The Supreme Court of India has allowed an appeal in Amlesh Kumar v/s The State of Bihar, setting aside an impugned order from the High Court of Judicature at Patna that had accepted a police officer's submission to conduct narco-analysis tests on all accused persons and witnesses in a criminal investigation. The case stemmed from an FIR filed against the appellant (husband) and his family regarding his missing wife, with allegations of dowry demand and foul play.

The appellant challenged the High Court's order, arguing it directly contravened the Supreme Court's landmark judgment in Selvi and Ors. v. State of Karnataka, which held that forceful subjection to narco-analysis violates personal liberty under Article 21 and the right against self-incrimination under Article 20(3) of the Constitution of India.

The Supreme Court considered three key issues:

1. Whether the High Court could accept the submission for narco-analysis: The Court firmly answered this in the negative, stating that such acceptance is a direct contravention of the Selvi judgment and fundamental constitutional guarantees. It also highlighted that a bail application (under Section 439 Cr.P.C.) is not the appropriate forum for ordering such intrusive investigative techniques, citing Sangitaben Shaileshbhai Datana v. State of Gujarat.

2. Whether a voluntary narco-analysis report can be the sole basis of conviction: The Court reiterated its stance from Selvi and Vinobhai v. State of Kerela that while voluntary tests with proper safeguards are permissible, their results cannot be admitted directly as evidence. Only information discovered subsequently with the aid of such test results can be admitted under Section 27 of the Indian Evidence Act, 1872, but even then, it cannot form the sole basis for conviction without supporting evidence.

3. Whether an accused has an indefeasible right to seek a narco-analysis test voluntarily: The Court clarified that there is no "indefeasible right" for an accused to undergo a narco-analysis test. While voluntary tests can be permitted at an appropriate stage (such as when the accused exercises their right to lead evidence in a trial), the concerned court must consider the totality of circumstances, including free consent and adherence to strict safeguards outlined in the Selvi guidelines (e.g., consent before a Judicial Magistrate, legal representation, independent agency for testing). The Court rejected the view that undergoing such a test is part of an indefeasible right to lead evidence, given the suspect nature of its report.

In conclusion, the Supreme Court ruled that the High Court erred in accepting the Investigating Officer's submission to conduct involuntary narco-analysis tests. Consequently, the impugned order dated November 9, 2023, was set aside, and the appellant's bail application is to be decided in accordance with the law.

Section 439., Code of Criminal Procedure - 1973  

Code of Criminal Procedure, 1973  

Section 27, Indian Evidence Act - 1872  

Indian Evidence Act, 1872