No Indefeasible Right To Narco Test: Supreme Court Sets Aside Patna HC Order Allowing Blanket Use On Accused

The Court made the observation in an Appeal challenging an order of the Patna High Court, which had allowed the police to subject all accused persons, including the Appellant, to narco-analysis tests during the course of investigation.

The Bench of Justice Sanjay Karol and Justice Prasanna B. Varale allowed the appeal and set aside the High Court’s order, stating that it was contrary to the principles laid down in Selvi v. State of Karnataka (2010), where the apex court had held that involuntary subjection to scientific techniques such as narco-analysis, lie detector, and brain mapping violates the fundamental right to personal liberty under Article 21 of the Constitution.

“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,” the Court observed.

However, the Bench emphasized that such a right is not absolute, and that any application made by an accused must be judicially assessed, taking into account factors such as free will, voluntariness, procedural safeguards, and the overall circumstances of the case.

Facts of the Case

The family members of the wife got an FIR lodged on August 24, 2022 under Sections 341, 342, 323, 363, 364, 498(A), 504, 506 and 34 of the Indian Penal Code, suspecting foul play and alleging that the accused made repeated demands of dowry and used to beat the victim since the marriage on December 11, 2020.

The Appellant contended the acceptance of such a submission by the High Court was in direct contravention of the exposition of law laid down by this court in the Selvi case, wherein it was observed that forceful subjection of an individual to techniques, such as the narco-analysis test, violates personal liberty enshrined under Article 21 of the Constitution.

Senior Advocate Gaurav Agrawal, acting as amicus curiae, 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, he said that this position must be clarified.

Criticizing the blanket direction of the Patna High Court that allowed narco-tests to be conducted on all accused persons based on a submission made by the Sub-Divisional Police Officer, the Supreme Court noted that such an order could not have been passed while dealing with a regular bail application under Section 439 of the Criminal Procedure Code (CrPC).

“We fail to understand how such an endeavour was accepted by the High Court while adjudicating an application for regular bail. It is settled law that while entertaining such an application, the Court must confine itself to considerations such as the nature of the crime, allegations, evidence, period of custody, and possibility of tampering with evidence,” the Bench said.

The Court also took note of the suspect evidentiary value of narco-analysis tests and made it clear that results of such tests, even if voluntarily undergone, cannot by themselves form the sole basis for conviction.

“A report of a voluntary narco-analysis test with adequate safeguards in place, or information found as a result thereof, cannot form the sole basis of conviction of an accused person,” the Court held while answering the second legal issue involved in the matter.

Right to Lead Evidence Not a Justification

The State had attempted to justify the High Court’s direction by arguing that the accused had a right to lead evidence in their defence, and a voluntary narco-test was a part of that right. Rejecting this argument, the Supreme Court categorically held that such a view was untenable in light of the principles laid down in Selvi and the inherently unreliable nature of the technique.

“It cannot be said that undergoing a narco-analysis test is part of the indefeasible right to lead evidence, given its suspect nature,” the Court remarked, adding that the Rajasthan High Court’s earlier view to the contrary could not be sustained.

Assistance by Amicus and Legal Representation

Given the complexity of constitutional and procedural issues involved, the Court had appointed Senior Advocate Gaurav Agrawal as Amicus Curiae. The Appellant was represented by AOR Mithilesh Kumar Singh, while the Respondent-State was represented by Additional Standing Counsel Anshul Narayan.

The Court rejected a submission by the state government that since modern investigative techniques are the need of the hour, the High Court was correct in accepting the submission that a 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," the Bench said.

Conclusively, the Court set aside the impugned Order dated 9th November 2023 passed by the Patna High Court in Criminal Miscellaneous No. 71293 of 2023 and allowed the appeal.