Right of Accused to seek his own Narco Analysis Test? HC decides

  

The Kerala High Court has ruled that an accused, even if voluntarily submits, cannot be allowed to undergo Narco Test as per rule of law.

Declining a plea on this line, where the acussed on his own offered to take him under Narco Test in order to buttress his statements under Section 313 Cr.P.C, the single-Judge Bench of Justice M.R. Anitha observed:

"The revelations brought out during Narco Analysis 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."

 The Court questioned usability of this test while referring to previous precedent, it added:

"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."

Brief Facts of the Case 

The respondent who is an accused in a POCSO Case (charged under Section 376(2)(i) IPC and Section 6 r/w 5(m) of the POCSO Act), via the impugned order, has been allowed by Fast Tract Special Judge to subject himself to Narco Analysis Test 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.

The Counsel for the petitioner and argued that he is a hapless old man accused of an offence with reverse burden of proof and has moved the Court voluntarily to undergo the Narco Analysis to prove his innocence.

They further contended that as per the law laid down in SC Judgement in Selvi J. Jayalalitha & Ors. vs. State of Karnataka, 2010 Latest Caselaw 339 SC, it would only amount to testimonial compulsion if the accused is subjected to scientific tests like narco-analysis, brain mapping, polygraph, or lie detection by the prosecution without their permission.

Reliance was further placed on Sections 29 and 30 of the POCSO Act provide for reverse burden of proof including culpable mental state of the accused and it was contended that the plea should be allowed to disprove such statutory presumptions.

High Court Observation

The Court clarified on the cited judgement, and added that it categorically held that no individual should be forcibly subjected to any of the techniques in the context of investigation in criminal cases or otherwise and that doing so would amount to an unwarranted intrusion into his personal liberty guaranteed under Articles 20(3) and 21 of the Constitution.

The Court extracted relevant part from the judgement and stated:

"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"

 The Court mentioned its concern on the possibility of the testimony being not voluntary even if the person freely consents to undergo the test.

"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. 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"

 The Court also threw light on its foresightedness (as is seen the precedents) on 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 and mentioned that it would result in re-opening of cases or even can be used for the purpose of attacking the credibility of witnesses during trial.

The plea was accordingly declined.

Read Judgement Here:

 

 

Social media is bold.

Social media is young.

Social media raises questions.

 Social media is not satisfied with an answer.

Social media looks at the big picture.

 Social media is interested in every detail.

social media is curious.

 Social media is free.

Social media is irreplaceable.

But never irrelevant.

Social media is you.

(With input from news agency language)

 If you like this story, share it with a friend!  

We are a non-profit organization. Help us financially to keep our journalism free from government and corporate pressure