Gujarat National Law University COGNITIO 2008

ANIRBAN ROY CHOUDHURY

+91 9766655972

40 B Hanuman Nagar,
Bhagirathi Niwas
Senapati Bapat Road
Pune 411016
Maharashtra, India

anirban666@gmail.com

MADHUBANI CHAKRABORTY
+91 9321288031

S.P.Residency
968/50B Naralibaug, Gurukrupa
Hanuman Nagar
Senapati Bapat Road
Pune 411016
Maharashtra, India

madhubani.chakraborty@gmail.com

SYMBIOSIS LAW SCHOOL

SYMBIOSIS INTERNATIONAL UNIVERSITY
Pune, Maharashtra

| Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW 1

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ARTICLE 20(3) OF THE
CONSTITUTION OF INDIA
AND NARCO ANALYSIS –
BLENDING THE MUCH AWAITED
 Gujarat National Law University COGNITIO 2008

ARTICLE 20(3) OF THE

CONSTITUTION OF INDIA AND
NARCO ANALYSIS – BLENDING THE
MUCH AWAITED.

“…..throughout the web of English criminal law, one

golden thread is always to be seen, that it is the duty of
the prosecution to prove the prisoner’s guilt”#

• Article 20 (3) - No person accused of any offence shall be compelled to be a

witness against himself. [1]

• “Narco-analysis is a term invented by Horsley to describe a psychotherapeutic

technique, in which, by the administration (usually by intravenous injection) of a
narcotic drug, the patient is put into a soporose state before being brought to
discuss matters which will cause him emotional distress.” [2]

_________________________________________________________________
__________

The beginning of the right against self-incrimination lies in the seventeenth-

century trial of John Lilburne[3], a Puritan agitator who when put on trial refused
to take an oath requiring him to answer questions posed to him truthfully and was
as a result whipped and pilloried . Subsequently, the punishment was declared
illegal and the Star Chamber [4] was abolished. It didn’t help Lilburne much of
course, but it set a precedent the right against self-incrimination was, in a manner

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of speaking, born. Since then, this principle of nemo tenetur accusare se ipsum [5]
has been handed down in legislative and constitutional history as a forbearer of
procedural fairness.
# --per Viscount Sankey
Woolmington vs. DPP, 1935 AC 462 at 481
1 – The Constitution of India, Part III- fundamental rights (right to
freedom)
Article 20 - Protection in respect of conviction for offences
2 – Butterworth’s medical dictionary 2nd edition
3 – John Lilburn - (1614–29 August 1657), also known as Freeborn
John, was an agitator in England before, during and after the English
Civil Wars of 1642–1650. In his early life he was a Puritan,. His works
have been cited in opinions by the United States Supreme Court.
4 – Star Chamber – see page 6
5 – No man can be compelled to criminate himself
No one is bound to criminate himself. Hence although an accused
person may of his own accord make a voluntary statement as to the
charge against himself, a justice, before receiving such statement
from him is required to caution him that he is not obliged to say
anything and that what he does say may be given in evidence
against himself. hence also arises the rule that evidence of a
confession by the accused is not admissible unless it is proved that
such confession was free and voluntary.[The Law Lexicon, 2nd edition
2006, justice Y.V.Chandrachud, pg- 1298]

The privilege does not extend to administrative proceedings. Initially, the law did
not extend this umbrella over civil proceedings either; lately the courts have been
experiencing a few qualms in this regard. And that for a research into the
contours of administrative law is evidently problematic. A diatribe, it would seem,
is in order. However, before that it would perhaps be best to appreciate the scope
of the right against self-incrimination.
Scope of the Right against self-incrimination: Quite simply, the right against self-
incrimination is evocable when four conditions are satisfied, namely,
o The person questioned is an accused
o The testimony obtained from such person is compelled
o Such person is in the position of a witness, and
o Such testimony obtained from the accused in his position as a witness is
against him.
Hence, within the Indian law, the immunity is only specific, that is, available only
to persons suspected of criminal offences.
The privilege in criminal law is based on and determined by section 161(2) of the
Code of Criminal Procedure [6], section 27 of Indian Evidence Act [7] and Article
20 (3) of the Constitution of India The most pertinent case in this regard is
 Gujarat National Law University COGNITIO 2008

undoubtedly Nandini Satpathy v. P.L.Dani [8], wherein Krishna Iyer, J. widened

the scope of the protection considerably. The issues before the court were various:
such as whether a potential candidate for accusation can avail of the privilege,
does the privilege extend to other pending or potential accusations outside the
specific investigation which has led to the questioning, at what instance in the
entire proceeding does the privilege become available, the scope of compulsion,
and whether the privilege extends to derivative evidence.

