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Acknowledgment
PUNEET TIGGA,
B.A. LL.B. (HONS.),
HNLU, NEW RAIPUR.
TABLE OF CONTENTS
Acknowledgements01
Table o f Contents..02
List of Acronyms and Abbreviations.03
Objectives...04
Research Methodology.04
Introduction.05
Narco Test from Constitutional point of View.06
Narco Analysis in India..................................................................................................07
Admissibility in court......................................................................................................08
Criticism of Narco Test...............................................................................................8-9
Right to self incrimination :Is it against public interest?...............................................10-12
Conclusion....13
Bibliography.14
Weblography...
OBJECTIVES
The objective of the topic is to know about the validity of Narco Test under the Indian
Constitution and the merits and demerits of the test.
RESEARCH METHODOLOGY
The current work focuses on Constitutionality of Narco-Test in India. The method adopted
for this work was analytical in nature based on empirical and non-empirical sources.
Legal provisions (procedural and substantive laws), books, Law Commissions
reports and other reference as guided by Faculty through lectures have been primarily helpful
in giving this work a firm structure. Websites, dictionaries and web articles have also been
referred
INTRODUCTION
As science has outpaced the development of law or at least the laypersons understandingof it,
there is unavoidable complexity regarding what can be admitted as evidence incourt. Narco
test is one such scientific development that has become an increasingly,perhaps alarmingly,
common term in India. The term Narco test is derived from theGreek word narkc (meaning
"anesthesia" or "torpor") and is used to describe a diagnosticand psychotherapeutic technique
that uses psychotropic drugs, particularly barbiturates,to induce a stupor in which mental
elements with strong associated affects come to thesurface, where they can be exploited by
the therapist. The term narco-test was coinedby Horseley .Narco analysis poses several
questions at the intersection of law, medicineand ethics. Is the procedure for narco analysis is
violative of the rights against self incrimination,guaranteed under Article 20 (3) of
Constitution. It figured prominently inthe news recently when it became eye of storm and
sparked off the debate when mediaplayed tapes of Telgi, accused subjected to Narcoanalysis
procedure.
CrPC, the legislature has guarded a citizens right against self-incrimination. S.161 (2) of the
Code of Criminal Procedure states that every personis 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. Arguments
have been made that narco analysis constitutes mental torture and thus violates the right to
life under Article 21 as it deals with right to privacy. Again, law against intrusion in privacy
of individual would not allow brain fingerprinting evidence to be given in court.
It is well established that the Right to Silence has been granted to the accused by virtue of the
pronouncement in the case of NandiniSathpathyvsP.L.Dani,1 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 intoones
mind is being restored to, thereby nullifying the validity and legitimacy of theRight to
Silence. She claimed that she had a right of silence by virtue of Article 20(3) of the
Constitution and Section 161 (2) of Cr. P.C. The Apex Court upheld her pleas.
Moreover, the tests like Narcoanalysis are not considered very reliable. Studies done by
various medical associations in the US adhere to the view that truth serums do not
inducetruthful statements and subjects in such a condition of trance under the truth serum
maygive false or misleading answers. In USA, in the case of Townsend v. Sain,2 it was
heldthat the petitioners confession was constitutionally inadmissible if it was adduced by
thepolice questioning, during a period when the petitioners will was overborne by a
drughaving the property of a truth serum.
Collecting evidence and helps in investigation does not amount to testimonial compulsion.
Thus it does not violate the constitutional provision regarding protection against selfincrimination.
In M.P.Sharma v. Satish Chandra,3 the Apex Court observed that since the words usedin
Article 20(3) were to be a witness and not to appear as a witness the protection is
extended to compelled evidence obtained outside the Courtroom. The same point
wasreiterated in Kathi Kalu Oghads case. The term Right to Privacy is generic term
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encompassing various rights recognized to be inherent concept or ordered liberty. The right to
be left alone on right of a person to be free from unwarranted publicity is Right toPrivacy.5
This Right to Privacy is implicit in the right to life and liberty guaranteed to thecitizens of
India by article 21 of the constitution of India. None can publish anythingcovering the above
matters without his consent whether truthful or otherwise and whetherlaudatory or critical. If
done so, it will be violating right to privacy of person concernedand would be liable in an
action for damages. In Indian constitution protection of life,liberty and freedom has
throughout interpreted and article 14, 19, 21 are best example forany constitution against
right to privacy.
The Division Bench also observed that the tests involve minimal bodily harm which isalso
not correct because laxity in administration of drug can be fatal. In Nuremberg Trialwhen
Rudolph Hess, the most notorious war criminal, ever claimed that be was sufferingfrom
amnesia the prosecutor did not perform Narcoanalysis test on him for the possibilityof the test
to be fatal.
