NARCO ANALYSIS

A Project Submitted To –

ARMY INSTITUTE OF LAW, Mohali

By-
Bhavika Mehta (2064)

Under The Guidance

Of
Dr. Bajirao Rajwade

In The Partial Fulfillment of Requirement for the Award of

Degree of B.A. LLB

Punjabi University, Patiala, Punjab

Submission on: 05th April 2024
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DECLARATION
It is certified that the project work presented in this report entitled “NARCO Analysis”
embodies the result of original research work carried out by me under the guidance of Dr.
Bajirao Rajwade.

All the ideas and references have been duly acknowledged.

Date: 5th April 2024 Name: Bhavika Mehta

Place: AIL, Mohali Roll No: 2064

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ACKNOWLEDGMENT

This project consumed huge amount of work, research and dedication. Still, implementation
would not have been possible if I did not have a support of many individuals and
organisations. Therefore, I would like to extend my sincere gratitude to all of them.

Dr. Bajirao Rajwade, our Criminal Law teacher for provision of his expertise, and technical
support in the implementation. Without his superior knowledge and experience, the Project
would lack in quality of outcomes, and thus his support has been essential.

I would like to express my sincere thanks towards all who devoted their time and knowledge
in the implementation of this project.

Nevertheless, I express my gratitude toward my family and colleagues for their kind co-
operation and encouragement which help me in completion of this project.

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TABLE OF CONTENTS
Introduction ................................................................................................................................ 4
Involuntary NARCO Analysis and Violation of Right Against Self-Incrimination .................. 4
Voluntary Narcotic Analysis...................................................................................................... 7
Recent Legal Decisions.............................................................................................................. 8
Criticism..................................................................................................................................... 9
Right Against Self-Incrimination And Public Interest............................................................. 10
Conclusion ............................................................................................................................... 11
References ................................................................................................................................ 12

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INTRODUCTION

With advancements in science surpassing legal progress, there is inevitable complexity

surrounding the admissibility of evidence in court. Narco analysis has emerged as a notable
scientific advancement that is now a frequently used term in India. Explaining the origin of the
term Narco Analysis, it comes from the Greek word ‘narkç’, which means “anaesthesia” or
“torpor”. Referring to a research paper found on the National Library of Medicine, the
procedure includes administering drugs, mainly barbiturates, intravenously to induce different
stages of anaesthesia. During this state, intense mental elements with associated emotions are
brought to the surface for therapeutic purposes. According to the information provided, the
individual may be more inclined to share information with the investigator as a result of being
less inhibited by drug use. Nevertheless, the outcomes of employing such a method differ
depending on the subject. Coined by Horseley, the term narco-analysis raises various questions
that touch on law, medicine, and ethics. Does the narco analysis procedure violate the right
against self-incrimination guaranteed under Article 20(3) of the Constitution? Debates
surrounding the Narco test have always revolved around its impact on the fundamental rights
of a subject and the admissibility of the extracted information in trial proceedings. Often, the
accused have requested the narco test to demonstrate their innocence.

INVOLUNTARY NARCO ANALYSIS AND VIOLATION OF RIGHT

AGAINST SELF-INCRIMINATION

In a 2010 judgement 1, the Supreme Court extensively discussed the legal question surrounding
the use of scientific techniques such as narco analysis and polygraph examination. In its ruling,
the court clarified that the test results of such techniques are not admissible as evidence.

The Right to Silence has been firmly established as a fundamental right for the accused, as
highlighted in the case of Nandini Sathpathy vs P.L. Dani. 2 It is illegal to coerce statements
from the accused, who retains the right to remain silent during interrogation. Administering
these tests is akin to intruding into one’s mind, which undermines the validity and legitimacy
of the Right to Silence. She argued that she had the right to remain silent under Article 20(3)
of the Constitution and Section 161(2) of CrPC. The Supreme Court approved her requests.

1
Smt. Selvi & Ors v. State of Karnataka, 2010 (7) SCC 263
2
AIR 1978 SC 1025

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Talking about the credibility, Narcoanalysis tests are not deemed highly reliable. Research
conducted by multiple medical associations in the US supports the belief that truth serums do
not elicit truthful statements. Individuals in a trance-like state induced by truth serum may
provide inaccurate or deceptive responses. Regarding the case of Townsend v. Sain, 3 in the
USA, it was determined that the petitioner’s confession was deemed constitutionally
inadmissible if it was obtained through police questioning while the petitioner’s will was
compromised by a truth serum-like drug.

According to a ruling in M.P. Sharma v. Satish Chandra,4 the Supreme Court noted that the
protection under Article 20(3) applies to compelled evidence obtained outside the courtroom
because of the specific wording used. This point was reiterated in the case of Kathi Kalu Oghad.
The concept of “Right to Privacy” is a broad term that includes different rights considered to
be fundamental or part of ordered liberty. Privacy is the right of a person to be free from
unwarranted publicity and to be left alone. 5 The right to privacy is implied in the right to life
and liberty guaranteed to Indian citizens by Article 21 of the Constitution of India.

