Narco Analysis Test: Admissible OR Not?

Soham Sarkar
Sohamsrkr10@gmail.com
Amity Law School, Noida

Shubham Singh
Shubhams583@gmail.com
Amity Law School, Noida

October 5,2018

Electronic copy available at: https://ssrn.com/abstract=3687775

Introduction
Narco Analysis Test has originated recently. The implementation of narco analysis test caused
outcry among lawyers, psychologists etc. This research paper has therefore been made by us in
order to analyze the legality of “Narco Analysis Test”, a method which is self incriminating in
nature. The very essence of this research paper is to conduct an analysis of the narco analysis test
and check its evidentiary value in the Indian scenario.

History of Narco Analysis Test

The word narco analysis has been derived from Greek word ‘narke’ meaning “anesthesia” or
“torpor”.1 This test is also known as the ‘truth serum test’. The narco analysis test is being used
by police in recent years in order to corroborate the evidence or findings or in order to know
things that they don’t know and believe that the person under consideration knows those
things.This test is called as the truth serum test because the person in this case is under the
influence of a drug, he is in a semi conscious state of mind and he loses his self control and his
inhibitions don’t work, leading him to tell the truth. Thus, the person cannot manipulate his
answers.
The serum that is being used is a clinically used drug known as Sodium Pentathol. It is generally
used to give anesthesia, but with proper dosages it can take the person in a trance like state ,
inhibiting his power of imagination. The person will now not be able to speak on his own but he
can give answers to specific simple questions.
Narco-analysis was first used in India in 1935 in an investigation. It was used to make the person
semi-conscious with help of some drugs in order to ask him certain in questions. After 1935, it
was again not used for many years. It again came into the legal scenario during the 2002 Godhra
Communal Riots, these riots were related to inter-communal fights between Hindus and
Muslims, which occurred when a train carrying 58 Hindu passengers on 27 February,2002, who
were returning to Gujarat after a pilgrimage from Ayodhya were burnt alive. After this Narco
Analysis has been conducted in many cases. Some major cases in which Narco Analysis was
conducted are as follows:

1
Narco - Analysis - A Tool of Investigation ,Ms. Snehal S. Shinde, International Journal of Multidisciplinary Research
and Development Online ISSN: 2349-4182, Print ISSN: 2349-5979

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 ➢ Godhra carnage investigation in Gujarat
➢ Shashi murder case
➢ Noida Serial Murder Case i.e. Nithari Murder Case
➢ Abu Salem
➢ Arushi- Hemraj Double Murder Case
➢ Malegaon bomb blast case
➢ Mumbai Train Blast
➢ 2008 Mumbai Terrorist Attacks (Mohammed Aamir Ajmal Kasab) Case
➢ Lashkar – E-Taiba Militant Case etc...

Medical Aspects of Narco Analysis Test

Truth Serum does not mean any single drug, rather, it has been used to describe a lot of
substances. The most common substance among these are barbiturates such as Sodium Pentathol
,Sodium Amytal and Scopoloamine2.
Sodium pentothal (thiopentone) is an ultra-short acting barbiturate. It slows down heart rate,
lowers BP and slows down the brain and spinal cord activity.3 It has anesthetic, sedative and
hypnotic properties.4 It is used for induction of anesthesia, euthanasia, psychiatry and also as
truth serum in narco-analysis.5
Intravenous injection of 20 milliliters of 2.5% solution of the drug can cause unconsciousness in
15-30 seconds which lasts for 5-10 minutes. The inhibition level of a subject is lowered by
interfering with his nervous system at the molecular level. In this case it becomes difficult,
though, not impossible for him to lie.6 The confession made at this stage is not reliable and it is
dubious. The drugs can make a person chatty and cooperative with the interrogator but a person
who is a liar by nature can control his inhibitions to some extent and still lie to the interrogator.

