide whether it would make

an order of detention. If generally the provisions of the Evidence Act

are not attracted in the case of an administrative action, there is no

reason why only in respect of a statement made by the proposed

detenu either the provisions of section 25 or the principle behind

section 25 should be brought in by way of regulating the

consideration of the material laid before the detaining authority. We

must, therefore, hold that the decision in Duraiswamy Mudaliar's

case (1985 Cri LJ 1115) does not lay down the correct law and that

the confessional statement made to a police officer constituted a

relevant material which the detaining authority is entitled to take into

consideration for passing an order of detention against the maker of

the statement.

62. An argument was then advanced that if a confession is permitted

to be used as relevant material for considering whether a person

should be detained or not, the detaining authority may make an order

of detention solely on a confession. This, to say the least, is an

argument of despair.

63. In a given case it is possible that making an order of detention

only on the basis of a confession may amount to an abuse of the

power. But this power itself cannot be negatived because there is a

possibility of its abuse. In such a case, the exercise of the power

might alone become bad. This is, however, a question to be

determined on facts on which it might arise.

64. Accordingly, the two questions referred to the Full Bench are

answered as follows:

(1) There is no duty or obligation on the Advisory Board to suo motu

adjourn the hearing of the reference made to it when on the date of

the hearing the detenu's request for assistance of a legal practitioner

is rejected even though the detenu does not request for

adjournment.

(2) The confessional statement made by the detenu to the police

officer can be considered by the detaining authority as material

relevant for making an order of detention against the maker of the

statement, but the weight to be attached to it is for the said authority

to decide.

(emphasis ours)

22. Profitable reference may be made to a decision of this Court in

Senthamilselvi v. State of T.N. and Another

28

. While not directly

dealing with the issue at hand, this Court did hold the decision to rely

28

(2006) 5 SCC 676

Page 16 of 41

on confessional statement for detaining the accused to be correct.

Relevant paragraphs from such decision read as follows:

7. There is also no substance in the plea that the confessional

statement of the co-accused was relied upon, but the copy thereof

was not supplied. The grounds of detention merely refer to the

confession by the co-accused. That does not form foundation for the

detention. On the other hand it appears that the detenu himself made

a confession and that was the main factor on which the order of

detention was founded. There is distinction between a relied-upon

document and a document which has been referred to without being

relied upon. The distinction has been noticed by this Court in

Powanammal v. State of T.N. : (1999) 2 SCC 413. It was observed as

follows:

“9. However, this Court has maintained a distinction between

a document which has been relied upon by the detaining

authority in the grounds of detention and a document which

finds a mere reference in the grounds of detention. Whereas

the non-supply of a copy of the document relied upon in the

grounds of detention has been held to be fatal to continued

detention, the detenu need not show that any prejudice is

caused to him. This is because the non-supply of such a

document would amount to denial of the right of being

communicated the grounds and of being afforded the

opportunity of making an effective representation against the

order. But it would not be so where the document merely finds

a reference in the order of detention or among the grounds

thereof. In such a case, the detenu's complaint of non-supply

of document has to be supported by prejudice caused to him

in making an effective representation. What applies to a

document would equally apply to furnishing a translated copy

of the document in the language known to and understood by

the detenu, should the document be in a different language.”

8. A bare reading of the grounds of detention in the present case

shows that the detenu was not arrested on the basis of the co-

accused's statement. On the contrary, it has been clearly stated in

the grounds of detention that the detenu was arrested on suspicion.

***

(emphasis ours)

23. We may also similarly refer to the decision in E. Subbulakshmi v. State

of Tamil Nadu and Others

29

where this Court ruled that:

7. The third ground urged by the petitioner is about the reliance

placed on alleged confessional statement given by the detenu during

the investigation of the ground case. The fact that no signature of

the detenu has been noted on the said confessional statement, it

29

(2017) 1 SCC 757

Page 17 of 41

would at best be a ground to discard that document in a criminal trial

being inadmissible in evidence. That by itself is not sufficient to

question the subjective satisfaction reached by the detaining

authority. What is also required to be considered is : whether the said

voluntary confessional statement was the sole basis to arrive at the

subjective satisfaction. On a fair reading of the grounds of detention,

we must hold that the said confessional statement is not the solitary

document or circumstance considered by the detaining authority. …

Suffice it to observe that the alleged confessional statement is not

the sole basis for forming subjective satisfaction of the detaining

authority. The detaining authority has considered all aspects of the

matter and taking totality of circumstances into account, deemed it

necessary to detain the detenu in exercise of powers under Section

3 of the 1982 Act. Further, the fact that the alleged confessional

statement does not bear the signature of the detenu will be of no

avail, for doubting the subjective satisfaction recorded by the

detaining authority. It is well settled that the Court must be loath to

question the subjective satisfaction reached by the detaining

authority. Hence, even this contention also does not commend to us.

(emphasis ours)

24. Before moving on to deal with the merits of the rival contentions, we

need to bear in mind the law declared by this Court in K.T.M.T.M. Abdul

Kayoom v. CIT

30

, Regional Manager, Food Corporation of India v.

