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 prisoners 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 seventeenthcentury
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 didnt help Lilburne much of course,
but it set a precedent the right against self-incrimination was, in a manner

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

of speaking, born. Since then, this principle of nemo tenetur accusare se ipsum
[5] has been handed down in legislative and constitutional history as a forbearer
of procedural fairness. # --per Viscount Sankey Woolmington vs. DPP, 1935
AC 462 at 481 1 The Constitution of India, Part III- fundamental rights (right to
freedom) Article 20 - Protection in respect of conviction for offences 2
Butterworths medical dictionary 2nd edition 3 John Lilburn - (161429 August
1657), also known as Freeborn John, was an agitator in England before, during
and after the English Civil Wars of 16421650. 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 selfincrimination is evocable when
four conditions are satisfied, namely, o The person questioned is an accused o
The testimony obtained from such person is compelled o Such person is in the
position of a witness, and o Such testimony obtained from the accused in his
position as a witness is against him. Hence, within the Indian law, the immunity
is only specific, that is, available only to persons suspected of criminal offences.
The privilege in criminal law is based on and determined by section 161(2) of the
Code of Criminal Procedure [6], section 27 of Indian Evidence Act [7] and Article
20 (3) of the Constitution of India The most pertinent case in this regard is

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

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

6 -- Code of Criminal Procedure, 1973 Article 161(2) such person shall be

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

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

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5

testing valid invocation of the right is reasonable apprehension of the

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

9 Accused of an offence where evidence oral or circumstantial points to the

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

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

The origins of right to silence may not be exactly clear but the right goes back to

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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
selfincrimination The term Narco-Analysis is derived from the Greek word nark
(meaning "anaesthesia" or "torpor") and is used to describe a diagnostic and
psychotherapeutic technique that uses psychotropic drugs, particularly
barbiturates, to induce a stupor [14] in which mental elements with strong
associated affects come to the surface, where they can be exploited by the
therapist. The term Narco-analysis was coined by Horseley. Narco analysis first
reached the mainstream in 1922, when Robert House, a Texas obstetrician used
the drug scopolamine [15] on two prisoners. The search for effective aids to
interrogation is probably as old as man's need to obtain information from an
uncooperative source and as persistent as his impatience to shortcut any
tortuous path. In the annals of police investigation, physical coercion has at
times been substituted for painstaking and time consuming inquiry in the belief
that direct methods produce quick results. Development of new tools of
investigation has led to the emergence of scientific tools of interrogation like the
Narco analysis test.

11 Star Chamber, a Chamber at the Westminster so called because at first the

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

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 ones control over ones mind, and making him talk more
uninhibitedly. However, the judicial opinion has a different take on it. In Dinesh
Dalmia v. State (2006) the Madras High Court [17] ruled that narco-analysis
testimony was not testimony by compulsion because the accused may be
taken to the laboratory for such tests against his will, but the revelation during
such tests is quite voluntary. Now, the most crucial terms to be analyzed are
here are compulsion[18] and voluntary[19]. Here they are treated as mutually
exclusive in the sense that if the testimony is by compulsion it cannot be
voluntary while it is very much possible to compel one to testify voluntarily.
And that would certainly be a testimony by compulsion despite the element of
volition inherent in it. One can be beaten, tortured or threatened into testifying
or confessing in the court. Would that testimony or confession be voluntary? If
this is not voluntary, how could a testimony under the influence of drugs, when
even ones 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.

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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 ones 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]. Thats 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 anybodys consent
[21]. The term order [22] implies authority to compel obedience. So, if a
competent court orders narco-analysis, consent or no consent, the order has to
be complied with, unless it is challenged and stayed or reversed by a superior
court. The accused has no choice against a valid court order, and has to testify.
So, there is compulsion [23] and there is testimony [24] and it surely is
testimony by compulsion [25]. However, compulsion per se [26] is not illegal.
Therefore, the only question is whether or not the compulsion in this case is
legally sound.

