Supreme Court Sets Aside Order for Involuntary Narco-Analysis, Clarifies Rules on Consent and Evidentiary Value

The present case is stemmed from an FIR in P.S. Mahua, Bihar, against the appellant, Amlesh Kumar (the husband), and his family. The complainant is the sister of the appellant's wife, who went missing allegly due to repeated demands for dowry and beatings after her sister married the appellant, and there also exist an apprehension of murder. That on December 11, 2020. On August 22, 2022, the appellant reportedly called the complainant, stating his wife had run away from the matrimonial home. Despite searching, the sister could not locate her and suspected foul play by the accused. The appellant, however, claimed his wife got off a bus en route to Ayodhya at Baabali Chawk for a nature's call on August 21, 2022, and never returned, leading him to file a missing person complaint. As of the time of the Supreme Court judgment, the missing person (the wife) had still not been found.

While the appellant's mother, father, and brothers were granted bail by the High Court, and when the the appellant's prayer for regular bail was dismissed by the Sessions Judge, on the ground being that of henious crime and that confessional statements of co-accused who claimed they had thrown the missing person into the river Saryu on the intervening night.

Aggreived by the dismissal of bail, the appellant approached the High Court of Judicature at Patna seeking regular bail. The High Court accepted a submission made by the Sub-Divisional Police Officer, Mahua, who assured the court that she would conduct narco-analysis tests of all the accused persons (including the appellant) and other witnesses, if required, as part of the investigation. Aggrieved by the High Court's acceptance of this submission regarding Narco-Analysis tests, the appellant filed the present appeal before the Supreme Court of India.

The Supreme Court considering the arguments presented by the appellant, the respondent State, and the appointed Amicus Curiae, Mr. Gaurav Agrawal, the Court framed three issues for consideration:

**Firstly, whether, given the facts and circumstances, the High Court could have accepted such a submission.

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.

Lastly, whether an accused can voluntarily seek a narco-analysis test as a matter of an indefeasible right.

The Apex Court began by defining a Narco-Analysis Test as an interrogation method involving injecting a psychoactive drug, such as sodium pentothal, under controlled conditions to suppress a person's reasoning or self-preservation abilities. It noted that conducting such tests raises serious constitutional questions, particularly regarding the right against self-incrimination under Article 20(3) of the Constitution. The Apex Court extensively referred to its prior decision in Selvi and Ors. v. State of Karnataka, where the constitutional validity of involuntary narco-analysis, polygraph, and BEAP tests was challenged.

The Apex Court reitrated the key principles it laid in Selvi (supra) judgment:

Articles 20 and 21 are non-derogable and sacrosanct rights.

Involuntary administration of narco-analysis and similar tests contravenes Article 20(3), the right against self-incrimination.

The results of such involuntary tests cannot be considered 'material evidence' in the eyes of the law.

Conducting these tests without consent violates 'substantive due process' and personal liberty under Article 21. Permitting them could lead to disproportionate police powers.

Privacy boundaries are breached when tests are conducted without consent.

Voluntary tests are permissible with appropriate safeguards, but the results themselves cannot be admitted directly as evidence. However, any fact or information discovered subsequently with the help of information supplied in the result can be admitted into evidence with the aid of Section 27 of the Indian Evidence Act, 1872.

Supreme Court emphasized that under no circumstances is an involuntary or forced narco-analysis test permissible under law. Consequently, reports from such involuntary tests or information discovered thereafter are also not per se admissible as evidence.

Furthermore, the Apex Court expressed its failure to understand how such an endeavour was accepted by the High Court while adjudicating a regular bail application under Section 439 of the Code of Criminal Procedure, 1973. It reiterated the settled law that during bail adjudication, the Court considers factors like the gravity of the crime, nature of evidence, custody period, likelihood of influencing witnesses, etc., and does not conduct a roving inquiry or accept the use of involuntary investigative techniques. The Court cited its decision in Sangitaben Shaileshbhai Datana v. State of Gujarat, where it had deprecated a High Court's approach of ordering and examining results of lie detector, brain mapping, and narco-analysis tests during a bail application, calling it a conversion of bail adjudication into a mini-trial.

The Supreme Court rejected the State's submission that modern investigative techniques like narco-analysis should be accepted as the need of the hour, stating that they cannot be conducted at the cost of constitutional guarantees under Articles 20(3) and 21. Thus, the first question was answered in the negative.

Moving to the second issue, concerning the evidentiary value of voluntary narco-analysis test reports, the Court reiterated the Selvi position that while voluntary tests with safeguards are allowed, reports cannot be admitted directly as evidence under Sec 27 of Evidence Act, and the Apex Court concluded that a report of a voluntary narco-analysis test, even with safeguards, or information found as a result thereof, cannot form the sole basis of conviction of an accused person. The second question was also answered in the negative.

Thus, the Supreme Court held that the accused has a right to voluntarily undergo a narco-analysis test at an appropriate stage, which is typically when the accused is exercising their right to lead evidence in a trial. However, this is not an indefeasible right. Upon receiving such an application, the concerned Court must consider the totality of circumstances, such as ensuring free consent and appropriate safeguards, before authorizing a voluntary test. The Apex Court reproduced and reiterated the guidelines issued in Selvi (supra) for conducting voluntary tests, which originated from the National Human Rights Commission's Guidelines for Polygraph Tests, adapting them for narco-analysis, and the guidelines are as follows:

-No tests without consent; an option must be given.

-If the accused volunteers, they must have access to a lawyer, and physical, emotional, and legal implications must be explained by the police and lawyer.

-Consent must be recorded before a Judicial Magistrate.

-During the hearing before the Magistrate, the person must be represented by a lawyer.

-The person must be clearly told that the statement is not a "confessional" statement to the Magistrate but has the status of a statement made to the police.

-The Magistrate must consider all factors, including detention length and interrogation nature.

-The test recording must be done by an independent agency (like a hospital) and conducted in the presence of a lawyer.

-A full medical and factual narration of how information was received must be recorded.

Coram: JUSTICE SANJAY KAROLE AND JUSTICE PRASANNA B. VARALE.