6 -- Code of Criminal Procedure, 1973

Article 161(2) – such person shall be bound to answer truly all
questions relating to such case put
To him by such officer, other than questions the answers to which
would have a tendency to
Expose him to a criminal charge or to a penalty or forfeiture
7 – Indian Evidence Act, 1872
How much of information received from accused may be proved
Provided that, when any fact is deposed to as discovered in consequence of
information
Received from a person accused of any offence, in the custody of a police officer, so
Much of such information whether it amounts to confession or not, as relates distinctly
to
The fact thereby discovered, may be proved
8 -- Nandini Satpathy v. P.L.Dani –
AIR1978SC1025, 1978crilj968, (1978)2SCC424, [1978]3SCR608
Civil Appeal No. 315 Of 1978 And Criminal Appeal No. 101 Of 1978 Decided On:
07.04.1978
Nandini Satpathy - Former Chief Minister Of Orissa - Against Whom A Case Had
Been Registered Under The Prevention Of Corruption Act, Was Asked To Appear
Before The Deputy Superintendent Of Police [Vigilance] For Questioning. The Police
Wanted To Interrogate Her By Giving Her A String Of Questions In Writing. She
Refused To Answer The Questionnaire, On The Grounds That It Was A Violation Of
Her Fundamental Right Against Self-Incrimination.

It was subsequently held that, the right extends to witness and accused alike, that
the expression 'accused of any offence’[9], must mean formally accused in
praesenti not in futuro, that it applies at every stage at which furnishing of
information and collection of materials takes place, that the privilege extends not
only to the deployment of the information obtained as evidence in a criminal
prosecution, but to the extraction of the information itself , that the true test for

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testing valid invocation of the right is reasonable apprehension of the
accused/witness as to the use of the information against him/herself, and finally,
that compelled testimony includes evidence procured not merely by physical
threats or violence but by psychic torture, atmospheric pressure, environmental
coercion, tiring interrogative prolixity, overbearing and intimidatory methods and
the like, but not legal penalty for violation.
The ‘right to silence’ is a principle of common law [10] and it means that
normally courts or tribunals of fact should not be invited or encouraged to
conclude, by parties or prosecutors, that a suspect or an accused is guilty merely
because he has refused to respond to questions put to him by the police or by the
Court.

9 – “Accused of an offence” where evidence oral or circumstantial points to the guilt of a

person and he is taken in custody and interrogated on that basis, he becomes a
person accused of an offence
AIR 1958 All 293, 302 [Constitution of India, Article 20(3)]
“Accused of any offence” the description accused of any offence is description of the
person against whom evidence relating to information alleged to be given by him is
made probable under section 27. It does not predicate a formal accusation against
him at the time of making the statement sought to be proved as a condition of its
acceptability
State of UP v. Deoman, AIR 1960, SC 1125, 1132
In Re Upputholla Srinivasulu, AIR 1958 Andhra Pradesh, 37, 41
[Indian Evidence Act, 1872, section 87]
Accused person – see Jhola Singh, 23 C, 493; 16B 661
9 CWN 983 = 2 CLJ 149 ; 6 CWN 163 ; 2 LBR 80
Queen Empress v. Mutsaddi Lal, 21 A 107
Sheoddin v. King Emperor, 6 OC 262
Abraham Verghese v. State of Kerala, AIR 1965 Kerala 175, 176
[Indian Evidence Act, 1872, section 24]
[The Law Lexicon, 2nd edition 2006, justice Y.V.Chandrachud, pg-
31]

10 – Chancellor Kent defined the common law as “those principles usages and rules of
action applicable to the government and security of persons and property which do
not rest for their authority upon any express and positive declarations of will of the
legislature” [ 1 Kent Comm. 469 ]
[The Law Lexicon, 2nd edition 2006, justice Y.V.Chandrachud, pg-
362]

The origins of right to silence may not be exactly clear but the right goes back to
 Gujarat National Law University COGNITIO 2008

the Middle Ages in England. During the 16th century, the English Courts of Star
Chamber [11] and High Commission [12] developed the practice of compelling
suspects to take an oath known as the “ex-officio oath” and, the accused had to
answer questions, without even a formal charge, put by the judge and the
prosecutor. If a person refused to take oath, he could be tortured. These Star
Chambers and Commissions were later abolished. The right to silence is based on
the principle ‘nemo debet prodere ipsum’ [13], the privilege against self-
incrimination
The term Narco-Analysis is derived from the Greek word narkç (meaning
"anaesthesia" or "torpor") and is used to describe a diagnostic and
psychotherapeutic technique that uses psychotropic drugs, particularly
barbiturates, to induce a stupor [14] in which mental elements with strong
associated affects come to the surface, where they can be exploited by the
therapist. The term Narco-analysis was coined by Horseley. Narco analysis first
reached the mainstream in 1922, when Robert House, a Texas obstetrician used
the drug scopolamine [15] on two prisoners.

