New Delhi: The Supreme Court has said that the need for modern investigative techniques, like narco analysis test, may be true, but such investigative techniques cannot be conducted at the cost of constitutional guarantees under Articles 20(3) and 21, fundamental rights that protect the accused's rights in criminal proceedings and the right to life and personal liberty.
A bench comprising justices Sanjay Karol and Prasanna B Varale, in a judgment delivered on June 9, said it is 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”, said the bench.
The bench said it is clear that under no circumstances, is an involuntary or forced narco-analysis test permissible under law. It added that 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 bench said an accused has a right to voluntarily undergo a narco-analysis test at an appropriate stage.
The bench also made it clear that undergoing a narco-analysis test cannot be a part of the indefeasible right of the accused to lead evidence, in view of its suspect nature.
The apex court overruled a judgment delivered by the Rajasthan High Court, which had 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. The bench said 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”, said the apex court.
The apex court delivered the judgment while dealing with an appeal filed by Amlesh Kumar against a judgment of the Patna High Court.
The bench said it 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 (2010), being hit by the protections under Articles 20(3) and 21 of the Constitution”, observed the bench.
The bench said it failed 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.
The bench said 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”, said the apex court.
The apex court decided to set aside the Patna High Court's judgment of November 9, 2023, which allowed a plea by the police to conduct the narco-analysis test of all the accused persons, including the petitioner, and other witnesses.