20 The expression voluntary is used to mean naturalisation in the narrow

sense of that term and excluding compulsory involuntary or collective
naturalisation which some states have adopted at different times. T.E .Mahomed
Usman v. State of Madras, AIR 1961 Mad 129, 138, [Citizenship Act, 1955,
Section 9(1)] 21 Consent, two or more persons are said to consent when they
agree upon the same thing in the same sense Act IX, 1872, Section 13 Where
consent is given substantially, the court does not very minutely look into the
form in which it is given [per. Sterling, J. Re Smith, 59 LJ Ch 284] Swinfen v.
Swinfen, (1857), 24 Beav. 559 Walchandragar Industries Ltd v. Ratanchand
Khimchand Motishaw, AIR 1953, Bom, 285, 286 Food Corporation of India v. S. K.
Samanta AIR 1979, Cal, 193,194, [Arbitration Act (10 of 1940) Section 8(1)(a)]
[Also see free consent 37-8 V, c 77, Section 14, Act 45 of 1860, Section 90] |
Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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 selfincrimination
under Article 20 (3) is not breached. The disclosure leading to the recovery of
incriminating material, like a murder weapon or forged documents, is admissible.
In the above-mentioned case Bombay High Court seems to have held that narco-
analysis is permissible because it involves minimal bodily harm, which implies
that all such methods of extracting information that inflict minimal bodily harm
are legally permissible The expression minimal body harm in this context can
be taken to mean causing no grievous hurt or long term disability. Minor
physical discomfort or strain is by implication disregarded. Simply keeping one
awake for days on end and pouring water every time one tries to sleep would
certainly do minimum bodily harm and of course would cause no grievous hurt
of long term disability of any kind, but isnt 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 selfincrimination. The judgment also seems to run counter to the
accepted principle that the constitutional provisions pertaining to Fundamental
Rights in Part III of

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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. Thats very much
permissible. The legal and constitutional infirmity of narco-analysis lies in the
fact that it takes away ones control on ones mind, which brings it in the
category of mental torture. And tortures of all kind fall foul with Article 21,[29]
under which right | Anirban Roy Choudhury | Madhubani Chakraborty ||
SYMBIOSIS LAW SCHOOL

11
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 narcoanalysis. 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

narcoanalysis 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

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Supreme Court verdict is awaited It is well established that the Right to Silence
has been granted to the accused by virtue of the pronouncement in the case of
Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the
accused, who has the right to keep silent during the course of interrogation
(investigation). By the administration of these tests, forcible intrusion into one's
mind is being restored to, thereby nullifying the validity and legitimacy of the
Right to Silence. Law is a living process, which changes according to the changes
in society, science, ethics and so on. The Legal System should imbibe
developments and advances that take place in science as long as they do not
violate fundamental legal principles and are for the good of the society. The
criminal justice system should be based on just and equitable principles. The
issue of using narco analysis test as a tool of interrogation in India has been
widely debated. The extent to which it is accepted in our legal system and our
society is something, which will be clearer in the near future. In a situation where
narco analysis is gaining judicial acceptances and supports despite being an
"unreliable & doubtful" science, we have to seriously rethink about its legal and
constitutional validity from human rights perspective.

_________________

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

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

Some Notable Events & Cases of Narco Analysis in India

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

13

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

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

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

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

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

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

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

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

A Brief Outline of The Narco Analysis Test

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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
bioactivity of an individual is evident as the drug depresses the central nervous
system, lowers blood pressure and slows the heart rate, putting the subject into
a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated
by the investigating agencies in the presence of the doctors. The revelations
made during this stage are recorded both in video and audio cassettes. The
report prepared by the experts is what is used in the process of collecting
evidence. This procedure is conducted in government hospitals after a court
order is passed instructing the doctors or hospital authorities to conduct the test.
Personal consent of the subject is also required Supreme Court reserves ruling on
narco analysis Friday, Jan 25, 2008, [The Hindu]

