DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2015-16

SUBJECT- Criminal Procedure Code

(Final Draft)

Topic- Narco Analysis Test and Section 161(2) of Cr.P.C.

Submitted to- Submitted by-

Mr. Prem Kumar Gautam Manisha Gupta

Assistant Professor (Law) Roll no.- 73

Dr. RML National Law University Semester - V

Lucknow B.A. L.L.B. (Hons.)

 ACKNOWLEDGEMENT

On the successful completion of this research paper “Difference between English law and
Indian law on Attestation” first of all I would like to thank our professor Mr. Prem Kumar
Gautam for his constant guidance and support.

Sincere thanks to my seniors and friends for being a great support throughout.

This section cannot be complete without acknowledging Dr. MadhuLimaya Library

(RMLNLU) for providing all useful information that helped me throughout my research.

- Manisha Gupta
 TABLE OF CONTENTS
ACKNOWLEDGEMENT ......................................................................................................... 2

INTRODUCTION ..................................................................................................................... 4

PROCEDURES INVOLVED .................................................................................................... 5

LEGAL STATUS OF NARCO ANALYSIS ............................................................................ 6

THEORY OF UTILITARIANISM............................................................................................ 6

EVIDENTIARY VALUE .......................................................................................................... 7

ADMISSION AND CONFESSION .......................................................................................... 8

Pre Selvi Case: ..................................................................................................................... 10

POST SELVI CASE (SUPREME COURT’S VIEWS) .......................................................... 11

Unreliability of tests: ............................................................................................................ 11

Right against self-incrimination: .......................................................................................... 13

Substantive due process rights: ............................................................................................ 14

Exception open to abuse:...................................................................................................... 15

CONCLUSION ........................................................................................................................ 16

REFERENCES ........................................................................................................................ 17
 INTRODUCTION

Criminal Law Procedure being a mandatory part of our curriculum, the topic on which

researcher has worked is “Narco Analysis Test and Section 161(2) of Cr.P.C.”

Narco analysis debate and its validity is one of the most heated debates of our country. It has

its own pros and cons if we analyse them. These cons exist in the form of various statutory

provisions, be it Constitutional Law, Criminal Procedure Code or Indian Evidence Act.

With the growing technology with time there is complexity

involved in regard to what evidence must be admitted in the Facts:

- Narco Analysis Test
court and what should not. One such genesis of fast pacing
was first used by a
technology is Narco Analysis Test. Dallas Obstetrician in
1922.
The term Narco Analysis is derived from the Greek word
- Involves administration
narkç (meaning "anesthesia" or "torpor") and is used to of intravenous hypnotic
medications.
describe a diagnostic and psychotherapeutic technique that
- The test first reached
uses psychotropic drugs, particularly barbiturates, to induce
to mainstream when
a stupor in which mental elements with strong associated Robert House, a
obstetrician used it on
affects come to the surface, where they can be exploited by
two criminals.
the therapist. The term narco-analysis was coined by

Horseley .Narco analysis however poses several questions at the intersection of law, medicine

and ethics.1

1
the concept of narcoanalysis in view of constitutional law and human rights , Sonakshi Verma
 PROCEDURES INVOLVED

Narco-analysis, as practice of criminal investigation, is the administering of chemical drugs

by the police to a suspect or witness in order to extract information from him/her by asking

questions while in a drugged state. Generally three grams of sodium pentothal dissolved in 3

litres of distilled water are injected in one’s veins along with 10 per cent dextrose, slowly

over 3 hours. This injected cocktail is believed to depress the body’s central nervous system,

putting the subject in a state of trance, hence suppressing the rational faculties that would be

present if questioned when fully awake. Though this practice of injecting drugs to adduce

information has been in use in India for only half a decade, it is gaining popularity in police

investigations and has been used in a number of high-profile cases, including that of Abu

Salem, Abdul Karim Telgi and the Hyderabad bomb blasts.

Like any other method of interrogation, the criminal assessment test of Narco analysis also

has its pros and cons. The police believe in Narco analysis as a scientific tool of interrogation,

which would help a lot in crime prevention, detection and in getting clinching evidence

through a supposedly effective and non-hazardous method of inducing hypnosis. Narco

analysis is also considered by many to be a very scientific approach in dealing with an

accused’s psychological expressions, definitely better than third degree treatment to extract

truth from an accused.

