2025 INSC 810 Crl.A.@ SLP(Crl.)No.5392/2024 Page 1 of 17

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. __ __ OF 2025

(Arising out of SLP(Crl.) No.5392 of 2024)

AMLESH KUMAR … APPELLANT(S)

Versus

THE STATE OF BIHAR … RESPONDENT(S)

J U D G M E N T

Sanjay Karol, J.

Leave Granted.

2. The present Appeal arises from the impugned Order dated 9

th

November 2023 passed in Criminal Miscellaneous No.71293 of

2023 by the High Court of Judicature at Patna, whereby the Court

Crl.A.@ SLP(Crl.)No.5392/2024 Page 2 of 17

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.

3. 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

1

, 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.

4. The brief facts giving rise to the Appeal at hand are as

follows:

4.1. On 24

th

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

2

,

against the Appellant (husband) and his family. It was

stated by the complainant therein that her sister got

married to the Appellant on 11

th

December 2020, and

1

(2010) 7 SCC 263.

2

Hereinafter ‘IPC’.

Crl.A.@ SLP(Crl.)No.5392/2024 Page 3 of 17

thereafter, the accused persons had been making repeated

demands for dowry and beating her. On 22

nd

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 21

st

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 28

th

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 1

st

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

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statements of the co-accused, who stated that they had

thrown the missing person in the river Saryu on the

intervening night of the 21

st

and 22

nd

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 12

th

July 2024. The relevant portion thereof is extracted

below, for ready reference :

“2. Pursuant to the order dated 07.11.2023, the

SubDivisional Police Officer, Mahua and the

S.H.O. Mahua are present in the court.

3. The S.D.P.O. Mahua, assures this court 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.

4. List this case on 12.07.2024.

5. On the next date of hearing, the investigation

report shall be produced by the learned APP.”

(Emphasis supplied)

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4.6. Aggrieved thereof, the Appellant has preferred the present

Appeal before this Court.

5. 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 22

nd

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.

6. 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.

7. For the purposes of clarity, a narco-analysis test is an

interrogation method whereby a suspect of a crime is injected with

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a psychoactive drug under controlled conditions to suppress their

reasoning power or the ability to determine what is good/bad for

themselves.

3

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.

8. 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

3

B R Sharma, Forensic Science in Criminal Investigation & Trials, Sixth Edition, 2020 –

Paragraph 32.1.1.

Crl.A.@ SLP(Crl.)No.5392/2024 Page 7 of 17

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.

9. 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

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test or information that is discovered subsequently is also not per se

admissible as evidence in criminal or other proceedings.

10. 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.

11. 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

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tests, this Court in Sangitaben Shaileshbhai Datana v. State of

Gujarat

4

, 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.”

(Emphasis supplied)

4

(2019) 14 SCC 522.

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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.

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.

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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 Kerela

5

, 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

5

2025 SCC Online SC 178.

6

2023 SCC OnLine SC 984.

Crl.A.@ SLP(Crl.)No.5392/2024 Page 12 of 17

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.

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. State

8

and Mohd. Samir v. State

9

; High Court of

Delhi in Ashwini Kumar Upadhyay v. Union of India

10

; High Court

of Kerala in Louis v. State of Kerala

11

; High Court of Gujarat in

State of Gujarat v. Sanjay Kumar Kanchanlal Desai

12

and High

Court of Punjab & Haryana in Navjeet Kaur v. State of Punjab

13

,

have held that an involuntary narco-analysis test cannot be relied on

7

2013 SCC Online All 5533.

8

2014 SCC Online Bom 452.

9

2017 SCC Online Bom 19.

10

2023 SCC Online Del 3816.

11

2021 SCC Online Ker 4519.

12

2014 SCC Online Guj 6150.

13

2015 SCC Online P&H 15351.

Crl.A.@ SLP(Crl.)No.5392/2024 Page 13 of 17

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. State

14

, 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 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

14

2022 SCC Online Raj 1443.

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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)

21. In view of the above exposition in Selvi (Supra), the third

question is answered in the following terms :

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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.

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(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.”

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 9

th

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.

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25. In the attending facts and circumstances of this case, the

Appeal is allowed.

Pending application(s), if any, shall stand disposed of.

………… ...........…………J.

(SANJAY KAROL)

……………………………J.

(PRASANNA B. VARALE)

9

th

June, 2025;

New Delhi.