Pawan Kumar Dubey

31

and Goodyear India Limited v. State of

Haryana

32

on how precedents are to be read.

25. Hon’ble Hidayatullah, J. (as the Chief Justice then was), speaking for the

majority in K.T.M.T.M. Abdul Kayoom , in the matter of applying

precedents cautioned as follows:

21. … Each case depends on its own facts and a close similarity

between one case and another is not enough because even a single

significant detail may alter the entire aspect. In deciding such cases,

one should avoid the temptation to decide cases (as said by Cardozo)

by matching the colour of one case against the colour of another. To

decide, therefore, on which side of the line a case falls, the broad

resemblance to another case is not at all decisive. … .

30

AIR 1962 SC 680

31

(1976) 3 SCC 334

32

(1990) 2 SCC 71

Page 18 of 41

26. In Pawan Kumar Dubey (supra), Hon’ble Beg, J. (as the Chief Justice

then was) provided due guidance by holding that:

7. … It is the rule deducible from the application of law to the facts

and circumstances of a case which constitutes its ratio decidendi and

not some conclusion based upon facts which may appear to be

similar. One additional or different fact can make a world of difference

between conclusions in two cases even when the same principles are

applied in each case to similar facts.

27. Hon’ble Mukharji, J. (as the Chief Justice then was), speaking for the

Bench in Goodyear India Limited (supra), succinctly observed that

“(A) decision on a question which has not been argued cannot be treated

as a precedent”.

28. Informed 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

Page 19 of 41

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.

29. It has been the consistent case of the appellant, both before the High

Court as well as before this Court, that he was subjected to torture and

threats of death; and, it is under this compulsion that he made the

confessional statement. We have perused the reply affidavit as well as

the written submissions submitted on behalf of the respondents to trace

their response. Neither in the reply affidavit do we find such averment

of the appellant being refuted nor do the written submissions shed any

light on this aspect. Therefore, by no stretch of imagination, can the

confessional statement of the appellant be seen as voluntary in nature.

30. As 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

33

CrPC

Page 20 of 41

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.

31. 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.

32. Profitable reference may be made to the decision of this Court in Kartar

Singh v. State of Punjab

34

which had elaborated upon the importance

of Article 20(3) as well as Section 25 of the IEA which is analogous to

Section 23 of the BSA. The relevant observations are reproduced below:

34

(1994) 3 SCC 569

Page 21 of 41

383. Neither the Evidence Act, 1872 nor the Code, nor its

predecessor defined “confession”. This Court in Palvinder Kaur v.

State of Punjab : AIR 1952 SC 354 ruled that:

“A confession must either admit in terms the offence, or at any

rate substantially all the facts which constitute the offence. An

admission of a gravely incriminating fact, even a conclusively

incriminating fact, is not of itself a confession. A statement

that contains self-exculpatory matter cannot amount to a

confession, if the exculpatory statement is of some fact, which

if true, would negative the offence alleged to be confessed.”

Therefore, confession means an admission of certain facts which

constitute an offence or substantially all the facts that constitute the

offence, made by a person charged with the offence which is the

subject-matter of the statement. In Pakala Narayana Swami v. King-

Emperor : AIR 1939 PC 47 Lord Atkin, held at p. 81 thus:

“An admission of a gravely incriminating fact, even a

conclusively incriminating fact, is not of itself a confession,

e.g., an admission that the accused is the owner of and was in

recent possession of the knife or revolver which caused a death

with no explanation of any other man's possession.”

Sections 24 to 30 of the Evidence Act deal with provability or

relevancy of a confession. A confession made by an accused person

is irrelevant if it appears to the court to have been caused by

inducement, promise or threat having a reference to the charge

proceeding from a person in authority. By Section 25 there is an

absolute ban at the trial against proof of a confession to a police

officer, as against a person accused of any offence. The partial ban

under Section 24 and total ban under Section 25 applied equally with

Section 26 that no confession made to any person while the accused

is in the custody of a police officer, unless it is made in the immediate

presence of a Magistrate, shall be proved as against such person.