The person to administer them has to be a highly qualified physician. It is always difficult to

determine the correct dose of the drug, which varies according to the physical constitution of

the subject, but also his mental attitude and will power. A wrong dose can send a subject into

coma or even cause death thus resulting in legal complications. If the subject is an abuser of

other intoxicants/narcotics, Narco analysis could fail to inhibit them on account of the
property of “cross tolerance” between Pentothal sodium and other intoxicants. Moreover, the

tests like Narco analysis are not considered very reliable. Studies done by various medical

associations in the US adhere to the view that truth serums do not induce truthful statements

and subjects in such a condition of trance under the truth serum may give false or misleading

answers. In USA, in the case of Townsend v. Sain2, it was held that the petitioner’s confession

was constitutionally inadmissible if it was adduced by the police questioning, during a period

when the petitioner’s will was overborne by a drug having the property of a truth serum.

But the other view regarding the legal validity of Narco analysis test is that it is used as an aid

for collecting evidence and helps in investigation and thus does not amount to testimonial

compulsion. Thus it does not violate the constitutional provision regarding protection against

self-incrimination.

LEGAL STATUS OF NARCO ANALYSIS

Views are divided on the admissibility of the results of Narco analysis as evidence in courts,

its constitutional validity. The application of Narco analysis test involves the fundamental

question pertaining to judicial matters and also to Human Rights. The legal position of

applying this technique as an investigative aid raises genuine issues like encroachment of an

individual’s rights, liberties and freedom.

THEORY OF UTILITARIANISM
“Whenever a person is subjected to Narco analytical test/ Polygraphs/ Brain mapping he
divulges information within him (testimonial evidences) involuntarily. Here, a priori ideal of
dignity is triumphing the argument of pleasure for maximum number of people. The court
said that dignity of even one person cannot be sacrificed for maximising the happiness of “n”

2
372 US 293 (1963)
number of people. (Selvi v State3) The Court in this case dismissed the petitions filed against
these tests and held that these tests do not compel the accused or witness to incriminate
himself and there is therefore no question of violation of Article 20(3) of the Constitution.
But it was also said that if you want to allow such an act, legislation should be brought up in
the form of constitutional amendment as no ordinary law can be beyond our constitution.”

31 A and 31 B are examples that even something as sacrosanct as a Fundamental Right can
be undermined in order to maximise happiness. These articles have not been tested on the
touchstone of basic structure doctrine and are still constitutional.

The parliament came up with the Zamindari abolition law in order to maximise happiness for
maximum number of people which has let many Zamindars suffer. Article 14, 19 and 21 is
being violated.

The Supreme Court said that TADA, POTA and AFSPA are constitutional and are consistent
with Article 21 because in the present time such legislations are necessary. This is
utilitarianism as one person’s dignity is being sacrificed for larger good. We can find
utilitarianism triumphing over a priori ideals here.

But blind insistence on utilitarianism is dangerous because it empowers the state and weakens
the individual. Fundamental Rights howsoever a priori they maybe, strengthens an individual.

EVIDENTIARY VALUE
The law on the status of scientific tests for evidentiary purposes still is not absolutely clear.

Recently, a Sessions Court in Faizabad in Uttar Pradesh accepted the report of a narco-

analysis test, stating that it is evidence which can be relied upon, to reject a bail application in

respect of a murder case. Fortunately, it was expressly treated as evidence only with respect

to the bail application to indicate something of the nature of a prima facie case, and not for

proving the statements of the accused against him to convict him.

It is interesting to note that the Forensic Science Laboratory in Gandhinagar in fact refused to

conduct the test on a suspect when he did not give his consent. The Magistrate nevertheless

3
Ibid
ordered the laboratory to conduct the test. In 2006, in Krushi Coop. Bank case, however, the

Supreme Court stayed the order of a Metropolitan Judge to conduct narcoanalysis.

The Evidence Act permits evidence of the opinion of persons especially skilled upon a point

of foreign law, science, art, or as to identity of handwriting or finger impressions, the

opinions upon that point. Expert evidence is appreciated based on several factors such as the

skill of the expert and the exactness of the science. If the science itself is imprecise, expert

opinion is only of corroborative value and insufficient to secure a conviction by itself. The

question which then arises is regarding the credibility of the evidence gathered from the

narcoanalysis tests, which is studied from a twofold perspective, firstly, as perceived by the

scientific community, and secondly, as perceived by the courts.

