Evidentiary Value of Narco

Analysis

Name – Shreya Singh

Class - BA.LLB- A
03851103821
Batch – (2021-2026)
Email – shreyasingh20021@gmail.com
Faculty of law
DME Law School, DME
Guru Gobind Singh Indraprastha University, New Delhi
 Table of Contents
1. Introduction
2. Constitutional provisions on Narco-analysis in India
3. The practice of narco-analysis in India
4. Admissibility of narco-analysis in the court
5. Criticism of narco-analysis test
6. Court Precedents
• Dinesh Dalmia v. State by Spe (2006)
• Sh. Shailender Sharma v. State & Another (2008)
7. The right against self-incrimination
8. Conclusion
 Introduction
In the present time, with the growth of technology and new
means to aid justice, the Indian Evidence Act, of 1872 still does
not cover the scientific tests, also known as ‘deception
detection tests’ that aid investigations. The three scientific tests
that are commonly used in the investigation process are:
•Polygraphy (lie detector)
•P-300(brain mapping)
•Narco analysis (truth serum)- In narco analysis, the person is
sent in a state of disinhibition, i.e., a state where the person is
not conscious of his actions. It is done by administering a
solution of sodium pentathol and distilled water into the veins
of a qualified anaesthetist. The test is conducted by recreating
scenarios or situations or by asking questions of the testifier
and prodding him to answer.
The solution works like a truth serum as the testifier is not in a
state to think consciously about what he is answering.
The tests pose many problems, one of them being the
administration of too little narcotics. The testifier can fake
scenarios and can resist the process of disinhibition, whereas if
the narcotic is administered in higher amounts than required,
the testifier can go into a state of unconsciousness, which could
in turn even cause him to go into a coma. The testifier’s vitals
are continuously monitored by a team of doctors to prevent any
health issues. The whole process is video recorded and a report
is given by the doctors for further consideration and to help
find more evidence.

This test has always been controversial due to its nature and the
way it is conducted. It is often questioned whether the narco-
analysis test infringes the right to be protected against self-
incrimination and the right to life.
 Constitutional provisions on
Narco-analysis in India
• Article 20(3) of the Indian Constitution provides that, “no person who is
accused of a crime can be compelled to be a witness against himself”.
• One can seek protection under Article 20(3) only if the following
requirements are fulfilled –
• Only an accused can avail of the protection guaranteed.
• Only when the accused is compelled to be a witness against himself.
• Only available if a person is charged with an offence.

The statements made by the testifier are not admissible in the Court; they
can only be used for further investigation purposes.
• When evidence procured comes into the inhibition of Article 20(3) of the
Constitution:
• The person who made the statement must have been accused of
committing an offence at that time.
• The statement had material applicability to the criminality of the
accused.
• The accused was forced or compelled to make that statement.
• The force used on the accused should come under duress.

• ‘Duress’ includes compulsion or force applied through some physical or

objective act and does not refer to the state of mind of a person while
making the statement. Therefore, it is contested that narco-analysis does
not amount to compulsion as it is a mere process of extracting
information from the accused through disinhibition. The results are
ascertained from the video recorded during the test which could help in
disseminating more information on the case. However, it is still a
controversial topic as the accused makes the statement himself unlike the
other tests, and sometimes the statement made can be self-incriminatory.
It cannot be ascertained before the Court whether the test will be self-
incriminatory or not. Article 20(3) of the Constitution can be appealed if
the statements made by the accused are self-incriminatory and will be
rendered inadmissible in the Court even though they provide a piece of
evidence or lead to the dissemination of more facts or evidence.
• In the case of State of Bombay, v Kathi Kalu Oghad(1961)
the Court held that it must be shown that the testifier was
compelled to make a statement that was self-incriminatory
to attract the provisions of Article 20(3) of the Constitution.
• The narco-analysis test is also contested on the grounds of
the right to life and privacy, as provided under Article 21 of
the Constitution. It is argued that using extraneous means to
force a person to speak and forcible intrusion into one’s
mind is an invasion of one’s privacy. Also, the mental
torture that one goes through during this test is violative of
the right to live with human dignity under Article 21.
 The practice of narco-analysis in
India
• The practice of narco-analysis has continuously been used in India. The
Courts in many instances have permitted the use of different scientific tests
or deception detection tests for further investigation. In India, the narco-
analysis test is conducted by a team that comprises of the following medical
practitioners and other officers:
• An anesthesiologist
• A psychiatrist
• A clinical/ forensic psychologist
• An audio-videographer
• And supporting nursing staff.

