While displaying extreme courage in taking the most principled stand in consonance with law and Constitution, the Supreme Court in a most courageous, commendable, cogent and creditworthy judgment titled Amlesh Kumar vs The State of Bihar in Criminal Appeal of 2025 (Arising out of SLP (Crl.) No. 5392 of 2024 and cited in Neutral Citation No. 2025 INSC 810 and so also in 2025 LiveLaw (SC) 674 that was pronounced most recently on June 9, 2025 in the exercise of its criminal appellate jurisdiction has set aside a Patna High Court order that had permitted narco analysis test on accused persons without their consent. Most laudably, without mincing any words, the top court held that such coercive techniques strike at the heart of fundamental rights and cannot be used even at the stage of bail. Very rightly so!
It has to be borne in mind that a Bench of Apex Court comprising of Hon’ble Mr Justice Sanjay Karol and Hon’ble Mr Justice PB Varale have ruled most convincingly that the High Court had erred in accepting the investigating officer’s proposal to conduct narco-analysis tests on all the accused, including petitioner Amlesh Kumar, while hearing his bail plea. It was pointed out by the Apex Court that such an approach violates Articles 20(3) and 21 of the Constitution and runs contrary to the law laid down in Selvi and Ors v State of Karnataka (2010) 7 SCC 263. No denying or disputing it!
To recapitulate, this leading case pertains to the alleged disappearance of accused Amlesh’s wife in August 2022 and dowry death. The police sought to subject all accused and witnesses to narco analysis as it suspected foul play in alleged disappearance. It must be noted that the Patna High Court in November 2023 accepted this plea of Sub-Divisional Police Officer, Mahua as part of the ongoing investigation and deemed it fit to defer the consideration of bail. This left Amlesh with no option but to appeal before the Apex Court.
Plainly speaking, the Apex Court was most forthright in holding that, “The High Court’s acceptance of a proposed narco-analysis test, without consent, is unconstitutional and amounts to an impermissible investigative shortcut in a bail proceeding.” It was also made crystal clear by the top court that a bail court cannot convert itself into a “mini trial court” by allowing such invasive procedures. Absolutely right!
We thus see that the top court made it indubitably clear that even voluntary narco tests cannot by themselves, become the basis of conviction and any evidence discovered thereafter must comply with Section 27 of the Evidence Act and strict procedural safeguards. In this regard, it was also made absolutely clear by the top court that, “There is no indefeasible right to seek narco-analysis even voluntarily.” In these circumstances, the top court thus set aside the Patna High Court’s interim order and directed clearly that Amlesh Kumar’s bail application be considered on merits.
At the very outset, this latest, learned, laudable, landmark and logical judgment authored by Hon’ble Mr Justice Sanjay Karol for a Bench of Apex Court comprising of himself and Hon’ble Mr Justice Prasanna B Varale sets the ball in motion by first and foremost putting forth in para 2 that, “The present Appeal arises from the impugned Order dated 9th November 2023 passed in Criminal Miscellaneous No.71293 of 2023 by the High Court of Judicature at Patna, whereby the Court accepted the submission of the Sub-Divisional Police Officer, Mahua, that she would conduct narco-analysis test of all the accused persons (including the Appellant herein) and other witnesses, during the investigation.”
As we see, the Bench then points out in para 3 that, “Aggrieved thereof, the Appellant is before us. The significant ground of challenge taken is that the acceptance of such a submission by the High Court is in direct contravention of the exposition of law laid down by this Court in Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263, 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 of India.”
To put things in perspective, the Bench briefly states in para 4 envisaging that, “The brief facts giving rise to the Appeal at hand are as follows:
4.1. On 24th August 2022, FIR No.545 of 2022 was registered at P.S. Mahua under Sections 341, 342, 323, 363, 364, 498(A), 504, 506 and 34 of the Indian Penal Code, 1860 (Hereinafter ‘IPC’), against the Appellant (husband) and his family. It was stated by the complainant therein that her sister got married to the Appellant on 11th December 2020, and thereafter, the accused persons had been making repeated demands for dowry and beating her. On 22nd August 2022, she received a call from the Appellant, informing that her sister had run away from the matrimonial home. Despite searching, she is unable to locate her sister and suspects foul play by the accused persons (including the Appellant).
