DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

PROJECT ON BRIAN MAPPING AND POLYGRAPH TESTS---TECHNICAL ISSUES

AND RELEVANCY

SUBJECT: LAW OF EVIDENCE

FACULTY: Assistant Professor Dr. Nandini CP

NAME OF THE STUDENT: CH.RAHUL

REGISTRATION NUMBER: 18LLB023

SEMESTER: IV
 Table of contents

1. Acknowledgement……………………………………………………………………3
2. Synopsis……………………………………………………………………………..4
3. Introduction…………………………………………………………………………9
4. Polygraph: Origin and modus operandi…………………………………………….11
4.1. Procedure for performing polygraph……………………………………………12
4.2. Polygraph test……………………………………………………………………13
4.3. Uses of Polygraph……………………………………………………………….14
4.4. Critical analysis of Polygraph……………………………………………………15
5. Brain mapping………………………………………………………………………..16
5.1. Critical analysis of brain
mapping………………………………………………..17
6. Admissibility of Novel scientific evidence…………………………………………..17
7. Admissibility of Polygraph and Brain mapping tests results…………………………19
7.1. From evidence
perspective……………………………………………………….19
7.2. From Constitution
perspective…………………………………………………….23
8. Case analysis……………………………………………………………………………27
8.1. Frye vs. United states………………………………………………………………
27
8.2. Daubert vs. Merrell Dow Pharmaceuticals,
Inc…………………………………..28
8.3. Sh. Shailender Sharma vs State and
Another……………………………………….30
8.4. selvi vs state of Karnataka……………………………………………………….33
8.5. Pappuram vs State…………………………………………………………………
37
9. Suggestions………………………………………………………………………………39
10. Bibilography…………………………………………………………………………..40
ACKNOWLEDGMENT

We wish to express our sincere gratitude to our faculty Dr. Nandini ma’am for not only
providing us with an opportunity to do this project but also for providing her indispensable
guidance and support in conducting a detailed study on this topic.
INTRODUCTION:

With the advancement of science and technology, sophisticated methods of lie detection have
been developed which do away with the use of ―third degree torture‖ by the police. The
scientific tools of interrogation namely- the Lie detector or the Polygraph test, or the Brain
Mapping test and the Narcoanalysis or the Truth Serum test are the main three tests that have
recently been developed for extracting confessions. These psychoanalytical tests are also used to
interpret the behavior of the criminal (or the suspect) and corroborate the investigating
officers‘observations. The deception detection tests (DDT) such as polygraph, narco-analysis and
brain-mapping have important clinical, scientific, ethical and legal implications. In this project
Iam going to discuss the technical issues and their relevancy with reference to case laws.

AIM OF THE STUDY

❏ To study about polygraph analysis under Indian Evidence Act

❏ To study about the Brain mapping under Indian Evidence Act

❏ To study about the sc judgments on polygraph and Brain mapping

❏ To know about the procedures for conducting these tests

❏ To study about the constitutional validity of these tests   

RESEARCH METHODOLOGY

The research is primarily doctrinal research and secondary data which is collected from the
websites and library and international journals and articles. The books collected and literature
reviewed gives a better idea of the topic and scope of research. The secondary sources details are
mentioned in reference section.
Scope:  Study refers to Indian evidence act , Crpc and doesn’t refer much to constitution and also
refers to foreign cases for better understanding.                 

Literature review 

Journal: POLYGRAPH AND NARCO TEST IN INDIAN EVIDENCE LAW THROUGH

CASE LAWS 

Citation: International Journal of Pure and Applied Mathematics Volume 120 No. 5 2018, 125-
145 ISSN: 1314-3395   

In this paper authors discussed the topic in two parts one is discussing about Narco analysis test
under Indian Evidence Act and its constitutional validity and in the second part Polygraph test
under Indian Evidence Act and its constitutional validity. The author started the topic by the
inferring the definition of narcos  which is derived from the greek word “narkes” which means
Anesthesia or Torpor. Author clearly explained the need for narco analysis by explaining with
U.S case laws of Frye and dubert case. Author differntiated the advantages and disadvantages of
the narco analysis in proper manner. Author explained the validity of narco analysis from the
perspective of evidence and constitution by referring supreme court judgements Santokben
Sharma Bhai Ladeja v. State of Gujarat, Dr. Rajesh Talwar and Another v. Central Bureau
Investigation through its Director and Other, Rojo George v. Deputy Superintendent of Police,
Dinesh Dalmia v State.

In the second part authors explained about the validity of polygraph test, procedure to be
followed, its constitutional validity by citing case laws such as selvi vs state of karnataka in
which it was stated by the court that the consent of the accused is mandatory before conducting
the test. Authors cited the cases in which polygraph test was conducted such as shivani bhatnagar
murder case, Nithari and mumbai serial killing cases.
At last authors suggested that Narco analysis and polygraph test must be conducted in rape cases
and Judiciary should make proper guidelines and put restriction on police power while
conducting the test.

Author: Gautam Bhatia

Article title: PRIVACY AND THE CRIMINAL PROCESS: Selvi vs state of karnataka.

Url: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3166849

In this article author introuced the topic by referring to the arrest of arun ferraria in which he was
arrest by testimony given by abdul karim telgi, accused terrorists and alleged naxalite by using Truth
serum i.e Narcos. But later he was acquittted of all charges.It was contended that three of the most
prominent interrogation techniques – narco-analysis, the lie-detector test, and brain-mapping –
violated an accused person’s right against self-incrimination under Article 20(3), and her right to life
and personal liberty under Article 21 of the Constitution. Author explained Two models of criminal
process i.e.., Crime control model and Due process model by referring to the 1964 article of american
jurist herbert packer. Author linked Selvi’s case with due process model by referring american
judgements and given a detailed analysis of Article 20(3) of constituition. Author restricted his article
to constitution and gave little reference to evidence act and Crpc.

Author gave a detailed analysis on Self incrimination and common law jurisprudence of
voluntariness and its development along with case laws.

Title: NARCO ANALYSIS AND PROTECTING THE RIGHTS OF THE ACCUSED

Authors: Ananthi S Bharadwaj, Sumithra Suresh

Citation: Ananthi S. Bharadwaj & Sumithra Suresh, Narco Analysis and Protecting the Rights of
the Accused, 4 NALSAR Stud. L. REV. 121 (2008).

This paper discusses about narco-analysis in indian legal system and its constitutionality in
relation to Articles 20(3) and 21, as well as its legislative penalties under the Code of Criminal
Procedure, were the key issues discussed. The paper also promotes the use of narco-analysis as a
viable alternative to the forensic use of third-degree approaches. The researchers have also
suggested a model that includes guidelines to promote its productive and legal use.

Authors explained procedure conducted duting narco analysis and list down other tests which is
used in extracting truth. Author elucidated that Narco analysis is not health hazard with proper
reasons. Author discussed the veracity of the results by citing a 1964 american article and
opinions of scientist like B.M Mohan.

Constituitional validity is questioned and discussed that informed consent is prerequisite. A

comparision with the stance of U.S with regard to self incrimination. Human rights and ethical
quentions were discussed. Authors suggested a model for the proper implementation for usage of
Narco analysis and brainmapping tests. They suggested narco analysis is to be treated as a 'last
resort' investigative technique. This technique is not to be viewed as a replacement of the
existing methods of investigation recognised by the criminal procedural laws.They suggested the
Human rights guildlines for lie detector should be followed and enumerated them in aproper
way. Other recommendations will be clearly discussed in the project. They expressed their
opinion for the amendment in Crpc regarding these tests.

Paper : EVIDENTIARY VALUE OF FORENSIC SCIENCE WITH SPECIAL REFERENCE

TO NARCO ANALYSIS TEST.
In this paper author started the topic by substantiating the importance of science and technology
in the process of investigation. Narco Analysis test can be effective as an alternative to barbaric
third degree methods case however must be taken to ensure that this procedure is not misused or
abused by investigating officer and should be co-related with corroborative evidence.

Meaning and Historical Prospectives of Narco-Analysis Test of was explained in this project.
Narco analysis was rather unheard in India till recent past. It was first used in 2001 in Godhra
Carnage probe.

