narcoanalysis

Submitted in the partial fulfilment of

requirement of BA.LL.B. Degree.

Army Institute of Law, Sector -68, Mohali.

Submitted to: Submitted by:

Dr. Bajirao Jasdeep Kaur
Rajwade Roll.no.-1478
BA, LL.B. (4th Year)

1
 INDEX
INTRODUCTION
MEANING OF NARCOANALYSIS
ADMINISTRATION OF THE TEST
UTILITY IN THE INVESTIGATION PROCESS
NARCO ANALYSIS VIV-A-VIS EVIDENCE ACT
ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND SECTION 161 OF
TYE CODE OF THE CRIMINAL PROCEDURE
CRITICISM OF NARCO ANALYSIS
CONCLUSION

2
 INTRODUCTION

The project work aims at explaining the links between science and law. The use of scientific
evidence in criminal trials and the admissibility of this evidence in court is one of the major areas
covered by this project.
The advent of using science as a means to investigate criminal cases is a recent one. Earlier, the
courts relied on the non-scientific evidence such as statements by eye-witnesses. Such evidence
cannot be relied upon since its validity cannot be tested. However, with the use of science and
technology such pieces of evidence can be used in court. Usually, tests such as narcoanalysis, brain
mapping and lie detectors are used to confirm the truth of these pieces of evidence. Judicial
discomfort in handling scientific evidence has increased in recent years with the emergence of
scientific testimony offered by experts.
Advance in technology have significantly increase the capabilities of forensic science laboratories.
“Cold cases,” those which have been classified as dead or unsolved, have had life breathed into
them because of these advances in DNA technology.
The narcoanalysis test is one of the scientific tests used to nail the culprit. This test has recently
begun to be recognized as a crucial test to identify the accused when all other modes of
investigation prove to be not useful. The result of the tests are not made admissible in the court, it
merely aids the investigation procedure.
However due to the test’s subjective nature, the foremost criticism levelled against conducting the
test is the conclusiveness of the test. According to medical and legal experts, “Individuals who
have conscious and unconscious reason for doing so are inclined to confess and yield to
interrogation under drug influence; some are able to withhold the information. But there is a need
to accept the fact that where most of the crimes are taking shape in the mind of a person, narco-
analysis is the apt mechanism

3
 Narco-Analysis- Meaning
The term narcoanalysis is used to describe a diagnostic and psychotherapeutic technique that uses
psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with
strong associated affects come to the surface, where they can be exploited by the therapist 1.
The narcoanalysis test is based on the principle that a person is able to lie using his imagination
and, under the influence of certain barbiturates, this capacity for imagination is blocked or
neutralised by leading the person into a semi-conscious state.
Narcoanalysis has been the most debated topic amongst the legal fraternity, media and common
masses. With recent advent of technologies in every sphere of life, criminal investigation is no
more left out of its effects. Narcoanalysis is one of such scientific forms of investigation in which
some sort of statement from the accused is acquired which might form evidence. The Evidence
Act is completely silent on such employment of scientific process. Such process has often been
criticised as against the tenets of Constitution and on the other hand has been upheld as a necessity
to evaluate some complicated issues.

Administration of the Test

The narco-analysis test is conducted by mixing three grams of Sodium Pentothal or Sodium
Amytal dissolved in 3000 ml of distilled water. Narco-analysis is carried out only after a detailed
medical examination of the accused. If the accused is found medically fit to undergo the procedure,
then only will it be done, otherwise not.
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 imagination2.
In the narco-analysis test, the subject’s inhibitions are lowered by interfering with his nervous
system at the molecular level. It becomes difficult for the person to lie and his answers would be
restricted to facts he is aware of. The statements made by the accused are recorded on audio and
video cassettes, and the report of the expert is helpful in collecting evidence.