Section 27 makes an exception to Sections 24, 25 and 26 and

provides that when any fact is deposed to as discovered in

consequence of information received from a person accused of any

offence, in the custody of a police officer, so much of such

information, whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved. The

provisions in Sections 28 to 30 are not relevant for discussion. The

fascicule of Sections 24 to 30 aim to zealously protect the accused

against becoming the victim of his own delusion or the mechanisation

of others to self-incriminate in crime. The confession, therefore, is

not received with an assurance, if its source be not omni suspicious

mojes, above and free from the remotest taint of suspicion. The mind

of the accused before he makes a confession must be in a state of

perfect equanimity and must not have been operated upon by fear

or hope or inducement. Hence threat or promise or inducement held

out to an accused makes the confession irrelevant and excludes it

from consideration. A confession made to a police officer while the

accused is in the custody or made before he became an accused, is

Page 22 of 41

not provable against him on any proceeding in which he is charged

to the commission of the said offence. Equally a confession made by

him, while in the custody of the police officer, to any person is also

not provable in a proceeding in which he is charged with the

commission of the offence unless it is made in the immediate

presence of the Magistrate. Police officer is inherently suspect of

employing coercion to obtain confession. Therefore, the confession

made to a police officer under Section 25 should totally be excluded

from evidence. The reasons seem to be that the custody of police

officer provides easy opportunities of coercion for extorting

confession. Section 25 rests upon the principle that it is dangerous

to depend upon a confession made to a police officer which cannot

extricate itself from the suspicion that it might have been produced

by the exercise of coercion or by enticement. The legislative policy

and practical reality emphasise that a statement obtained, while the

accused is in police custody, truly be not the product of his free

choice. So a confessional statement obtained by the law enforcement

officer is inadmissible in evidence.

***

396. In the State of Bombay v. Kathi Kalu Oghad : AIR 1961 SC 180

a Bench of 11 Judges, per majority, interpreting Article 20(3) held on

“testimonial compulsion” that, ‘[w]e can see no reason to confine the

content of the constitutional guarantee to this barely literal import.

So to limit it would be to rob the guarantee of its substantial purpose

and to miss the substance for the sound as stated in certain American

decisions.’ Indeed every positive act which furnishes evidence is

testimony and testimonial compulsion connotes coercion which

procures positive oral evidence. The acts of the person, of course, is

neither negative attitude of silence or submission on his part, nor is

there any reason to think that the protection in respect of the

evidence procured is confined to what transpires at the trial in the

court room. The phrase used in Article 20(3) is to be a witness and

not to appear as a witness. It follows that the protection accorded to

an accused insofar as it is related to the phrase “to be a witness” is

not merely in respect of the testimonial compulsion in the court room

but may well extend to compelled testimony previously obtained

from him. The guarantee was, therefore, held to include not only oral

testimony given in a court or out of court, but also statements in

writing which incriminated the maker when figuring as accused

person. In Nandini Satpathy v. P.L. Dani : (1978) 2 SCC 424 it was

further held that compelled testimony must be read as evidence

procured not merely by physical threat or violence but by psychic

torture, atmospheric pressure, environmental coercion, tiring

interrogative prolixity, overbearing and intimidatory methods and the

like — not legal penalty for violation.

(emphasis ours)

33. The aforesaid decision makes two principles abundantly clear. First, an

accused enjoys the fundamental right against self-incrimination and

Page 23 of 41

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!

34. At this juncture, we may also profitably refer to the decision of this Court

in Pebam Ningol Mikoi Devi (supra). There, the Court speaking

through H.L. Dattu, J. (as the Chief Justice then was) considered the

relevance of statements made under Section 161, CrPC and astutely

observed as under:

29. Keeping in view these well-settled legal principles, we have

perused the grounds of detention and the documents relied on by the

detaining authority while passing the order of detention. In our

considered view, the grounds on which the detention order is passed

has no probative value and were extraneous to the scope, purpose

and the object of the National Security Act. This Court in Mohd.

Yousuf Rather v. State of J&K : (1979) 4 SCC 370 has observed that

under Article 22(5), a detenu has two rights

(1) to be informed, as soon as may be, of the grounds on which

his detention is based and

(2) to be afforded the earliest opportunity of making a

representation against his detention.

The inclusion of an irrelevant or non-existent ground among other

relevant grounds is an infringement of the first right and the inclusion

of an obscure or vague ground among other clear and definite

grounds is an infringement of the second right. No distinction can be

made between introductory facts, background facts and “grounds” as

such; if the actual allegations were vague and irrelevant, detention

would be rendered invalid.

30. Insofar as the documents on which reliance is placed, in our

opinion, none of these documents provide any reasonable basis for

passing the detention order. The primary reliance has been on the

accused's own statement made to an investigating officer. This

Page 24 of 41

cannot be said to be sufficient to form the subjective satisfaction of

the detaining authority. Statements under Section 161, Code of

Criminal Procedure, 1973 (hereinafter CrPC) cannot be taken as

sufficient grounds in the absence of any supportive or corroborating

grounds. Section 161 statements are not considered substantive

evidence, but can only be used to contradict the witness in the course

of a trial. The same is clear from the wording of Section 162(1) CrPC

and has been so held time and again by this Court.

31. In Rajendra Singh v. State of U.P. : (2007) 7 SCC 378 this Court

laid down that:

“7. … A statement under Section 161 CrPC is not a substantive

piece of evidence. In view of the proviso to sub-section (1) of

Section 162 CrPC, the statement can be used only for the

limited purpose of contradicting the maker thereof in the

manner laid down in the said proviso. Therefore, the High

Court committed a manifest error of law in relying upon wholly

inadmissible evidence….”

