Narco Analysis in Other Countries

3.5.1 USA

The drugs which are being used in the narcoanalysis test basically developed in United
States. The idea can traced in famous article of C.B Hanscom, Director Department of
protection and investigation, Minnesota university where author refers the use of
narcotics such as wine, Opium, Hashish etc. for the specific purpose of extracting
confession from criminals prior to Dark Ages. The Mescaline and in 1903 an American
Criminologist used Ether for this purpose. Later on Scopolamine started to use for the
235
narcoanalysis by the American experts for extracting confession from criminals.
During Second World War the American Army used Sodium pentothal, Sodium Amytal
and barbiturates, replacing the Scopolamine to the battle shocked servicemen to expose
236
hidden fears and regain emotional stability. These drugs are easier to handle as
compare to narcotics and even Scopolamine. An immense increase of verbal materials in
narcoanalysis began to take place when the antagonistic effect of methyl-amphetamine
hydrochloride was added to the hypnotic effect of the barbiturates. Amphetamine is a

235 Gerald T. McLaughlin, “A Nation Tranquilized-A Socio Legal Analysis of the Abuse of Sedative in the
United

States,” Vol. 42, Issue 1, Fordham Law Review (725), 1974. Available at,
http://ir.lawnet.fordham.edu/flr/v ol42/iss4/1. Visited on 10/08/2015.

236 Easther Arkell, “What truth does “Truth Serum” Sodium Pentothal Actually reveals?”Available at,
http://io9.gizmodo.com/5902559/what-truths-does-truth-serum-actually-reveal. Visited on 10/08/2015.

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stimulant drug, sold commercially under a variety of trade names, of which Benzedrine is
the most widely known. It might be thought that the two antagonistic effects of narcosis
and stimulation might cancel each other out. But this is spectacularly not true.
Barbiturates can be used first to stifle anxiety, then afterwards amphetamine to activate
and in swift change there can take place a truly explosive liberation of latent and
unconscious material. This has created some physical problem like electric shock in the
body. It has been shown that the Central Investigation Agency (C.I.A.) in the U.S.A. had
conducted research on the use of sodium pentothal for aiding interrogations in
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intelligence and counter-terrorism operations, as early as the 1950’s.

The narcoanalysis or narcointerrogation widely practiced by the American police

procedure which can be seen in the recommendation made by the President’s
Commission on Law Enforcement and Administration of justice in 1967 for modernizing
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the criminal justice system with the inclusion of new technologies in the investigation
though later on different questions arises in connection with the forensic use of these
methods, in the adversary situation and either without the consent of the suspect or with
the consent possibly extorted by force or cajoles in the august name of Science. In the
evaluating new and emerging technologies for use in criminal justice system one aspect
that is sometime overlooked is the possibility that they may affect the constitutional
rights of those suspected, accused or convicted person such as in case of development of
Narcoanalysis for the investigation of crime may result violation of self incrimination or
right to privacy or even an unreasonable search and seizure in violation of fourth
amendment which required repeated actions of the Supreme Court and High Courts
because these technologies are as innovative as likely to result similar challenges of
239
constitutionality. In very famous Chicago murder case, the suspect a nineteen year old

237 ‘Project MKULTRA – The CIA’s program of research in behavioral modification’, On file with
Schaffer Library of Drug Policy, available at www.druglibrary.org, visited on 19/12/2014.
238 The president’s Commission on Law Enforcement and Administration of Justice, The challenge of
crime in a free society (Washington D.C.: U.S. Government printing office, 1967), pp.244-271.
239 People v. Townsend, 141 N.E.2d 729 (March 20, 1957) See notes on this and other cases relating to
admissibility of confessions made under the influence of drugs: North western Law review 52 (1957) 666 and
Brooklyn Law Review 24 (1957) 96.

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Negro youth was administered injections of scopolamine and Phenobarbital by a police
surgeon on the night of his arrest, and confessed to robbery-murder, under police
interrogation, one hour and fifteen minutes after the injections. But in this case the
suspect, Charles Townsend, was a heroin addict and actually requested medical
assistance to alleviate acute withdrawal distress. The police surgeon gave him injections,
not to aid in the interrogation, but to relieve his abstinence symptoms. The confession
was rules admissible at the trial, conviction and death penalty were affirmed by the
Supreme Court of the United States. However it could be argued forcefully that both
effects of analgesic and of speech production took place that the police interrogators no
doubt pressed the second effect, and that Townsend was denied his privilege against self-
incrimination. The courts were reluctant to admit statements procured by the use of Truth
th
Serums. The concept of privilege against self-incrimination came in the 19 century. The
main features of this concept is accused is presume to be innocent until contrary is proved
and he need not to be compelled a statement which establish his guilt. Unlike India in the
US the accused has complete right to silence with regards to statements which tends to
incriminate him. This has been explained by Lord Atkin in the case of Lawrence v
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King , he said that the society is stronger than the individual and is capable of inflicting
more harm on individual than the individual on society. The U.S. Constitution
incorporates the privilege against self incrimination in its fifth amendment. This has been
judicially moulded by recognizing interrelationship with other constitutional rights such
as protection against unreasonable search and seizure in fourth Amendment and the
241
guarantee of due process of law in the Fourteenth Amendment.

