Law Web: Can An Accused Seek To Be Subjected To Narco Analysis Test To Prove His Innocence?

The learned counsel for the de facto complainant brought

to my attention Vipin Kushwaha v. The State of M.P. in

M.Cr.C.No.11699/2021 dated 6.9.2021 of Madhya Pradesh

High Court. That was also a petition filed under Section 482 of

the Code aggrieved by an order rejecting an application filed by

the applicant seeking direction to perform his Narco Test. In that

decision the High Court quoted Yogesh @ Charu Ananda

Chandane v. State of Maharashtra, an order passed in

M.Cr.C.No.11699/2021, petition No.2420/2016 wherein the High

Court of Bombay rejected the similar prayer for Narco Analysis.

The relevant paragraph No.7 has been quoted in the above

decision which reads thus : -

“In fact, the order passed by the learned Sessions Judge does

not warrant any interference. That the evidence which is

recorded in the course of the Narco Analysis Test or Polygraph

Test is not admissible in evidence. It would be a hazardous

situation to permit any/every accused to undergo narco

analysis test for proving his innocence. It is incumbent upon

the prosecution to substantiate its case and prove the guilt of

the accused beyond reasonable doubt. Criminal Jurisprudence

contemplates that an accused has a right to silence and it is

the duty of the prosecution to prove its case beyond

reasonable doubt. The technique such as polygraph test and

narco analysis test would be helpful technology for the

investigating agency or to seek a direction in the course of

investigation.

“We must also account for the uses of this technique by

persons other than investigators and prosecutors. Narco

Analysis tests could be requested by defendants who want to

prove their innocence.” {Para 21}

22. In the present case also, the petitioner wanted to subject

himself to Narco Analysis Test which according to the learned

counsel, is necessary to buttress his statements under Section

313 Cr.P.C. The above settled principles of law unequivocally lay

down the position that the revelations brought out during Narco

Analysis under the influence of a particular drug cannot be

taken as a conscious act or statement given by a person. The

possibility of accused himself making exculpatory statements to

support his defence also cannot be ruled out. There is no

mechanism or the present Investigating Agency is also not

equipped to assess the credibility of such revelations of the

accused. The Investigating Officers also would find themselves

difficult to come to a definite conclusion regarding the veracity

of the revelations so made and the other evidence already

collected by them. So the contention of the learned counsel for

the petitioner that in order to buttress his statements under

Section 313 Cr.P.C , these materials collected through Narco

Analysis Test can be used as corroborative piece of evidence

etc, is not at all sustainable in law.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.MC NO. 4007 OF 2021

LOUIS Vs STATE OF KERALA

PRESENT

MRS. JUSTICE M.R.ANITHA

Dated : 19th November, 2021

1. The only question for determination in this Crl.M.C is whether

the petitioner/accused has got any right to seek himself to be

subjected to Narco Analysis Test. The impugned order has been

passed by the Fast Tract Special Judge, Thrissur in

S.C.No.160/2015 in a petition filed under Section 45 of the

Indian Evidence Act,1872 and Section 293 of the Code of

Criminal Procedure,1973 to subject the accused to Narco

Analysis Test.

2. Heard both sides. (The victim was subsequently got impleaded

as additional second respondent).

3. According to the learned counsel for the petitioner/accused

(hereinafter referred as 'the petitioner'), petitioner has been

charged under Section 376(2)(i) of the Indian Penal Code, 1860

(in short IPC) and Section 6 r/w 5 (m) of the Protection of

Children from Sexual Offences Act, 2012 (PoCSO Act). The

impugned order would show that the prosecution evidence is

over and accused was also questioned under Section 313 of the

Code of Criminal Procedure,1973 (in short Code) and the case

stands posted for defence evidence. It is at that juncture the

petitioner filed the petition which resulted in the impugned

order.

4. Section 233 of the Code provides for entering upon defence

which is relevant in this context to be extracted and it reads as

follows :-

Entering upon defence

(1) Where the accused is not acquitted under Section 232, he

shall be called upon to enter on his defence and adduce any

evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge

shall file it with the record.

(3) If the accused applies for the issue of any process for

compelling the attendance of any witness or the production of

any document or thing, the Judge shall issue such process

unless he considers, for reasons to be recorded, that such

application should be refused on the ground that it is made

for the purpose of vexation or delay or for defeating the ends

of justice.