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

R.V. Raveendran and J.M. Panchal, reserved judgment at the conclusion of
arguments by counsel for the petitioners, the Centre, the Central Bureau of
Investigation and the amicus curiae, assisting the court. The petitioners argued
that courts could not direct the prosecution to hold narco analysis, brain mapping
and lie detector tests on the accused against their willingness as it would be
violative of Article 20 (3) of the Constitution (no person accused of any offence
shall be compelled to be a witness against himself). He said, While on the one
hand, constitutional embargo is omni-present, the existing statutes, including the
Cr.P.C. and the Indian Evidence Act, do not expressly authorise collection of
evidence through process, during which the accused may be compelled to be a
witness against himself. Clearly there is no backing in law for the police to collect
such evidence through these tests nor has there been any power in the courts to
authorise the police to do so. Mr. Dave said, Such tests can only be done by
legislation, which may authorise the same as under TADA. To allow adoption of
any of the three tests in | Anirban Roy Choudhury | Madhubani Chakraborty ||
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15

investigations involving day to day crimes would negate the very values for
which the society stands and the Constitution affirms. Earlier senior counsel
T.R. Andhyarujina, appearing for the CBI, submitted that none of the three tests
are unconstitutional or illegal. They are modern and scientific techniques, which
are authorised by law and are necessary to be carried out in the investigation of
an offence of such a nature and under such circumstances where there are
reasonable grounds for believing that such tests will provide evidence as to the
commission of an offence. He said: Results obtained from examination of the
accused would not offend the prohibition against testimonial compulsion under
Article 20 (3) of the Constitution. Further, these tests, including narco analysis,
are valuable for not only punishing the guilty but exonerating an accused person.
They avoid the temptation to sue third degree methods like torture to obtain
information. Such tests cannot be construed as invasion of privacy of the
accused. To be noted: Section 45 of the Indian Evidence Act, 1872 gives
evidentiary value to an Expert opinion. Blacks Law Dictionary defines Expert
Evidence as evidence about a scientific, technical or professional issue given by
a person qualified to testify the cause familiarity with the subject or special
training in the field. US courts in most jurisdictions doubt the reliability of lie
detector tests and refuse to admit the results. In the case of Townsend v. Sain, it
was held that the petitioners confession was constitutionally inadmissible if it
was adduced by the police questioning, during a period when the petitioners will
was overborne by a drug having the property of a truth serum. In another
famous case of US v. Solomon, which directly debated the issue of narcoanalysis,
the expert opinion given to the court established that truth serum is now
generally accepted investigative technique. The experts said: Adequate
safeguarding against unreliability is possible. However narcoanalysis does not
reliably induce truthful statements. In India, the decision to conduct
narcoanalysis is usually made by the Superintendent of Police or the Deputy
Inspector-General handling a case. While the expert studies and court opinions
available internationally have granted that there may be some use in
narcoanalysis, the overwhelming evidence is that narcoanalysis is by no means a
reliable science. There are some significant legal aspects to the narcoanalysis
debate, which are becoming clearer with the conducting of such tests in the
country. The same is discussed in the article with the help of case laws. 1. In a
2006 judgment (Dinesh Dalmia v. State), the Madras High Court held that
subjecting an accused to narcoanalysis does not violate any constitutional rights
of the person, as revelation by accused when these tests are conducted is
voluntary. However, the criticism is that this judgment turns on a technicality.
The admission by accused after he is injected with such drugs is always
technically voluntary. 2. In 2004, the Bombay High Court ruled in the multi-
crore fake stamp paper case that subjecting an accused to certain tests like
narcoanalysis does not violate the fundamental right against self-incrimination as
guaranteed by Article

Gujarat National Law University COGNITIO 2008

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

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

An alternative to narco-analysis test As the country debates on the validity of

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

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

17

In narco-analysis test, the respondent blows out of 5% sense and 95%

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

References

Constitutional Validity of Scientific Tests for Lie- Detection

The Constitution of India

Code of Criminal Procedure, 1973

Indian Evidence Act, 1872

Gujarat National Law University COGNITIO 2008

 T he 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),
Butterworths Publication.

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

Chaudhry,R.N., Expert Evidence (Medical & Non medical ), 2nd Edition.
(2004), Orient Publishing Company. Ratalal & Dheerajlal, The Law of Evidence
, 22nd Edition.(2006), Wadhwa Nagpur. Narcoanalysis and some hard facts ,
Sriram Lakshman Lie tests open to judicial review by Rakesh Bhatnagar
Forensic Lie Detection Procedures Without Scientific Basis by William G. Iacono,
Narcoanalysis and Criminal Law by John M.MacDonald, M.D., Denver, DNA :
Daily News & Analysis The Hindu

The Sunday Statesman | Anirban Roy Choudhury | Madhubani Chakraborty ||

SYMBIOSIS LAW SCHOOL

19

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