Utility of Narco analysis in Investigative and Judicial Processes was discussed. 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. The application of narco-analysis test
involves the fundamental question pertaining to judicial matters and also to human rights. The
legal position of applying this technique as an investigative aid raises issues like encroachment
of an individual's rights, liberties and freedom. Another thing is that, this test also goes against
the maxim "Norno Tenetur se Ipsurn Accusare"- which means, no man not even the accused
himself can be compelled to answer any question, which may tend to prove him guilty of a
crime, he has been accused of.

Section 3 of Evidence act was taken. Definition of Evidence defines 'evidence'. Questions arise
whether any answer received as a result of Narco analysis test would be 'evidence' or not.
Perhaps such answers or statement would not form part of 'evidence' unless it satisfies some
other test. It must be made clear that if any statement has been permitted, or required by the
Court it does not become admissible in evidence, Court admit or may not admit It. Admissibility
would depend upon number of factors.

Author also criticized the test of Narco analysis with help of case laws.

Paper: Constitutionality and evidentiary value of narcoanalysis, polygraph & BEAP tests

Author:Dr. Dharmendra kumar singh

Citation: International Journal of Law ISSN: 2455-2194, RJIF 5.12 Volume 3; Issue 4; July
2017; Page No. 84-89
This study provides in brief the method and historical perspective of Narcoanalysis, Polygraph &
BEAP tests technique. The main aim of this study is to analyze the evidentry value, legality and
Constitutional validity of Narcoanalysis, Polygraph & BEAP tests in India. The study’s emphasis
is to search the nature and scope of Narcoanalysis, Polygraph & BEAP tests in the light of the
Constitution of India and Cr.P.C. provisions. The paper also described the judicial trend and
analyzes the power of Court to order Narcoanalysis, Polygraph & BEAP tests technique in India.
The essential feature of leading case Selvi v. State of Karnataka is presented in the paper with
National Human Rights Commission guidelines.

INTRODUCTION

As Justice Hall said

“The object of criminal law is in terms of order- survival, security, maintenance of conditions
which permit the society to progress, experience of higher values and finally the good life which
subsumes all the ideals of the world; in which a democratic society moves”.

Justice is the basis of Law . When it comes to Criminal Law,there are certain rules for the
maintainence of Law and order in which is change is an ongoing process. Whether it is a socio-
legal process, Judicial process, or Criminal Justice process it is imperative that Justice always
prevails in the change.

In democratic countries like India, Rule of law is the supreme authority. All were equal before
law and justice is achieved through it. Yet , India is not satisfactory achieved it.

The heart and soul of Indian Criminal System is the investigation done by the police. When an
offence is brought to the note of police, it is their responsibility to investigate into the matter to
find out who committed the crime, to ascertain the facts and circumstances, to collect and present
whole set of these to the court to find the accused guilty or not. 1 It is the duty of police to catch a
wrongdoer and present him before the court. But, in the present scenario this is not happening.
Due to development of Science and technology, Criminals are using sophisticated and modern
techniques for the commission of the crime and they are not leaving any traces or evidence in the
crime site for the police to investigate the case. On the contrary, the countries police are still
struck using the outdated techniques. Police often use third degree treatment for the suppression
of truth and for fabricating the facts and evidence for many reasons like Political suppresion,
superior officers pressure for closing of investigaton and many more. Consequently, custodial
atrocities, custodial deaths are on an increase which is a major blow to rule of law.

Our criminal justice system is value based conventional system of justice, but the criminals today
are wise, so there is a need for modification. So, police were relying on the scientific techniques
DNA, asphyxia, epiphysis, Narco analysis, Brain mapping, Polygraph etc.., for producing
scientific evidence for effective delivery of justice as it combines both science and the law.

1
S.R. Bannurmath, “Narco-analysis, Brain- Mapping- Legal Implications with Reference to
Right to Silence”, unpublished report, Karnataka Section of International Commission of Jurists,
2007, p 2.
POLYGRAPH: ORIGIN AND MODUS OPERANDI

No machine exists which can detect the act of lying.2 The term ‘polygraph’ literally means ‘many
writings’, therefore the name refers to a process in which selected physiological activities are
recorded.3 Polygraph is generally referred to and sometimes referred to as psycho-physiological
identification as a lie detector. It is an instrument that monitors and records the physiological
behaviour of the human body, such as the subject's blood pressure , heart rate, respiratory
system, skin conductivity, when the subject is asked and addresses questions about the crime. All
the natural changes caused by the autonomic nervous system during interrogation are assessed by
polygraph tests.

A definition of polygraph has not been found in any Indian Legislation. A definition of
“polygraph” was given in the United States Employee Polygraph Protection Act of 1988.

In this Act, “Polygraph means an instrument that :

“(A) Records continuously visually, permanently and simultaneously as minimum

instrumentation standards; and
2
Benjamin Burack, Critical Analysis of the Theory, Method, and Limitations of the Lie Detector, A, 46 J. Crim. L.
Criminology & Police Sci. 414 (1955-1956),
3
Chapter-5, Yawer Qazalbash, The Truth of Lie Detectors, 1 st edition.
 (B) is used, or the results of which are used for the purpose of rendering diagnostic opinion
regarding the honesty or dishonesty of an individual”. 4

Polygraph runs on a principle that subjects consciously held feelings changes and produces a
reaction in the form of psychological changes like pulse rate, blood pressure, respiration rate and
the electrical resistance of the skin known as G.S.R. These changes remains normal when the
accused is speaking the truth.

In the Case of Ramchandra Reddy and Ors. v. State of Maharashtra5 it was held that

“In this test the polygraph is taken which gives this reaction and an expert would then explain
these reactions in the court which would be his .reading of the polygraph from which would flow
his conclusion which are to be admitted or not admitted by a Judge on appreciation of the
statement and the objections raised there:”6

PROCEDURE FOR PERFORMING POLYGRAPH TEST

Polygraph test is a series of psychological tests. In this test changes in blood pressure, pulse rate,
respiration, muscle movement, skin conductivity are recorded. An expert and skilled examining
will make assessment of following procedures—

1. as averment of examiner’s emotional state;

2. medical fitness of the examination

4
B.R. Sharma, “Forensic science in criminal investigation and Trials”, 3rd Edition, P.17, Universal Law Publishing
Co. Pvt. Ltd., New Delhi, 1990.
5
Cr. W.P (c) No. 1924 of 2003
6
Ramchandra Reddy and Ors. v. State of Maharashtra, Cr. W.P (c) No. 1924 of 2003
3. to identify overly responsive behaviour specialized tests be conducted; 4. to assess responsive
capabilities of examination control question be asked

5. to do factual analysis of case information and

6. to do pre-test interview and detailed preview of questions.

In polygraph there aspects of human physiology are tested, viz –

1. Pneumograph tracing,

2. Electrodumal activity tracing, and

3. Cardiovascular tracing.

POLYGRAPH TESTS

Generally polygraph test is conducted in three stages

(i) The pre-test interview

(ii) The chart collection or examination proper
(iii) The post-test-interview

(I) Pre-test Interview

In this test the examiner introduces himself to the subjects and explains him about the procedure
and legal consequences of the test for taking the consent of the accused. The examiner also
questions about subject’s medical problems. All these are written in a form which the subject
signs. General questions were asked to him during to this stage to know the behavioral
symptoms. The pneumograph, the sphygmomanometers and electrode are placed on the subject
during or at the conclusion of pre-test interview and after the interview concluded the –
Sphygmomanometer is inflated and recording of responses begin and box-line is recorded.

Sometimes a “Stim Test” is conducted at this stage, which is: the subject is asked to deliberately
lie, and then the examiner may ensure himself that he can detect this lie.7
7
Chapter-5, Yawer Qazalbash, The Truth of Lie Detectors, 1 st edition.
 (II) The chart collection or examination proper

This is the important stage of the test. Different gadgets are attacted to the body to measure
the psycological changes. Questions prepared are put to the topic and he has to answer them
in 'yes' or 'no'. Some issues are insignificant and some are important-One of the issues is the
question of provoking stores. During the entire question response sequence, measurements of
blood pressure, transpiration, pulse and breathing rate are registered. The examiner then
contrasts the answers of the question induced by stress with other questions and interprets the
court to consider whether the lie has been spoken. The instrument tracks adjustments on the
graph paper by means of a needle.

For every question there is a gap of 10-15 seconds so that the responses to the last question
gets eliminated. The “stimulation” or “stim” test is a number or card test. Our types of
questions are asked to the subject, they are relevant, control, irrelevant and concealed
information or guilty knowledge questions. Main questions are repeated three or four times
and to avoid discomfort to subject pressure cult are inflated only for 10 to .1.2 minutes.