(emphasis ours)

35. Thus, following the precedent noted above, the law on the point appears

to be that an irrelevant ground, in law, cannot legitimately enter into the

subjective satisfaction of the detaining authority. To hold otherwise

would be to validate a detention founded, at least in part, upon material

that the law itself regards as inherently unreliable. Such an approach

would run contrary to the safeguards enshrined in Article 22(5) of the

Constitution. The constitutional guarantee embodied therein having

conferred on a detenu two valuable rights of being informed, as soon as

may be, of the grounds on which the order of detention has been made

and of the right to be afforded the earliest opportunity of making a

representation thereagainst, these rights can be meaningfully exercised

only when the grounds furnished are relevant, definite and capable of

being effectively answered. The inclusion of an irrelevant ground, no less

than the inclusion of a vague or obscure ground, strikes at the heart of

the protection guaranteed by Article 22(5). Ergo, a detenu cannot be

Page 25 of 41

expected to make an effective representation against allegations which,

in the eyes of law, are incapable of sustaining the detention itself. Where

the subjective satisfaction of the detaining authority is founded, wholly

or in part, on material that is legally irrelevant, the constitutional

safeguard stands impaired. An order of preventive detention resting

upon such irrelevant allegations must, for that reason alone, be

rendered unsustainable.

36. Therefore, 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.

37. Lastly, we may now briefly deal with the Full Bench Decision of the

Madras High Court in Suman (supra). One of the two questions explicitly

framed by the Division Bench while making a reference to the Full Bench

was “whether the confessional statement made by the detenu to the

Page 26 of 41

police officer is admissible in cases of detention under a Preventive

Detention Act such as Tamil Nadu Act No. 14 of 1982”. The Madras High

Court therein answered the question in the affirmative, however,

clarified that the weight to be attached to such confessional statement

was for the said authority to decide, and remanded the matter back to

the Division Bench to finally adjudicate the matter. In Suman (supra),

the Full Bench recorded the Division Bench’s observations that the

Advocate General, in the hearing before it, conceded that the

confessional statement provided by the detenu therein was not

considered by the detaining authority; however, the Division Bench

therein clarified that it could not examine the detenu’s contention in

respect of inadmissibility of the confessional statement, in the absence

of an authoritative ruling of the Full Bench.

38. Given 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.

39. Law is, however, well settled that if the detaining authority has relied

upon other materials apart from the confessional statement, the Court

Page 27 of 41

has to ascertain whether the detention can be upheld based on such

other materials. At the same time, we reiterate that a mere confessional

statement of the detenu (without any other substantive grounds or

material) cannot be relied on as the sole ground for passing an order of

detention.

B. WHETHER THE GROUNDS AND MATERIAL RELIED UPON BY THE DETAINING

AUTHORITY ARE VALID AND REASONABLE TO PASS THE DETENTION ORDER ?

40. Notwithstanding that no weight ought to have been attached to the

confession in the present case, it becomes necessary for us now to

examine whether the remaining material relied upon by the detaining

authority furnishes a reasonable and independent basis for the order of

detention. We shall, therefore, in the subsequent paragraphs, proceed

to consider the other grounds forming the basis of the impugned

detention order and determine whether they are sufficient in law to

sustain the subjective satisfaction recorded by the detaining authority.

41. We begin by recording our consciousness that the scope of interference

of this Court with an order of preventive detention is limited.

42. Reference may again be made to the decision of this Court in Pebam

Ningol Mikoi Devi (supra) which had noticed precedents of this Court

to clarify the scope of interference, though limited by its very nature. It

was held thus:

21. To decide the correctness or otherwise of the detention order,

two issues of importance arise before this Court. The first is regarding

the documents and material on which reliance was placed by the

detaining authority in passing the detention order. Secondly, with

those materials, the detaining authority was justified in arriving at a

finding that the detenu should be detained under the National

Page 28 of 41

Security Act without any trial. In matters of this nature, this Court

normally will not go into the correctness of the decision as such but

will only look into decision-making process. Judicial review, it may be

noted, is not an appeal from a decision but review of the manner in

which the decision was made. The purpose of review is to ensure that

the individual receives a fair treatment.

22. Some of the decisions of this Court may be of relevance in

determining in what manner such subjective satisfaction of the

authority must be arrived at, in particular on Section 3(2) of the

National Security Act. In Fazal Ghosi v. State of U.P. : (1987) 3 SCC

502 this Court observed that:

“3. … The District Magistrate, it is true, has stated that the

detention of the detenus was effected because he was satisfied

that it was necessary to prevent them from acting prejudicially

to the maintenance of public order, but there is no reference

to any material in support of that satisfaction. We are aware

that the satisfaction of the District Magistrate is subjective in

nature, but even subjective satisfaction must be based upon

some pertinent material. We are concerned here not with the

sufficiency of that material but with the existence of any

relevant material at all.”