In regard to Narco analysis the Supreme Court of Illinois affirm the confession at the trial and
242 243
conviction and death penalty were also affirmed. In the case of Lindsey v. U.S.A.
Court opined that “although narcoanalysis in general, and the sodium pentothal interview in
particular, may be a useful tool in the psychiatric examination of an individual, the courts
have not generally recognized the trustworthiness and reliability of

240 (1933)AC 699

241 Pratha Banerjee, “Violation of Human Rights Through Scientific Techniques,” Cr.L.J., 2013,p.109.
242 People v Townsend, 141 N.E.2d 729(March 20, 1957)
243 (1957) 237 F.2d 893

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such tests as being sufficiently well established to accord the results the status of
competent witness….The expected effect of the drug is to dispel inhibitions so the subject
will talk freely, but it seems scientific tests reveal that people thus prompted to speak
freely do not always tell the truth. Judge distinguished ‘scientific’ procedure in
narcoanalysis from ‘straight scientific detection,’ which requires observation only, not
interpretation. And also he points out some absurdities which possibly might infect these
scientific criminological procedures. For example no one can cross examine the lie
detector and in connection with drugs it might turn out to be necessary to narcoanalyze
everybody, not just the accused: the interviewer to find out if he is telling the truth, the
judge, the jury, the witness and so on. Later on in the case of Virginia in Orange v
244
Commonwealth of Virginia has refused to admit the evidence based on truth serum
245
test later on in 1963 the US Supreme Court in Trownsend v Sain stated that the
confession obtained from person as a result of truth serum test was not a product of free
will and confession would be made inadmissible.

246
In a landmark judgment in Miranda v State of Arizona the Supreme Court of U.S.
held that prior to any questioning the person must be warned interalia that he has right to
remain silence but the quiet acceptance of accused to undergo these test when asked by a
police officer would not amount to compulsion. In this case court extended right to self-
incrimination to police questioning, and said that no conviction would be upheld unless
the suspect has told their rights and a conviction can be reversed even if there is
247
independent evidence sufficient to prove guilt. The holdings of Miranda was modified
248
in the case of Harris v New York it was observed that the statements obtained in
violation of Miranda were yet admissible to impeach an accused that takes a self-
incriminatory stand at trial and testifies in a mode that is contrary to illegally obtained

244 (1950)191 U.S. 423

245 (1963) 372 U.S. 293
246 (1966) 384 U.S. 436

247 Specially subject must be told that he has right to remain silence, must be warned that anything he says may
be used against him during trials, must be informed that he has a right to have a lawyer present during
questioning, and must be told that the court will provide a lawyer if the suspect has no fund to pay for one.
248 (1971) 401 U.S. 222

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confessions. The Courts of U.S. less consider the testimony on the narcoanalysis test
either on the basis that it has not attained considerable acceptance or on the basis that it’s
prejudicial affect outweigh its prohibitive value but after 9/11 attack this was paved and
the method was used to assist the U.S. Army and FBI against terrorists. It was held in the
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case of Indianpolis v. Edmond that truth serum may be administered without any
warrant or a probable cause in order to assist in the war against terrorism or other grave
offences. It was concluded that “if there is a need the general interest of the public will
override the individual interests and rights.” In 2002 former Chief of CIA and FBI,
William Webster urged the pentagon to administer the Truth Serum to Taliban and Al-
Qaeda prisoners if necessary so long as the information is used for the protection of the
country. Since that Narcoanalysis were conducted on many suspected terrorists including
Al-Qaeda members and Osama aide Abu Zubaydah which was picked up by CIA in 2003
and he revealed that Bin Laden ‘personally’ told him of a 1999 meeting at Turkey where
Osama was allowed to leave Saudi Arabia and provide him with secret funds to launch
Jihad against the US. It was also revealed that Osama struck a deal with high ranking Air
Force Officers in Pakistan to tie closely with the Islamists to get protection, arms and
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supplies for Al Qaeda. In Present, Narcoanalysis can be done if the gravity of the
offence is intense and evidence is of vital important. This has been seen in the very
famous book written by Gerald Posenr (2003) in which author reveals that US
administration privately believes that Supreme Court of United States implicitly approved
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using such drugs in matters where public safety is at risk.