The search for effective aids to interrogation is probably as old as man's need to
obtain information from an uncooperative source and as persistent as his
impatience to shortcut any tortuous path. In the annals of police investigation,
physical coercion has at times been substituted for painstaking and time
consuming inquiry in the belief that direct methods produce quick results.
Development of new tools of investigation has led to the emergence of scientific
tools of interrogation like the Narco analysis test.

11 – Star Chamber, a Chamber at the Westminster so called because at first the ceiling
there was adorned with images of gilded stars. And in the Stat. 25 Hen. 8 C, 1 it is
written “The Starred Chamber” [Tomlins Law Dictionary] a civil and criminal court
noted for arbitrary procedure.
12 – Member of the British Commonwealth country
13 -- No man can be compelled to criminate himself
No one is bound to criminate himself. Hence although an accused person may of his
own accord make a voluntary statement as to the charge against himself, a justice,
before receiving such statement from him is required to caution him that he is not
obliged to say anything and that what he does say may be given in evidence against
himself
14 – Stupor means a different thing from excitement. It signifies a suspension or great
diminution of sensibility; a state in which all the faculties are deadened or dazed
15 -- Sodium pentothal is an ultra short-acting barbiturate, which

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 sedates only for a few minutes. It slows down the heart rate,
lowers blood pressure, and inhibits brain and spinal cord activity.
Sodium amytal and Scopolamine are other drugs used. Some
benzodiazepines have been used as truth agents; most notably,
the Soviet Union used temazepam for this purpose

Such tests are a result of advances in science but they often raise doubts regarding
basic human rights and also about their reliability. Legal questions are raised
about their validity with some upholding its validity in the light of legal principles
and others rejecting it as a blatant violation of constitutional provisions

Finally the Nithari Killings [16] case seems to have been solved and the guilty
brought to book – “thanks to the truth serum,” many of us are likely to add. Truth
Serum is used to extract the truth but what is thus ‘extracted’ may not, necessarily,
be the truth. The first question, therefore, is not if narco-analysis can unearth the
truth but whether it is legally permissible or not. And truth serum is clearly not
constitutionally ‘clean’, so to speak, because it works by crippling the volition of
the accused and loosening his wits up. This, in other words, means taking away
one’s control over one’s mind, and making him talk more uninhibitedly. However,
the judicial opinion has a different take on it. In Dinesh Dalmia v. State (2006) the
Madras High Court [17] ruled that narco-analysis testimony was not ‘testimony
by compulsion’ because the accused “may be taken to the laboratory for such tests
against his will, but the revelation during such tests is quite voluntary.” Now, the
most crucial terms to be analyzed are here are ‘compulsion’[18] and
‘voluntary’[19]. Here they are treated as mutually exclusive in the sense that if the
testimony is by ‘compulsion’ it cannot be ‘voluntary’ while it is very much
possible to ‘compel’ one to testify ‘voluntarily’. And that would certainly be a
testimony by compulsion despite the element of volition inherent in it. One can be
beaten, tortured or threatened into testifying or confessing in the court. Would that
testimony or confession be voluntary? If this is not voluntary, how could a
testimony under the influence of drugs, when even one’s volition is suspended, be
‘voluntary’ by any stretch of imagination? The decision of the High Court clearly
states that the person in question is taken to the laboratory “against his will”, and
this is where the compulsion starts. In the laboratory he is injected with drugs that
make him slip into a trance like condition with his inhibitions down and then the
questions are asked, and he answers because he no longer has any control over his
brain. And he starts talking about everything that is on his mind – right and
wrong, true and imaginary.
 Gujarat National Law University COGNITIO 2008

16 – Nithari killing, noida Nithari village (Noida) serial killings. The two main accused in
the Nithari serial killings Mohinder Singh Pandher and Surendra Kohli have undergone
Narco analysis tests in Gandhinagar in Gujarat
17 -- Dinesh Dalmia v. State (2006) the Madras High Court
18 – Compulsion, constraint, forcibly inducement to the commission of an act
T.P.Act Section 73(2) ; Registration Act Section 17
19 – Voluntary, of one’s free will ; not constrained by another ; acting voluntarily or willingly
Sale of Goods Act Section 2(2)
Prov. Const Article 101(3)

