|VOLUME 1|ISSUE 2|APRIL 2018|ISSN: 2581-3595|​

HYPOTHESIS OF NARCOANALYSIS TEST IN SCRUTINY OF ITS LEGITIMACY IN INDIAN COURTS

AUTHORED BY: NISHTHA BAJPAI, STUDENT AT MOHANLAL SUKHADIA UNIVERSITY

ABSTRACT:

The smallest of glimmer is notarizing the enhancement and enlargement of Technology and Science. Since the time immemorial the Homo sapiens are hankering for their upliftment and sumptuousness so that they can substantiate the fact of their birth, and intelligence. The human mind that had triumphed in every quarter of his life, whether it is about Inventions, trade system, or personal periphery, the most commendable and meriting breed of the Creator has proved him veracious on his Fabrication. The 21st century is hitting on its highest where technology had widespread its hands and development is even witnessed by the smallest molecules present in the World. The Science has even outstripped the development of law; the roads going towards justice have been modified in several predicaments and approaches, and among all the tremendous inventions of Science the one is The Deception Detection Test (DDT) such as Polygraph, Narco analysis, brain mapping etc. have significant clinical, scientific, ethical, and legal repercussions. The DDT’s are enormously serviceable to comprehend the camouflaged facts and evidences. The communication crafted whilst the operation of these tribulations are running proves exceptionally imperative for the criminal reconnaissance, but the lawfulness and authenticity of these analytic test are not luxuriated in the judicial proceedings. The extracted data is just tapped for boosting the tired and lost investigation; otherwise the same has not been recognized as legal evidence for corroborating criminal liability upon one. The principal debate ascending out of the DDT is its legality in the Indian Courts. Do the evidence which is made available for the interrogators are perfectly reliable? Can a machine read the mind of the human who had himself witnessed the origin of these apparatus? Does the Science could reach through the last string of human cleverness and intelligence?

PERCEPTION OF NARCO ANALYSIS TEST:

All in all it is observed that if a drug is given to a human being it subjugate his competence of interpretation and ratiocination without upsetting the memory and speak, there are probabilities that the said person can speak the truth. The lucidity is that simple that a person is proficient enough to lie in the front of authorities by using his resourcefulness and ingenuity, but when a person is in under the stimulus of drugs or anything which is medically prescribed for intoxicating a person in a healthy manner he experience shortfall in his self-control and confidence and as the upshot he miss the mark to imagine that fact which he was concealing primarily and would speak the truth. Under this repair it is incredibly strenuous and knotty for him to tell a lie.

A new lexis was added in the field of criminal reconnaissance, through forensic science in the year 1936 which is known as Narco Analysis test[1]. The expression Narco Analysis has been drawn from the Greek Expression Narco (which means “anesthesia” or “torpor”) and it illustrates the diagnostic and psychotherapist tactics. This test is also called as Drug hypnosis or a truth serum or a permutation of hypnosis or narcosis[2] thus it is a methodology to formulate an individual’s brainwave and statement manageable. This whole course of action is operated through drugs and chemicals, a handful of them are used clinically as well such as Seconal, hyoscine (scopolamine), sodium pentathlon, sodium Amythal, and Phenobarbital, and unique quality of all these drugs is that they produce the state of semi consciousness and then the modus operandi for the interrogation goes at ease. This scientific procedure of for procurement of the information straightforwardly affects the nervous system of the person at the molecular level, and then it automatically becomes unproblematic to get the “probative truth” about the crime committed.

Narco Analysis test is maneuvered by 3 gram of Sodium Pentothal [3] which gets dissolved in 3000 ml of distilled water and the whole emulsion is governed intravenously along with 10% of dextrose over the epoch of three hours with the assistance of a certified and authorized anesthetist. The dosages which are consumed by the person whose Narco test is taking place call for a great cure because these dosages are of drugs which are ought to be given in a systematic and accurate ratio. Skimpy amount of narcotics can aid person to convey false answers, the accuracy may get affected in many terms, and a high dosage could lead to dizziness and a long hour sleep. The fact of drugs depressing the central nervous system is fully conclusive, while the Narco test the blood pressure of the body lowers and the heart rates also goes down, which puts the person in a hypnotic condition which upshot in lack of inhibition. Once the person is under the influence of drugs then the Crew which incorporates of an anesthesiologist, a psychiatrist, a forensic psychologist, and audio video graphed and supplementary nursing personnel[4] interrogates the suspect of the respective case, the facial expressions, the heartbeat, blood pressure is regularly checked by the monitoring staff, the questionnaire is designed very tactfully so that the answer could be on point to point, and the questions are persistently repeated so to exclude the ambiguities of the drug interrogation. After the test is accomplished, the person is left out for the rest and the experts are requested to make reports of the statements made by the suspect, on the framework of this test, the cops again commence their exploration  for the further verification of statements, the suspect is also made go through the other DD test like brain mapping, polygraph test and lie detector test, but the point at issue, is all about the admissibility of the DDT in the courts, there are many ways through which a person can be caught but the legal team of suspect never let Court gets attracted towards the permissibility of these deception detector tests.

