Supreme Court sets aside order on narco-analysis test of accused persons by Justice Sandeep Kumar, rejects Bihar State's submission

In Amlesh Kumar vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices Sanjay Karol and Prasanna B. Varale set aside the 2-page long interim order dated November 9, 2023 by Justice Sandeep Kumar by its 17-page long judgement dated June 9, 2025. Justice Kumar had accepted the submission of the Sub-Divisional Police Officer, Mahua, Vaishali that she would conduct narco-analysis test of all the accused persons (including the Appellant herein) and other witnesses, during the investigation in direct contravention of the exposition of law laid down by the Supreme Court in Selvi and Ors. vs. State of Karnataka (2010) 7 SCC 263, wherein it was held that forceful subjection of an individual to techniques, such as the narco-analysis test, violates personal liberty enshrined under Article 21 of the Constitution. 

Justice Sanjay Karol observed: "we cannot find a reason in the High Court accepting a submission by the Investigating Officer, stating that they will conduct a narco-analysis test of all the accused persons. Such a submission and its acceptance, is in direct contravention to the judgment of this Court in Selvi (supra), being hit by the protections under Articles 20(3) and 21 of the Constitution. 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." 

Notably, the order dated November 9, 2023 has recorded that the S.D.P.O. Mahua, Vaisahali had assured the bench of Justice Kumar that "she will take further steps in the investigation to find out details about the missing woman and for that she has further submitted that she will get narco test of all the accused persons and other witnesses, if required in the investigation." The petitioner had filed the case for regular bail  in the High Court on October 6, 2023 in Police Station case of August 2022. It was registered on October 16, 2023.  

Justice Sourendra Pandey who joined as the judge of the High Court from the bar on March 8, 2025 was not inclined to enlarge the petitioner in question on bail. His application for bail was rejected by Justice Pandey's order dated May 1, 2025. 

With regard to the bail application of the appellant, pending if any, Supreme Court's Division Bench observed that it has "to be decided in accordance with law" in its judgement dated June 9, 2025.  

Prior to this on March 26, 2025, Justice Ashok Kumar Pandey passed an order after hearing the counsel for the parties. His order reads: "Call for a report from the Court of learned C.J.M., Vaishali at Hajipur with respect to present stage of trial, the number of witnesses to be examined and the expected duration that will take to conclude the trial in connection with Mahua P.S. Case No. 545 of 2022. 3. Put up this case on 23.04.2025."

The petitioner is in judicial custody since June 5, 2023. He was made accused in Mahua P.S. Case No. 545 of 2022 dated 24.08.2022 registered under Sections 341, 342, 323, 363, 364, 498(A), 504, 506/34 of the Indian Penal Code and Section ¾ of the Dowry Prohibition Act but he was chargesheeted under Sections 341, 342, 323, 498(A), 364, 120(B), 302, 504 and 506 of the Indian Penal Code. The prosecution case is that the petitioner was married to the sister of the informant on December 11, 2020. There was demand of dowry being made by the in laws and the informant’s sister was being tortured. It was alleged that on August 22, 2022 informant’s brother-in-law stated that petitioner had called and informed that his sister had escaped. Subsequently, on the application of the informant the FIR was registered against five named accused persons. The APP for the State stated that the wife of the petitioner was admittedly with the petitioner when she went missing and despite admitting that the wife of the petitioner went missing on August 21, 2022, a Sanha was registered on August 28, 2022 to cover up the misdeeds although the FIR was already lodged against the petitioner and another on August 24, 2022 by the brother of the victim. The APP also pointed that in his confessional statement the petitioner described  how he killed his wife and thrown her body in the Saryu River. 

Notably, the mother, father and brothers of Amlesh Kumar, the appellant, a resident of Fatehpur Pakari, Mahua, Vaishali have been granted bail by the High Court. The appellant's prayer for regular bail was rejected vide Order dated August 1, 2023 passed by the Sessions Judge, Vaishali at Hajipur in B.P.No.1141 of 2023. The Court was not inclined to grant bail on the basis of the allegations made in the FIR, as well as the confessional statements of the co-accused, who stated that they had thrown the missing person in the river Saryu on the intervening night of the 21st and 22nd August 22, 2022. Dissatisfied with the order of the Sessions Judge, the appellant approached the High Court for grant of a regular bail vide Crl. Misc. No.71293 of 2023. By the impugned interim Order, the High Court accepted the submission of the Sub-Divisional Police Officer, Mahua, that she will conduct a narco-analysis test of all the accused persons.  

The order dated August 30, 2024 by Justice Partha Sarthy bench of the High Court recorded that the counsel for the petitioner submitted that an application for bail arising out of this very F.I.R., has been decided by this Court by order dated June 5, 2023 in Kailash Singh & Ors. vs. The State of Bihar & Anr., (Cr. Misc. no. 17656 of 2023). The order referred to the judgment of the Supreme Court dated January 19, 2024 passed in Kusha Duruka vs. The State of Odisha (Cr. Appeal no. 303 of 2024), and directed that the case should be put up before appropriate Bench.