Now, the supporters of narco-analysis might argue that the so-called ‘consent
form’ sign by the accused supplies the requirements of ‘voluntary disclosure’
[20]. That’s a fallacy, as in case of a court-mandated narco-analysis, the ‘consent
form’ has absolutely no relevance because the compliance of a judicial order
passed by a competent court is not subject to anybody’s ‘consent’ [21]. The term
‘order’ [22] implies authority to compel obedience. So, if a competent court
orders narco-analysis, consent or no consent, the order has to be complied with,
unless it is challenged and stayed or reversed by a superior court. The accused has
no choice against a valid court order, and has to testify. So, there is ‘compulsion’
[23] and there is ‘testimony’ [24] and it surely is ‘testimony by compulsion’ [25].
However, compulsion per se [26] is not illegal. Therefore, the only question is
whether or not the compulsion in this case is legally sound.

20 – The expression voluntary is used to mean naturalisation in the narrow sense of that
term and excluding compulsory involuntary or collective naturalisation which some
states have adopted at different times.
T.E .Mahomed Usman v. State of Madras, AIR 1961 Mad 129, 138,
[Citizenship Act, 1955, Section 9(1)]
21 – Consent, two or more persons are said to consent when they agree upon the same
thing in the same sense
Act IX, 1872, Section 13
Where consent is given substantially, the court does not very minutely look into the
form in which it is given [per. Sterling, J. Re Smith, 59 LJ Ch 284]
Swinfen v. Swinfen, (1857), 24 Beav. 559
Walchandragar Industries Ltd v. Ratanchand Khimchand Motishaw, AIR 1953,
Bom, 285, 286
Food Corporation of India v. S. K. Samanta AIR 1979, Cal, 193,194,
[Arbitration Act (10 of 1940) Section 8(1)(a)]
[Also see free consent – 37-8 V, c 77, Section 14, Act 45 of 1860, Section 90]
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22 – Order, defined 7-8 V.c 12, Section 20, Act 14, 1882, Section 2, Act II, 1886, Section
3(6)
An authoritative direction, injunction, mandate; a decision of a court or judge made
[Section 2(14), CPC and Article 13(3)(a), Constitution of India]
23 – compulsion- constraint, forcibly inducement to the commission of an act; the act of
compelling or the state of being compelled.
24 – Testimony, The word testimony in its ordinary sense means the statement made by
a witness under oath. The statement made by a witness under oath, personal or
documentary evidence or attestation in support of a fact or statement; hence any
form of evidence or proof
[Indian Evidence Act, 1872, Section 157]
The word testimony in its restricted legal sense means a statement made under
oath in a legal proceeding, and does not embrace a document or a private writing
25 -- ‘Testimony by compulsion’, a forcibly induced statement under oath in a legal
proceeding
26 -- per se, by himself, or itself, inherently, in itself

Bombay High Court held in the Abdul Karim Telgi [27] case that “certain
physical tests involving minimal bodily harm” like narco-analysis and brain
mapping [28] did not violate Article 20 (3) and did not compromise the
constitutional protection against self-incrimination. The saving grace is that the
confession or the statement made during narco-analysis is not admissible as
evidence in a court of law, and that is the reason why the protection against self-
incrimination under Article 20 (3) is not breached. The disclosure leading to the
recovery of incriminating material, like a murder weapon or forged documents, is
admissible. In the above-mentioned case Bombay High Court seems to have held
that narco-analysis is permissible because it involves “minimal bodily harm”,
which implies that all such methods of extracting information that inflict minimal
bodily harm are legally permissible

The expression ‘minimal body harm’ in this context can be taken to mean
‘causing no grievous hurt or long term disability’. Minor physical discomfort or
strain is by implication disregarded. Simply keeping one awake for days on end
and pouring water every time one tries to sleep would certainly do ‘minimum
bodily harm’ and of course would cause no grievous hurt of long term disability
of any kind, but isn’t it torture? Giving a narrow reading to Article 20 (3) and
connecting it to bodily harm might not offend the letter of Article 20 (3) but it
definitely does violates with the spirit of it because protection against torture is
one of the foremost objectives of the constitutional protection against self-
incrimination. The judgment also seems to run counter to the accepted principle
that the constitutional provisions pertaining to Fundamental Rights in Part III of
 Gujarat National Law University COGNITIO 2008

the Constitution have to be construed liberally so as to afford maximum

protection.

