Summary
While hearing a regular bail application, the High Court accepted the investigating officer's submission that a narco-analysis test would be conducted on all the accused. The Supreme Court held this contrary to Selvi and Articles 20(3) and 21: an involuntary narco-analysis test is impermissible, the report of even a voluntary test cannot be the sole basis of conviction, and an accused has no indefeasible right to undergo such a test, though he may volunteer for one at the stage of leading defence evidence subject to the court's scrutiny and the Selvi safeguards.
Issues
- Whether the High Court, while adjudicating a regular bail application, could accept the investigating officer's submission that a narco-analysis test would be conducted on all the accused persons.
- Whether a report of a voluntary narco-analysis test can form the sole basis of conviction in the absence of other evidence.
- Whether an accused can seek a narco-analysis test as a matter of indefeasible right.
Provisions considered
- Articles 20(3) and 21, Constitution of IndiaFollowing Selvi, involuntary administration of narco-analysis and similar tests violates the protection against self-incrimination and personal liberty; the High Court's acceptance of the officer's proposal to test all the accused was in direct contravention of these guarantees, which cannot be sacrificed to the need for modern investigative techniques. (¶¶ 8, 9, 10, 12, 13)
- Section 439, Code of Criminal Procedure, 1973A court deciding a regular bail application considers the allegations, period of custody, nature of the evidence and the offence, likelihood of influencing witnesses and similar grounds; it does not conduct a roving enquiry or sanction involuntary investigative techniques, and ordering such tests converts a bail hearing into a mini trial. (¶ 11)
- Section 27, Indian Evidence Act, 1872The result of a voluntary narco-analysis test is not itself admissible; only a fact subsequently discovered with the help of that information may be proved under Section 27, and such disclosure-based material, without supporting evidence, cannot alone sustain a conviction. (¶¶ 8.6, 14, 15, 16)
- Section 233, Code of Criminal Procedure, 1973The Rajasthan High Court's view that an accused may claim a narco-analysis test as part of the statutory right to lead defence evidence under Section 233 was disapproved as contrary to Selvi; undergoing such a test is not part of an indefeasible right to lead evidence. (¶¶ 19, 20, 21)
Held
- Under no circumstances is an involuntary or forced narco-analysis test permissible, and the report of such a test or information discovered in consequence of it is not per se admissible in criminal or other proceedings. The High Court erred in accepting, in a regular bail proceeding under Section 439 CrPC, the investigating officer's submission that she would conduct narco-analysis tests on all the accused; bail adjudication does not extend to sanctioning involuntary investigative techniques. (¶¶ 9, 10, 11, 12, 13)
- A report of a voluntary narco-analysis test, even one conducted with adequate safeguards, or information found as a result of it, cannot form the sole basis of conviction; information received with the aid of Section 27 of the Evidence Act requires supporting evidence to bring home the charge beyond reasonable doubt. (¶¶ 14, 15, 16)
- An accused has a right to voluntarily undergo a narco-analysis test at an appropriate stage, which is when he exercises his right to lead evidence at trial, but there is no indefeasible right to such a test: on an application the court must consider the totality of circumstances, including free consent and appropriate safeguards, before authorising it, and the Selvi guidelines (consent recorded before a Judicial Magistrate, access to a lawyer, recording by an independent agency, and a full medical and factual narration) must be followed. The contrary view of the Rajasthan High Court in Sunil Bhatt cannot be sustained. (¶¶ 17, 18, 19, 20, 21)
Result
Appeal allowed; High Court's order dated 9 November 2023 in Crl. Misc. No. 71293 of 2023 set aside; appellant's bail application, if pending, to be decided in accordance with law; pending applications disposed of.