23. In Shafiq Ahmed v. District Magistrate, Meerut : (1989) 4 SCC

556 this Court opined:

“5. … Preventive detention is a serious inroad into the freedom

of individuals. Reasons, purposes and the manner of such

detention must, therefore, be subject to closest scrutiny and

examination by the courts. … there must be conduct relevant

to the formation of the satisfaction having reasonable nexus

with the action of the petitioner which are prejudicial to the

maintenance of public order. Existence of materials relevant to

the formation of the satisfaction and having rational nexus to

the formation of the satisfaction that because of certain

conduct ‘it is necessary’ to make an order ‘detaining’ such

person, are subject to judicial review.”

24. In State of Punjab v. Sukhpal Singh : (1990) 1 SCC 35 this Court

held:

“9. … the grounds supplied operate as an objective test for

determining the question whether a nexus reasonably exists

between grounds of detention and the detention order or

whether some infirmities had crept in.”

25. In State of Rajasthan v. Talib Khan : (1996) 11 SCC 393 this

Court observed that:

“8. … what is material and mandatory is the communication of

the grounds of detention to the detenu together with

documents in support of subjective satisfaction reached by the

detaining authority.”

26. What emerges from these rulings is that, there must be a

reasonable basis for the detention order, and there must be material

to support the same. The Court is entitled to scrutinise the material

relied upon by the authority in coming to its conclusion, and

accordingly determine if there is an objective basis for the subjective

satisfaction. The subjective satisfaction must be twofold. The

Page 29 of 41

detaining authority must be satisfied that the person to be detained

is likely to act in any manner prejudicial to the security of the State

or from acting in any manner prejudicial to the maintenance of the

public order and the authority must be further satisfied that it is

necessary to detain the said person in order to prevent from so

acting.

(emphasis ours)

43. The decision in Ameena Begum (supra) is one other precedent which

delineates the factors that could be looked into by a constitutional court

before judicially reviewing and quashing a detention order. The relevant

paragraphs read thus:

28. In the circumstances of a given case, a constitutional court when

called upon to test the legality of orders of preventive detention

would be entitled to examine whether:

28.1. The order is based on the requisite satisfaction, albeit

subjective, of the detaining authority, for, the absence of such

satisfaction as to the existence of a matter of fact or law, upon

which validity of the exercise of the power is predicated, would

be the sine qua non for the exercise of the power not being

satisfied;

28.2. In reaching such requisite satisfaction, the detaining

authority has applied its mind to all relevant circumstances

and the same is not based on material extraneous to the scope

and purpose of the statute;

28.3. Power has been exercised for achieving the purpose for

which it has been conferred, or exercised for an improper

purpose, not authorised by the statute, and is therefore ultra

vires;

28.4. The detaining authority has acted independently or

under the dictation of another body;

28.5. The detaining authority, by reason of self-created rules

of policy or in any other manner not authorised by the

governing statute, has disabled itself from applying its mind to

the facts of each individual case;

28.6. The satisfaction of the detaining authority rests on

materials which are of rationally probative value, and the

detaining authority has given due regard to the matters as per

the statutory mandate;

28.7. The satisfaction has been arrived at bearing in mind

existence of a live and proximate link between the past

conduct of a person and the imperative need to detain him or

is based on material which is stale;

28.8. The ground(s) for reaching the requisite satisfaction

is/are such which an individual, with some degree of rationality

and prudence, would consider as connected with the fact and

Page 30 of 41

relevant to the subject-matter of the inquiry in respect whereof

the satisfaction is to be reached;

28.9. The grounds on which the order of preventive detention

rests are not vague but are precise, pertinent and relevant

which, with sufficient clarity, inform the detenu the satisfaction

for the detention, giving him the opportunity to make a

suitable representation; and

28.10. The timelines, as provided under the law, have been

strictly adhered to.

29. Should the Court find the exercise of power to be bad and/or to

be vitiated applying any of the tests noted above, rendering the

detention order vulnerable, detention which undoubtedly visits the

person detained with drastic consequences would call for being

interdicted for righting the wrong.

44. The grounds disclosed under Section 8 of the NSA by the detaining

authority, which forms part of the reply filed on behalf of the

respondents, have been perused. We have also perused the list of 22

(twenty-two) documents which were relied upon in support of the

grounds assigned in the detention order.

45. It would be apposite to refer to paragraph 8 of the grounds of detention,

wherein the material forming the basis of the investigation and the

alleged involvement of the appellant as the mastermind of the incident

has been discussed.

46. The said paragraph records that certain CCTV footage and video

recordings were viewed and analysed by the investigating agency, from

which the names of 95 (ninety-five) accused persons allegedly surfaced.

It is further stated that upon the basis of such material, further

investigation was undertaken, leading to the identification of the

appellant as the principal architect of the incident who had incited the

crowd to indulge in violence and rioting. However, what is striking is that

the CCTV footage and video recordings, which appear to constitute the

Page 31 of 41

sheet anchor of the allegation against the appellant, do not find place

amongst the 22 (twenty-two) documents relied upon by the detaining

authority. Neither have such recordings been furnished to the appellant

nor have they been produced before the High Court or even before us.