2
Narcoanalysis. Wikipedia, the free encyclopedia. Available at http://en.wikipedia.org/wiki/Narco_Analysis
3
Rowland, Belinda. Truth Serum. Encyclopedia of Espionage, Intelligence, and Security . Available at
http://www.highbeam.com/doc/1G2-3403300763.html
4
B.Umadethan. Medico-legal Aspect of Narco-analysis. J of Karnataka Medico- Legal Society. Vol 17(2). Jul-Dec
2008:7-15.
5
Sodium Thiopental. Wikipedia, the free encyclopedia. At http://en.wikipedia.org/wiki/Sodium_thiopental
6
Acharya, Subhojyoti. Is Narco Analysis a Reliable Science?- The Present Legal Scenario in India, Feb 15th ,2008. At
http://www.articlebase.com/law-articles/is-narco-analysis-a-reliable-science-the-present-legal-scenario-in-india-
334519.html

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Procedure of Narco Analysis Test
The procedure to conduct a Narco Analysis Test is as follows:-
❖ 2000ml of Dextrose solution is taken and 2 grams of Sodium Pentathol is dissolved in it.
❖ In the next step, 10 ml of this solution made in Step I is injected intravenously, one ml
each minute till the State of Trans is achieved.
❖ This procedure is conducted in a hospital in medical conditions under the supervision of a
team consisting of an Anesthetic, a Physician, and a Clinical/ Forensic Psychologist.
❖ The heart rate and pressure of the person is monitored in regular intervals.
❖ Initially, to make the person stable, certain irrelevant questions are asked which are
known as controlled questions.
❖ The drug is injected in the body until the Trans like state is achieved.
❖ Relevant questions are asked when the person enters the state of trance.
❖ The whole process is recorded in audio and video format.
❖ A CD is also to be made along with the final report
❖ The duration of Test depends upon the number of questions asked
❖ Sodium Pentathol is Injected in regular intervals in order to keep the person in a state of
trans.

Narco-Analysis Test in the Indian Scenario

Narco Analysis Test started in India in 1935 in order to conduct certain investigation. Narco
analysis is being used in investigations, court hearings and laboratories in Indi, although it raises
serious scientific, legal and ethical questions.
The major milestone for narco analysis in India was achieved in 2002 during the Godhra Riots
case. In June 2002, three months after the Godhra Riots case Seven people who were accused of
burning a train coach containing 58 Hindu pilgrims were brought in Sree Sayaji General (SSG)
Hospital in order to conduct a narco analysis test.
Since then it has been used in many cases and it has gained general acceptance as a method for
extracting truth during police investigation. In India Narco Analysis is done by a team which
comprises of:

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 ❖ An Anesthesiologist.
❖ A psychiatrist.
❖ A clinical/forensic physiologist.
❖ An audio-videographer, and
❖ Supporting Nursing Staffs
The work of Forensic Physiologist is to prepare a report which made out of the revelations made
by the subject. It is accompanied by a compact disk which is made by the audio-videographer.
The strength of the revelations can be verified by further making the person subject to a
polygraph test or brain mapping test.7

Ethical Considerations Relating to Narco Analysis Test

A psychiatrist is always advised against performing a narco analysis test on a subject for
criminal investigation due to ethical reasons. World Medical Association recently revised its
Tokyo declaration8 on this subject.
Medical Council of India recently amended its code of ethics by adding, “ The physician shall
not aid or abet torture or shall he be a party to either infliction of mental or physical trauma or
concealment of torture inflicted by some other person or agency in clear violation of human
rights.”