The Division Bench noted that the tests result in “minimal bodily harm,” which is inaccurate
as negligence in drug administration can have fatal consequences. During the Nuremberg Trial,
when Rudolph Hess, the most notorious war criminal, claimed to be suffering from amnesia,
the prosecutor chose not to conduct a Narcoanalysis test on him due to the potential fatality of
the test.

According to the Code Criminal Procedure, “injury” is defined in Sections 44, 323, 324, and
328, with a possible punishment of up to 10 years of imprisonment. Therefore, administering
a narcotic drug is equivalent to causing harm. Moreover, the credibility of scientific tests is not
without question. Recalling the background of article 20(3) of the constitution is essential. One
of the core principles of the British and American criminal justice systems is that individuals
should not be forced to testify against themselves. An extension of the doctrine pertained to the
production of documents by an accused in response to a subpoena or other legal process.
Referring to R v. Purnell, 6 it was stated, “We know of the instance herein this court has granted
a rule to inspect books in a criminal prosecution nakedly considered”

3
372 US 293 (1963)
4
AIR 1954 SC 300 AIR 1954 SC 300
5
P.Ramanahaa Aiyer Law Lexicon,2nd edn,p.1689
6
(1748) 1 Wm Bl 37

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In Smt. Selvi & Ors v. State of Karnataka,7 the bench headed by then CJI K.G. Balakrishnan
said a subject of narco-analysis test is “encouraged to speak in a drug-induced state” and that
there is no reason why such an act should be treated any differently from the verbal answers
given during ordinary interrogation

In the ruling, the court emphasised that allowing involuntary statements based on uncertainty
of incriminating or exonerating answers would undermine the ‘right against self-
incrimination’.

When individuals are examined during an investigation, they have the right to choose between
speaking and remaining silent. This means that the person being examined determines whether
their answer to a question could be incriminating or exonerating. Additionally, information or
materials gathered earlier in the investigation may become incriminating later on.

The court mentioned that the provisions under CrPC allowing medical examination of an
accused for investigation do not specify other forms of medical examination involving
testimonial acts, like psychiatric examination.

The argument that ‘and such other tests’ in Explanation to Sections 53, 53-A and 54 of the
CrPC should also include narco analysis technique, polygraph examination and the BEAP test
was rejected.

The court ruled that the results obtained through the involuntary administration of certain tests
fall under ‘testimonial compulsion’, thus falling under the protection of Article 20(3).
The court raised concerns about the public distribution of the narco-analysis interview,
highlighting the potential negative consequences for the subject. The bench noted that it could
potentially lead to acts of vigilantism as well as a ‘trial by media’.

The judgement stated that imposing the techniques on a person without their consent breaches
the established privacy boundaries. According to the apex court, there is no statute that allows
forcible interference with a person’s mental processes, which clearly contradicts the right
against self-incrimination.

According to the court, the mandatory use of the techniques was deemed as ‘cruel, inhuman or
degrading treatment’ under Article 21.

7
2010 (7) SCC 263

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The privilege against self-incrimination thus enables the maintenance of human privacy and
observance of civilized standards in the enforcement of criminal justice. Thus, the test also
goes against the maxim Nemo Tenetur se Ipsum Accusare, that is, ‘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.’ If the confession from the accused is derived from any
physical or moral compulsion (be it under hypnotic state of mind) it should stand to be rejected
by the court. The right against forced self-incrimination, widely known as the Right to Silence
is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution. Within the
CrPC, the legislature has protected a citizen’s right against self-incrimination. Section 161 (2)
of the Code of Criminal Procedure requires individuals to respond truthfully to all questions
posed by a police officer, except those that could incriminate them. Some argue that narco
analysis is considered mental torture and therefore infringes upon the right to life under Article
21, particularly in relation to the right to privacy. Law against intrusion in privacy of individual
would not allow brain fingerprinting evidence to be given in court.

VOLUNTARY NARCOTIC ANALYSIS

The application of Narcoanalysis test involves the fundamental question pertaining to judicial
matters and also to Human Rights. When considering the use of this technique as an
investigative tool, there are significant concerns regarding potential violations of individual
rights, freedoms, and liberties. However, in State Bombay v. Kathi Kalu, 8 it was held that it is
essential to demonstrate that the accused was forced to provide a statement that could
incriminate himself. Compulsion refers to duress, which involves threats, physical harm, or
imprisonment of a spouse, parent, or child. When the accused confesses without any
inducement, threat, or promise, Article 20(3) does not apply.

