Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. 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.
13. Therefore, the first question framed is answered in the negative. The High Court has erred in accepting a submission to carry out a narco-analysis test of all accused persons by the Investigating Officer. 402
14. In the course of proceedings, the issue of undergoing a narco-analysis test voluntarily came to be raised, which brings us to the second question framed. As discussed above, this Court in Selvi (supra) had considered voluntary narco-analysis tests and opined that the reports thereof cannot be admitted directly into evidence. Information that is discovered, as a consequence thereof, can be admitted with the aid of Section 27 of the Indian Evidence Act, 1872.
15. The evidentiary value of information received through the aid of Section 27 is no longer res integra. This Court in Vinobhai v. State of Kerela5, while placing reliance on Manoj Kumar Soni v. State of M.P.6 held that in the absence of supporting evidence, a conviction cannot be based solely on such information. It was observed: “8. ….. The law relating to the evidentiary value of recovery made under Section 27 of the Indian Evidence Act, 1872 is settled by this Court in the case of Manoj Kumar Soni v. State of M.P.. Paragraph 22 of the said decision reads thus:— “22. A doubt looms : can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.” Therefore, in our view, the appellant’s guilt was not proved beyond a reasonable doubt.”
16. Consequently, in our view, a report of a voluntary narco-analysis 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. 2025 SCC Online SC 178. 2023 SCC OnLine SC 984. [2025] 7 S.C.R. Amlesh Kumar v. The State of Bihar
17. Adverting to the last question framed, the learned Amicus Curiae has pointed out that there has been a divergence of views taken by High Courts on the issue as to whether a narco-analysis test can be claimed by an accused as a matter of right. Given the suspect nature of a report of narco-analysis, the Amicus Curiae submitted that this position must be clarified.
18. On the one hand, there is High Court of Judicature at Allahabad in Rajesh Talwar v. CBI 7; High Court of Bombay in Dominic Luis v. State8 and Mohd. Samir v. State9; High Court of Delhi in Ashwini Kumar Upadhyay v. Union of India10; High Court of Kerala in Louis v. State of Kerala11; High Court of Gujarat in State of Gujarat v. Sanjay Kumar Kanchanlal Desai12 and High Court of Punjab & Haryana in Navjeet Kaur v. State of Punjab13, have held that an involuntary narco-analysis test cannot be relied on and have taken an overall view of the circumstances when an accused has sought a narco-analysis test himself.
19. On the other hand, there is Rajasthan High Court, which in Sunil Bhatt v. State14, held that the accused can seek a narco-analysis test at a relevant stage in view of the statutory right to lead evidence in defence under Section 233 of the Criminal Procedure Code.
20. 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). It had been categorically observed: “240. We must also contemplate situations where a threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory 2013 SCC Online All 5533. 2014 SCC Online Bom 452. 2017 SCC Online Bom 19. 2023 SCC Online Del 3816. 2021 SCC Online Ker 4519. 2014 SCC Online Guj 6150. 2015 SCC Online P&H 15351. 2022 SCC Online Raj 1443. 404 statements or to undergo some mental trauma. Especially in cases of individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the mere apprehension of undergoing scientific tests that supposedly reveal the truth could push them to make confessional statements. Hence, the act of threatening to administer the impugned tests could also elicit testimony. It is also quite conceivable that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by the investigators. For example, a person may be convinced to give his/her consent after being promised that this would lead to an early release from custody or dropping of charges. However, after the administration of the tests, the investigators may renege on such promises. In such a case the relevant inquiry is not confined to the apparent voluntariness of the act of undergoing the tests, but also includes an examination of the totality of circumstances. 253. We are of the view that an untrammelled right of resorting to the techniques in question will lead to an unnecessary rise in the volume of frivolous litigation before our courts. 264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.” (Emphasis supplied) [2025] 7 S.C.R. Amlesh Kumar v. The State of Bihar 21. In view of the above exposition in Selvi (Supra), the third question is answered in the following terms : The accused has a right to voluntarily undergo a narco-analysis 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 narco-analysis 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. We deem it appropriate to reproduce and reiterate the guidelines issued in Selvi (Supra) in this regard as follows : “265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the “narcoanalysis technique” and the “Brain Electrical Activation Profile” test. The text of these Guidelines has been reproduced below: (i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. (ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before a Judicial Magistrate. (iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. (v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a “confessional” statement to the Magistrate but will have the status of a statement made to the police. 406 (vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record.” 22. Before parting with this appeal, we place on record our appreciation for the learned Amicus Curiae, Mr. Gaurav Agrawal, Senior Advocate, in extending his invaluable assistance to the Court. 23. Keeping in view the above discussion, we have no doubt that the impugned Order cannot be sustained. Consequently, the impugned Order dated 9th November 2023 passed in Criminal Miscellaneous No. 71293 of 2023 by the High Court of Judicature at Patna is hereby set aside. 24. The bail application of the Appellant, pending if any, to be decided in accordance with law. 25. In the attending facts and circumstances of this case, the Appeal is allowed. Pending application(s), if any, shall stand disposed of. Result of the case: Appeal allowed. †Headnotes prepared by: Ankit Gyan