USAGE OF NARCO ANALYSIS TEST IN CRIMINAL JUSTICE SYSTEM- AN ASSESSMENT

With the developing world, the modernization has taken place, as we have urbanized ourselves in many terms, from the evolution of wheel to the science of surgery which can make a totally new human being, from the state of laissez faire to social welfare even with all this the crime and criminals are also emanating such as custodial rapes, terrorism, insurgency, organized crimes and cybercrimes etc. The Indian law is partially bequeathed to Indians by the Britishers, they made it strict according to the scenario of that era but still, The Criminal Justice System has been nosedived in furnishing the decorous justice to people at large. The different classification of criminal justice system has failed to meet the expectations of the seekers of the justice and the faith of the general public has been vanished from the existing criminal justice system.

Justice GajendraGadkar made the following annotations in the 58th report of law commission of India which is quite worth mentioning:

“We have sound judicial tradition and a rational and systematic judicial process. There is no doubt that these factors have conferred great advantage on the country. An independent and efficient judiciary, a unified judicial system and a modernized procedure use though legacies of the pre- independence era; have always been cherished by us. The judicial system has earned in respect so earned is well deserved”[5]

The science and technology had become breakneck modern day engines of the society, the advancement of Narco analysis test and other DDT’s has proved very fruitful in undermining the minds of criminals, the growing arena is on alarming situation, the criminals are as intelligent as cops and other crime investigation branches, so to deal with the proximities of several cases we need the assistance of medical science and even the permissibility of these test are actually need of the hour, there is a kind of battle between techno sophisticated fugitives and the law enforcement buffs that who can brandish the most radical side of technology and law. The current modus operandi of Narco Analysis is now being used profusely in criminal justice system; it boosts up the investigation in a very different manner. In some cases the Narco test was accepted by the Indian courts but in few of the cases the constitutionality was challenged as well as the suspect accepted their crimes but the courts denied the reliability in cases and the suspects were acquitted on the benefit of doubt was given to the suspect who were really criminals.

CONSTITUTIONAL LEGITIMACY OF NARCO ANALYSIS:

The article 20 (3) of the Indian Constitution [6]deals with the perks of right against Self Incrimination, this is a fundamental right which common law jurisprudence offers to its citizens. The Narco analysis has been a subject of litigation for human right agencies and when it comes to the practical application of the test, the infringement of Article 21 comes in the light that nobody shall be deprived of his personal liberty. In state of Bombay v. kathikalu it must be proved that the accused was constrained to make statement likely to be incriminate against him, compulsion or distress means duress, which includes threatening, beating, or imprisonment of wife, parent, or child of the person. Thus where makes a confession without any inducement, threat, or promise article 20(3) doesn’t apply. [7]

The benefit against self-incrimination enables the upkeep of human privacy and adherence of civilized societal standards in the enforcement of criminal justice. It also goes against the maxim Nemo Tenetur Se Ipsum Accusare which signifies that no person can be compelled for answering any question which may tend to prove him guilty of the crime which he has been expected to commit or for which he has been accused of. It is so genuine that criminals are always aware of their protection rights which are guaranteed for them under any law, so they use it very awfully and create a buzz in the courts against the investigation teams generally, the Narco test is not recommended for every second criminal, but only on those it is exercised whose interrogation proves quite distracting and unfruitful. Not only the constitutional law but the criminal procedure code also widely elaborates the same under the Doctrine of Right to Silence in section 161(2) which states that “every person is bound to answer truthfully all questions, put to him, by a police officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture [8]it was held in the leading cases of India that Right to silence is the constitutional right of citizens in:

Nandini sathpathy vs. P.L Dani [9]here the accused allegedly stated that no one can force her to make statements when she is opting to be in silence, she said that while the Narco interrogation the mind is not in the control of accused, which could lead to false and incorrect statements. She claimed for the Right of silence with the virtue of Art. 20(3) and section 161(2) of Cr.pc, the Apex court upheld her pleas, and said that the results of Narco analysis cannot be fully relied and we need further full proof and conclusive investigation for imposing criminal liability on one.

Now the cause of action is that when the reliability of the test is not counted on then how come the investigation of some criminal cases can be sorted out, every time in each and every DD test a person is under influence one or the other thing, then why such techniques are used as even a weapon for investigation, when the intention to accept them as evidence is null. The various cases and judges have argued on the topic that we need to accept the result of Narco as for the solving of cases. Constitution of India is quietly against the Narco Analysis because of the self-incrimination policy mentioned under its Art.20 (3).

