In Mulla Afroz v. Union of India, a bench of Justice Dipankar Datta and Justice Sheel Nagu held that preventive detention under the National Security Act cannot be based only on confessional statements made by co-accused persons in police custody. The detaining authority must look at the surrounding circumstances and other relevant material. The Court quashed the detention and imposed ₹10 lakh costs on the State of Uttar Pradesh.
Preventive detention is an exceptional power. If a family member is detained, the detention order and the material relied on can be challenged before the Advisory Board and through a habeas corpus petition in the High Court or Supreme Court.
The National Security Act, 1980 allows the Central or State Government, and authorised District Magistrates or Commissioners of Police, to detain a person without trial to prevent them from acting in a manner prejudicial to security, public order or essential supplies. Article 22(5) of the Constitution requires that the detenu be told the grounds of detention and given the earliest opportunity to make a representation. The case must go before an Advisory Board, and the maximum period of detention under the Act is twelve months.
Because detention is based on suspicion rather than conviction, courts check whether the authority applied its mind to relevant, reliable material. A confession made to the police is generally not admissible as evidence under the Bharatiya Sakshya Adhiniyam, 2023 [old Sections 25 and 26 of the Evidence Act], and a co-accused's confession is weak material. A detention order can be challenged through a representation, before the Advisory Board, and through a habeas corpus petition.
Preventive detention means holding a person not to punish a past crime, but to stop them from doing something harmful in the future, such as disturbing public order. The National Security Act permits this without a trial, which is why courts closely examine whether the legal and constitutional safeguards were followed.
According to this Supreme Court ruling, no. NSA detention cannot rest only on confessional statements of co-accused persons made in police custody. The detaining authority must consider surrounding circumstances and other relevant material before concluding that detention is necessary. A detention resting on such weak material alone can be quashed.
It is a petition asking a High Court under Article 226, or the Supreme Court under Article 32, to examine whether a person's detention is lawful. If the detention is found illegal, the court can order the person's release. Family members can file it on behalf of the detained person.
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