In the Code Criminal Procedure injury is defined in Sections 44, 323,324,328 and the
punishment for which may extend to 10 years, imprisonment. Hence, administration of
narcotic drug amounts to causing injury. Furthermore, the reliability of scientific tests isnot
free form doubt. It is necessary to recall background of article 20(3) of the constitution. One
of the fundamental canon of British and American system of criminal jurisprudence has been
the accused should not be compelled to incriminate himself. Oneof extension of doctrine was
with regard to the production of documents by an accused inrespect to subpoena or other
form of legal process. In R v. Purnell,6 We know of theinstance herein this court has
granted a rule to inspect books in a criminal prosecution nakedly considered.
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and supporting evidence. However doubts are raised whether itamounted to testimonial
compulsion in judiciary and violation of human right, individualliberty and freedom.
Lawyers are divided on whether the results of Narco analysis a d P300 tests are admissible as
evidence in courts, as they claim that confessions made by a semiconscious person is not
admissible in court. A Narco analysis test report has somevalidity but is not totally admissible
in court, which considers the circumstances under which it was obtained and assessed its
admissibility.
Results of such tests can be used to get admissible evidence, can be collaborated withother
evidence or to support other evidence. But if the result of this test is not admittedin a court, it
cannot be used to support any other evidence obtained the course of routineinvestigation.
In India, narco-analysis was first used in 2002 in the Godhra carnage case. It was also inthe
news after the famous Arun Bhatt kidnapping case in Gujarat wherein the accusedhad
appeared before NHRC and the Supreme Court of India against undergoing thenarcoanalysis. It was again in the news in the Telgi stamp paper scam when AbdulKarimTelgi was
taken to the test in December 2003. Though in the case of Telgi,immense amount of
information was yielded, but doubts were raised aboutits value as evidence. The Bombay
High Court, in a significant verdict in the case of
Ramchandra Reddy and Others v State of Maharashtra,upheld the legality of theuse of
P300 or Brain Mapping and narco analysis test. The court also said thatevidence procured
under the effect of narco analysis test is also admissible. However,defence lawyers and
human rights activists viewed that narco analysis test was a veryprimitive form of
investigation and third degree treatment, and there were legal lapsesinterrogation with the aid
of drugs. Narco analysis is in the limelight in the context ofinfamous Nithari village (Noida)
serial killings. The two main accused in the Nithariserial killings Mohinder Singh Pandher
and SurendraKohli have undergone narcoanalysis tests in Gandhinagar in Gujarat.
However, the final judicial pronouncement on the constitutional status of narcoanalysisis 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. VenkateswaraRao in the Krushi
Cooperative Urban Bank case. The issue required to be settled by acourt decision because
Mr. Rao refused to sign the consent form and the ForensicScience Laboratory at Gandhinagar
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declined to conduct a narco-analysis test with aduly filled and signed consent form. The
Supreme Court verdict is awaited.
Criticism of narco analysis testNarcoanalysis has been criticized on the ground that it is not 100% accurate. It has been
found that certainsubjects made totally false statements. It is often unsuccessful in eliciting
truth as suchit should not been used to compare the statement already given o the police
before use of drug. It has been found that a person who has given false information even after
administration of drug. It is not much help in case o malingers or evasive, unthruthful person.
It is very difficult to suggest a correct dose of drug for a particular person. Thedose of drug
will differ according to will power, mental attitude and physique of the subject. Successful
narcoanalysis test is not dependent oninjection. For its success a competent and skilled
interviewer is required who istrained in putting recent and successful questions.
Narcoanalysis test is a restoration of memory which the suspect had forgotten. Thistest result
may be doubtful if the test is used for the purposes of confession of crimes.Suspects of crimes
may, under the influence of drugs, deliberately withholdinformation or may give untrue
account of incident persistely.6Narcoanalysis is notrecommended as an aid to criminal
investigation. In medical uses like in treatment of psychiatric disorder the narcoanalysis may
be useful. Unless the test is conducted with the consent of the suspect it should not be used in
criminal investigation.7
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Conclusion
Law is a living process, which changes according to the changes in society, science,
andethics and so on. The Legal System should imbibe developments and advances that
takeplace in science as long as they do not violate fundamental legal principles and are for
thegood of the society. A few democratic countries, India most notably, still continue touse
narco analysis. The issue of using Narco analysis test as a tool of interrogation inIndia has
been widely debated. The extent to which it is accepted in our legal system andour society is
something, which will be clearer in the near future.
There have been orders of various High Courts upholding the validity of Narco
analysis.These judgments are in stark contrast with the earlier judgments of the Supreme
Courtinterpreting Art. 20(3). The veracity lies in the fact that Narco analysis is still a
nascentinterrogation technique in the Indian criminal justice system without any rules
orguidelines. There have been orders of various High Courts upholding the validity ofnarco
analysis. These judgments are in stark contrast with the earlier judgments of theSupreme
Court interpreting Art. 20(3). The Central government must make a clearpolicy stand on
narco analysis because what is at stake is India's commitment toindividual freedoms and a
clean criminal justice system.
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Bibliography :
Prof. N.V. Parrnjape, Criminology & Penology with Victimology, 15th Ed., Rep. 2012
WEBLIOGRAPHY:
www.jurisonline.in
www.lawyersclubindia.com
www.legalindia.in
www.legalservicesindia.com
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