Accused Has Right To Voluntarily Undergo Narco-Analysis Test Subject To Court's Permission : Supreme Court
The result of a voluntary narco-analysis test cannot form the sole basis for conviction, the Court added.;
The Supreme Court today (June 9) has held that an accused person has a right to voluntarily undergo a narco-analysis test, but at the appropriate stage of the trial, that is, when the accused is exercising his right to lead the evidence. Having said that, there is no indefeasible right of the accused to undergo a narco-analysis test as the right is dependent on many factors to be considered...
The Supreme Court today (June 9) has held that an accused person has a right to voluntarily undergo a narco-analysis test, but at the appropriate stage of the trial, that is, when the accused is exercising his right to lead the evidence. Having said that, there is no indefeasible right of the accused to undergo a narco-analysis test as the right is dependent on many factors to be considered by the Court concerned.
A bench of Justice Sanjay Karol and Justice PB Varale observed: "The accused has a right to voluntarily undergo a narcoanalysis test at an appropriate stage. We deem it appropriate to add, that the appropriate stage for such a test to be conducted is when the accused is exercising his right to lead evidence in a trial. However, there is no indefeasible right with the accused to undergo a narcoanalysis test, for upon receipt of such an application the concerned Court, must consider the totality of circumstances surrounding the matter, such as free consent, appropriate safeguards etc., authorizing a person to undergo a voluntary narco-analysis test."
The short issue in this case, which came to be challenged before the Supreme Court, was that the Patna High Court, in an application for regular bail, accepted the submission of the Sub-Divisional Police officer, Mahua, that a narco-analysis test will be conducted on all accused persons during investigation in a matter relating to the allegations of dowry death by husband and his family.
While other members of the family were out on bail, the husband-Appellant's bail came to be considered before the high court. The High Court accepted the submissions of narco-analysis, thereby rejecting his bail. The Appellant claimed that this was in contravention of the Selvi and Ors. v. State of Karnataka (2010), wherein it was held that forceful subjection of an individual to such techniques violates Article 21.
Therefore, in this case, the Supreme Court framed three questions and appointed amicus and Senior Advocate Gaurav Agarwal to assist the court on this.
The three questions were: 1. whether High Court was right in accepting the submission for narco-analysis test. 2. whether voluntary narco-analysis can be sought and whether its report forms the sole basis for conviction and 3. whether an accused can voluntarily seek a narco-analysis test, as a matter of indefeasible right.
No forceful narco-analysis test can be conducted
Answering the first question negatively, the Court held that the High Court was wrong in accepting the submission for conducting a narco-analysis test on all accused persons.
"However, conducting such tests on persons accused of committing a crime raises serious questions, vis-à-vis, the constitutional protection granted from compulsion to become a witness against oneself under Article 20(3). The constitutional validity of this test, along with similar tests like the polygraph test, came to be challenged before this Court in Selvi (supra). After an elaborate discussion, this Court (three-Judge Bench) held involuntary administration of this test to be hit by Articles 20(3) and 21 of the Constitution."
The Court therefore concluded that any involuntary or forced narco-analysis test is not permissible under law. Consequently, a report of such a test or information that is discovered subsequently is also not per se, admissible as evidence.
The judgment authored by Justice Karol also questioned as to why the High Court accepted such a submission whereas it's job was to consider the bail plea considering the allegation, custody undergone, nature of offence, etc.
"Moreover, we fail to understand how such an endeavour was accepted by the High Court when adjudicating an application for regular bail under Section 439 of the Code of Criminal Procedure, 1973. It is settled law that while entertaining an application for grant of bail, the Court has to take into consideration the allegations against the accused; period of custody undergone; nature of evidence and the crime in question; likelihood of influencing witnesses and other such relevant grounds. It does not involve entering into a roving enquiry or accepting the use of involuntary investigative techniques."
The Court added: "We are not inclined to accept the submission of the Respondent- State that since modern investigative techniques are the need of the hour, the High Court was correct in accepting the submission that narco-analysis test of all accused persons will be conducted. While the need for modern investigative techniques may be true, such investigative techniques cannot be conducted at the cost of constitutional guarantees under Articles 20(3) and 21."
Report of voluntarily undergoing narco-analysis can't be directly accepted as evidence
Further, on the second issue, the Court again relied on Selvi and answered that the report of voluntarily undergoing a narco-analysis test cannot be accepted directly as evidence in the absence of supporting evidence.
It added that the information that is discovered, as a consequence, can be admitted as evidence with the aid of Section 27 of the Indian Evidence Act.
It held: "The evidentiary value of information received through the aid of Section 27 is no longer res integra. This Court in Vinobhai v. State of Kerala[2025], while placing reliance on Manoj Kumar Soni v. State of M.P. held that in the absence of supporting evidence, a conviction cannot be based solely on such information. Consequently, in our view, a report of a voluntary narcoanalysis test with adequate safeguards as well in place, or information found as a result thereof, cannot form the sole basis of conviction of an accused person. The second question is, therefore, answered in the negative."
No indefeasible right of accused to seek narco-analysis
On this issue, the Court noted that various high courts have different stands as stated by the amicus. It specifically referred to the Rajasthan High Court's decision in Sunil Bhatt v. State, wherein it was held that the accused can seek a narco-analysis test as a matter of statutory right to lead evidence in defence under Section 233 of the CrPC.
The Court noted that this view is in teeth with the Selvi judgment: "In our view, as rightly submitted by the learned Amicus, the above view of the Rajasthan High Court cannot be sustained. It cannot be said that undergoing a narco-analysis test is part of the indefeasible right to lead evidence, given its suspect nature, and moreover, we find the same to be in the teeth of the judgment of this Court in Selvi (supra)."
The Court added that the accused can undergo voluntary narco-analysis, but the Court, upon such receipt of the application, must consider the totality of circumstances.
"However, there is no indefeasible right with the accused to undergo a narcoanalysis test, for upon receipt of such an application the concerned Court, must consider the totality of circumstances surrounding the matter, such as free consent, appropriate safeguards etc., authorizing a person to undergo a voluntary narco-analysis test."
Case Details: AMLESH KUMAR v. THE STATE OF BIHAR
Citation : 2025 LiveLaw (SC) 674