27 -- Abdul Karim Telgi, HC stays order on narco-analysis test on Telgi,

Bangalore: Karnataka High Court today (Mar 3, 2004) stayed for two months an
order of the Special Court allowing narco-analysis and lie-detector tests on prime
accused in the multi-crore fake stamp paper scam, Abdul Karim Telgi, to be
conducted by the state investigation agency, STAMPIT. Judge Justice A C Kabbin
passed the order on a petition filed by Telgi, praying for setting aside the special
court's order last week allowing tests on him today. The petitioner had contended
that such tests --narco-analysis, polygraph and brain finger printing -- are not only
unknown to law but also not acceptable to it. The petitioner had also argued that he
is a chronic diabetic, suffering from blood pressure and has a heart ailment, and the
tests could be highly risky. STAMPIT has sought to conduct the tests on him to verify
the reported statement made by him that he is ready to reveal the names of "big
sharks" in the scam.

28 -- Brain mapping, P300 Test: When the brain recognises a person or a sound, it
generates a particular type of electric wave, which is called a P300. Sensors are
attached to the head of a person undergoing a P300 test and the subject is seated
before a computer monitor. He is then shown certain images or made to hear certain
sounds. The sensors monitor electrical activity in the brain and register P300 waves,
which are generated only if the subject has some connection with the stimulus, in
this case pictures or sounds

It is an accepted legal position that the protection under Article 20 (3) does not
extend to compulsory production of materials or compulsion to give specimen
signatures, finger impressions or blood samples. Narco-analysis, however, is still
different and clearly distinguishable from giving specimen signatures or blood
sample or even taking a polygraph test because except in case of a narco-analysis,
the accused retains his control over what he is doing or saying and at no point of
time can he be compelled to disclose any such information that he wants to keep
to himself. Giving blood samples and specimen signature in such case is much
like allowing the investigation officer to search the residence of the accused and
go through his belongings in search of evidence. That’s very much permissible.
The legal and constitutional infirmity of narco-analysis lies in the fact that it takes
away one’s control on one’s mind, which brings it in the category of mental
torture. And tortures of all kind fall foul with Article 21,[29] under which right
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against torture is implied. Therefore, narco-analysis not only stands weak against
the challenge of Article 20 (3) but also finds itself in a tight spot with respect to
Article 21.

Another well settled constitutional principle is that India has to conduct itself in
accordance with the international treaties and conventions it is party to. Of course,
principles of International Law do not come into effect automatically, they have to
be backed by a legislative enactment to be effective, and if they tend to be against
the law of the land, the municipal law gets precedence over them. However, in
case of torture, not only several statutes, including the Code for Criminal
Procedure, provide for safeguards against it but also the Constitution, through
Article 20 (3), seeks to provide effective protection in this respect. On the other
hand, there is no express statutory support for measures like compulsory narco-
analysis. While narco-analysis is quite clearly low on the scales of human right,
the government cannot even plead the existence of domestic law specifically
authorizing such means against a plethora of international conventions that frown
at the use questionable means of extracting information during a criminal
investigation. Therefore, by giving too narrow a reading to legal and
constitutional protections in this regard we might also be disregarding our
obligations under the International Law, which, under our Constitution, must be
discharged unless a specific domestic legislation is irreconcilably opposed to it.
Besides, it is not just the legality and constitutionality of narco-analysis that is
questionable but also its efficacy and its status as a ’science’.

29 – Article 21, Constitution of India. Protection of life and personal liberty.- No person
shall be deprived of his life or personal liberty except according to procedure
established by law.

However, the final judicial pronouncement on the constitutional status of narco-

analysis is yet to come, but it seems in the offing, as in 2006 the Supreme Court
of India stayed the order of a metropolitan judge to conduct narcoanalysis on K.
Venkateswara Rao [30] in the Krushi Cooperative Urban Bank case. The issue
required to be settled by a court decision because Mr. Rao refused to sign the
consent form and the Forensic Science Laboratory at Gandhinagar declined to
conduct a narco-analysis test with a duly filled and signed consent form. The
 Gujarat National Law University COGNITIO 2008

Supreme Court verdict is awaited

It is well established that the Right to Silence has been granted to the accused by
virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one
can forcibly extract statements from the accused, who has the right to keep silent
during the course of interrogation (investigation). By the administration of these
tests, forcible intrusion into one's mind is being restored to, thereby nullifying the
validity and legitimacy of the Right to Silence.

Law is a living process, which changes according to the changes in society,

science, ethics and so on. The Legal System should imbibe developments and
advances that take place in science as long as they do not violate fundamental
legal principles and are for the good of the society. The criminal justice system
should be based on just and equitable principles. The issue of using narco analysis
test as a tool of interrogation in India has been widely debated. The extent to
which it is accepted in our legal system and our society is something, which will
be clearer in the near future. In a situation where narco analysis is gaining judicial
acceptances and supports despite being an "unreliable & doubtful" science, we
have to seriously rethink about its legal and constitutional validity from human
rights perspective.