ADMISSION AND CONFESSION

“The Constitution of India has clearly stated that a person cannot be compelled to be a

witness against himself, and therefore, any statement given during the narco-analysis test

cannot be considered evidence in the constitutional framework of the country. In fact, studies

have shown that sometimes the subject (person undergoing the test) gives false statements

during the test. If the test was given evidentiary value, the police would harass innocent

persons under the garb of tackling terrorism. The principle of the Indian legal system is based

on the fact that until proved guilty, a person is innocent and we cannot convict an innocent

even if we need to surrender hundred criminals. With such objectives in mind subjecting a

person to narco-analysis without his consent will be surely undermining his individual rights

which are absolutely negating the principle of a right based society.”

“Narco-analysis is carried out only after a detailed medical examination of the accused. If the

accused is found medically fit to undergo the procedure, then only will it be done, otherwise
not. However, it has been argued in various cases that sodium pentathol or sodium amytal is a

barbiturate and thus has ill effects on the body. The use of evidence obtained under duress

has been prohibited by the Human Rights Committee, the law must prohibit the use of

admissibility in judicial proceedings of statements or confessions obtained through torture or

other prohibited treatment”. The Committee has further stated that, the law should

require that evidence provided by … any … form of compulsion is wholly

unacceptable.”

“In India Article 20(3) and Section 161(2) of the Code of Criminal Procedure protect the

accused from self-incrimination. Article 20(3) and Section 161(2) of the Code of Criminal

Procedure states, No person accused of any offence shall be compelled to be a witness against

himself and 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 respectively. In Nandini

Sathpathy v.P.L. Dani4, it was held that no one could forcibly extract statements from the

accused that have the right to keep silent during the course of interrogation or investigation.

However Article 20(3) can be waived of by a person himself. Section 45 of the Evidence Act,

1872 does allow experts opinions in certain cases. However, this section is silent on other

aspects of forensic evidence that can be admissible in court in criminal proceedings.

Section 161(2) of the Criminal Procedure Code also provides that every person is bound to

answer truthfully all questions, put to him by [a police] officer, other than questions the

answers to which would have a tendency to expose that person to a criminal charge, penalty

or forfeiture. Hence, Article 20(3) of the Constitution and also Section 161(2) of the Code of

Criminal Procedure enshrine the right to silence.”

“In United States v. Solomon there was a detailed discussion on the topic of narco-analysis.
In this case the expert opinion given to the Court established that truth serum is generally

4
1978 AIR 1025
accepted as an investigative technique. It need not be said that prevention of crime and
punishment for the crime are the duties of the State. Fetters on these duties can be put only in
extreme cases where the protection of fundamental rights weigh more than the fundamental
duty cast on the State moreover every person is required to furnish information regarding
offences. Protection against self-incrimination was instrument for the protection of the
innocent and not intended for the acquittal of the guilty. The framers of the Bill of Rights
believed the rights of society were paramount to the rights of the criminal. Believing in the
same principle in a spate of high-profile cases, such as those of the Nithari killers, the
Mumbai train blasts, Aarushi murder case, Malegaon blasts and the most recent Mumbai
blasts case suspects have been made to undergo narco-analysis, drugged with the sodium
pentathol.”

Pre Selvi Case:

The Bombay High Court, in a significant verdict in Ramchandra Ram Reddy v. State of

Maharashtra5, upheld the legality of the use of P300 or brain mapping and narco-analysis test.

The Court also said that evidence procured under the effect of narco-analysis test is also

admissible. As crimes going hi-tech and criminals becoming professionals, the use of

narcoanalysis can be very useful, as the conscious mind does not speak out the truth,

unconscious may reveal vital information about a case. 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 narco-analysis.

Polygraph test was conducted on Moninder Singh Pandher and his servant Surender Koli,

accused of serial killing of women and children in Nithari, to ascertain the veracity of their

statements made during their custodial interrogation. Various confessional statements were

made by the accused under the effect of the drug, he could remember the names of the

females he had murdered and revealed his urge to rape them after murdering them.

5
2004 All MR (Cri) 1704
 POST SELVI CASE (SUPREME COURT’S VIEWS)
The Indian judiciary has finally recognised and condemned the abusive nature of

narcoanalysis, brain-mapping, and polygraph tests. Specifically, the Supreme Court’s recent

decision in Smt. Selvi & Ors. v. State of Karnataka6 prohibited all involuntary administration

of such tests, holding them to be “cruel, inhuman and degrading treatment”.

During the past decade, High Courts across the country continued to uphold the use of such

tests. The Supreme Court’s analysis aptly demonstrates how those decisions strained legal

reasoning and logic by relying on the purported scientific nature of narcoanalysis tests despite

the fact that scientific evidence had long discredited the tests’ purported scientific validity.