3.5.2 United Kingdom

The use of new technology such as Narco analysis, Brain mapping, DNA, Lie detector
Test in UK has traditionally been concentrated on more serious crimes such as rape and
homicides. Increasingly these are being used routinely to aid the investigation of volume
crimes like burglary and vehicle crimes. The narco analysis test is not openly permitted

249 531 U.S. 32 (2000), 121 SCt.447.

250 www.legalserviceindia.com/articles/med000.htm, visited on 11/12/2015.

251 S. Malini and B.M. Mohan, Forensic science laboratory, Banglore on Narcoanalysis, available on
www.bprd.gov.in/rightreaddata/mainlinkfile/file1536.pdf. visited on 9/09/2014.

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for investigative purposes in United Kingdom but study suggest that the proportion of
volume crime, offences is detected through the new techniques of forensic science was
historically very low but in present time one quarter of the cases being detected through
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use of this technology. Though it was started during Second World War for the
purposes to remove the anxiety and depression and the drugs had been used on the Army
personnel who suffer and lost everything in the war to develop the positive hope of life
and come out from the fear of such a loss but with the passage of time it is being used in
grievous offences. The right to silence has remained enshrined in the common- law
tradition. It is considered one of the most important safeguards protecting citizens against
arbitrary action of the state but at the same time in common-law administration of justice
system, if police officers think that narco-analysis test should be carried out on the
suspect, they are required to issue "Miranda-style" warnings and inform an arrested
person that if arrested person want they do not have to answer any questions but whatever
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they do say be used in court as evidence. The police must also determine whether the
arrested person understands these rights or not. Any failure to do so can jeopardize a
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criminal prosecution.

3.5.3 Canada

In Canada, the confessions of a person made by the conduct of the narco test are
inadmissible if the court and in our no way regarded as evidence. The Canadian Charter
of Rights and Freedom provides that ‘Everyone has the right to be secure against
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unreasonable search and seizure. It is regarded in Canada that a person subject to the
narco analysis techniques is in a half conscious state and loses awareness of time and
place and his condition can be compared to that of a person in a hypnotic state. In this
256
context the case of Hovarth vs. The Queen decided by the Supreme Court of Canada

252 Association of chief police officers/forensic science service (1996), Using forensic science effectively.
London, ACPO/FSS.
253 http://en.wikipedia.org/wiki/Right_to_silence, visited on 12/12/2015.
254 Supra note, 47.
255 Constitution Act, 1982, Part 1, Number 8
256 (1979) 44 C.C.C. (2nd 385)

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assumes great importance. In this case the court held that the statements made in a
hypnotic state were not voluntary and hence they cannot be admitted as evidence. It was
also decided that if the post-hypnotic statements relate back to the contents of what was
said during the hypnotic state then the subsequent statements would be inadmissible. In
this case a 17 year old boy suspected for the murder of his mother had been questioned
by the police officer who had training in the methods of hypnotism. During the deliberate
interruptions in the interrogation session, the boy had fallen in mild hypnotic state and
had essentially conferred to the commission of the crime. He later repeated the
admissions before the investigating officers and signed a confessional statement. The trial
judge had found all of the statements to be inadmissible thereby leading to an acquittal.
The Court of Appeal convicted the boy of the crime, relying on the statements made in
the hypnotic state. The Supreme Court upheld the Trial court decision of acquittal and
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reversed the decision of the court of appeal. In this case Beetz and Prattle J.J.
concluded that there was similarity between light hypnosis and narco. Analysis and
comparing them observed that

“Emotional controls are less inhibited than they are in fully conscious state and the
subject is assisted to say what he was no able to say voluntarily because of the emotional
intensity of it”. The court even went to the extent of holding that”. . .

through the use of an interrogation technique involving certain physical elements such as
hypnotic quality of voice and manner, a police officer has gained unconsented assess to
what in a human being is of utmost privacy, the privacy of his own mind . . . It is my
view that this was a form of violence or intrusion of a moral or mental nature, more
subtle than visible violence, but not less efficient in result than an Amytal injection
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administered by force.” Now the position of Narco analysis test in Canada is same as
India and there are many forensic science laboratories established in Canada and it is
increasing because of complex criminal justice system. These include Police labs such as
the Royal Canadian Mounted Police (RCMP) Forensic Laboratory Service (FLS), and
Provincial labs such as those found in Quebec and Ontario, and some private labs.