Nevertheless, the 2010 court ruling stated that the three techniques can be administered
voluntarily as long as specific safeguards are in place.

The apex court ruled that even if the subject consents to the tests, the results cannot be used as
evidence since the subject does not have conscious control over their responses during the test.

It was specified that any information or material discovered subsequently through “voluntary
administered test results” can be used as evidence, as per Section 27 of the Evidence Act.

8
1962 SCR (3) 10

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RECENT LEGAL DECISIONS

In 2021, a 68-year-old man accused in a rape case sought a narco test at the Kerala High Court.
The trial against the accused was at the stage of presenting the defence evidence. The defence
in the case contended that he is an unfortunate elderly man who has been accused of a crime
with reverse burden of proof and wishes to undergo voluntary narco analysis.

Justice M.R. Anitha, in rejecting the petition, mentioned the potential for individuals to create
imaginative tales during a hypnotic state. There is a possibility that the testimony may not be
considered voluntary even if the person willingly agrees to undergo the test, as stated by the
court.

“Even if the petitioner voluntarily submits for subjecting himself for Narco Analysis Test, there
is no guarantee that the statements would be voluntary. So even if the court permits the
petitioner to undergo a Narco Analysis test, it has no acceptability in the eyes of law," the court
said in the ruling.”

Similarly, the Madhya Pradesh High Court in Vipin Kushwaha vs The State of Madhya
Pradesh 9 said permitting the applicant to undergo Narco Analysis Test would be a futile
exercise as the same is not admissible as evidence.

In March 2017, the Delhi High Court dismissed a POCSO accused’s petition for
Polygraph/Narco Analysis/Brain Mapping Test, citing a decision from the Bombay High Court
in Yogesh @ Charu Ananda Chandane vs. The State of Maharashtra10. The Bombay High
Court in the 2016 judgement stated that evidence obtained during Narco Analysis Tests or
Polygraph Tests is not admissible in court. Allowing every accused to undergo these tests to
prove their defence would create a hazardous situation.

In a November 2022 order, the Andhra Pradesh High Court set aside the trial court’s decision
that required the accused in the case dating back to 2008 to undergo a Narco Analysis Test.
According to the court, the order of the Additional Chief Metropolitan Magistrate is not tenable
under law.

9
M.Cr.C.No. 11699/2021
10
CRIMINAL APPEAL NO. 1103 OF 2019

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Karnataka High Court on September 2023 rejected the prosecution’s petition seeking narco-
analysis of the accused in a cheating case. The accused had earlier declined consent for the test
and the trial court had thus rejected the application. The high court in a 2017 ruling had
observed that law has not yet so developed for a court to direct the accused to undergo the said
medical examination without his consent.

However, Rajasthan High Court on August 18, 2023 in Sunil Bhati v. State of Rajasthan11
allowed a man’s petition for narco-analysis test, observing that by no stretch of imagination, it
can be said that a scientific technique, like a Narco Analysis Test, is of no consequence for the
result of the trial of the accused.

“This Court, however, does not wish to enter into the degree of relevance of such a test, but
certainly finds that such a scientific technique, which is recognized by the strength of law in
the courts and in the legal system of the Country, and is crystallised by the Hon’ble Apex Court
in the landmark case of Selvi (supra)wherein the Hon’ble Apex Court has held that the
voluntary administration of such scientific techniques in the context of criminal justice may be
permitted, and therefore, the same cannot be denied to the petitioner as it would amount to
depriving him of the valuable right to defend himself during the trial,” Justice Pushpendra
Singh Bhati said in the ruling.

CRITICISM

Narcoanalysis tests are not deemed highly reliable. Research conducted by multiple medical
associations in the US supports the belief that truth serums do not elicit truthful statements.
Individuals in a trance-like state induced by truth serum may provide inaccurate or deceptive
responses. Regarding the case of Townsend v. Sain, 12 in the USA, it was determined that the
petitioner’s confession was deemed constitutionally inadmissible if it was obtained through
police questioning while the petitioner’s will was compromised by a truth serum-like drug.

Narcoanalysis has been criticized on the same ground that it is not 100% accurate. It has been
discovered that some individuals have provided completely inaccurate information. Using this
method may not effectively reveal the truth, so it is not recommended to compare it with the
statement provided to the police prior to drug use. It has been found that a person has given

11
CRL (MP) 2947/2018
12
372 US 293 (1963)

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false information even after administration of drug. It is not much help in case of malingers or
evasive, unthruthful person. 13 Suggesting the right dosage of a drug for a specific individual
can be quite challenging. The dosage of the drug will vary based on the individual’s
determination, mindset, and physical condition. A successful narcoanalysis test does not only
rely on the use of injections. To achieve success, a competent and skilled interviewer is needed,
trained in asking up-to-date and effective questions.