_________________

30 -- K. Venkateswara Rao Crime Investigation Department (CID) officials on

Monday filed a petition in the Metropolitan Sessions Judge's Court at
Nampally seeking fresh direction for conducting narco analysis test on K
Venkateswara Rao, the prime accused in Krushi Bank case who has
refused to undergo the test.

Some Notable Events & Cases of Narco Analysis in India-

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 • In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that
subjecting an accused to narco analysis is not tantamount to testimony by
compulsion. The court said about the accused: "he may be taken to the
laboratory for such tests against his will, but the revelation during such tests is
quite voluntary."

• In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper
case that subjecting an accused to certain tests like narcoanalysis does not
violate the fundamental right against self-incrimination. Article 20(3) of the
Constitution guarantees this: "No person accused of any offence shall be
compelled to be a witness against himself." Statements made under narco
analysis are not admissible in evidence.

• In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its
ruling after hearing arguments for three days from various parties, including
Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave,
appointed by the bench as amicus curiae to assist the court in the case.

• Telgi and his accomplices are facing probe by various states' police and other
investigative agencies for their alleged criminal acts.

• These accused people have challenged the legality of the use polygraph, brain
mapping and narco-analysis by the investigative agencies to probe the crime.

• The Bombay High Court recently in a significant verdict in the case of,
Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the
use of P300 or Brain finger-printing, lie-detector test and the use of truth serum
or narco analysis. The court upheld a special court order given by the special
court in Pune as mentioned above, allowing the SIT to conduct scientific tests on
the accused in the fake stamp paper scam including the main accused, Abdul
Karim Telgi. The verdict also said that the evidence procured under the effect of
truth serum is also admissible. In the course of the judgment, a distinction was
drawn between "statement" (made before a police officer) and "testimony" (made
under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that
the lie-detector and the brain mapping tests did not involve any "statement" being
made and the statement made under narco analysis was not admissible in
evidence during trial. The judgment also held that these tests involve "minimal
bodily harm".

• A court in Kerala recently pronounced that no court order is required to do a

narco analysis, Disposing of a petition filed by the CBI seeking permission of the
court, the magistrate said that filing this type of a plea would only delay the
investigation. The court said nobody could stand in the way of the investigating
agency conducting tests recognized as effective investigation tools. When the
technicalities of the test itself are not clear and uniform, it becomes difficult to
accept the stand taken by the court.

A Brief Outline of The Narco Analysis Test-

 Gujarat National Law University COGNITIO 2008

• The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or

Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the
practice of administering barbiturates or certain other chemical substances, most
often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the
subject will more freely share information and feelings. A person is able to lie by
using his imagination. In the Narco Analysis Test, the subject's inhibitions are
lowered by interfering with his nervous system at the molecular level. In this
state, it becomes difficult though not impossible for him to lie .In such sleep-like
state efforts are made to obtain "probative truth" about the crime. Experts inject a
subject with hypnotics like Sodium Pentothal or Sodium Amytal under the
controlled circumstances of the laboratory. The dose is dependent on the
person's sex, age, health and physical condition. The subject which is put in a
state of Hypnotism is not in a position to speak up on his own but can answer
specific but simple questions after giving some suggestions. The subject is not in
a position to speak up on his own but can answer specific but simple questions.
The answers are believed to be spontaneous as a semi-conscious person is
unable to manipulate the answers.[18] Wrong dose can send the subject into
coma or even result in death. The rate of administration is controlled to drive the
accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-
activity of an individual is evident as the drug depresses the central nervous
system, lowers blood pressure and slows the heart rate, putting the subject into a
hypnotic trance resulting in a lack of inhibition. The subject is then interrogated
by the investigating agencies in the presence of the doctors. The revelations
made during this stage are recorded both in video and audio cassettes. The
report prepared by the experts is what is used in the process of collecting
evidence. This procedure is conducted in government hospitals after a court
order is passed instructing the doctors or hospital authorities to conduct the test.
Personal consent of the subject is also required

Supreme Court reserves ruling on narco analysis

Friday, Jan 25, 2008, [The Hindu]