1
https://www.lawctopus.com/academike/scientific-evidence-narcoanalysis/ ,assessed on 12th February,2018
2
ibid

4
Till recently, the courts had to rely on the non-scientific evidences only because of the non-
availability of proper technology. But the problems associated with such evidences are-
 The eyewitness observes the occurrence for a very short period.
 He may intermingle the acts of various individuals in the occurrence.
 He may be biased in favour of the victim or the culprit.
 He may be mentally imbalanced leading to exaggeration of the event.
 The eyewitness may forget, rationalise or get confused as his statement is recorded after a
considerable lapse of time.
 He may be frightened by the court room environment.
 He may be over-awed by the opposing counsel.
 He may subconsciously take into account the opinion of others with whom he has discussed
the happenings of the case or who have aired their opinion in the media.
 He may be uncertain about the identities of the culprits.
 He may not observe the complete occurrence.
 His powers of observation, memory and description play an important part

Utility in Investigation processes

The scientific tests may be employed in two ways, that is, they may directly be used as evidence
in court in a trial or they may be used merely as clues for investigation. Where the tests involve
the making of a statement, they may be directly adduced in evidence, provided they do not amount
to a confession because proof of a confession before a police officer or in the custody of a police
officer is prohibited. However, if the statements are merely admissions, they may be adduced in
evidence. Alternately, where no statement has been made or the statement cannot be adduced
without an interpretation of the report prepared at the end of the test, the results of the test as
interpreted by an expert may be furnished to the court. A third alternative is whereby the statements
may be used as proof of the specific knowledge of the accused with regard to those facts,
information about which has resulted in subsequent discoveries during the course of the
investigation. Lastly, they may be used merely as clues for the investigation, where the statements
are not adduced at all in evidence. However, the evidence gathered from the investigation is
independently used in evidence, without the statements.

5
 NARCO-ANALYSIS VIS-Ã -VIS THE EVIDENCE ACT3

A. Expert evidence and criteria for appreciation

The Evidence Act permits evidence of the opinion of persons (called experts under the Act
itself) especially skilled upon a point of foreign law, science, art, or as to identity of
handwriting or finger impressions, the opinions upon that point. Expert evidence is
appreciated based on several factors such as the skill of the expert and the exactness of the
science. If the science itself is imprecise, expert opinion is only of corroborative value and
insufficient to secure a conviction by itself. The question which then arises is regarding the
credibility of the evidence gathered from the narco analysis tests, which is studied from a
twofold perspective, firstly, as perceived by the scientific community, and secondly, as
perceived by the courts. Acceptability of narco-analysis: US courts The Ninth Circuit Court
had excluded a recording of an interview conducted under the influence of sodium
pentathol and psychiatric testimony in support of it. The use of sodium amytal (a successor
of sodium pentathol) or truth serum narco-analysis was prohibited by the New Jersey
Supreme Court in State v. Pitts4 on the ground that the results of the tests are not
scientifically reliable and that it was possible for the subjects to fill lacunae in stories
(known as hyperamnesia) or to believe in false events, or to do a hypnotic recall, whereby
thoughts of non-existent events are believed by the subject.

B. Admissions and confessions

In the lie detector test, the accused is not obliged to make a statement, as he may choose
not to answer the question at all. However, the statements in fact made under the scientific
tests may be classified into admissions or confessions, as they suggest an inference as to a
fact, including a blanket denial of any knowledge of the crime, or the statement may
substantively admit to the commission of the crime itself. Confessions made to the police
by way of such statements are inadmissible in evidence as no confession made to a police
officer or in the presence of a police officer is admissible, unless made in the immediate
presence of a Magistrate5. The only event in which they may be admissible is when they
are made before a Magistrate. Before a confession is made before a Magistrate, the
Magistrate is to explain to the subject that he is not bound to make such a confession and
the Magistrate may only record it if he believes that it is being made voluntarily. The narco-
analysis test, on the other hand proactively involves the making of statements by the
accused. However, a Magistrate would not record the statements as they are involuntary
and induced and also not reliable. They may be useful for investigative purposes as the
latter inherently entail a significant bit of trial and error work, but they may not be perfectly
accurate all the time to be recorded as evidence and relied for conviction. Admissions made
to police officers are admissible in evidence. This causes problems with the lie detector

3
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=21437
4
2009 VT 51
5
Section- of Indian Evidence act,