In a subsequent order dated October 25, 2024, Justice Rajeev Ranjan Prasad recorded: "It is pointed out that earlier the predecessor Court had passed an order on 09.11.2023 and being aggrieved by the said order, the petitioner has filed a special leave petition being Special Leave Petition (Criminal) Diary No(s). 9701 of 2024 in the Hon’ble Supreme Court of India. In the said case, the Hon’ble Supreme Court has stayed the impugned order dated 09.11.2023. It is his submission that the order dated 09.11.2023 is altogether on a different issue and the pendency of the SLP in the Hon’ble Supreme Court as against the said order would not have any impact on the hearing of the bail petition on its own merit, therefore, he would request this Court to hear the bail petition of the petitioner on its own merit...In the meantime, learned counsel for the petitioner is expected to apprise his submissions to the Hon’ble Supreme Court where the matter is pending against the order dated 09.11.2023." 

In its judgement dated June 9, 2025 authored by Justice Karol, the Supreme Court examined the order dated November 9, 2023 by Justice Kumar, set it aside and allowed the appeal. The Court held that an accused person does not have an indefeasible right to seek a narco-analysis test to lead the evidence. This decision assumes significance because it has brought clarity to the law following several conflicting High Court judgements on the issue. He observed that the High Court had exceeded the scope of a bail hearing by approving a narco-analysis test. In Selvi vs. State of Karnataka (2010), the Court has held that a narco-analysis test cannot form the sole basis of conviction.

According to B R Sharma, Forensic Science in Criminal Investigation & Trials, a narco-analysis test is an interrogation method whereby a suspect of a crime is injected with a psychoactive drug under controlled conditions to suppress their reasoning power or the ability to determine what is good/bad for themselves. The drug used for this test is sodium pentothal, which is also used in higher dosages for inducing general anesthesia in surgeries. 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 following principles came to be expounded: 
8.1. Articles 20 and 21 of the Constitution are non-derogable and sacrosanct rights to which the judiciary cannot carve out exceptions;
8.2. Involuntary administration of narco-analysis and similar tests is in contravention of the protection given by Article 20(3) of the Constitution, i.e. the right against self-incrimination;
8.3. The results of such involuntary tests cannot be considered as ‘material evidence’ in the eyes of the law;
8.4. Conducting such tests in the absence of consent violates ‘substantive due process’ – which is an essential element required for restraining one’s personal liberty. Permitting such tests may lead to a disproportionate exercise of police powers;
8.5. The boundaries of privacy of a person are also breached when these tests are conducted without consent; and
8.6. For voluntary tests, it must be ensured that appropriate safeguards are in place. Moreover, the results of the same cannot be admitted directly as evidence. Pertinently, any fact or information that is discovered subsequent thereto, with the help of the information supplied in the result, can be admitted into evidence with the aid of Section 27 of the Indian Evidence Act 1872.

Justice Karol observed:"...it is clear that under no circumstances, is an involuntary or forced narco-analysis test permissible under law. Consequently, a report of such involuntary  test or information that is discovered subsequently is also not per se admissible as evidence in criminal or other proceedings."

The Patna High Court had allowed narco-analysis tests for all the accused persons in a dowry harassment and kidnapping case after hearing a plea for the grant of regular bail by the accused persons. 

Justice Karol recalled that in similar circumstances, where the High Court had ordered lie detector, brain mapping and narco tests, the Supreme Court in Sangitaben Shaileshbhai Datana vs. State of Gujarat (2019) 14 SCC 522. observed: “6. Having heard the counsel for the parties, it is surprising to note the present approach adopted by the High Court while considering the bail application. The High Court ordering the above mentioned tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements. While adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein the court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is a prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case.
7. In the instant case, by ordering the above mentioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini trial indeed. This assumption of function of a trial court by the High Court is deprecated.”

Justice Karol considered following three issues:
i. Firstly, whether in the attending facts and circumstances, Justice Kumar could have accepted such a submission. 
ii. Secondly, whether a report of a voluntary narco-analysis test can form the sole basis of conviction in the absence of other evidence on record.
iii. Lastly, whether an accused can voluntarily seek a narco-analysis test, as a matter of an indefeasible right. 

With regard the first issue, he observed: "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. 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." Supreme Court rejected the submission of the State of Bihar which endorsed Justice's Kumar's interim order.  

With respect to the second issue, the judgement reads:"...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." 

The Court in had considered voluntary narco-analysis tests in Selvi case 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. 

Justice Karol added:"The evidentiary value of information received through the aid of Section 27 is no longer res integra." The term res integra is something which has not yet been determined or resolved by the authority of a decided case, so that a judge may decide it upon principle alone. 

Justice Karol recalled Court's decision in Vinobhai vs. State of Kerela2025 SCC Online SC 178, which while placing reliance on Manoj Kumar Soni vs. State of M.P. 2023 SCC OnLine SC 984 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: “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.”

Justice Karole led bench was informed 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. Allahabad High Court in Rajesh Talwar vs. CBI; Bombay High Court in Dominic Luis vs. State and Mohd. Samir vs. State; Delhi High Court in Ashwini Kumar Upadhyay vs. Union of India; Kerala High Court in Louis vs. State of Kerala; Guajrat High Court in State of Gujarat vs. Sanjay Kumar Kanchanlal Desai and Punjab & Haryana High Court in Navjeet Kaur vs. State of Punjab, 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.

Rajasthan High Court in Sunil Bhatt vs. State has 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.

 

Given the suspect nature of a report of narco-analysis, therefore, this position required clarification. Supreme Court's Division Bench observed: "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 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."
 

It also drew on para 253-264 of the judgement which reads: "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. 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.”

 

With regard to the third issue, Justice Karole observed: answered in the following terms:"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.
(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.” 

 

Justice Karol concluded:"....we have no doubt that the impugned Order cannot be sustained" referring to the interim order dated November 9, 2023.