• A three-Judge Bench, comprising Chief Justice K.G. Balakrishnan and Justices

R.V. Raveendran and J.M. Panchal, reserved judgment at the conclusion of
arguments by counsel for the petitioners, the Centre, the Central Bureau of
Investigation and the amicus curiae, assisting the court.
• The petitioners argued that courts could not direct the prosecution to hold narco
analysis, brain mapping and lie detector tests on the accused against their
willingness as it would be violative of Article 20 (3) of the Constitution (no person
accused of any offence shall be compelled to be a witness against himself).
• He said, “While on the one hand, constitutional embargo is omni-present, the
existing statutes, including the Cr.P.C. and the Indian Evidence Act, do not
expressly authorise collection of evidence through process, during which the
accused may be compelled to be a witness against himself. Clearly there is no
backing in law for the police to collect such evidence through these tests nor has
there been any power in the courts to authorise the police to do so.”
• Mr. Dave said, “Such tests can only be done by legislation, which may authorise
the same as under TADA. To allow adoption of any of the three tests in
| Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW 15
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 investigations involving day to day crimes would negate the very values for which
the society stands and the Constitution affirms.”
• Earlier senior counsel T.R. Andhyarujina, appearing for the CBI, submitted that
none of the three tests “are unconstitutional or illegal. They are modern and
scientific techniques, which are authorised by law and are necessary to be
carried out in the investigation of an offence of such a nature and under such
circumstances where there are reasonable grounds for believing that such tests
will provide evidence as to the commission of an offence.”
• He said: “Results obtained from examination of the accused would not offend the
prohibition against testimonial compulsion under Article 20 (3) of the Constitution.
• “Further, these tests, including narco analysis, are valuable for not only punishing
the guilty but exonerating an accused person. They avoid the temptation to sue
third degree methods like torture to obtain information. Such tests cannot be
construed as invasion of privacy of the accused.”
To be noted:
• Section 45 of the Indian Evidence Act, 1872 gives evidentiary value to an Expert
opinion.
• Blacks Law Dictionary defines Expert Evidence as evidence about a scientific,
technical or professional issue given by a person qualified to testify the cause
familiarity with the subject or special training in the field.
• US courts in most jurisdictions doubt the reliability of lie detector tests and refuse
to admit the results. In the case of Townsend v. Sain, it was held that the
petitioners confession was constitutionally inadmissible if it was adduced by the
police questioning, during a period when the petitioners will was overborne by a
drug having the property of a truth serum.
• In another famous case of US v. Solomon, which directly debated the issue of
narcoanalysis, the expert opinion given to the court established that truth serum
is now generally accepted investigative technique. The experts said: Adequate
safeguarding against unreliability is possible. However narcoanalysis does not
reliably induce truthful statements.
• In India, the decision to conduct narcoanalysis is usually made by the
Superintendent of Police or the Deputy Inspector-General handling a case. While
the expert studies and court opinions available internationally have granted that
there may be some use in narcoanalysis, the overwhelming evidence is that
narcoanalysis is by no means a reliable science.
• There are some significant legal aspects to the narcoanalysis debate, which are
becoming clearer with the conducting of such tests in the country. The same is
discussed in the article with the help of case laws.
• 1. In a 2006 judgment (Dinesh Dalmia v. State), the Madras High Court held that
subjecting an accused to narcoanalysis does not violate any constitutional rights
of the person, as revelation by accused when these tests are conducted is
voluntary.
• However, the criticism is that this judgment turns on a technicality. The admission
by accused after he is injected with such drugs is always technically voluntary.
• 2. In 2004, the Bombay High Court ruled in the multi-crore fake stamp paper
case that subjecting an accused to certain tests like narcoanalysis does not
violate the fundamental right against self-incrimination as guaranteed by Article
 Gujarat National Law University COGNITIO 2008

20(3) of the Constitution. Statements made under narcoanalysis are not

admissible in evidence. However, recoveries resulting from such drugged
interviews are admissible as corroborative evidence.
• In this case, Abdul Karim Telgi, underwent narcoanalysis in Bangalore in order to
aid investigation and facilitate the collection of evidence. The Karnataka Forensic
Science Laboratory (KFSL) in Bangalore conducted a polygraph test, brain
mapping, and a narcoanalysis procedure. The Narcoanalysis test submitted an
immense amount of information but doubts were raised about its value as
evidence. One view was that the test should be looked at as an aid in collection
of evidence or as corroboratory piece of evidence and since it was always done
after a grant from the court and a signed consent of the subject, it did not amount
to testimonial compulsion.
• 3. The Bombay High Court recently in a significant verdict in the case of,
Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the
use of P300 or brain finger-printing, lie-detector test and the use of truth serum or
narcoanalysis. It also upheld the admissibility of evidence procured under the
effect of truth serum. The judgment also held that these tests involve minimal
bodily harm.
• Surender Koli, main accused in the Nithari case, was brought to forensic science
laboratory in Gandhinagar in January 2007 for Narcoanalysis. Polygraphic test
was conducted on Moninder Singh Pandher and his servant Surendra Koli,
accused of serial killings of women and children in Nithari, to ascertain the
veracity of their statements made during their custodial interrogation.
• Various confessional statements were made by he accused under the effect of
the drug, he could remember the names of the females he had murdered and
revealed that his urge to rape them after murdering them.
• The Supreme Court at the earliest opportunity should clarify the extent to which
evidence gathered in such a manner may be made admissible or if it should only
be used as means of collecting evidence.