In the absence thereof, it is difficult to discern the basis resting whereon

the detaining authority could have drawn the conclusions reflected in the

grounds of detention. Reliance upon material which has neither been

supplied nor disclosed cannot be sustained. Consequently, this

circumstance cannot be regarded as furnishing a valid basis for the

detention order.

47. Invariably, the CCTV footage and the video recordings of the alleged

incident must have been contemporaneously recorded, preserved and

authenticated. If indeed the detenu had either a major or minor role to

play and the investigating agency had the custody of such CCTV footage

and the video recordings, it defies reason as to why it took the

investigating agency to arrest the detenu 54 (fifty-four) days after

registration of the first FIR. This was a question which we posed but no

satisfactory answer was forthcoming.

48. Be that as it may, an equally significant inconsistency emerges from the

very same paragraph. Considerable emphasis has been placed on certain

mobile communications allegedly exchanged between the appellant and

a person described as his “Boss”, which are stated to have revealed a

larger criminal conspiracy and a plan to eliminate members of the public,

ultimately culminating in the incident in question. Yet, in the same

Page 32 of 41

breath, the grounds record that a mobile phone recovered from the

appellant had its data erased by him. It is not the case of the detaining

authority either that the erased messages were retrieved. In view

thereof, the source from which the alleged communications with the said

“Boss” were retrieved, read and applied against the appellant remains

wholly unexplained. More significantly, neither the mobile phone nor the

alleged messages form part of the documents relied upon by the

detaining authority. No material has been placed on record to

substantiate the existence of such communications. This omission gives

rise to serious doubts regarding the very existence of the material

sought to be relied upon. We are, therefore, unable to hold that such

allegations constitute a valid or relevant ground capable of sustaining

the detention order.

49. The next circumstance relied upon by the detaining authority is reflected

in paragraph 9 of the grounds of detention, wherein reference has been

made to the filing of a chargesheet in Case Crime No. 337 of 2024 for

offences punishable under various provisions of the BNS, Section 7 of

the Criminal Law Amendment Act, 1932 and Section 3 read with Section

4 of the Prevention of Damage to Public Property Act, 1984.

50. The detaining authority appears to have proceeded on the footing that

the filing of the chargesheet confirms the involvement of the appellant

in the commission of the incident, including the alleged murders, and

consequently establishes disturbance of public order. We are unable to

subscribe to such line of reasoning. The mere filing of a chargesheet is

Page 33 of 41

nothing more than the culmination of an investigation and the opinion

of the investigating agency that sufficient material exists to proceed

against the accused. It neither amounts to a finding of guilt nor can it

be treated as conclusive proof of involvement in the alleged offences.

How the filing of a chargesheet, by itself, can be said to “confirm” either

the participation of the detenu in the crime or the disturbance of public

order has not been explained by the detaining authority. At best, it is a

“suspicion” that merely looms large. In the absence of any such

reasoning, the said circumstance does not appear to furnish a cogent

ground more so when the appellant has been enlarged on bail by the

competent court.

51. We may now advert to paragraphs 12 to 15 of the grounds of detention.

52. In the said paragraphs, reliance has been placed upon information

allegedly received from police officials regarding secret discussions

taking place within the jail amongst persons connected with the Sambhal

riots. According to the said information, the appellant had moved an

application for bail and, upon securing release, was allegedly planning

to indulge in large-scale violence. Proceeding on this premise, the

detaining authority assumed that there existed a strong likelihood of the

appellant disturbing public order having secured a release from custody;

and alive to the possibility of the detenu continuing his prejudicial

activities, recorded its satisfaction accordingly. What is evident

therefrom is that the impugned detention is an attempt to frustrate the

judicial order granting bail, and to keep the detenu in custody by another

Page 34 of 41

route. Such a detention is not preventive but punitive and appears

intended to subvert the order granting bail.

53. We must also notice an additional significant circumstance which bears

upon the validity of the detention order. Appellant has since been

granted bail in all the criminal cases wherein he had been implicated.

Although such orders were passed subsequent to the detention order, it

cannot be overlooked that even prior thereto, the appellant had already

secured bail on 9

th

September, 2025 in Case Crime No. 340 of 2024,

nearly a month before the order of detention came to be passed on 13

th

October, 2025. This assumes importance because where a person is

already in custody and preventive detention is sought to be invoked, the

scrutiny of the detention order must necessarily be more exacting. The

existence of a prior order granting bail in one of the connected cases

was a relevant circumstance which required due consideration by the

detaining authority. In such circumstances, the matter cannot be viewed

in isolated compartments. The detention order must be assessed

holistically, having regard to the entirety of the material available at the

relevant point of time.