• The test is read and analysed by a forensic psychologist, who then presents a
report accompanied by a video recording stored on a CD. If the Courts find it
necessary, then this test is further verified through brain mapping and
polygraph (lie detector) test.
 Admissibility of narco-analysis in
the court
• Just like a confession made in the police station is not admissible, a statement
made during the narco analysis test is not admissible in the Court, except under
certain circumstances when the Court thinks that the facts and nature of the case
permit it. The Courts have, however, provided differing views on the
permissibility of conducting narco-analysis. In the case of
SeIvi Murugesan v. State of Karnataka,(2010), the High Court of Karnataka
explored the issue of whether narco-analysis is a compulsion on the invasion of
the human body or not. Justice Majage referred to Section 53 (1) of the Criminal
Procedure Code,1973 which provides for the use of reasonable force by a medical
practitioner at the request of a police officer for ascertainment of facts that could
help in finding new evidence. He stated that the narco-analysis test done by a
qualified medical practitioner within a prescribed manner is justified under
Section 53(1) of the CrPC. Further, supporting his view with the help of Section
39 of the Criminal Procedure Code, he stated that it is the duty of every individual
to give information about a crime, and Article 20(3) of the Constitution cannot
hinder the process of acquiring the truth.
• This view has been further contended in the case of Ramchandra
Ram Reddy v. State of Maharashtra,(2004) where the petitioner
argued that the narco-analysis test is an invasion of the body and
thus violates Article 20(3) of the Constitution. The Court shared
similar views as in the case of SeIvi Murugesan v. State of
Karnataka and further stated that contrary to the belief
sometimes the test could be used to prove the testifier’s
innocence.
• Various Courts have opined that the Constitution framers while
formulating the right against self-incrimination, did not intend to
interfere in the process of proper and efficient investigation.
However, the Courts have emphasized two conditions for
allowing scientific tests on the accused:
1. The totality of a case’s circumstances as well as context.
2. The setting of the case is such that reasonable doubt should exist
to permit the tests.
 Criticism of narco-analysis test
• The question that arises with the use of the narco-analysis test is
whether conducting a test that invades one’s body and violates privacy
by intruding on the mind of the accused is reasonable. Whether it is
legal to use inhuman ways to find the truth? The reliability of narco
tests has always been questioned. Whether it is right to inflict such pain
on a person when 100% accuracy in the results can’t be promised?
There have been many cases where the testifiers have given false
statements even in narco-analysis. It is argued that only interviewees,
who have been efficiently trained in asking questions should conduct
the test, as it is the process of reviving a memory that the testifier has
already forgotten which could lead to distortion of facts. The
importance of consent has always been emphasised by all the Courts
for the narco test. Without consent, the narco-analysis test should not
be conducted and it is deemed that the test has been fair without any
compulsion without knowing what goes behind giving the consent.
 Court Precedents
• Dinesh Dalmia v. State by Spe (2006)
• In the case of Dinesh Dalmia v state by Spe,(2006), the Court held that if the
accused does not cooperate with the investigation team and the investigation is
unable to complete within time and if the nature of the case permits, the
investigation team can go forward with scientific tests to find any leads for the
case.
• Sh. Shailender Sharma v. State & Another (2008)
• Further in the case of Sh. Shailender Sharma vs State & Another (2008), the
Court took forward the same view and stated that narco-analysis and other
scientific tests help in determining evidence in the case helping the
investigation.
• Therefore, the Courts in India have recognised that the scientific tests do not
violate the protection given under the Constitution and a narco-analysis test can
be conducted if the circumstances of the case allow, although, all the Courts
have presented the view that any statement that is self-incriminatory cannot be
permitted in the Court as evidence and prosecution cannot rely on the said
statement.
The right against self-incrimination
• Every coin has two sides. On one hand, the narco-analysis test helps in
discovering new facts, leads or evidence that could aid the investigation
and act as a catalyst in the process of justice. On the other hand, narco-
analysis, if done forcefully or used unfairly, can attract the protection
guaranteed under the Constitution, such as the fundamental right to life,
privacy and the right against self-incrimination. The Courts have
recognised the narco analysis as a permissible means of investigating. It
also comes in handy when the interest of society at large is involved, and it
is more important than the interest of an individual. In Rojo George Vs.
Deputy Superintendent of Police (2006), the Courts held that the ways in
which the crime is conducted in present times are more sophisticated and
technology-equipped, and therefore, the conventional means of
investigating may not necessarily lead to a fair result. The more time an
investigation takes, the more time the actual offender gets to cover up his
crimes. Thus, the views on narco-analysis have always been mixed and
have now been converted into a never-ending debate.
 Conclusion
• With the development of various human rights, narco-analysis
has always been criticized on the view that it infringes on the
right to privacy and the right to life of the accused. Since it is the
only deception detection test that requires the testifier to make
statements, it is always subjected to the question of whether the
provisions of Article 20(3) of the Constitution are attractive or
not. The Courts have contended that conducting narco-analysis
is permitted if the nature and circumstances of the case are such
that a narco-test is necessary. The accused should have
consented freely to the narco test and there should be no sign of
compulsion or force on the accused. The statements given by the
accused cannot be treated as evidence and the prosecution
cannot rely on such statements to present their case.