The narcoanalysis test involves restoring the suspect’s forgotten memories. This test result may
raise doubts if it is used for legal purposes such as confessing to crimes. Suspects of crimes
may, under the influence of drugs, deliberately withhold information or may give untrue
account of incident persistely. 14 Narcoanalysis is not recommended as an aid to criminal
investigation. In medical uses like in treatment of psychiatric disorder the narcoanalysis may
be useful. Unless the test is conducted with the consent of the suspect it should not be used in
criminal investigation. 15

RIGHT AGAINST SELF-INCRIMINATION AND PUBLIC INTEREST

Another perspective on the legal validity of the Narco analysis test is that it is utilised to assist
in evidence collection and investigation, therefore does not amount to testimonial compulsion.
Therefore, it does not infringe upon the constitutional provision concerning protection against
self-incrimination. Advocates of narcoanalysis testing believe that it is especially valuable in
extracting necessary information to prevent terrorist activities. However, its application must
be assessed objectively so that it can be replaced by existing conventional method of
interrogation which brought shame, ignominy and disrepute to police leading to erosion of
credibility of criminal justice system. Narcoanalysis can evolve as viable effective alternate to
barbaric third-degree methods. Care however must be taken that this procedure is not misused
or abused by investigating officer and should be correlated with corroborative. In case of
Dinesh Dalmia v State of Madras 16 it was held by Madras Court that scientific test of accused
by conducting polygraphy, narcoanalysis and brain mapping test to bring out truth would not
amount to breaking his silence by force.

13
The Hindu 21st Jan, 2006
14
J.M MacDonald, Narcoanalysis and Criminal Law, 1954 Edition
15
2005 Cri LJ 150, Journal section
16
Crl July 2006, page 2401

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In modern law jurisprudence, it is ironic that numerous skilled solicitors are hired to protect
the rights of the accused, yet there are none to advocate for the public cause and interest. During
the Krushi and Charminar Bank Scam, numerous depositors lost their lifetime earnings and
savings that were intended for various important purposes, such as education, children’s
marriage, and pension benefits. This sudden loss shattered their dreams and left them on the
verge of financial ruin and despair. However, when the managing director of Krushi Bank was
apprehended, he declined to undergo the Narco analysis procedure.

In such instances, if the right against self-incrimination is prioritised over the public interest, it
may compromise the evidence and result in a denial of justice to the public. Criminals such as
murderers, money launderers, and terrorists are able to escape punishment by taking advantage
of the legal system’s loopholes.

The current criminal justice system prioritises individual liberty and freedom, often resulting
in criminals exploiting weaknesses in the system, which can lead to a dilution of evidence.
Since the validity of the test and admissibility of Narcoanalysis is upheld taking into
consideration the circumstances under which it was obtained, the possibility of miscarriage of
justice can be easily checked upon when administered as per procedure prescribed and
observing the due safety precautions, the apprehension on the part of counsels of accused and
critics is unwarranted.

Requiring the Narcoanalysis test for the accused or witnesses in serious crimes could enhance
the criminal justice system by bolstering the quality of evidence. This decision will result in a
significant transformation in the criminal justice system. This move will bring about a qualitive
change in the criminal justice and the erstwhile death chambers of police stations are replaced
by operation theatres administering truth serum on the criminals and thereby offering a ray of
hope that justice at last will prevail.

CONCLUSION

Law evolves based on societal, scientific, and ethical developments. The legal system should
incorporate scientific advancements, ensuring they align with core legal principles and benefit
society. Some democratic nations, such as India, still utilise narco analysis. The debate
surrounding the use of Narco analysis test as an interrogation tool in India has been extensive.
It will become more apparent in the near future how widely accepted it is in our legal system

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and society. Several High Courts have issued orders denying the legality of Narco analysis.
These rulings sharply differ from the previous Supreme Court interpretations of Art. 20(3). The
veracity lies in the fact that Narco analysis is still a nascent interrogation technique in the Indian
criminal justice system without any rules or guidelines. The Central government should
establish a definitive policy regarding narco analysis as it impacts country’s commitment to
individual freedoms and a fair criminal justice system.

REFERENCES
1) Narco-Analysis in Criminal Investigation and Trial: A Conspectus: heinonline.org
2) Narco-analysis: Is It Legal or a Form of Torture?: academic.oup.com
3) Evidentiary Value of NARCO Analysis Test in India, US, UK: A Conspectus:
heinonline.org
4) Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a
bane: www.ncbi.nlm.nih.gov
5) Narco Analysis: A Volcano In Criminal Investigation System:
www.legalserviceindia.com
6) Unlocking the Protection of Article 20(3): nliulawreview.nliu.ac.in
7) Shraddha Walker Case: Narco-Analysis Test And Legal Position: www.livelaw.in

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