54. Apropos the detention order assailed before us, the same must

necessarily be examined against the factual backdrop in which it came

to be passed. A substantially similar fact situation, and the legal principle

emerging therefrom, came up for consideration before a 3-Judge bench

of this Court in Vijay Narain Singh v. State of Bihar

35

, wherein

35

(1984) 3 SCC 14

Page 35 of 41

Hon’ble E.S. Venkataramiah, J. (as the Chief Justice then was) speaking

for the majority held as follows:

32. In the present case the District Magistrate has relied on three

incidents to hold that the petitioner is an anti-social element. They

are — (i) that on April 15, 1975 the petitioner along with his

associates had gone to the shop of a cloth dealer of Bhagalpur Town

armed with an unlicensed pistol and had forcibly demanded

subscription at the point of a gun and (ii) that on June 17/18, 1982

the petitioner was found teasing and misbehaving with females

returning from a cinema hall. The third ground is the criminal case

now pending against the petitioner in the Sessions Court. The first

incident is of the year 1975. It is not stated how the criminal case

filed on the basis of that charge ended. The next incident relates to

the year 1982. The detaining authority does not state how the

criminal case filed in that connection terminated. If they have both

ended in favour of the petitioner finding him clearly not guilty, they

cannot certainly constitute acts or omissions habitually committed by

the petitioner. Moreover the said two incidents are of different kinds

altogether. Whereas the first one may fall under sub-clause (i) of

Section 2(d) of the Act, the second one falls under sub-clause (iv)

thereof. They are, even if true, not repetitions of acts or omissions of

the same kind. The District Magistrate does not appear to have

applied his mind to the above aspects of the case. The third ground

which is based on the pending Sessions case is no doubt of the nature

of acts or omissions referred to in sub-clause (i) of Section 2(d) but

the interval between the first ground which falls under this sub-clause

and this one is nearly eight years and cannot, therefore, make the

petitioner a habitual offender of the type falling under sub-clause (i)

of Section 2(d). When I say so I do not certainly minimise the gravity

of the offence alleged to have been committed by the petitioner which

is still to be tried by the Sessions Court. If the petitioner is found

guilty by the Court, he will have to be awarded appropriate

punishment. But the point for consideration now is whether the filing

of the charge-sheet is sufficient to bring the petitioner within the

mischief of the Act. The Court should examine the case without being

overwhelmed by the gruesomeness of the incident involved in the

criminal trial. It is well settled that the law of preventive detention is

a hard law and therefore it should be strictly construed. Care should

be taken that the liberty of a person is not jeopardised unless his

case falls squarely within the four corners of the relevant law. The

law of preventive detention should not be used merely to clip the

wings of an accused who is involved in a criminal prosecution. It is

not intended for the purpose of keeping a man under detention when

under ordinary criminal law it may not be possible to resist the issue

of orders of bail, unless the material available is such as would satisfy

the requirements of the legal provisions authorising such detention.

When a person is enlarged on bail by a competent criminal court,

great caution should be exercised in scrutinising the validity of an

Page 36 of 41

order of preventive detention which is based on the very same charge

which is to be tried by the criminal court.

(emphasis ours)

55. This decision has been followed in a recent decision of this Court in Annu

(supra), where it is held thus:

40. Viewed in the above conspectus of facts and law, it is clear that

there was non-application of mind by respondent No.3 as to the

requirement of preventive detention qua the appellant. The entire

intent appears to continue the detention of the appellant since he

was likely to get bail in the criminal case, which, in fact, he got. Such

nonapplication of mind to the material facts and taking of extraneous

factors into consideration has completely vitiated the order of

preventive detention as well as the order rejecting the

representation.

56. We are cognizant of the Constitution Bench decision of this Court in

Haradhan Saha (supra), wherein it was held that the fact that a person

is liable to be tried for a criminal offence, or is in fact being so tried,

does not denude the competent authority of its power to pass an order

under a preventive detention law.

57. The field occupied by preventive detention is distinct from that of

punitive detention, and the existence of criminal proceedings by itself

does not constitute a bar to the exercise of preventive detention powers.

Therefore, our discussion based on the other precedents cited above,

which may appear to strike a somewhat discordant note with the

principles enunciated in Haradhan Saha (supra), ought not to be

understood as expressing any disagreement with the Constitution Bench

decision therein. Far from it, the observations contained in those

decisions have been referred to only for the limited purpose of assessing

whether the material relied upon by the detaining authority, and the

Page 37 of 41

circumstances prevailing at the relevant point of time, satisfy the

requirements governing the exercise of preventive detention

jurisdiction. Our endeavour has been to test the validity of the impugned

order on the touchstone of the principles laid down in Pebam Ningol

Mikoi Devi (supra) and Ameena Begum (supra).

58. Examined from that perspective, and having regard to the peculiar facts

and circumstances of the present case, particularly the status of the

criminal proceedings against the appellant, the nature of the material

relied upon by the detaining authority, and the multiple orders of bail

passed in favour of the appellant, we are unable to persuade ourselves

to sustain the detention order as legal and valid. The requisite nexus

between the material relied upon and the satisfaction recorded by the

detaining authority is conspicuously absent. In view of our conclusions

on the invalidity of the grounds relied upon by the detaining authority,

it does not become necessary for us to enter into the question of whether

the offences in which the detenu is implicated are of such nature as to

fall within the ambit of affecting national security or even disturbance of

public order.

