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

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ARTICLE 20(3) OF THE

CONSTITUTION OF INDIA AND
NARCO ANALYSIS –
BLENDING THE MUCH AWAITED

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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 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

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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,
○ The person questioned is an accused
○ The testimony obtained from such person is compelled
○ Such person is in the position of a witness, and
○ 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 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.

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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 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.

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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 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.

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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 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
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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.

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.

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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]
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

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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 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
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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 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 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

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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-

• 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.

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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-

• 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

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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 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

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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 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

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• 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’.
• “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

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References
• Constitutional Validity of Scientific Tests for “Lie- Detection”
• The Constitution of India
• Code of Criminal Procedure, 1973
• Indian Evidence Act, 1872
• 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
• 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

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