6
 and brain mapping tests as the police may prefer a longer investigation. Admissions
nevertheless, are caught by the general rule stating that no statement made in course of an
investigation, even if reduced to writing, is to be signed by the maker. Further, even if the
statement is oral, and the factum of its being made to a police officer is proved, it cannot
be used as evidence. The last way of offering any statement in evidence, whether
confession or not, is by adducing it alongside a discovery made pursuant to the statement.
This makes it a cakewalk for the investigation as it can conduct narco-analysis and discover
all the incriminating material that is required, and offer the statement in conjunction with
the recovery. However, a recovery under Section 27 of the Indian Evidence Act will not be
admissible if compulsion has been used in obtaining the information leading to it. The
possibility of the element of compulsion under the narco-analysis test has been recognised
if the statements made under its influence are sought to be adduced in evidence and if they
are incriminatory, in which case they are to be excluded. This conclusion shall restrict the
application of Section 27 of the Evidence Act which allows adducing statements made to
police officers if they are supported by subsequent discoveries such that statements made
under the influence of narco-analysis shall be excluded as coerced. However, whether the
discoveries made pursuant to those statements shall also be excluded has not been assessed
by the judiciary. Illegally obtained evidence: still admissible In R. v. Leatham6 we find
the oft-quoted statement of Crompton, J., It doesn’t matter how you get it; if you steal it
even, it would be admissible. What is a matter of concern is that courts in India and
elsewhere have chosen to apply this remark to a wide range of situations where the right to
a person’s liberty and privacy is at stake. The vast strides that have been made in the field
of technology in the recent past have brought people closer like never before. As long as
criminals and terrorists seek to misuse technology in pursuance of their evil motives, the
Governments the world over will continue to use technology to invade our private spaces,
which incidentally, are rapidly shrinking. This brings us to the question; does it take a thief
to catch a thief? Should States imperil the liberty and the right to privacy of entire
populations in order to apprehend a miniscule number of dangerous deviants? The decision
of the Supreme Court in Malkani case7 is argued to be disappointing because it left the
police free to steal evidence and the Court to admit the stolen evidence. Jurists have
criticized Ray’s opinion by noting that he had refused to attach the respect due to the means
by which the end could be achieved; this makes the judiciary system and the police system
partners in crime. Till today, due to the lack of a final and clear-cut judgment on the same,
illegally or falsely obtained evidences are still The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Monday,
February 19, 2018 admissible in the court, and regretfully the court still accepts them as
proper evidence. The same can be said for narcoanalysis and brain mapping as they are
techniques of obtaining evidence in an illegal manner, without the consent of the accused.
The condition continues from Malkani case to State (NCT of Delhi) v. Navjot Sandhu8
where the illegality of the evidence is not taken into consideration at all. The clear violation

6
(1961) 8 Cox CC 498
7
R. M. Malkani vs State Of Maharashtra,1973 AIR 157
8
AIR 2005 SC 3820

7
 of Article 20(3) by such narco analysis which strikes even the commoner in the face is
completely ignored and neglected by what the country calls the Seat of Justice.

Arguments against giving evidentiary value to narco-analysis

The Constitution of India has clearly stated that a person cannot be compelled to be a
witness against himself9, and therefore, any statement given during the narco-analysis test
cannot be considered evidence in the constitutional framework of the country. In fact,
studies have shown that sometimes the subject (person undergoing the test) gives false
statements during the test. If the test was given evidentiary value, the police would harass
innocent persons under the garb of tackling terrorism. The principle of the Indian legal
system is based on the fact that until proved guilty, a person is innocent and we cannot
convict an innocent even if we need to surrender hundred criminals. With such objectives
in mind subjecting a person to narco-analysis without his consent will be surely
undermining his individual rights which are absolutely negating the principle of a right
based society. Narco-analysis is carried out only after a detailed medical examination of
the accused10. If the accused is found medically fit to undergo the procedure, then only will
it be done, otherwise not. However, it has been argued in various cases that sodium
pentathol or sodium amytal is a barbiturate and thus has ill effects on the body.The use of
evidence obtained under duress has been prohibited by the Human Rights Committee by
stating the law must prohibit the use of admissibility in judicial proceedings of statements
or confessions obtained through torture or other prohibited treatment. The Committee has
further stated that, the law should require that evidence provided by any form of
compulsion is wholly unacceptable.