The Supreme Court’s decision disagreed with the reasoning of the various High Court

judgments in three main areas: a) the reliability/unreliability of the tests; b) self-incrimination

protections; and c) substantive due process rights.

Unreliability of tests:

The first area in which the Supreme Court strongly disagreed with many of the High Courts

in question related to the degree of validity and reliability of narcoanalysis, brain mapping

and polygraph tests. In general, various High Courts simply and uncritically accepted the

reliability of these tests mainly because the tests were deemed to utilise “scientific methods.”

For instance, the Karnataka High Court placed great weight on the claimed benefits in

criminal investigations of narcoanalysis made nearly 80 years ago by the man credited with

the invention of the so-called ‘truth serum’, Dr. Robert House, as well as another

pharmacologist, A. W. Herzog. The High Court remarked:

6 Criminal Appeal No. 1267 of 2004

“The field of criminology has expanded rapidly during the last few years, and the demand for

supplemental methods of detecting deception and improving the efficiency of interrogation

have increased concomitantly. Narcoanalysis for criminal interrogation is a valuable

technique, which would profoundly affect both the innocent and the guilty and thereby hasten

the cause of justice. The modern community requires modern scientific methods of crime

detection, lest the public go unprotected.”

In sharp contrast, the Supreme Court raised serious concerns about the validity, reliability,

and indeed usefulness of narcoanalysis, brain mapping, and polygraph tests. The Court

emphasised how each of the tests could lead to the discovery of false and even misleading

information. In questioning the scientific reliability of narcoanalysis, the Court for example

stated: “Some studies have shown that most of the drug-induced revelations are not related to

the relevant facts and they are more likely to be in the nature of inconsequential information

about the subjects’ personal lives.” The Court also noted that some subjects of narcoanalysis

“can become extremely suggestible to questioning” while others might “concoct fanciful

stories.”Similarly, for different forms of brain mapping, which rely on a subject’s familiarity

with certain stimuli to assess potential involvement in crime, the tests can falsely implicate a

subject because of the subject’s prior exposure to test stimuli such as through media reports,

revelation of facts to the subject by investigators, or the subject’s relation to the crime as a

bystander witness. For polygraph tests, the Court noted that distorted physiological responses

could result from “nervousness, anxiety, fear, confusion or other emotions… the physical

conditions in the polygraph examination room… the mental state of the subject…[or]

‘memory-hardening’, i. e. a process by which the subject has created and consolidated false

memories about a particular incident.”

Overall, the Supreme Court rightly rejected the High Courts’ reliance on the supposed utility,

reliability and validity of narcoanalysis and other tests as methods of criminal investigation.

This de-mystification of the techniques allowed the Court to carry out a thorough analysis of

the various constitutional rights at stake, namely rights against self-incrimination and

substantive due process rights, a study that the High Courts were unable or unwilling to do.

Right against self-incrimination:

The Supreme Court overruled various High Courts in declaring that the administration of

narcoanalysis, brain mapping, and polygraph tests violated subjects’ rights against self-

incrimination in contravention of Article 20(3) of the Indian Constitution. According to that

article, “No person accused of an offence shall be compelled to be a witness against himself”.

The High Courts had used various arguments to uphold the constitutionality of narcoanalysis

and other tests under Article 20(3). For example, the Karnataka High Court equated the

compulsion requirement of Article 20(3) with ‘duress’ involving serious physical harm or

threat, and found that the mild pain from the administration of an injection necessary to

induce the narcoanalysis test did not reach the requisite level of hurt to constitute compulsion.

Using a similarly narrow view of ‘compulsion’, the Madras High Court found that because

compulsion generally means using physical or other so-called third degree methods of

interrogation, even though a subject may be forced to undergo narcoanalysis in the first place,

the statements made during the resulting tests themselves are voluntary. Further, the High

Courts of Karnataka, Bombay and Delhi found that the administration of narcoanalysis itself

could not violate Article 20(3) because statements could not be known to be incriminating

until after the administration of the test. According to these judgments, only if an

incriminating statement was in fact made and then admitted as evidence could a potential
violation occur. The Delhi High Court went further to state that statements made during

narcoanalysis could be admitted as evidence in court as corroborative evidence.