INDIAN PANORAMA ON NARCO ANALYSIS:

Akin to other democratic countries, India also practice the Narco analysis test, it is not openly permitted in the mostly developed countries alike US which does not even partially let Narco test’s result come in operation. Narco analysis is inch by inch mainstreamed in investigation the eleven judge bench in the case of State of Bombay vs. Kathi kalu oghad where it was witnessed that self-incrimination means conveying information based upon personal knowledge of the person and cannot include merely the mechanical process of producing document in court  [10] In Ram jawayya Kupar’s case that administrators are not having official right to intrude in the personal periphery of any person whether is a suspect or a not.    [11] As long as the standards underlying the technologies are considered as scientific, no analogous can be drawn with “Distress”, in the forensic science laboratory, Bengaluru, more than 300 people has been subjected to Narco analysis test for committing numerous offences, the success rate of these test was 96-97% as evaluated by the  reconnoitering team themselves, about 25% [12]were proved innocent and no evidences were found against them so they were released, this method is far better than third degree treatment of cops which makes even Death bodies speak the truth this test is the better alternative for extracting the information, and it proves very advantageous in criminal investigation.

In Ramchandram Reddy and others vs. State of Maharashtra:[13] here in this case the legality of the Narco analysis was upheld with the legal sanctions to brain mapping and more analysis test, the court even pronounced that the results of all these test will be admissible in the courts. However defense lawyers and human rights played their trump card and challenged the validity of the decision, the final judgment of the case is still pending, and the decree of Apex court is much awaited that when Apex court will give Narco and other test a legal conclusive Status in criminal investigation system.

 

The well-known and inhuman case of Surender Koli vs. State of U.P and others [14] Surender Koli was the prime accused of the most inhuman case which also called Nithari case  In this case Narco Analysis test was accomplished on the accused on January 2007 in forensic science laboratory, Gandhinagar and all the statement made by him in the test was verified, in that Narco test he confessed many names which he didn’t accepted in the first interrogation and all those names and identities were verified and the result of Narco was positive, which made a difference in the view of judges about the positivity of Narco analysis test.  But still the pendency of conclusive legality is there.

RIGHT TO SELF INCRIMINATION: IS IT HOSTILE TO PUBLIC WELFARE?

The mockery and the paradox of the criminal jurisprudence is that countless NGO’s come in favor of criminals, but no one is ready to accept the brutality of the reality, which happened to a human being. The chanakya who was chief advisor of King Chandragupta Maurya said one that “the human breed would have controlled the god, if there would have been no fear of Natural Law”[15] in Krushi and charminar bank scam, evidence thousands of shareholders lost their lifespan earnings and savings meant for the education of kith and kin and when he was called for interrogation and other formalities he strictly said a big no to the Narco analysis and the human rights agencies supported him on this. The present system is favoring personal liberty more than a criminal administration in this case many criminals go forgone, for committing more new tech high crimes, the provisions which are governing Narco Analysis test should be made compulsory for the fugitive who had been under a big suspect, so that the investigation can get a speedy pace. If the rights of those criminals are subject to care then who shall be liable for the injustice done to those innocents, who have sacrificed something crucial of their life. The criminal investigation system must give the cops the right of free investigation, and Narco results a legal compatibility.

CONCLUSION:

The society is not static nor as the law, both are dynamic and subject to amendments bestowing to the needs of its people. The law and keepers of law must understand that the tremendous techniques of science can lead to an establishment of better legal system, and implementing science in law or in criminal system, would not lead to the infringement of legal right of any, because when it comes to law, the suspect, the accused, the innocent and the victim must be treated equally in all respects, though India give superiority to the Constitutional Law and it guarantees under Article 20 (3) that no person can be compelled to give any statement against him, but still we need to understand that prioritizing the rights of Criminals will increase our own jeopardies to tackle the crime and criminal, and it would create a Huss in the system. The Narco analysis is neither barbaric nor irrelevant, because the doctors and psychotherapist claims that the dosages which are consumed by the suspect is not that high or low which could lead to different and irrelevant answers. Lastly the thing is that law should join hands with science to hawk the intents of criminals so that nobody can manipulate the laws and society according to their own terms and ease.

[1] Gujarat Law Herald sponsored by the Bar Council of Gujarat, 2009(2),44 .

[2] Naresh Kumar ,,&’’ Ved Pal Singh “ Narco Analysis test in investigation process: Law and judiciary “ 15, MDU   

   Law journal 108 (2009).

[3] Yellowish White Powder Alliaceous, garlic like odor soluble in water alcohol.

[4] Charanjiv singh “Narco Analysis- A new trend in forensic Science, as a tool of investigation” PULG 237 (2007).

[5] Id.p.7.

[6] INDIA CONST. art 20, cl 3.

[7] AIR 1961 Cri LJ, Vol 2, 2007.

[8] Criminal Procedure Code. Sec 161(2).

[9] AIR 1978, SCR (3) 608.

[10] AIR 1961 SC 1808.

[11] 1955 (2) SCR225.

[12] Supra 13, 109.

[13] AIR 2003 SC 1129.

[14] AIR 2011 SC 970.

[15] Balbir. S. Sihag: Kautilya on Principles, 25, 1.