An alternative to narco-analysis test

• As the country debates on the validity of narco-analysis and brain mapping tests,
forensic experts now claimed that a new technology Brain Electrical Oscillation
Signature (BEOS) is more ‘efficient and non-invasive’ than the current scientific
methods followed in the investigation of criminal cases.
• “BEOS can read the reactions of brain even if the suspect remains silent. It can
pin-point the actual person present in the crime scene among many suspects
which both narco-analysis and brain mapping cannot do,” Mukundan C R,
consultant to the Directorate of Forensic Sciences said.
• Mukundan, who is the brain behind the new technology, said BEOS has already
been appreciated by the British Psychological Society and the Society wants to
have a ‘collaboration with us and have asked us to set up a lab there to carry out
more research.’ He said narco-analysis test and brain mapping has been
discarded by almost all investigating agencies in different parts of the world as
they do not give ‘concrete results’.

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 • “In narco-analysis test, the respondent blows out of 5% sense and 95% non-
sense. Under the influence of drugs, he speaks out even what he has not done
but had wished to do. It is like hearing a person who has had two to three pegs of
whisky,” he said.
• Giving reasons for disowning brain mapping, he said, “It does not give concrete
results. There is no specificity and is like diagnosing a disease by just taking
notes of the body temperature. Body temperature does indicate something is
wrong but you cannot diagnose the actual disease,” Mukundan said.
• He explained that both brain mapping and BEOS record time-locked electrical
activity from the surface of the brain when the suspect is presented with specially
formulated auditory probes referring to various aspects of the crime being
investigated.
• While in the case of brain mapping, the suspect has to say something but under
BEOS, he can remain silent.
• “This is the biggest advantage of BEOS. The suspect is not forced to answer, his
choice of remaining silent and not being subjected to reply out of force or fear is
restored. The brain will react to probes put ahead of him,” Mukundan said

References

• Constitutional Validity of Scientific Tests for “Lie- Detection”

• The Constitution of India

• Code of Criminal Procedure, 1973

• Indian Evidence Act, 1872

 Gujarat National Law University COGNITIO 2008

• The Fundamental Right to Privacy: A Case by Case Development sans

Stare Decisis -- Sandeep Challa
• Narco analysis -- S.Malini & B.M.Mohan, Forensic Science Laboratory,
Bangalore
• Narco analysis, torture and democratic rights -- Twenty second Dr.
Ramanadham Memorial Meeting
• Law Commission of India, One Hundred Eightieth Reports on Article
20(3) Of The Constitution Of India And The Right To Silence
May 2002 (Justice M. Jagannadha Rao)

• Narco analysis leads to more questions than answers -- Jagadeesh N

• Is Narco analysis on accused legally tenable? 14 Jan 2004 the Times of
India
• What is Narco-analysis test? 8 Feb 2004 The Times of India
• Narco Analysis : Legality and Application -- Major General Nilendra
Kumar, AVSM, VSMNeed for Narco analysis test -- M Shamsur
Rabb Khan, the Daily Star

• Law of Evidence -- Sir John Woodroffe and Syed Amir Ali, 17th
Edition.(2001), Butterworth’s Publication.

• Fields Commentary, Law of Evidence, 12th Edition.(2006), Delhi Law

House.

• Chaudhry,R.N., Expert Evidence (Medical & Non medical), 2nd

Edition.(2004), Orient Publishing Company.

• Ratalal & Dheerajlal, The Law of Evidence, 22nd Edition.(2006), Wadhwa

Nagpur.

• Narcoanalysis and some hard facts, Sriram Lakshman

• Lie tests open to judicial review by Rakesh Bhatnagar
• Forensic Lie Detection Procedures Without Scientific Basis by William G.
Iacono,

• Narcoanalysis and Criminal Law by John M.MacDonald, M.D., Denver,

• DNA : Daily News & Analysis

• The Hindu

• The Sunday Statesman

| Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW 19
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• Jesani A. Medical professionals and interrogation: lies about finding the
truth. Indian J Med Ethics 2006 Oct-Dec; 3: 116-117.

• MCI. Indian Medical Council (Professional Conduct, Etiquette and

Ethics) Regulations, 2002. Gazette of India dated 06.04.02, part III,
section 4