5. The above provision would make it clear that as per sub section

(1)of section.233 the accused upon his defence can adduce any

evidence in support of his defence. Sub-section (2) enables the

accused to file any written statement and if so filed the Court

shall file it with the record and sub-section (3) enables the

accused to seek for issue of any process for compelling the

attendance of any witness or production of any document or

thing with a rider that if the Judge considers for specific reasons

that application should be refused on the ground that it has

been made for the purpose of vexation or delay or for defeating

the ends of justice etc.., the court can refuse to entertain the

same.

6. Section 3 of the Evidence Act which deals with Interpretation

clause describes evidence as follows :-

“Interpretation clause – In this Act the following words and

expressions are used in the following senses, unless a

contrary intention appears from the context.”

….........................................................................

“Evidence” .— “ Evidence” means and includes—

(1) all statements which the Court permits or requires to

be made before it by witnesses, in relation to matters of

fact under inquiry, such statements are called oral

evidence;

(2) all documents including electronic records produced

for the inspection of the Court], such documents are

called documentary evidence.

7. Sub clause (1) provides that all statements which the Court

permits or requires to be made before it by witness in relation

to matters of fact under inquiry and that evidence is called as

oral evidence. Sub-clause (2) provides that all documents

including electronic records produced for the inspection of the

Court and such documents are called documentary evidence. So

these are the forms of evidence which the petitioner could

adduce as per sub-section (1) of Section 233. The learned Public

Prosecutor brought my attention in this context the

'Interpretation of fact' in the Evidence Act which reads as

follows :-

“Fact” - “Fact” means and includes –

(1) any thing, state of things, or relation of things, capable

of being perceived by the senses;

(2) any mental condition of which any person is

conscious.”

8. The learned Public Prosecutor emphasizes that sub-clause (2)

provides that only mental condition of which any person is

conscious comes under the definition of fact.

9. According to the learned counsel for the petitioner the law laid

down in Smt.Selvi & Ors. v. State of Karnataka (2010 (7)

SCC 263) is that subjecting an accused to scientific test like

Narco Analysis, Brain Maping, Polygraph,Lie detection Test etc.,

without the permission of the accused, by the prosecuting

Agency will amount to testimonial compulsion and as such

cannot be permitted in view of the constitutional safeguard

against the same. But in this case, the petitioner is a hapless

old man and has been accused of an offence with reverse

burden of proof and is coming to Court voluntarily submitting

himself to undergo the Narco Analysis in order to prove his

innocence. The learned counsel would further contend that

Sections 29 and 30 of the PoCSO Act provide for reverse burden

of proof including culpable mental state of the accused. So it is

for the accused to disprove such statutory presumptions. In

such circumstances, the request made by the accused for

subjecting him to Narco Analysis is to be allowed to buttress his

statement under Section 313 of the Code, contends the learned

counsel.

10. Section 29 of the PoCSO Act expressly provides that

where a person is prosecuted for committing or abetting or

attempting to commit any offence under sections 3, 5, 7 and

section 9 of the Act, the Special Court shall presume, that such

person has committed or abetted or attempted to commit the

offence, as the case may be, unless the contrary is proved.

11. Section 30 of the PoCSO Act provides that in any

prosecution for any offence under this Act which requires a

culpable mental state on the part of the accused, the Special

Court shall presume the existence of such mental state but it

shall be a defence for the accused to prove the fact that he had

no such mental state with respect to the act charged as an

offence in that prosecution. Sub-section (2) of Section 30 of the

PoCSO Act further provides that, a fact is said to be proved only

when the Special Court believes it to exist beyond reasonable

doubt and not merely when its existence is established by a

preponderance of probability. Explanation to Section 30 further

makes it clear that “culpable mental state” includes intention,

motive, knowledge of a fact and the belief in, or reason to

believe, a fact.

12. In Justin @ Renjith and Another V.Union Of India ILR

2020 Ker.679 it has been held by a learned single Judge of this

court that duty of prosecution to establish foundational facts

and duty of accused to rebut presumption arise only after

prosecution has established foundational facts of the offence

alleged against the accused. It is also found that though in the

light of presumptions, the burden of proof oscillate between the

prosecution and the accused,depending on the quality of

evidence let in ,in practice process of adducing evidence in a

PoCSO case does not substantially differ from any other criminal

trial.