9
Article 20(3)
10

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 IN INDIA ARTICLE 20(3) AND SECTION 161(2) OF
THE CODE OF CRIMINAL PROCEDURE
PROTECT THE ACCUSED FROM SELF-
INCRIMINATION.
Article 20(3) and Section 161(2) of the Code of Criminal Procedure states, No person
accused of any offence shall be compelled to be a witness against himself and 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 respectively. In Nandini Sathpathy v. P.L.
Dani11, it was held that no one could forcibly extract statements from the accused that have
the right to keep silent during the course of interrogation or investigation. However Article
20(3) can be waived of by a person himself. Section 45 of the Evidence Act, 1872 does
allow experts opinions in certain cases. However, this section is silent on other aspects of
forensic evidence that can be admissible in court in criminal proceedings.
Section 161(2) of the Criminal Procedure Code also provides that every person is 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. Hence, Article 20(3) of the Constitution and also Section 161(2) of the Code
of Criminal Procedure enshrine the right to silence.49 To judge whether statement given is
confession or not, is by adducing it alongside a discovery made pursuant to the statement.
Some writers are in opinion that in cases where an incriminatory set of statements is
additionally backed by discoveries which are sufficient to incriminate the accused
independently of the statements, then the discoveries too should be excluded from
evidence. This is because the discoveries, which comprise all the evidence that is required
for conviction, directly follow from incriminatory statements of the accused. However,
where the discoveries are not sufficient to result in incrimination, but only amount to
evidence of some facts against the accused, they may be admissible in evidence, as they
are merely the equivalent of admissions as they require collection of additional evidence.

Arguments for giving evidentiary value to narco-analysis

In United States v. Solomon12 there was a detailed discussion on the topic of narco-
analysis. In this case the expert opinion given to the Court established that truth serum is
generally accepted as an investigative technique. It need not be said that prevention of
crime and punishment for the crime are the duties of the State. Fetters on these duties can
be put only in extreme cases where the protection of fundamental rights weigh more than
the fundamental duty cast on the State. Protection against self-incrimination was

11
1978 AIR 1025
12
998 F.2d 587

9
 instrument for the protection of the innocent and not intended for the acquittal of the
guilty.The framers of the Bill of Rights believed the rights of society were paramount to
the rights of the criminal. Believing in the same principle in a spate of high-profile cases,
such as those of the Nithari killers, the Mumbai train blasts, Aarushi murder case,
Malegaon blasts and the most recent Mumbai blasts case suspects have been made to
undergo narco-analysis, drugged with the sodium pentathol. Judiciary and the State
Government seem to have supported this practice. Furthering its support the Supreme Court
has held that the right to life includes right to health but subjecting a person to a scientific
test as part of investigation will not amount to denial of health. Therefore it will not amount
to denial of reasonable and just procedure.

In today’s complex social milieu with proliferating crimes against the society and the
integrity of the country, it is necessary to keep in mind the interest of the society at large
and the need for a thorough and proper investigation, as against individual rights, while
ensuring that the individual constitutional rights are not infringed. If these tests are properly
considered to be steps in the aid of investigation and not for obtaining incrimination
statements, there is no constitutional infirmity whatsoever. Section 53 of the Criminal
Procedure Code accords the requisite statutory sanction for conducting these tests. The use
of term such other tests in Section 53 CrPC includes in its ambit polygraph, brainmapping
and narco-analysis. The Bombay High Court, in a significant verdict in Ramchandra Ram
Reddy v. State of Maharashtra13, 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. As crimes going hi-tech and criminals becoming
professionals, the use of narco analysis can be very useful, as the conscious mind does not
speak out the truth, unconscious may reveal vital information about a case. The judgment
also held that these tests involve minimal bodily harm. Surender Koli, main accused in the
Nithari case14, was brought to Forensic Science Laboratory in Gandhinagar in January
2007 for narcoanalysis. Polygraph test was conducted on Moninder Singh Pandher and his
servant Surender Koli, accused of serial killing of women and children in Nithari, to
ascertain the veracity of their statements made during their custodial interrogation. Various
confessional statements were made by the accused under the effect of the drug, he could
remember the names of the females he had murdered and revealed his urge to rape them
after murdering them.

13
Criminal Writ Petition No. 1924 of 2003, decided on 5 March 2004
14
Surendra Koli vs State Of U.P. Ors, SLP(Crl) NO. 608 of 2010