7
LawTeacher. November 2013. Narco Analysis test with special emphasis on Constitution. [online]. Available from:
https://www.lawteacher.net/free-law-essays/human-rights/narco-analysis-test-with-emphasis-on-constitution-
law-essays.php?vref=1 [Accessed 4 October 2018].
8
(i) Justo L. Doctors, interrogation,and torture.BMJ. June 24,2006; 332: 1462-3.(ii) Rubenstien L, Pross C, Davidoff F,
Iacopino V. Coercive US interrogation policies: a challenge to medical ethics. JAMA 2005; 294: 1544-9

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Some Important Case Laws on Narco Analysis Test
1. Townsend vs Sain-9 In this case it was held that when the evidence is adduced from the
petitioner by the police and during the course of adducing the evidence the person was
influence of some drug like truth serum then such an evidence will not be admissible in
the court of law.
2. M.P.Sharma vs Satish Chandra- 10 In this case the Apex Court observed that as the
words used in Article 20(3) were “to be witness” and not “to appear as witness” the
protection is extended to compelled evidence obtained outside the Courtroom.
3. State of Bombay vs Kathi Kalu Oghad- 11 In this case it was observed that self-
incrimination means conveying information on the basis of personal knowledge of the
person and cannot merely include the mechanical production of the documents in court.
4. Dinesh Dalmia vs State By Spe, Cbi on 7 March, 200612- In this case the Madras High
Court held that subjecting a person to narco analysis is not tantamount to testimony by
conclusion. The court said about the accused, “ he may be taken to the laboratory for
such tests against his will, but the revelation during such test is quite voluntary.”

5. State by Stamp Investigation Team vs Abdul Karim Telgi13- In this case in 2004 the
Bomaby High Court ruled that subjecting an accused to certain tests like narco analysis
test does not violate the fundamental rights of self-incrimination. Statements made under
narco analysis are not admissible under evidence. Further in January 24th,2008; a bench
of Judges consisting of Chief Justice K.G.Balakrishnan upheld the ruling of Bombay
High Court.

6. Ramchandra Reddy & Ors. v. State of Maharshtra-14 In this case it was held that the
use of Brain Mapping Test (P300) and truth serum test is legal. The court held the
evidence received under narco analysis test is also admissible

9
372 US 293 (1963)
10
AIR 1954 SC 300
11
AIR 1961 SC 1808
12
Dinesh Dalmia v. State by Spe, CBI 2006 CriLJ 2401
13
State by Stamp Investigation Team v. Abdul Karim Telgi ILR 2003 KAR 3702
14
2004 All MR(Cr)1704

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 7. Arushi-Hemraj Double Murder Case-. This is a landmark case of circumstantial
evidence.In this case Dr. Rajesh Talvar and Nupur Talvar, dentists residing in Noida,
were accused of the double murder of their 14 year old daughter Arushi Talvar and their
home-servant, Hemraj. This case got a nation wide publicity and deemed to be one of the
most rare case in the field of circumstantial evidence. The CBI accused the parents of
committing the murder. A narco test of the three servants were held in AIIMS Delhi. The
answers given by all three of them were different, but it all converged to a same point that
on the fateful night of the murder they were all drinking with hemraj in his room. The
CBI head at that time Arun Kumar said that there were enough evidences at that time to
frame charges but why they were not framed is a matter of negligence.

8. Selvi vs State Of Karnataka-15 “In an academic commentary, Leonard Levy (1969) had
pointed out that the doctrinal origins of the right against self- incrimination could be
traced back to the Latin maxim `Nemo tenetur seipsum prodere' (i.e. no one is bound to
accuse himself) and the evolution of the concept of `due process of law' enumerated in
the Magna Carta…..
`The right against self-incrimination' is now viewed as an essential safeguard in criminal
procedure. Its underlying rationale broadly corresponds with two objectives firstly, that
of ensuring reliability of the statements made by an accused, and secondly, ensuring that
such statements are made voluntarily….
Even though Section 161(2) of the CrPC casts a wide protective net to protect the
formally accused persons as well as suspects and witnesses during the investigative stage,
Section 132 of the Evidence Act limits the applicability of this protection to witnesses
during the trial stage….
The language of Section 161, CrPC which protects the accused as well as suspects and
witnesses who are examined during the course of investigation in a criminal case….
Section 27 of the Evidence Act incorporates the `theory of confirmation by subsequent
facts'….

