Accused Can Withdraw Consent For Narco Analysis Before Or During The Test: Rajasthan High Court
The Rajasthan High Court has held that an accused has the right to withdraw consent right before or while undergoing the Narco analysis test, even though such consent was given earlier by him/her based on which the conduct of such test was allowed by the Magistrate. The bench of Justice Anoop Kumar Dhand held that consent once given could not be treated as irrevocable and conduct of such...
The Rajasthan High Court has held that an accused has the right to withdraw consent right before or while undergoing the Narco analysis test, even though such consent was given earlier by him/her based on which the conduct of such test was allowed by the Magistrate.
The bench of Justice Anoop Kumar Dhand held that consent once given could not be treated as irrevocable and conduct of such test pursuant to withdrawal of consent shall amount to violation of the accused's right to life and personal liberty as well as right to remain silent, under Articles 21 and 20(3) respectively.
"A Narco Analysis Test cannot be conducted on a suspected person like that on the petitioner against his wish and will, i.e., against his consent. Such suspect has the full right to deny his consent either given before or during the course of recording. Right against self-incrimination guaranteed under Article 20(3) of the Constitution of India protects the suspected accused from being compelled to provide testimonial evidence against himself. Any involuntary Narco Test breaches this protection by forcing the individual to speak in a drug-induced state, thereby suppressing his free will."
The Court added, "Consent once given by him, cannot be treated as irrevocable and the same can be withdrawn prior to conducting of such test. If the application seeking withdrawal of his consent for Narco Analysis Test is not allowed, then it would amount to forceful conduction of such test upon the accused petitioner against his free will and consent and if such procedure is conducted against his wish and will, it would tantamount to violation of his fundamental rights such as right to life and personal liberty as well as right to remain silent, as guaranteed to him under Articles 21 and 20(3) of the Constitution of India."
The Court was hearing a challenge against the order of the trial court that rejected the application filed by the petitioner seeking withdrawal of his consent to undergo the Narco Test.
The petitioner was accused of kidnapping a woman with an intention to forcefully marry her. Based on an earlier consent provided by the accused for undergoing Narco Test, the Magistrate had allowed the request of the Investigating Officer to conduct the test. Accordingly, date and time were fixed for the same.
However, subsequently, the accused realized his mistake and the fact that he could not be compelled to be a witness against himself. Hence, application was filed by him seeking revocation of his consent. This application was rejected by the Magistrate on the ground of earlier consent provided by him.
After hearing the contentions, the Court referred to the Supreme Court case of Amlesh Kumar v the State of Bihar and observed that,
“…it is clear that the accused has a right to voluntarily undergo a Narco Analysis Test at an appropriate stage and this right can be exercised by the accused to lead his evidence in the trial. However, there is no indefeasible right with the accused to undergo Narco Analysis Test because upon such application received by the Court below, the Court below 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.”
In this light, the Court highlighted that since the petitioner changed his mind and was not willing to undergo the test, he could not be compelled to do so since consent did not become irrevocable after it was given.
The Court held that if the application seeking withdrawal of his consent was not allowed, and the test was performed, it shall amount to forceful conduct of the test, resulting in violation of his rights under Articles 21 and 20(3). Results of such test were not admissible as evidence.
Accordingly, the petition was allowed.
Title: Subhash Saini v the State of Rajasthan & Anr.
Citation: 2026 LiveLaw (Raj) 102