(III) Post-interview questions:

The outcome of the test is analyzed in the third stage with the subject in order to examine the
deception of attempted non-response to some question.

The following changes are carefully noted: suppression of breathing and increase in blood
pressure after reaction, decrease in blood pressure, breathing activity, decrease in pulse rate
and blood pressure. The results are displayed in the form of chart known as polygram.

The polygraph doesn’t directly detect whether a person is speaking the truth or not. Examiner
carefully analyzes and makes an inference on the basis of the arousal of the reactions.

USES OF POLYGRAPH

In India the use of polygraph is restricted to only to Central and State police or security agencies
and after the crime is already been committed for the investigative purposes. It is also used in
white collar crimes and in terrorist activities in pre-crime cases for stopping of offence.
 In U.S, it is used in mainly three sectors (i) Law enforcement agencies (ii) Use by Legal
Community (iii) Use by Private Sector

1. Used for deception identification.

2. As per the charges, the guilty person can admit his crime.

3. Innocent and guilty persons can be discriminated against.

4. It may replace techniques of the third degree used during interrogation.

5. It may narrow down the area of police inquiry or investigation.

6. The statement of a witness may be confirmed.

CRITICAL ANALYSIS OF POLYGRAPH

(1)The test does not state whether or not the subject is lying. Results indicate only the about the
physiological changes that the professional must perceive.

(2) No research is involved in posing the issue, and it relies entirely on the trickery and
experience of the examiner.

(3) An individual who can control his feelings to a great degree can still say a lie, e.g. whether a
person has control over himself through yoga practice or otherwise, this test is bound to fail.

(4) Many innocent and honest individuals may demonstrate nervousness under the conditions of
police interrogation. This nervousness can occur for different reasons.

(5) Accuracy and reliability of the polygraph test was always questioned. In 2003, the National
Academy of Sciences (NAS) issued a report in US titled “The Polygraph and Lie Detection.”
According to the report the majority of polygraph research was “Unreliable, Unscientific and
Biased. The study has come to conclusion that the truth which is detected is “a level slightly
greater than chance, yet short of perfection”. Another conclusion of the report also revealed that
the “level of accuracy was overstated and the levels of accuracy shown in these studies are
almost certainly, higher than actual polygraph accuracy8.

8
Chapter-7, Yawer Qazalbash, The Truth of Lie Detectors, 1 st edition.
(6) Lack of educational and Training standards in this field is also a major issue because the
examiner should perfectly know the questions he should ask and record the reactions and
interpret whether he is saying truth or not. Judges must be aware for the technicality of the test,
otherwise the test can be easily manipulated and it could cause a major blow to Justice.

(7) From the evidence point of view which we will be dealing later, the statement or the
information from the accused which is extracted from the test cannot be used as sole conclusive
and it should be corroborated.

BRAINMAPPING

Brain mapping is one of the most valuable techniques that are used in the investigation of the
crimes. Brain Mapping is also known as Late Positive Complex or P3 or P300. In this test no
questions are asked from the accused. He is made to sit in evoked potential recording machine
and is shown objects relating to crime scene or is made to hear sounds pertaining to crime site.
The sensors from his head pick the event related potentials in the form of Brain Mapping only if
the person has been at the site of crime. Brain fingerprinting is used to determine whether certain
information is present in the brain of a person or not. In other words, brain fingerprinting is a
scientific test by which guilty knowledge stored in one’s brain can be determined. Brain
fingerprinting measures neural responses to images from crime scene. In short, the brain
fingerprinting is the method of matching the fingerprinting information in the brain with that of
actual crime scene.9

Brain fingerprinting device was invented by U.S. scientist Dr. Lawrence A. Farewell in early
1970’s. According to him, “Truth Detector” is based on the functions of brain. Every event is
stored in the brain and when the same or similar event is shown to person the brain responses and
response is recorded through computer. Through Brain fingerprinting it can only be known that
the person was present or not at the place of occurrence. Only proof of his presence, inferences

9
Chaudhary, A., 2014. Admissibility Of Scientific Evidence Under Indian Evidence Act 1872. PhD. Guru Nanak Dev
University.
cannot draw that he has committed the alleged offence. The person may be present on the place
of occurrence for some legitimate reason.

When any information or object is shown which corresponds with the information in his brain, it
gives stimuli and emits responses in the form of p300 waves. The major difference between
Polygraph and brain mapping is that the former works on emotions and latter works on cognitive
brain responses. That is why brain mapping is preferred to Polygraph test.

CRITICAL ANALYSIS OF BRAIN MAPPING

1. Innocent man who has not committed the crime but is the witness can react to the stimuli.
A person who had knowledge about the crime scene and case can also react to stimuli.
Then it can be difficult for the examiner to determine whether he has committed the
crime or not.
2. This technique is also criticized on the ground that it is violation of brain privacy. By this
a person loses his right to keep his thought to himself.10
3. Government of India appointed a committee (set up by Home Ministry), headed by
Nimhans Director D. Nagaraj, who submitted its preliminary report, questioning the very
scientific basis of brain mapping test results for its forensic application. The committee
has even doubted brain mapping tests for use even as an investigative tool, pointing out
“its reliability has never been attested to in any journal of renown.11

ADMISSIBILTY OF NOVEL SCIENTIFIC TECHNIQUES

In a nutshell, the field of criminology has grown dramatically over the past few years.

10
Chaudhary, A., 2014. Admissibility Of Scientific Evidence Under Indian Evidence Act 1872. PhD. Guru Nanak Dev
University.
11
Chapter-10, Yawer Qazalbash, The Truth of Lie Detectors, 1 st edition.
 There is also a need for the detect deception test and boost the efficacy of the prosecution
when the accused does not come forward with the truth and provide another clue in the
matter to further investigate the truth of the crime and to catch the real culprit by getting
another clue after the test. The conduct of Polygraph and brain mapping is in the process
of collecting evidence from the investigation. The scientific test allows the investigation
agency to gather the hidden facts and to prove the guilt or innocence of the perpetrator,
while the modern scientific test also helps protect society from police officers' third-
degree tactics.
With reference to Frey and dauberts cases the admissibility of the novel scientific
evidence can be explained properly.

Prior to Frey’s case in 1923 in the U.S, the position of scientific evidence is same as other
type of evidence. There is no separate codification for the scientific evidence. In Frye v.
United States12 there was a murder of Washington, D.C. James Frye. In the trial, defense
adduced the evidence which was extracted from the a machine that could be considered
the forerunner of today‘s polygraph. Defense argued that result of the test could help to
prove accused innocent. The prosecution objected to the admission of his novel evidence,
and the judge agreed. On appeal, the court upheld the trial judge‘s decision. Judge opined
that with respect to Novel scientific evidence, when a scientific principle or discovery
cross the line between the experimental and demonstrable stages is difficult to define.
The principle laid down by the judge is that before a new scientific technique is
introduced in the court, the technique must have achieved general acceptance within the
particular field to which it belongs.
One important issue which has not been decided by the court is what amounts to general
acceptance. It is established that the technique and principles should have been published
in a peer reviewed journal or other equivalent exposure to the field the federal courts.
Most of the courts in U.S applied this principle to evaluate the admissibility of new
scientific techniques.