The Supreme Court rejected these arguments. First, the Court found that forcing a subject to

undergo narcoanalysis, brain-mapping, or polygraph tests itself amounted to the requisite

compulsion, regardless of the lack of physical harm done to administer the test or the nature

of the answers given during the tests. Secondly, the Court found that since the answers given

during the administration of the test are not consciously and voluntarily given, and since an

individual does not have the ability to decide whether or not to answer a given question, the

results from all three tests amount to the requisite compelled testimony to violate Article

20(3). Even if a person voluntarily agreed to undergo any of the tests at the outset, the

responses given during the tests are not voluntary.

Substantive due process rights:

While the High Courts addressing this issue gave scant attention to potential rights violations

under Article 21 of the Constitution, the Supreme Court found that narcoanalysis violated

individuals’ right to privacy and amounted to cruel, inhuman or degrading treatment. Article

21 protects the right to life and personal liberty, which has been broadly interpreted to include

various substantive due process protections, including the right to privacy and the right to be

free from torture and cruel, inhuman, or degrading treatment. The majority of High Courts

did not even address the issue of the right to privacy, and those that did only made blanket

assertions that the right is not absolute or that narcoanalysis and other tests did not infringe on

the right . Similarly, the High Courts did not address the issue of whether narcoanalysis

amounted to torture or cruel, inhuman or degrading treatment, despite the fact that at least

some of the petitioners raised this issue.

Again, the Supreme Court departed sharply from the stance of the lower courts. First, the

Court found all three tests to amount to an invasion of privacy by intruding into a “subject’s

mental privacy,” denying an opportunity to choose whether to speak or remain silent, and

physically restraining a subject to the location of the tests. Second, the Court declared all

three tests to amount to cruel, inhuman or degrading treatment because of the mental harm

likely suffered and the potential physical abuse by police or prison officials that could result

from the responses given. As the Court stated, “forcible intrusion into a person’s mental

processes is… an affront to human dignity and liberty, often with grave and long-lasting

consequences.”

Exception open to abuse: The Supreme Court decision in Smt. Selvi & Ors. v. State of

Karnataka is a welcome development. Serious concerns still remain, however, as to whether

the spirit of the judgment will be respected by law enforcement authorities. The Supreme

Court left open the possibility for abuse of such tests when it provided a narrow exception,

almost as an afterthought, namely that information indirectly garnered from a “voluntary

administered test” - i. e. discovered with the help of information obtained from such a test -

can be admitted as evidence. While this exception is narrow in the sense that it can apply only

when a fully informed individual gives truly voluntary consent to undergo any of the tests,

the granting of the exception does not harmonize with the Court’s clearly stated belief that

information obtained even during a voluntarily administered test is not voluntarily given. The

exception, based on the assumption that voluntarily taken tests will be truly “voluntary”, is

problematic.

The power of the police to coerce suspects and witnesses into “voluntarily” doing or not

doing certain things is well-known. It is highly probable that the same techniques will be

applied to get suspects or witnesses to “agree” to narcoanalysis and other tests, resulting in a
mockery of the essence of the Supreme Court’s judgment. It is widely agreed, for example,

that the D. K. Basu guidelines prescribing the treatment of persons in custody are

implemented mainly in the breach; they merely adorn signboards inside police stations, a

farcical, one-point ‘compliance’ with Supreme Court’s comprehensive list of directives.

CONCLUSION

In conclusion, Narcoanalysis has faced a number of criticisms and it is still unclear to what

degree lie detectors and brain mapping can be used to reveal concealed knowledge in applied

real-world settings. On the contrary, it will disrupt proceedings, cause delays, and lead to

numerous complications which will result in no greater degree of certainty in the process than

that which already exists. Contemporary narcoanalysis needs to undergo rigorous research in

normative and pathological populations. The vulnerability of the techniques to

countermeasures also needs to be explored. It is also important to know the sensitivity and

specificity of these tests. There should be standard operating guidelines for conducting

narcoanalysis. The recent Supreme Court judgment on narcoanalysis is admirable from the

scientific, human rights, ethical, legal and constitutional perspectives.

 REFERENCES

BOOKS:

K.N. Chandrashekharan Pillai , Criminal Procedure Code (6th edn., Eastern Book Company

2015)

NEWSPAPER ARTICLES:

Narco analysis: Supreme Court sets out the truth by The Milli Gazzette

Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a bane

by US National Library o Medical Research and Health

Online Sources:

http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1

&id=21437

http://strippedlaw.blogspot.in/2009/10/narco-analysis-test-can-it-strike.html

http://www.legalserviceindia.com/medicolegal/Brain-Mapping-Test.htm