59. While not explicitly referred to in the grounds of detention, we must also

deal with the contention raised on behalf of the respondents that the

appellant has multiple criminal cases pending against him and his

release at this stage may not be appropriate and he needs to be

preventively detained. To this, we must reiterate in observing that mere

existence of multiple cases will not per se form a ground for a detention

Page 38 of 41

order unless it is supported by cogent and reliable material which does

not appear to exist in the present case.

60. Before parting with the discussion, we consider it necessary to observe

that the powers conferred upon the State in matters of preventive

detention are of wide amplitude. At the same time, such powers

authorise the curtailment of personal liberty not for what has been done,

but for what is apprehended may be done in future. As pithily observed

by this Court in Rekha (supra), it matters little for a detenu whether the

detention is preventive or punitive, for at the end of the day, the personal

liberty of a person is ultimately curtailed for a period, no matter how

short. The relevant observation is quoted below:

21. It is all very well to say that preventive detention is preventive

not punitive. The truth of the matter, though, is that in substance a

detention order of one year (or any other period) is a punishment of

one year's imprisonment. What difference is it to the detenu whether

his imprisonment is called preventive or punitive?

61. It is for this reason that preventive detention has always been regarded

as an exceptional measure. Although constitutionally recognised, it

operates as a departure from the ordinary guarantees of personal liberty

embodied in Article 21 of the Constitution and, therefore, must be

invoked with the utmost circumspection and only in those rarest of rare

cases where the circumstances genuinely warrant such exercise.

62. Reference in this regard may again profitably be made to the decision in

Ameena Begum (supra) where this Court observed:

66. It requires no serious debate that preventive detention,

conceived as an extraordinary measure by the Framers of our

Constitution, has been rendered ordinary with its reckless invocation

over the years as if it were available for use even in the ordinary

Page 39 of 41

course of proceedings. To unchain the shackles of preventive

detention, it is important that the safeguards enshrined in our

Constitution, particularly under the “golden triangle” formed by

Articles 14, 19 and 21, are diligently enforced.

63. Respondents, who are the State and its functionaries, have also

strenuously contended before us that the detention order was not

passed with a view to punishing the detenu for the incident of 24

th

November, 2024, and that the said incident had already become the

subject matter of criminal proceedings in which the detenu had been

charge-sheeted. However, the position emerging from the record does

not appear to accord with such submission. While asserting that the

detention order is preventive and not punitive, the State has

substantially founded the order upon the very material collected during

the criminal investigation arising out of the same incident. The earlier

criminal proceedings and the material gathered therein have, in effect,

supplied the substratum for the subsequent order of preventive

detention. Both proceedings trace their origin to the same occurrence

and are sought to be justified on the basis of substantially overlapping

allegations.

64. In the facts of the present case, we find that the distinction sought to

be maintained by the State between the punitive and preventive

jurisdictions has, in substance, become blurred. The reliance placed

upon the very same occurrence and substantially the same material for

sustaining both the criminal and preventive detention proceedings lends

considerable force to the contention that the detention order has

assumed a character more punitive than preventive. We are, therefore,

Page 40 of 41

constrained to observe that the State must remain faithful to the

rationale underlying preventive detention jurisprudence.

65. If an order of detention is sought to be justified as a preventive measure,

the material relied upon must demonstrably establish the necessity of

preventing future prejudicial conduct and not merely reinforce

allegations which already form the subject matter of an ongoing criminal

prosecution. In the present case, that distinction has not been

maintained.

66. We make it clear that we express no opinion whatsoever on the merits

of the criminal case(s), which shall proceed in accordance with law

uninfluenced by any observation contained in this judgment.

Nevertheless, where the ordinary criminal process has already been set

in motion and is being pursued on the basis of the same incident, the

invocation of the extraordinary power of preventive detention must

satisfy a correspondingly higher degree of scrutiny.

VI. CONCLUSION AND RELIEF

67. For the reasons recorded hereinabove, we are of the considered opinion

that the impugned judgment and order of the High Court, as well as the

detention order and confirmation order cannot be sustained in law and

are, accordingly, set aside. Appellant shall be released forthwith, unless

his custody is required in connection with any other case. The appeal is,

accordingly, allowed on the aforesaid terms.

68. The detention order was passed on 13

th

October, 2025 and confirmed on

28

th

November, 2025 for a period of 1 (one) year and is now set to expire

Page 41 of 41

soon. Appellant has already suffered considerable loss of liberty, even

while being granted bail in all the cases relating to the incident in which

he featured as an accused. In such circumstances, the process was made

the punishment.

69. We consider it prudent to impose costs of Rs.10 lakh on the State for

being made over to the appellant within a month from the date of this

judgment.

70. Pending miscellaneous application(s) if any are also disposed of.

…………………………………J.

(DIPANKAR DATTA)

..……………………………….J.

(SHEEL NAGU)

New Delhi;

September 29

th

, 2026.