12
2009 U.S. LEXIS 6377
 During that time a number of novel scientific techniques were subject to ―Frye
challenges‖ in various courts. They included Voiceprint Spectrograph‘ Blood Spatter
Pattern Analysis, Polygraph analysis, and even DNA Typing techniques.36 On, January
2, 1975, the Congress, the first time, approved an evidence code.13
In 1975, Congress proposed which is later accepted that expert testimony must be used in
adducing the scientific evidence and he should have to be helpful to the factfinder. Many
states were in confusion whether to follow the principle laid down in Frye case or the
recommendation by congress.
It was settled in the case of Dubert v. Merrill-Dow14 The Supreme Court concluded
that the federal courts could not use the Frye rule any more in deciding question about the
admissibility of scientific or technical evidence, and that the doctrine general acceptance
was not the proper yardstick. If scientific , technical or other specialised knowledge helps
the investigator to understand the evidence or to decide the facts at issue, a witness
qualified as an expert by knowledge , competence, experience , training or training can
testify in the form of an opinion or otherwise. The judge must be the gatekeeper who
decides when novel scientific evidence is admissible. The court suggested a criteria when
a judge could use for deciding to use novel scientific techniques for extracting evidence.
This was adopted by many countries in fact India also follow this criteria as this case was
referred in the case of Selvi vs state of karnataka15

ADMISSIBLITY OF POLYGRAPH AND BRAIN MAPPING TESTS

From the Evidence perspective:

According to Section 3 of Indian Evidence Act, 1872 defines evidence as: “Evidence”.
—“Evidence” means and includes— (1) all statements which the court permits or requires to
be made before it by witnesses, in relation to matter 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.16

13
H.PRICILLA, ARYA R, POLYGRAPH AND NARCO TEST IN INDIAN EVIDENCE LAWTHROUGH CASE LAWS, Volume 120
No. 5 , 125-145, 2018.
14
; 1993 U.S. LEXIS 4408
15
A.I.R 2010 S.C. 1974
16
2020. Justice M.R Mallick Criminal Manual. 19th ed. Newdelhi: Professional Book publishers, pp.18
 According to above mentioned definition of ‘Evidence’ answers recorded during
Narcoanalysis or Polygraphy tests cannot come under the preview of this definition because
court cannot permit them to be admitted as they do not fullfil required conditions, factors and
provisions of law.

Before we delve into the topic, I want to discuss about the provisions relating to admissions
and confession under Indian evidence act.

Indian evidence act doesn’t define confession. According to Stephen’s Digest (article 21)
defines confession as: “an admission made at any time by a person charged with a crime,
stating or suggesting the inference that he committed the crime”.17

This definition has been interpreted by many courts in different angles like the statement
which is self exculpatory doesn’t amount to confession. A statement is a confession if the
confessor must either admit in terms the offence, or in any case substantially all the facts
which constitute the offence. Simply, admission of a incriminatory fact which itself doesn’t
amount to confession. For instance, if the owner of the revolver admits that it is his weapon
which had been used for killing doesn’t amount to confession.

According to Indian evidence act, Section 24 to 30 deals with confessions. In brief the
Section 24-26 elucidates that Confessions which are adduced through inducement, threat,
and coercion is not admissible in court of law. Confession to police officer is not admissible
and it should not be used against him.

The most important section which is related to the topic is Section 27, it states that

“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 a confession or not, as relates distinctly to the fact thereby discovered,
may be proved”.18

17
CHAPTER 13 CONFESSIONS AND ADMISSIONS, Yawer Qazalbash, The Truth of Lie Detectors, 1 st edition.
18
2020. Justice M.R Mallick Criminal Manual. 19th ed. Newdelhi: Professional Book publishers, pp.18.
 Provisions of section 27 of Evidence Act are an exception to the rules laid down in sections
24 to 26 of the Act. Section 27 incorporated “Theory of conformation subsequent fact.” That
means that statements made in custody are admissible to the extent that they can be proved
by the subsequent discovery of facts. It is clear that information received from a person
accused of any offence, who is in custody of a police officer, that information may be
admissible as to the fact discovered19. Even inculpatory statements are admissible if they are
connected to the discovery of facts under section 27.

An issue aroused that section 27 violates article 14 and article 20(3) of constitution. In the
case of State of Uttar Pradesh v. Deomen Upadhyaya 20 it was held that it is not in
violation of Article 14 and 20(3) of Constitution if it is obtained voluntarily and without any
threat, coercion and inducement.

In the case of Magraj patodia v. R.K. Birla21, it was held by the Apex court that discoveries
made by improper or illegal means would not be a bar to its admissibility if it is relevant its
genuiness is proved. Similar view was expressed again by Supreme Court in Pushpadevi M.
Jatia v. M.L. Wadhwan22 that where ‘evidence’ offered comes within the meaning of its
definition, the court can act on it and need not concern itself with the method by which the
evidence in question was obtained. The test to be applied in considering whether evidence is
admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court
is not concerned with how with was obtained.23

But all these case were overruled in the case of Selvi & Ors vs State Of Karnataka &
Anr24. The court held that there is distinction between information and statement. Statement
means , means employed for imparting knowledge actually possessed by one person to
another, and the knowledge so derived by the other person and information also includes

19
In: The Truth of Lie Detectors, 1st ed. 2016. CHAPTER 15 LIE DETECTION TESTS: EVIDENTIARY EVALUATION AND
ADMISSIBILITY. [online] Newdelhi: Lexis nexis. Available at: <http://lexis nexis> [Accessed 29 October 2020].
20
A.I.R. 1960 S.C. 1125
21
1971 (2) SCR 118 68.
22
AIR 1987 SC 1748.
23
Chaudhary, A., 2014. Admissibility Of Scientific Evidence Under Indian Evidence Act 1872. PhD. Guru Nanak Dev
University
24
Criminal Appeal 1267 of; 2004 2010(7) SCC 263
 knowledge derived by the person informed from the informant. However, divulgence of
information is through a statement, that may be oral, written or in signs etc.

The most important question is with the nature of ‘informations’ received through Lie
Detector tests. Under these tests all the methodologies used indicate that it is not simply
divulgence of the information’, but it is ‘information retrieval’. Police can easily misuse this
by Planting of discovery material evidence.

The other issues discussed in this case will be discussed in the coming chapters.

Section 45 of Indian evidence act also comes in to the discussion. According to section 45 of
Indian evidence act

When the Court has to form an opinion upon a point of foreign law or of science or art, or as
to identity of handwriting or finger impressions, the opinions upon that point of persons
specially skilled in such foreign law, science or art, or in questions as to identity of
handwriting or finger impressions are relevant facts. Such persons are called experts.25

If the expert forms an opinion he can be the witness and it is the judge who has to decide the
matter based on his opinion.

Section 53 of the Code of Criminal Procedure already allowed for the examination of “blood,
bloodstains, semen, sputum, sweat” through the use of “modern and scientific techniques
including DNA profiling and other such tests.26 It was contented that other tests also includes
Narco analysis, polygraph and BEAP tests. In the case of Selvi vs state of karnataka27 that
Section 53 refers to only bodily substance and to Testimonial responses. In polygraph and
BEAP tests the examiner derives knowledge from the physiological responses from the
subject’s mind. These two tests are different from the medical examination of the Accused
under Section 53 of Cr.pc.

25
Indian evidence act, S.45, 1872.
26
Section 53 of Cr.pc
27
Criminal Appeal 1267 of; 2004 2010(7) SCC 263
 Under Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10-A the civil court
has the requisite power to issue a direction to hold a scientific, technical or expert
investigation28

The argument relevant to Sharda v. Dharampal29, is the legitimacy of the direction of a civil
court to perform a medical test to assess a party's mental condition in a divorce case.
Needless to mention, before the trial court, the mental condition of a party was a relevant
issue, because insanity is a statutory excuse under the Hindu Marriage Act , 1955, for
obtaining divorce. The court held that, in any case, Article 20(3) was not applicable in civil
proceedings and that, in the exercise of its inherent powers under Section 151 of the Code of
Civil Procedure, the civil court was in a position to guide the medical test, because no
ordinary statutory basis existed for the same procedure.

From Constitution perspective

One of the biggest controversies in using Polygraph, Brain mapping and other techniques is
the violation of Article 20(3) i.e.., Right against self incrimination

The conditions for the applicability of Article 20(3) are:

(i) There must be a person accused of an offence;

(ii) There must be compulsion against such person;
(iii) Such compulsion must be to be witness and;
(iv) Such person must be compelled to become a witness against himself, in other words
to incriminate himself by his evidence30

Before we delve into this topic we will discuss about the Two models of Criminal process
i.e.., Crime control model and Due process model. Later we connect it with article 20(3).

The main goal of the criminal investigation is the determination of the truth. The practices,
procedures which are used are structured around the determination of the truth. Police often

28
Dr. Dharmendra Kumar Singh, Constitutionality and evidentiary value of narcoanalysis, polygraph & BEAP tests,
Volume 3; Page No. 84-89, Issue 4, July 2017.
29
AIR 2003 SC 3450
30
Rajni Nanda, Evidentiary Value of Forensic Science with Special Reference to Narco Analysis Test, 7 INDIAN J.L. &
Just. 158 (2016).
 use third degree techniques and due to the advancement of science and technology, tests like
Polygraph, Brain mapping and narco analysis etc were being used. Whether state can do
anything in determination of the truth without taking into consideration? These questions
were answered by American jurist Herbert Packer in a famous article in 1964, titled “Two
Models of the Criminal Process.