13. In David V State of Kerala (2020 (5) KLT 92:2020

CrLJ 3995) another learned single Judge of this court has held

that the presumption under Section 29 of the PoCSO Act does

not in any way affect the obligation of the prosecution to

produce admissible evidence to prove the foundational facts

constituting the offence .

14. Harendra Sarkar v. State of Assam (2008 9 SCC

204:AIR 2008 SC 2467) was quoted by the learned Judge in

that decision where in it has been held by the Apex Court that

the Parliament certainly has the power to lay down a different

standard of proof for certain offences or certain pattern of

crimes subject to the establishment of some foundational facts

and the same would not therefor affect any of the constitutional

and established rights of the accused in such cases.

15. So Section 29 and 30 of the Act does not give any special

rights to the prosecution to refrain from adducing evidence in

the normal course as in a criminal case to prove the guilt of the

accused beyond reasonable doubt. If the basic facts proving

guilt is proved by the prosecution, presumption starts to run. It

is for the accused to rebut that presumption. If the prosecution

proved the acts, as per Section 30 of the Act, presumption of

culpable mental state begins to run. It is for the accused to

rebut that presumption.

16. For example, suppose an accused is facing trial under

Section 7 of the PoCSO Act on allegation that he touched the

breast of the child on a public road and thereby committed

sexual assault. The burden of prosecution is discharged once

evidence to the effect that accused touched the breast of the

child is adduced through the victim and witnesses. The court

may presume that it was done with sexual intention. But the

burden to establish that it was not done with sexual intent is

upon the accused. He can very well establish that while child

was about to fall by slip, he tried to rescue her and in that event

his hand happened to touch on the breast of the child. That is a

factor to be established by the accused. That is all.

17. In Selvi's case, the Apex Court categorically held that no

individual should be forcibly subjected to any of the techniques

where in the context of investigation in criminal cases or

otherwise and doing so would amount to an unwarranted

intrusion into his personal liberty guaranteed under Articles

20(3) and 21 of the Constitution of India. Paragraph Nos.47, 74,

204, 205 and 213 of Selvis' case are relevant to be extracted

which read as follows :-

47. It is also important to be aware of the limitations of the

`narcoanalysis' technique. It does not have an absolute success

rate and there is always the possibility that the subject will not

reveal any relevant information. 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.

It takes great skill on part of the interrogators to extract and

identify information which could eventually prove to be useful.

While some persons are able to retain their ability to deceive

even in the hypnotic state, others can become extremely

suggestible to questioning. This is especially worrying, since

investigators who are under pressure to deliver results could

frame questions in a manner that prompts incriminatory

responses. Subjects could also concoct fanciful stories in the

course of the `hypnotic stage'. Since the responses of different

individuals are bound to vary, there is no uniform criteria for

evaluating the efficacy of the `narcoanalysis' technique.”

xxx xxx xxx xxx xxx

74. Another significant limitation is that even if the tests

demonstrate familiarity with the material probes, there is no

conclusive guidance about the actual nature of the subject's

involvement in the crime being investigated. For instance a bystander

who witnessed a murder or robbery could potentially

be implicated as an accused if the test reveals that the said

person was familiar with the information related to the same.

Furthermore, in cases of amnesia or `memory-hardening' on

part of the subject, the tests could be blatantly misleading.

Even if the inferences drawn from the `P300 wave test' are

used for corroborating other evidence, they could have a

material bearing on a finding of guilt or innocence despite

being based on an uncertain premise. [For an overview of the

limitations of these neuroscientific techniques, see: John G.

New, `If you could read my mind - Implications of neurological

evidence for twenty-first century criminal jurisprudence', 29

Journal of Legal Medicine 179-197 (April-June 2008)]