10
 Post Selvi case
Highlighting the present position In Selvi v. State of Karnataka15, the Supreme Court
rejected the High Court’s reliance on the supposed utility, reliability and validity of
narcoanalysis and other tests as methods of criminal investigation. First, the Court found
that forcing a subject to undergo narco-analysis, brain-mapping, or polygraph tests itself
amounted to the requisite compulsion, regardless of the lack of physical harm done to
administer the test or the nature of the answers given during the tests. Secondly, the Court
found that since the answers given during the administration of the test are not consciously
and voluntarily given, and since an individual does not have the ability to decide whether
or not to answer a given question, the results from all three tests amount to the requisite
compelled testimony to violate Article 20(3). The Supreme Court found that narco-analysis
violated individual’s right to privacy and amounted to cruel, inhuman or degrading
treatment. Article 21 protects the right to life and personal liberty, which has been broadly
interpreted to include various substantive due process protections, including the right to
privacy and the right to be free from torture and cruel, inhuman, or degrading treatment.66
However, any information or material that is subsequently discovered with the help of
voluntary administered test results can be admitted, in accordance with Section 27 of the
Evidence Act. The Supreme Court left open the possibility for abuse of such tests when it
provided a narrow exception, almost as an afterthought, namely, that information indirectly
garnered from a voluntary administered test i.e. discovered with the help of information
obtained from such a test can be admitted as evidence. The power of the police to coerce
suspects and witnesses into voluntarily doing or not doing certain things is well known. It
is highly probable that the same techniques will be applied to get suspects or witnesses to
agree to narco-analysis and other tests, resulting in a mockery of the essence of the Supreme
Court’s judgment16.

15
2010,7 SCC,263
16
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=21437
,assessed on 9th February,2018.

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 CRITICISM OF NARCOANALYSIS TEST

Narcoanalysis has been criticised on the ground that it is not hundred per cent accurate. It has been
found that certain subjects made totally false statements. It is often unsuccessful in eliciting truth
as such it should not be used to compare the statement already given to the police before use of
drug. It has been found that a person has given false information even after administration of drug.
It is very difficult to suggest a correct dose of drug for a particular person. The dose of drug will
differ according to will power, mental attitude and physique of the subject.
For its success, a competent and skilled interviewer is required who is trained in putting recent and
successful questions. Narcoanalysis is not recommended as an aid to criminal investigation. Unless
the test is conducted with the consent of the suspect it should not be used in criminal investigation.

12
 CONCLUSION

There is urgent need for the application of forensic science in the criminal justice delivery system.
The use of scientific or forensic evidence in criminal trials not only identifies the actual guilty but
also prevents the innocent from being convicted wrongly. The principle of the Indian legal system
is based on the fact that until proved guilty, a person is innocent and an innocent cannot be
convicted even if a hundred criminals are surrendered.
With the above objective in mind, subjecting a person to narcoanalysis without his consent will be
surely undermining his individual rights which are absolutely negating the principle of a right
based society.
The use of scientific proof in a forensic setting has proven problematic for both judges and
attorneys because most of them are not technically trained. Much of the difficulty encountered by
courts when facing scientific evidence lies not in a lack of understanding the underlying science
but in the task of choosing between competing scientific explanations.
Law is a living process, which changes according to the changes in society, science, and 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
Central government must make a clear policy stand on narco analysis because what is at stake is
India’s commitment to individual freedoms and a clean criminal justice system.

It has become absolutely necessary for the State Governments to work with the Central authorities
to enhance the investigative capabilities of their police departments. The Indian criminal justice
system has an alarmingly low conviction rate and the situation needs to be rectified with emphasis
on real science and state-of-the-art technology. The Central Government must make a clear policy
stand on narco-analysis. 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. Narco-analysis for criminal interrogation has proved to be a valuable technique, which
profoundly affects both the innocent and the guilty and thereby hasten the cause of justice which
has seen in various cases like the Aarushi murder case, Nithari killings case, Telgi scam and
Mumbai blasts case. Courts in India have taken into account an incomplete consideration of the
law, which is the reason for their conclusion in favour of the tests. While the tests may be a practical
necessity, the sanction of the law for some of them is difficult to find, and extensive safeguards
need to be laid out to prevent their abuse.17 It is time for our legislature and judiciary to act
immediately for the sake of justice and fair procedure to bring narco-analysis within the scope of
Article 20(3) of the Constitution. The manner in which modern-day criminals make use of science
and technology in perpetrating their criminal activities with relative impunity has compelled

17
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=21437
,assessed on 12th February,2018

13
rethinking on the part of the criminal justice establishment to seek the help of the scientific
community to come to the help of the police, prosecutors and the courts. The criminal procedure,
rules of evidence, and the institutional infrastructure designed more than a century ago, are now
found inadequate to meet the demands of the scientific age. The absence of a national policy in
criminal justice administration in this regard, is felt to be a serious drawback. The Evidence Act
may need to be amended to make scientific evidence admissible as substantive evidence rather
than opinion evidence and establish its probative value, depending on the sophistication of the
scientific discipline concerned.

14