In Crime control model the ultimate goal of the criminal process is the “repression of
criminal conduct. In contrast with the crime-control model, the “due process model” holds
that “the combination of stigma and loss of liberty that is embodied in the end result of the
criminal process is the heaviest deprivation that government can inflict on the individual.”31

To explain it in a clear way, for example Exclusionary rule in Evidence which stipulates that
evidence obtained through unconstitutional means (e.g., a warrantless search, or through
torture) is inadmissible in Court. That means Quality and relevancy of evidence is entirely
unrelated to the way it was obtained. In crime control model, the quality and relevancy of the
evidence is the utmost important rather it put less concern on the manner it was obtained.

In the due process model, protecting citizens’ rights (including against warrantless searches
and torture) might well determine that an effective way of protecting these rights is to ensure
that evidence obtained in their violation, cannot be used against the accused. This is the
position in the United States.

But most of the states strikes balance between these two models i.e.., to allow the State
enough power to detect and punish crime, but not so much power that the individual is
entirely effaced before the State.32

So when we relate it to Article 20(3), it guarantees accused not to be compelled to be witness

against himself. In crime control model, the right against self incrimination is guaranteed if
the accused has a good reason that he has been compelled. In due process model, is

31
Bhatia, Gautam, Privacy and the Criminal Process: Selvi v State of Karnataka (April 22, 2018). Available at
SSRN: https://ssrn.com/abstract=3166849 or http://dx.doi.org/10.2139/ssrn.3166849
32
Bhatia, Gautam, Privacy and the Criminal Process: Selvi v State of Karnataka (April 22, 2018). Available at
SSRN: https://ssrn.com/abstract=3166849 or http://dx.doi.org/10.2139/ssrn.3166849
 concerned with the rights violations that invariably accompany compelled, self-
incriminatory testimony, and has equal – if different – reason to guarantee that right as well.

In the case of M.P Sharma vs Satish chandra 33 the Words “To be witness” and “compelled”
were interpreted. According to the facts of the case, certain individuals were accused of
committing large-scale corporate fraud, through a network of companies. Under the Code of
Criminal Procedure (as it then stood), the police applied to the District Magistrate for a
warrant to search the premises of the different corporations. The Warrant was given by the
Judge. Searches were carried out at 34 sites, and records were confiscated. The petitioners
(who held different positions in the companies) came to the Court to seek the annulment of
the warrants. They claimed that their rights under Article 20(3) of the Constitution were
violated by the search and seizure of their private papers. If there was something
incriminating in the records, their forced seizure would cause the petitioners to be "witnesses
against themselves,"

Issue raised whether the word “To be witness” included self-incrimination through
documentary evidence. The court held that to be a witness”, meant “any positive volitional
act that furnishes evidence.

The next question, then, was whether a search and seizure amounted to compelling a person
to be a witness against herself. Here, the Court held that it did not amount to compelling a
person as the search and seizure was conducted lawfully in which the warrant was obtained
from Magistrate and those documents were recovered in a police raid. Crime control was
employed by the court while deciding as the search and seizure is important for the
protection of social security and that power is necessarily regulated by law.

A broad reading to the word “to be a witness” in Article 20(3), including both oral testimony
and documentary evidence within its scope is challenged after 8 years in the case of State of
Bombay v Kathi Kalu Oghad34.According to M.P Sharma`s case “To be witness” meant to
furnish evidence through Oral and documentary evidence this also means compelled
fingerprinting, DNA collection of the accused for the proper investigation comes under Self
incrimination. In kathikalu’s case the Courts felt that definition “To be Witness” was
33
Air 1954 SC 300.
34
(1962) 3 SCR 10
 outlawed. Narrow reading of “To be witness” means – it meant to communicate knowledge
of a relevant fact. Providing a fingerprint, or a handwriting sample, did not involve
communicating knowledge, and therefore, did not amount to being a witness. 35 It was held
that fingerprints or handwriting samples fell within the definition of being a witness, the
individual was not being compelled to become a witness against himself, because – as
reasoned above – it was not the sample that incriminated him, but the fact that the sample
was successfully matched with another piece of evidence. The crime control Model was
followed stating that the evidentiary character of fingerprints, or blood sample, or bodily
measurements, or handwriting samples, is not affected by the nature of the interrogation that
the accused was subjected to. Therefore, interpreting Article 20(3) as drawing a line between
evidence that the accused can change, and evidence that she can’t, demonstrates that the
overriding concern is with character of the evidence, its accuracy and its reliability36.

Due to the advancement of Science and technology and in interrogation techniques like
Narco analysis, polygraph and brain mapping techniques it became difficult to ascertain
whether it comes under the definition of “To be witness” so that it violates article 20(3).

In Dinesh Dalmia v. State of Maharashtra, the Madras High Court ruled that “Narco-analysis
testimony was not 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”.

The Indian Courts seem to be attempting to restrict the scope of Article 20(3) on the basis of
the "Minimal bodily harm". In Ramchandra Reddy and Ors37, the Bombay High Court
decision reflects this approach. V. Maharashtra State, which upheld the lawfulness of the use
of P300 or Brain fingerprinting, the examination of the lie detector and the use of truth serum
or Narco analysis.

35
Bhatia, Gautam, Privacy and the Criminal Process: Selvi v State of Karnataka (April 22, 2018). Available at
SSRN: https://ssrn.com/abstract=3166849 or http://dx.doi.org/10.2139/ssrn.3166849

36
Bhatia, Gautam, Privacy and the Criminal Process: Selvi v State of Karnataka (April 22, 2018). Available at
SSRN: https://ssrn.com/abstract=3166849 or http://dx.doi.org/10.2139/ssrn.3166849
37
Cr. W.P (c) No. 1924 of 2003.
 In the case of Nandini Sathpathy v. P.L. Dani,38 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, Art. 20(3) can be waived of by a person himself

In Smt.Selvi and Ors. vs state of Karnataka 39 it was held that involuntary administration
of the impugned techniques violates article 20(3) of the Indian Constitution. It followed the
due process model. This will be discussed in a detailed manner in the next chapter.

CASE ANALYSIS

1. Case name: Frye v. United States

Citation: 293 F. 1013 (D.C. Cir. 1923)

Topic: Admissibility 0f Scientific evidence

Procedural History: Appeal fr0m a judgment 0f the Supreme C0urt 0f the District 0f
C0lumbia that c0nvicted defendant 0f murder in the sec0nd degree.

Brief Facts of the Case:

Defendant was 0n trial f0r sec0nd degree murder and appealed t0 Supreme C0urt challenging
the decisi0n 0f trial c0urt 0n by refusing t0 all0w an expert witness testify as t0 the result 0f a
syst0lic bl00d pressure decepti0n test taken by defendant. Trial c0urt held that The test was
dem0nstrative and n0t merely experimental. At the time 0f the trial, the syst0lic bl00d
pressure decepti0n test had n0t achieved the required standing and empirical rec 0gniti0n

38
(1978) 2 SCC.
39
A.I.R 2010 S.C. 1974
am0ng psych0l0gical and physi0l0gical auth0rities t0 warrant the implementati0n 0f expert
testim0ny ab0ut the test.

Issues:

1. Was it impr0per f0r the c0urt t0 disall0w a testim0ny 0f an expert witness f0r the syst0lic
bl00d pressure decepti0n test?
2. D0es every scientific evidence is admissible in the c0urt with0ut any pr0per criteria?

Judgement

The c0urt held that expert evidence ab0ut the syst0lic bl00d pressure decepti0n test was
reas0nably excluded at trial in affirming the defendant's c0nvicti0n because the test did n0t
achieve the requisite standing and empirical rec0gniti0n fr0m physi0l0gical auth0rities

Ratio decidendi 

C0urt referred t0 the c0ntenti0ns 0f the defendants ab0ut the scientific evidence. C0unsel
0ffered expert witness ab0ut the test that truth is sp0ntane0us, and c0mes with0ut c0nsci0us
eff0rt, while the utterance 0f a falseh00d requires a c0nsci0us eff0rt, which is reflected in the
bl00d pressure. The rise thus pr0duced is easily detected and distinguished fr0m the rise
pr0duced by mere fear 0f the examinati0n itself. Pri0r t0 the trial he was subjected t0 the test
and result 0f the test is that he has n0t felt any rise in bl00d pressure. Judge 0pined that with
respect t0 N0vel scientific evidence, when a scientific principle 0r disc0very cr0ss the line
between the experimental and dem0nstrable stages is difficult t0 define.