15
AIR 2010 SC 340.

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EVIDENTIARY VALUE OF NARCO TEST
There has been much debate about the validity of Narco Test. The one half of the people imputes
that it is a grave violation of the basic principles of the Indian Constitution that saves people
from self-incrimination. But somehow this test is seeing the light of day more often than earlier.
It is because of the other half of the people that are of the opinion which says the law and science
has to go hand in hand and work together. It serves as a necessity in some complicated cases
where no direct evidence or circumstantial evidences are present and investigating agencies are
in complete darkness.
The NARCO TEST can be used in two scenarios:
1) Usage as a clue for investigation – It is not possible for the investigation agencies to
uncover plot for any crime hatched in secrecy and committed in darkness. This test
provides a platform on the basis of which any investigation in developed and carried out.
In the case of Selvi v. State of Karnataka16 it was ruled out by the Supreme Court that
Narco-Analysis test cannot be conducted on the accused person without taking the
consent from the accused person. If such test conducted on the accused person, it would
be violative of Article 20(3) of the Indian Constitution. It was further held by the Court
that this test should be conducted in the presence of the expert.
One such instance of help in investigation is Mohinder Singh Pandher and Surender
Singh Koli v. State of U.P.17. In this case the test was basically conducted to ascertaining
the veracity of statement of accused during their custodial interrogation. During this test,
the accused person disclosed the name of various females and children who had been
murdered by them and also revealed his argue to rape them after murdering them. By the
conducting of this test many relevant information were disclosed to the investigating
authorities.

16
AIR 2010 SC 340.

17
AIR 2011 SC 970

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 2) Usage as an Evidence – The admissibility is dependent upon the number of factors such
as whether the court has given permission for conducting the test or not. It does not
become admissible if the consent of the court is not present.
The provision relating to the confession is given from Section 24 to 30 of Indian
Evidence Act, 1872 and is a very broad statement that covers both written as well as oral
statement. Thus if a person, during Narco Test writes down or says something then it will
be covered under the meaning of confession. The proviso to Section 27 of Indian
Evidence Act, 1872 bar any statement which is attained by coercion or intimidation to be
admissible. It becomes meaningless under Section 24.
However if as a subsequent result of the voluntary Narco Test there is a recovery of any
information or material, then it becomes admissible by the virtue of Section 27 of Indian
Evidence Act, 1872.
In Ramchandra Ram Reddy v. State of Maharashtra 18 the Bombay High Court, 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. .It was held by the
court that the evidence produced under the effect of Narco-Analysis test is admissible. With the
passing of the time as crimes are going hi-tech, the criminals become professionals, who are
taking new techniques into consideration in committing the crimes. So the use of Narco-Analysis
has really been significant in detecting the crime. It was further s held by the court that this test
involve minimal bodily harm.
The present scenario is that in the case of Selvi v. State of Karnataka19 it was ruled that test
results by themselves cannot be admitted as evidence because the subject does not exercise
conscious control over the responses during the administration of the test. However, any
information or material that is subsequently discovered with the help of voluntary administered
test results can be admitted admissible by the virtue of Section 27 of Indian Evidence Act, 1872.

18
2004 All MR (Cri) 1704
19
AIR 2010 SC 340

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CONCLUSION
With the advancement of technology and science the modern day criminals are becoming
cunning than ever. They are incorporating such techniques that are beyond the scope of archaic
investigation process. But this argument does not justify the use of any test or techniques that is
significantly harmful to the body and mind and are seldom used by the psychiatrists.
It is true that the the Narco Test has helped in conviction in some very serious cases and is being
practiced because there exists a mutual understanding between judiciary, police and investigating
agencies. But any practice that harm body or mind should be done away with. This requires a
constant and continuous movement for independent rights.
There is an immediate need for the State and Central Government to draft proper rules and
regulations regarding conduction of the tests in safe manner. There is a immediate need for
blending this test with the scope of Article 20(3) so that it is away from constitutional
inconsistency.

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