xxx xxx xxx xxx xxx

204. We can also contemplate a possibility that even when an

individual freely consents to undergo the tests in question, the

resulting testimony cannot be readily characterised as

voluntary in nature. This is attributable to the differences

between the manner in which the impugned tests are

conducted and an ordinary interrogation. In an ordinary

interrogation, the investigator asks questions one by one and

the subject has the choice of remaining silent or answering

each of these questions. This choice is repeatedly exercised

after each question is asked and the subject decides the nature

and content of each testimonial response. On account of the

continuous exercise of such a choice, the subject's verbal

responses can be described as voluntary in nature. However, in

the context of the impugned techniques the test subject does

not exercise such a choice in a continuous manner. After the

initial consent is given, the subject has no conscious control

over the subsequent responses given during the test. In case of

the narcoanalysis technique, the subject speaks in a druginduced

state and is clearly not aware of his/her own responses

at the time. In the context of polygraph examination and the

BEAP tests, the subject cannot anticipate the contents of the

`relevant questions' that will be asked or the `probes' that will

be shown. Furthermore, the results are derived from the

measurement of physiological responses and hence the subject

cannot exercise an effective choice between remaining silent

and imparting personal knowledge. In light of these facts, it

was contended that a presumption cannot be made about the

voluntariness of the test results even if the subject had given

prior consent. In this respect, we can re- emphasize Principle 6

and 21 of the Body of Principles for the Protection of all persons

under any form of Detention or Imprisonment (1988). The

explanation to Principle 6 provides that:

"The term `cruel, inhuman or degrading treatment or

punishment' should be interpreted so as to extend the widest

possible protection against abuses, whether physical or mental,

including the holding of a detained or imprisoned person in

conditions which deprive him, temporarily or permanently, of

the use of any of his natural senses, such as sight or hearing, or

of his awareness of place and the passing of time."

Furthermore, Principle 21(2) lays down that: "No detained

person while being interrogated shall be subjected to violence,

threats or methods of interrogation which impair his capacity of

decision or judgment."

xxx xxx xxx xxx

205. It is undeniable that during a narcoanalysis interview, the

test subject does lose `awareness of place and passing of time'.

It is also quite evident that all the three impugned techniques

can be described as methods of interrogation which impair the

test subject's `capacity of decision or judgment'. Going by the

language of these principles, we hold that the compulsory

administration of the impugned techniques constitutes `cruel,

inhuman or degrading treatment' in the context of Article 21. It

must be remembered that the law disapproves of involuntary

testimony, irrespective of the nature and degree of coercion,

threats, fraud or inducement used to elicit the same. The

popular perceptions of terms such as `torture' and `cruel,

inhuman or degrading treatment' are associated with gory

images of blood-letting and broken bones. However, we must

recognize that a forcible intrusion into a person's mental

processes is also an affront to human dignity and liberty, often

with grave and long-lasting consequences. [A similar conclusion

has been made in the following paper: Marcy Strauss, `Criminal

Defence in the Age of Terrorism - Torture', 48 New York Law

School Law Review 201-274 (2003/2004)].

xxx xxx xxx xxx

213. Another important consideration is that of ensuring parity

between the procedural safeguards that are available to the

prosecution and the defence. If we were to permit the

compulsory administration of any of the impugned techniques

at the behest of investigators, there would be no principled

basis to deny the same opportunity to defendants as well as

witnesses. If the investigators could justify reliance on these

techniques, there would be an equally compelling reason to

allow the indiscrete administration of these tests at the request

of convicts who want re-opening of their cases or even for the

purpose of attacking and rehabilitating the credibility of

witnesses during a trial. The decision in United States v.

Scheffer, 523 US 303 (1998), has highlighted the concerns with

encouraging litigation that is collateral to the main facts in

issue. We are of the view that an untrammelled right of

resorting to the techniques in question will lead to an

unnecessary rise in the volume of frivolous litigation before our

Courts.

18. So when a Narco Analysis test is conducted with the

intervention of some medication, when a person is not

conscious and make some revelations from the sub conscious

mind the credibility of that revelation stands far short of the

fact described under the Evidence Act. The possibility of some

persons concocting fanciful stories in the course of hypnotic

stage also cannot be ignored. The responses of different

individual in such circumstances would vary the result of not

having any uniform criteria for evaluating the efficacy of the

Narco Analysis technique is a matter of another concern as per

the dictum in the Selvi's case.

19. The possibility of the testimony being not voluntary even

if the person freely consents to undergo the test also is there.

The danger of the person not being able to exercise an effective

choice of remaining silent and imparting personal knowledge is

also there since the results are derived from the psychological

responses. Apex court also had foreseen the danger of such test

being permitted at the instance of prosecution since on the

principle of parity of procedure if the accused files such

application that also has to be allowed. That would result in re

opening of cases or even can be used for the purpose of

attacking the credibility of witnesses during trial.

20. Hence even if the petitioner voluntarily submits for

subjecting himself for Narco Analysis Test, there is no guarantee

that the statements would be voluntary. So even if the court

permits the petitioner to undergo a Narco Analysis test, it has

no acceptability in the eye of law.

21. The learned counsel for the de facto complainant brought