The principle laid d0wn by the judge is that bef0re a new scientific technique is intr0duced in
the c0urt, the technique must have achieved general acceptance within the particular field t 0
which it bel0ngs.

2. Case: Daubert v. Merrell D0w Pharmaceuticals, Inc.

Citation:  509 U.S. 579

Topic: Admissibilty 0f scientific evidence

Procedural history: Petiti0ners appealed an 0rder fr0m the United States C0urt 0f Appeals
f0r the Ninth Circuit, which affirmed the trial c 0urt's grant 0f summary judgment f0r
resp0ndent drug c0mpany.

Brief facts of the case:

In a state c0urt in Calif0rnia, a min0r child and his parents, al0ng with an0ther min0r child
and his m0ther, br0ught suit against a drug firm that s 0ld the prescripti0n drug “Bendectin”.
The plaintiffs argued that the birth defects 0f the children were caused by the ingesti 0n 0f
Bendectin during pregnancy by the m0thers. The lawsuit was withdrawn t0 the United States
District C0urt f0r the S0uthern District 0f Calif0rnia 0n diversity gr0unds.

C0unsel f0r the defendants submitted the affidavit 0f Steven H. Lamm, physician and
epidemi0l0gist. He stated that he had reviewed the literature 0f Bendectin and human birth
defects -- m0re than 30 published studies inv0lving 0ver 130,000 patients. N0 study had
f0und Bendectin t0 be a human terat0gen (i.e., a substance capable 0f causing malf0rmati0ns
in fetuses). On the basis 0f this review, D0ct0r Lamm c0ncluded that maternal use 0f
Bendectin during the first trimester 0f pregnancy has n0t been sh0wn t0 be a risk fact0r f0r
human birth defects.

C0unsel f0r the plaintiff submitted an0ther expert testim0ny; their c0nclusi0ns were based
up0n "in vitr0" (test tube) and "in viv0" (live) animal studies that f0und a link between
Bendectin and malf0rmati0ns; pharmac0l0gical studies 0f the chemical structure 0f
Bendectin that purp0rted t0 sh0w similarities between the structure 0f the drug and that 0f
0ther substances kn0wn t0 cause birth defects. These experts had c0ncluded that Bendectin
can cause birth defects.

Issue:

1. Whether the general acceptance principle which was pr 0p0unded in Frye’s case is still
relevant?

Decision of the District court:

 C0urt relied 0n the judgment 0f Frye vs. United States40 and held that the meth0d used by the
plaintiff experts are n0t 0f "'sufficiently established t0 have general acceptance in the field t0
which it bel0ngs and gave summary judgment in fav0r 0f the c0mpany.

Grounds for appeal:

Frye‘s test is irrelevant in the present gr0wing techn0l0gical w0rld.

Decision of circuit court:

C0urt held in fav0r 0f plaintiff.

Ratio decidendi:

Frye’s general acceptance rule is irrelevant in t 0day’s w0rld. Instead, with the help 0f expert
0pini0n the judge must determine a fact in issue. Peer review publicati 0n is “ sine qu0 n0n “
0f admissibility. It d0es n0t necessarily c0rrelate with reliability. Judge Weinstein has
explained: "Expert evidence can be b0th p0werful and quite misleading because 0f the
difficulty in evaluating it and judge sh0uld be vigilant and mindful in determining the truth.

C0urt made these guildelines

(1) Whether the the0ry 0r technique can be 0r has been tested?

(2) Whether the the0ry 0r technique has been subjected t0 peer review and publicati0n.

(3) Whether the the0ry 0r technique has received general acceptance?

(4) The kn0wn 0r p0tential err0r rate 0f a technique.

Comment: The decisi0n is very g00d as it is still relevant in many c0untries

3. Case: Sh. Shailender Sharma vs State & An0ther

Citation: WP (Crl.) 532 OF 2008

Topic: Admissibilty and C0nstituti0nality 0f Narc0 analysis, p0lygraph and BEAP Tests.

40
293 F. 1013 (D.C. Cir. 1923)
 Scope: Indian evidence act, C0nstituti0n 0f India, Cr.Pc , I.P.C.

Provisions and law applied in the case:Admissi0ns secti0n 24 t0 31, Article 20(3) .21 0f
Indian c0nstituti0n, secti0n 53 0f Cr.pc.

Cases referred:

1. Ramachandra Ram Reddy Vs. State 0f Maharashtra41

2. State 0f b0mbay vs kathi kalu 0ghad42
3. Nandini Satpathy vs Dani (P.L.) And Anr43
4. Dinesh Dalmia Vs. State44

Brief facts of the case:

The Deceased chetan met with an accident and up 0n receiving the teleph0nic inf0rmati0n the
accused went t0 the sp0t and t00k the deceased t0 the h0spital. During the investigati0n accused
discl0sed that while he was driving the vehicle, it met with an accident in which the car t 0ppled
t0 the left side and as a c 0nsequence 0f this accident, Chetan wh0 was sitting 0n the left side 0f
the car g0t crushed between the r0ad and the car. On the basis 0f this interr0gati0n, the p0lice
added Secti0ns 201 IPC and arrested the Petiti 0ner/Accused. Deceased father alleged that his s0n
and uncle were n0t g00d in terms and alleged that the accused murdered his s0n. S0, t0 find 0ut
the truth p0lice, a lie detect0r test was c0nducted 0n the Petiti0ner/Accused and acc0rding t0 the
p0lice, the analysis 0f the same revealed deceptive resp0nses 0n behalf 0f the
Petiti0ner/Accused. It was 0nly thereafter that the p0lice filed an applicati0n seeking a directi0n
fr0m the C0urt t0 direct the Petiti0ner/Accused t0 underg0 Narc0 Analysis Test. Metr0p0litan
Judge appr0ved f0r the Narc0 analysis. The accused appealed t0 high c0urt 0f delhi that Narc0
analysis sh0uld be c0nducted.

41
Cr. W. P. No. 1924 of 2003
42
AIR 1961 SCC 1808
43
 1978 AIR 1025,
44
2006 Criminal Law Journal 2401.
Issues:

1. Whether the c0nduct 0f Narc0 Analysis Test is auth0rized by law?

2. Whether the term “0ther tests” in Secti0n 53 0f Cr.pc als0 includes Narc0 analysis?
3. Whether such a test 0n an accused vi0lates Article 20 (3) 0f the C0nstituti0n 0f India?

Contentions of the Petitioner/ Accused:

1. Mr. R.S. S0dhi, learned C0unsel f0r Petiti0ner/Accused has argued that Narc0 Analysis
Test is n0thing but c0mpelling an accused t0 give a statement against him and
c0nsequently c0nstituti0nal pr0tecti0n 0f right 0f silence as c0ntained in Article 20 (3) 0f
the C0nstituti0n c0mes t0 the aid 0f the accused pers0ns and relied up0n the Judgment 0f
Nandhini sathpathy’s case, Where right t0 remain silent is guaranteed under Article 20(3)
and the accused sh0uld n0t c0mpelled t0 give evidence against himself.
2. He c0ntended that C0nsent is necessary while c0nducting these tests
3. He argued that the Malimath C0mmittee 0n Criminal Justice Ref0rms (2003) and the
Administrative Ref0rms C0mmittee 0n Public Order and Terr0rism (2007-2008) have
rec0mmended that the C0urts sh0uld be emp0wered by suitable amendment t0 questi0n
the accused and if the accused c0ntinues t0 remain silent and refuses t0 answer any
questi0n put t0 him by the C0urt rather than using these tests.

Contentions of the Respondent/ victim:

1. Mr. Jayant K. Sud learned c0unsel f0r the deceaseds father argued that Narc0 analysis is
n0 l0nger vi0lating the c0nstituti0n by relying 0n the case 0f Dinesh Dalmia Vs. State45 in
this case it was held that Narc0 analysis is n0t health hazard and there is n0 scientific
explanati0n f0r that and it sh0uld be c0nsidered 0nly during the c0urse 0f trial.
2. He further referred t0 the judgment 0f the Divisi0n Bench 0f the B0mbay High C0urt in
the case 0f Ramachandra Ram Reddy Vs. State 0f Maharashtra46 in this case it was held
that Whether the accused statements are inculpat0ry and exculpat0ry can be ascertained
0nly after c0nducting the test s0 that it attracts article 20(3).