4.2. The case of the Appellant is that on 21st August 2022, while en route to Ayodhya, his wife got off the bus at Baabali Chawk for nature’s call but never returned. He filed a complaint before P.S. Jahangir Ganj, recorded as GD No. 038, on 28th August 2022.
4.3. The admitted position is that the missing person (wife) has not been found to date. The mother, father and brothers of the Appellant have been granted bail by the High Court of Judicature at Patna.
4.4. The Appellant’s prayer for regular bail came to be rejected vide Order dated 1st August 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 2022.
4.5. Dissatisfied with the Order of the Sessions Judge, the Appellant approached the High Court of Judicature at Patna for grant of a regular bail vide Crl. Misc. No.71293 of 2023. Vide 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 and posted the case for hearing on 12th July 2024.
4.6. Aggrieved thereof, the Appellant has preferred the present Appeal before this Court.”
Needless to say, the Bench states in para 5 that, “We have heard the learned counsel for the Appellant and the learned Addl. Standing Counsel on behalf of the Respondent State. After hearing the parties in part, vide Order dated 22nd April 2025, this Court appointed Mr. Gaurav Agrawal, Senior Advocate, as an Amicus Curiae to assist the Court, given the issues involved. We have heard the learned Amicus Curiae and the learned counsel for the parties as also perused the written submissions filed.”
As things stands, the Bench stipulates in para 6 postulating that, “Consequently, the issues which arise for consideration of this Court are:
i. Firstly, whether in the attending facts and circumstances, the High Court 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.”
For clarity, the Bench clarifies in para 7 stating that, “For the purposes of clarity, 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. (B R Sharma, Forensic Science in Criminal Investigation & Trials, Sixth Edition, 2020 – Paragraph 32.1.1). As submitted by the learned Amicus Curiae, the drug used for this test is sodium pentothal, which is also used in higher dosages for inducing general anesthesia in surgeries.”
It is worth noting that the Bench notes in para 8 that, “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.”
As a corollary, the Bench then observes in para 9 that, “From the above exposition of law, 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.”
Notably, the Bench propounds in para 10 holding that, “Adverting to the facts at hand, 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.”
Succinctly stated, the Bench points out in para 11 that, “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. In similar circumstances, where the High Court had ordered lie detector, brain mapping and narco-analysis tests, this Court in Sangitaben Shaileshbhai Datana v. 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 abovementioned 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 abovementioned 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.””
Frankly speaking, the Bench opines in para 12 that, “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.”
Quite palpably, the Bench then holds in para 13 that, “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.”
Further, the Bench observes in para 14 that, “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.”
Be it noted, the Bench notes in para 15 that, “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 SCC Online SC 178, while placing reliance on Manoj Kumar Soni v. 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 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.””
Do note, the Bench notes in para 16 that, “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.”
Do also note, the Bench then notes in para 17 that, “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.”
Do further note, the Bench crucially notes in para 18 that, “On the one hand, there is High Court of Judicature at Allahabad in Rajesh Talwar v. CBI 2013 SCC Online All 5533; High Court of Bombay in Dominic Luis v. State 2014 SCC Online Bom 452 and Mohd. Samir v. State 2017 SCC Online Bom 19; High Court of Delhi in Ashwini Kumar Upadhyay v. Union of India 2023 SCC Online Del 3816; High Court of Kerala in Louis v. State of Kerala 2021 SCC Online Ker 4519; High Court of Gujarat in State of Gujarat v. Sanjay Kumar Kanchanlal Desai 2014 SCC Online Guj 6150 and High Court of Punjab & Haryana in Navjeet Kaur v. State of Punjab 2015 SCC Online P&H 15351, 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.”
Most significantly, the Bench encapsulates in para 21 what constitutes the cornerstone of this notable judgment postulating that, “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 “narco-analysis 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.””
It would be instructive to note that the Bench then hastens to add in para 22 noting that, “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.”
Resultantly, the Bench then holds in para 23 that, “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.”
Furthermore, the Bench then directs in para 24 holding that, “The bail application of the Appellant, pending if any, to be decided in accordance with law.”
Finally, the Bench then concludes by aptly holding in para 25 that, “In the attending facts and circumstances of this case, the Appeal is allowed. Pending application(s), if any, shall stand disposed of.”