257 This case was relied on Selvi v. State of Maharashtra by the Supreme Court of India.
258 Supra note 33.

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3.6 Narco-Analysis Test in India

High profile criminal investigations in recent times have witnessed the emergence of a
new investigative tools in India as well, such as p-300, lie detector, DNA, Finger printing
and Narco Analysis Test for collection of evidence and extracting truth. In the criminal
justice system though the Narco analysis test is relatively new in the field of investigation
in India but it has been used in the field of psychiatry since long. Barbiturates, which
have been in use since the beginning of the last century, came to be used in
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psychotherapy for narco analysis by 1930, along with other methods of therapy. Narco
Analysis was hailed in the field of psychiatry as compared to other psychotherapeutic
procedures as it saved time by helping the patient overcome reluctance in talking freely
about their inner most feelings and experiences. By means of narco analysis it was
possible to achieve a state of 'transference' in many patients whose previous state was
apathy, inaccessibility, or even negative transference. It has been used as a tool of
criminal investigation long before its entry in India by intelligence agencies and armed
forces of different countries.

The technology again at the service of law from the lie detector to narco-analysis and
260
made a sudden reappearance in the world after 9/11. In the Indian context, the
technology is being conducted since 2000 by the forensic science laboratories. It was first
used in a person associated with the very famous case of Bandit Virappan from
Karnataka. During this period no one even investigating agencies having much idea about
the test and no any controversy came out. The turning point came in 2002, when three
month after the Godhara Carnage in Gujarat and subsequent massacre of Muslims, seven
persons accused of burning of train brought to the laboratory for conducting Narco
analysis Test in the Government hospital. During the course of investigation of fake
stamp case atleast five accused including Abdul Karim Telgi, Mohammad Abdul Wahid

259 J.S., Horsley, “Narco Analysis”, (1942) British Medical Journal pp.230.

260 Incident in 11 Sept. 2001 when twin tower of world trade centre in Newyork city was being attacked by the
terrorist and destroyed.

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 261
Qadari had been made to undergo for Narco Analysis Test. This was first
constitutionally questioned before the court when one of the Managing Director of
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Cooperative Bank, Karnataka who has charged for the lending of money deposited by
thousands of poor farmers in the bank and denied for the Narco Analysis test on the basis
of rights guaranteed under various laws in India. This was a big question raised regarding
the justice delivery system and constitutional frames that whether these rights given for
the protection of poor and downtrodden farmers who lost their money because they
deposited with the bank and license issued by the Government or to the rich, intellectuals
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sections of society. The suspects of Nithari Serial killings case had been also subjected
to undergo for the truth serum test in Gandhinagar. Abu Salem, underworld criminal and
accused of many cases of murder, extortion kidnapping, drug smuggling had been
subjected for narco analysis test and he revealed many missing links of various cases in
which he was involved.

264
In the Arushi Talwar murder case, CBI subjected narco analysis test to the both couple
doctor Rajesh Talwar and Nupur Talwar and Supreme Court refused to entertain a
petition seeking to restrain the CBI from conducting Narco analysis test to the suspected
parents in the case. Not only these rather number of cases such as Tandoor Murder Case,
Shashi murder case and Malegaon bomb blast case are other example of cases in which
suspected accused subjected for Narco Analysis in different forensic science laboratories
in India. When it was first admitted in a suspected accused associated with Virappan of
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Karnataka at that time it was not as popular and controversial as today. Indian
Government established number of forensic science laboratories such as Bangalore
forensic Science Laboratory, Gandhinagar Forensic Science Laboratory and later on
Lucknow and Mumbai forensic science laboratory are conducting these tests in India. In

261 Towseef Ahmad, Mainstreaming Narco Analysis in streaming criminal investigations: Law and Practice, Law
Mantra, Vol.2, Issue 6 www.lawmantra.com visited on 15/02/2015.
262 Krushi Cooperative Bank case, 2006.
263 Surendra Koli Vs. State of U.P. & Ors. Crl. Appeal no. 2227 of 2010
264 Nupur Talwar Vs. CBI, 7 June, 2012.

265 Deepti Naia “Innocents have nothing to fear about narco analysis test” www.deccanherald.com., visited on 16
Feb. 2015.

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2010 Ministry of Home Affairs, Government of India declared 2010 as the forensic
science year and a committee constituted for the better use of forensic science in criminal
justice system. The investigating agencies of India is in the favour of frequent use of
Narcoanalysis test and look this as an effective technique in the era of technology for the
reformation of criminal justice system while the civil society has deferent logic that it
hampers individual liberty and self incrimination given under Indian constitution. For
conducting the tests National Human rights Commission also issued guidelines which has
to be followed by the agency while subjecting an individual for narco analysis, and this
cannot be done without consent of the person concern and the consent must be taken
before the magistrate so the investigating agencies themselves cannot conduct test as and
when they want. The status of Narco Analysis in India is that it can be conducted with the
consent of the suspected person.

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