45
supra
46
supra
 3. Secti0n 53 0f Cr.pc als0 all0ws the p0lice t0 c0nduct 0ther tests which als0 includes
Narc0 analysis, p0lygraph and BEAPS tests.

Decision of the court:

The Narc0 Analysis Test is a step t0wards investigative aid. It f0rms an essential basis f0r
further inquiry, as it can c0ntribute t0 the gathering 0f further inf0rmati0n 0n the basis 0f
what happened during the study. In the f0rm 0f terr0rism-related crimes, pl0t t0 c0mmit
murder and 0ther seri0us 0ffences where the investigati0n agencies d0 n0t have vital leads,
the use 0f Narc0 Analysis has specific significance.

If the incriminati0ng statement made by the accused, the pr 0secuti0n cann0t use 0r rely 0n
it. The petiti0n is disp0sed 0f and the applicant is directed t 0 underg0 the Narc0-Analysis
Examinati0n within eight weeks fr0m t0day. The Investigating Officer inf0rms the petiti0ner
accused 0f the date and time 0f the test.

Ratio Decidendi

As far as Sec0nd issue is c0ncerned ,C0urts expressed the 0pini0n that under Secti0n 53 0f
Crpc Other tests als0 includes Narc0 analysis. C0urt relied up0n 37th Rep0rt 0n the Cr.P.C.
1898 and 41st Rep0rt 0n the Cr.P.C. 1898 and 0pined that f0r the effective investigati0n
these tests are necessary and it d0esn’t vi0late Article 20(3).

F0r the third issue, the c0urt examined Article 20(3) and Secti 0n 161(2) 0f Crpc. It relied 0n
Nandini Satpathys case (Supra) that :- The area c 0vered by Article 20(3) and Secti0n 161(2)
is substantially the samethat secti0n 161(2) 0f the Cr.P.C. is parliamentary gl0ss 0n the
c0nstituti0nal clause.

C0urt 0pined that while c0nducting the test there is n0 c0mpulsi0n t0 be witness against
himself, ing the test, the statement made by the accused may pr 0vide s0me clues and leads t0
the Investigating Agency. H0wever, if during the said test, accused makes a statement which
incriminates him, then the said statement cann0t be used against him.

Comment:
The judgment is maj0r bl0w t0 judiciary. C0urt 0verl00ked the article 21 and right t0 privacy
and didn’t menti0n pr0per criteria h0w the questi0ns may be asked in Narc0 analysis test.

4. Case: Smt. Selvi vs. State 0f Karnataka

Citation: A.I.R 2010 S.C. 1974.

Scope: Indian Evidence act, Cr.pc, IPC.

Topic: Admissibilty and C0nstituti0nality 0f Narc0 analysis, p0lygraph and BEAP Tests

Cases referred:

Frye v. United States

Daubert v. Merrell Dow Pharmaceuticals Inc.,

United States v. Galbreth

United States v. Cordoba

Shailendra kumar vs state

Nandini sathpathy vs P.L dani

State of West Bengal vs kathikalu

Brief facts of the case

In the year 2004 Smt. Selvi and 0thers filed the first batch 0f criminal appeal f0ll0wed by
subsequent appeals in the year 2005, 2006 and 2007 and 2010 were taken up t 0gether by the
h0n0urable bench 0f Supreme C0urt via special leave petiti0n 0n 5th May 2010.

The 0bjecti0n raised in the current case was related t 0 the inv0luntary administrati0n 0f s0me
scientific techniques like narc0analysis, p0lygraph examinati0n and the Brain Electrical
Activati0n Pr0file (BEAP) 0r Brain- Mapping test 0f the accused, suspects 0r witnesses in an
investigati0n, in 0rder t0 create the evidentiary value 0ut 0f the statements rec0rded by such
pr0cesses. The scuffle in the present case was between the desirability 0f efficient
investigati0n and the preservati0n 0f individual liberties. The main c0ntenti0n 0f the
investigating agencies was that these scientific techniques c0uld be useful in extracting the
imp0rtant inf0rmati0n 0ut 0f the accused 0r witness, which by 0rdinary means c0uld never
be p0ssible t0 extract. It was further argues that such kind 0f techniques didn’t cause any
b0dily harm t0 the victims, accused 0r the witnesses in any way and such inf 0rmati0n s0
extracted by these pr0cesses w0uld 0nly strengthen the investigati0n pr0cess and thus, w0uld
n0t be taken as evidentiary value in the trial stage.

Issues:

1) Whether gathering inf0rmati0n thr0ugh the narc0analysis, brain mapping 0r BEAP,

FMRI (Functi0nal Magnetic Res0nance Imaging) and p0lygraph test c0nstituti0nally
valid.

2) Whether the evidences s0 c0llectedam0unt t0 the vi0lati0n 0f c0nstituti0nal rights such as

the ‘right against self-incriminati 0n under article 20(3) 0f the Indian C0nstituti0n and
Secti0n 161(2) 0f C0de 0f Criminal Pr0cedure, 1973.

3) Whether evidences s0 c0llected am0unt t0 the vi0lati0n 0f the right t0 privacy under the
‘pers0nal liberty’ clause 0f Article 21 0f the C0nstituti0n.

4) If the accused remains silent and d0es n0t answer any questi0ns 0f the investigating
agencies then till what extent the investigating agencies can c 0erce 0r f0rce the accused
t0 reveal inf0rmati0n?

Judgement

C0urt held that the testes such as Narc0 analysis, P0lygraph and mapping unc0nstituti0nal.

 The Nati0nal Human Rights C0mmissi0n had published `Guidelines f0r the Administrati0n
0f P0lygraph Test (Lie Detect0r Test) 0n an Accused' in 2000.

These guidelines sh0uld be strictly adhered t0 and similar safeguards sh0uld be ad0pted f0r
c0nducting the `Narc0 analysis technique' and the `Brain Electrical Activati 0n Pr0file' test.
The text 0f these guidelines has been repr0duced bel0w:
 (i) N0 Lie Detect0r Tests sh0uld be administered except 0n the basis 0f c0nsent 0f the
accused. An 0pti0n sh0uld be given t0 the accused whether he wishes t0 avail such test.

(ii) If the accused v0lunteers f0r a Lie Detect0r Test, he sh0uld be given access t0 a lawyer
and the physical, em0ti0nal and legal implicati0n 0f such a test sh0uld be explained t0 him
by the p0lice and his lawyer.

(iii) The c0nsent sh0uld be rec0rded bef0re a Judicial Magistrate.

(iv) During the hearing bef0re the Magistrate, the pers0n alleged t0 have agreed sh0uld be
duly represented by a lawyer.

(v) At the hearing, the pers0n in questi0n sh0uld als0 be t0ld in clear terms that the statement
that is made shall n0t be a `c0nfessi0nal' statement t0 the Magistrate but will have the status
0f a statement made t0 the p0lice.

(vi) The Magistrate shall c0nsider all fact0rs relating t0 the detenti0n including the length 0f
detenti0n and the nature 0f the interr0gati0n.

(vii) The actual rec0rding 0f the Lie Detect0r Test shall be d0ne by an independent agency
(such as a h0spital) and c0nducted in the presence 0f a lawyer.

(viii) A full medical and factual narrati0n 0f the manner 0f the inf0rmati0n received must be
taken 0n rec0rd.47

Ratio decidendi:

The c0urt held the The c0urt held that there is distincti0n between inf0rmati0n and statement.
Statement means , means empl0yed f0r imparting kn0wledge actually p0ssessed by 0ne pers0n
t0 an0ther, and the kn0wledge s0 derived by the 0ther pers0n and inf0rmati0n als0 includes
kn0wledge derived by the pers0n inf0rmed fr0m the inf0rmant. H0wever, divulgence 0f
inf0rmati0n is thr0ugh a statement, that may be 0ral, written 0r in signs etc.

The m0st imp0rtant questi0n is with the nature 0f ‘inf0rmati0ns’ received thr0ugh Lie Detect0r
tests. Under these tests all the meth 0d0l0gies used indicate that it is n0t simply divulgence 0f the

47
A.I.R 2010 S.C. 1974.
inf0rmati0n’, but it is ‘inf0rmati0n retrieval’. P0lice can easily misuse this by Planting 0f
disc0very material evidence.

