Accused can withdraw consent for narco test; forcing test violates right against self-incrimination: Raj HC

Jaipur: The Rajasthan High Court has held that an accused person has the right to withdraw consent for undergoing a narco analysis test at any stage before its administration, and any attempt to conduct such a test without free and informed consent would violate the fundamental right against self-incrimination under Article 20(3) as well as the right to personal liberty under Article 21 of the Constitution.

The judgment was delivered by Justice Anoop Kumar Dhand in S.B. Criminal Writ Petition No. 51/2016, Subhash Saini vs State of Rajasthan & Ors., pronounced on 12.03.2026. The petitioner had challenged the orders of the Judicial Magistrate, Chirawa dated 18.05.2015 and 09.07.2015, whereby permission for conducting a narco analysis test was granted and his subsequent application for withdrawal of consent was rejected.

At the outset, the Court elaborated on the constitutional foundation of the right to remain silent, observing that it is a cornerstone of criminal jurisprudence and is explicitly protected under Article 20(3), which prohibits compelling an accused to be a witness against himself. The Court noted that this right extends to all stages of investigation and trial, ensuring fairness and placing the burden of proof on the prosecution.

The petitioner contended that although he had initially consented to undergo the narco analysis test during investigation of FIR No. 375/2014 registered under Sections 363 and 366 IPC, he later realised that such a test could result in self-incrimination. Accordingly, he moved an application seeking withdrawal of his consent prior to the scheduled test. However, the Magistrate rejected the application on the ground that consent once given could not be revoked.

Opposing the plea, the State argued that the petitioner had voluntarily given consent and the Magistrate had rightly permitted the test; therefore, withdrawal at a later stage was not permissible.

After considering the rival submissions, the Court relied extensively on the Supreme Court’s decision in Smt. Selvi & Ors. vs State of Karnataka (2010), wherein it was held that involuntary administration of scientific techniques such as narco analysis, polygraph, and brain mapping violates the right against self-incrimination and personal liberty. The Court reiterated that even when such tests are conducted with consent, the results themselves are not admissible as evidence, though derivative evidence may be admissible under Section 27 of the Evidence Act.

The Court further referred to the recent Supreme Court ruling in Amlesh Kumar vs State of Bihar (2025), which clarified that although an accused may voluntarily seek a narco test, there is no indefeasible right to undergo such a test, and the court must assess factors such as voluntariness, safeguards, and surrounding circumstances before permitting it.

Applying these principles, the High Court held that consent for a narco analysis test is not irrevocable and can be withdrawn at any time before the test is conducted. It observed that forcing an accused to undergo such a test against his will would amount to compelling him to give testimonial evidence in a drug-induced state, thereby violating Article 20(3).

The Court emphasized that narco analysis involves suppression of free will and cognitive control, and any statement made during such a process cannot be treated as voluntary. Therefore, conducting the test without continuing consent would be unconstitutional and contrary to the principles of fair trial.

Accordingly, the Court allowed the writ petition and quashed the impugned orders dated 18.05.2015 and 09.07.2015 passed by the Judicial Magistrate, Chirawa. All consequential proceedings and pending applications were also disposed of.

Case Title
Subhash Saini vs State of Rajasthan & Ors.

Case Number
S.B. Criminal Writ Petition No. 51/2016

Court
High Court of Judicature for Rajasthan, Bench at Jaipur

Bench
Justice Anoop Kumar Dhand

Date of Pronouncement
12/03/2026

Advocates
For Petitioner: Mr. Arun Singh Shekhawat
For Respondents: Mr. Jitendra Singh Rathore, PP

Judgments Relied Upon
Smt. Selvi & Ors. vs State of Karnataka, AIR 2010 SC 1974
Amlesh Kumar vs State of Bihar, SLP (Crl.) No. 5392/2024 (decided on 09.06.2025)