Three c0nditi0ns must be fulfilled bef0re such ‘retrieved inf0rmati0n’ is all0wed t0 be admitted:
(a) Onus lies 0n pr0secuti0n t0 pr0ve that the inf0rmati0n, claimed t0 be retrieved fr0m the
accused, actually existed in the brain 0f the accused (it was n0t result 0f illusi0n 0r hallucinat0ry
irrespective 0f the fact 0f rec0very); (b) whether the retrieved inf0rmati0n c0uld have been
v0luntary in the n0rmal circumstances; and, (c) whether c0erci0n, inducement, fear (thr0ugh
persistent questi0ning etc.) and t0rture was the result 0f that inf0rmati0n.

C0urt has discussed in detail ab0ut the inv0luntary administrati0n 0f these test. The Bench
c0mpared the tests and their c0mpatibility with c0nstituti0nal guarantee 0f ‘substantive pr0cess
0f law’, thereby infringing the ‘pers0nal liberty’ as underst00d in c0ntext with article 21 0f
C0nstituti0n. “Since administering the impugned tests entails the physical c 0nfinement”, it
bec0mes a restraint 0n ‘pers0nal liberty’, because any restraint 0n ‘pers0nal liberty’, h0ws0ever
slight it may be, it has g0t a basis in law. C0urt 0pined that Secti0n 53 refers t0 0nly b0dily
substance and t0 Testim0nial resp0nses. In p0lygraph and BEAP tests the examiner derives
kn0wledge fr0m the physi0l0gical resp0nses fr0m the subject’s mind. These tw0 tests are
different fr0m the medical examinati0n 0f the accused under Secti0n 53 0f Cr.pc.

5. Case name: Pappuram vs State

Citation: 2017 Raj HC 859

Topic: Admissibilty and C0nstituti0nality 0f Narc0 analysis, p0lygraph and BEAP Tests

Scope: Indian evidence act, Cr.pc, IpC

Provisions: Section 498A in The Indian Penal Code

Section 324 in The Indian Penal Code

Section 307 in The Indian Penal Code

Section 302 in The Indian Penal Code

Section 173(8) in The Code Of Criminal Procedure, 1973

Section 482 Cr.P.C.

Facts:

Petitioner’s wife parameshwari devi has filed an FIRagainst the petitioner and six other persons
for the offences punishable under Sections 143, 307 498-A and 324IPC. After registration of
above mentioned FIR, the police started investigation and during the course of investigation,
Parmeshwari Devi died. The police, after thorough investigation, filed charge-sheet against the
petitioner for the offences punishable under Sections 324, 307, 498-A and 302 IPC, however, the
investigation against other co-accused persons has been kept pending under Section
173(8) Cr.P.C. The allegations against the petitioner is to the effect that he poured kerosene on
his wife and thereafter enkindled the fire and on account of that she received severe burn injuries

The trial court has framed charges against the petitioner for the offences punishable
under Sections 324, 307, 498-A and 302 IPC. Thereafter, the petitioner moved an application
under Section 54 read with Section 173(8) Cr.P.C. and Article 21 of the Constitution of India on
23.05.2016 and prayed to get the Narco Analysis Test, Brain Mapping Test and Polygraph Test
conducted on him from the Forensic Directorate, Gujarat State.

Judgment of the trial court:

Application of the petitioner was by the trial court, after considering the arguments advanced on
behalf of the parties, has rejected the said application vide impugned order while observing that
the Narco Analysis Test, Brain Mapping Test and Polygraph Test are not conclusive evidence
and it has further observed that the petitioner never asked for the said scientific tests during the
course of investigation or also not raised any such argument at the time of framing of charges
and, therefore, the prayer of the petitioner for conducting the said tests cannot be accepted. 

Contentions of petitioner:

1. Learned counsel for the petitioner has argued that the petitioner has falsely been
implicated in this case by his sons and brothers-in-law. It is contended that the wife of the
 petitioner committed suicide but his sons, brothers-in-law and the police in connivance
with each other have made a false case of murder against the petitioner. 

2. It is contended that as a matter of fact when the wife of the petitioner poured kerosene
upon herself and enkindled the fire and was burning, then the petitioner tried to save her
but the sons of the petitioner caught hold of him and did not allow him to rescue his wife 

3. They also argued that right of the accused to give evidence to prove his innocence not
only flows from the principles of natural justice but to be a part of Article 14/21 of the
Constitution of India. It is also contended that as per Section 315 Cr.P.C., giving of
evidence cannot be restricted only to give of oral testimony in Court

4. Counsel placed reliance on Selvi vs state of Karnataka48

Judgment of High court

High court upheld the decision of trial court

Ratio Decidendi

Court held that So far as the judgment of Hon'ble Supreme Court rendered in Smt. Selvi & Ors.
Vs. State of Karnataka on which the learned counsel for the petitioner has placed reliance, is
concerned, it has held that a person cannot be forced to undergo this Polygraph Test or scientific
tests without his consent. It is not held by the Hon'ble Supreme Court that if a person requests for
such scientific tests, then the prosecution is duty bound to conduct those tests..

If there was no direct evidence against the accused persons and the case of the prosecution was
based only on circumstantial evidence then the court can direct the use of scientific evidence. .

In the present case, police, during the course of investigation, collected direct evidence against
the petitioner and there are as many as four eye witnesses in this case.

SUGGESTIONS

48
Supra
1. A strategy sh0uld be established where clear reference sh0uld be made specifically 0f
narc0-analysis, p0lygraph and brain mapping and pr0visi0ns sh0uld als0 be made f0r
p0tential advances s0 that future research meth0ds can find space in the c0untry's
statut0ry law and help in investigati0n, c0llecting evidence that can lead t0 justice.
2. A br0ader understanding 0f the clarificati0n attached t0 Secti0n 53, Secti0n 53-A and
Secti0n 54 sh0uld be given. "In view 0f the" ejusdem generis "clause, the techniques 0f
narc0-analysis, p0lygraph and brain mapping sh0uld be included in the term" m0dern and
scientific techniques.
3. The current scenari0 in the c0untry is that narc0-analysis, p0lygraph and brain mapping is
valid if the test is d0ne with the c0nsent 0f the subject underg0ing the test but it cann0t be
d0ne with0ut the c0nsent. The researcher respectfully submits that there sh0uld be n0
demarcati0n between v0luntary and inv0luntary underg0ing 0f techniques. It makes n0
sense that a particular technique is invalid because the subject did n 0t c0nsent and the
same technique is valid when it receives the c0nsent 0f the subject.
4. The use 0f narc0-analysis, p0lygraph and brain mapping sh0uld be made admissible and
permitted as these are s0phisticated techniques 0f investigati0n. The utilizati0n 0f narc0-
analysis, p0lygraph and brain mapping in interr0gati0n pr0cess can help in curbing the
pr0blem 0f cust0dial t0rture, vi0lence and deaths. The f0rem0st right 0f every detainee is
the preservati0n 0f the basic and natural human right which is vi0lence free envir0nment
even if the pers0n is in lawful cust0dy. A pers0n sh0uld always be treated with respect
and his dignity sh0uld be maintained at every stage. These techniques sh 0uld be all0wed
because these are in c0ns0nance with the preservati0n 0f human rights.

These are s0me suggesti0ns humbly submitted by the researcher t0 make the administrati0n
0f criminal justice system in India m0re flawless.

BIbilography

1. Yawer Qazalbash: The Truth of Lie Detectors, 1st ed

2. Ananthi S. Bharadwaj & Sumithra Suresh, Narco Analysis and Protecting the Rights of
the Accused, 4 NALSAR Stud. L. REV. 121 (2008)
 3. Chaudhary, A., 2014. Admissibility Of Scientific Evidence Under Indian Evidence Act
1872. PhD. Guru Nanak Dev University.
4. Bhatia, Gautam, Privacy and the Criminal Process: Selvi v State of Karnataka (April 22,
2018)
5. Dr. Dharmendra Kumar Singh, Constitutionality and evidentiary value of narcoanalysis,
polygraph & BEAP tests

Webilography

1. https://advance.lexis.com. .

2. http://heinonline.org

3. http://login.westlawindia.com

4. http://www.manupatrafast.com

5. https://www.lawctopus.com/academike/critical-analysis-selvi-v-state-karnataka/