Can An Accused Seek To Be Subjected To Narco Analysis Test To Prove His Innocence? Kerala High Court Answers

In a recent judgment, the Kerala High Court has declined to allow the plea of an accused in a POCSO case where he voluntarily submitted to undergo a narco analysis test to prove his innocence in the matter. Observing that even if allowed, the statements obtained through the test are not admissible in law, Justice M.R. Anitha held:"The revelations brought out during Narco Analysis under the influence of a particular drug cannot be taken as a conscious act or statement given by a person. The possibility of accused himself making exculpatory statements to support his defence also cannot be ruled out...So the contention of the counsel for the petitioner that in order to buttress his statements under Section 313 Cr.P.C , these materials collected through Narco Analysis Test can be used as corroborative piece of evidence etc, is not at all sustainable in law."The petitioner herein was charged under Section 376(2)(i) IPC and Section 6 r/w 5(m) of the POCSO Act. Advocates M. Revikrishnan, P.M Rafiq, Sruthy N. Bhat. Ajeesh K. Sasi and Pooja Pankaj appeared for the petitioner and argued that he is a hapless old man accused of an offence with reverse burden of proof and has moved the Court voluntarily to undergo the Narco Analysis to prove his innocence.They further contended that as per the law laid down in Selvi & Ors. v. State of Karnataka (2010 (7) SCC 263), it would only amount to testimonial compulsion if the accused is subjected to scientific tests like narco-analysis, brain mapping, polygraph, or lie detection by the prosecution without their permission. Moreover, it was alleged that Sections 29 and 30 of the POCSO Act provide for reverse burden of proof including culpable mental state of the accused. So it is for the accused to disprove such statutory presumptions. In such circumstances, the request made by the accused for subjecting him to narco analysis should be allowed to buttress his statement under Section 313 of the Code, The question before the Court was whether the accused has any right to seek himself to be subjected to Narco Analysis Test.The Judge noted that in Selvi's case, the Apex Court categorically held that no individual should be forcibly subjected to any of the techniques in the context of investigation in criminal cases or otherwise and that doing so would amount to an unwarranted intrusion into his personal liberty guaranteed under Articles 20(3) and 21 of the Constitution. The Court's primary concern was that the possibility of the testimony being not voluntary even if the person freely consents to undergo the test cannot be ruled out."The danger of the person not being able to exercise an effective choice of remaining silent and imparting personal knowledge is also there since the results are derived from the psychological responses."Additionally, the Court found that when a narco analysis test is conducted with the intervention of some medication, the person is not conscious and may make some revelations from the subconscious mind. The credibility of that revelation stands far short of the fact described under the Evidence Act. The possibility of some persons concocting fanciful stories in the course of the hypnotic stage also cannot be ignored. The responses of a different individual in such circumstances would vary the result of not having any uniform criteria for evaluating the efficacy of the Narco Analysis technique is a matter of another concern as per the dictum in Selvi's case, the Judge opined. It was further noted that the Apex Court had also foreseen the danger of such tests being permitted at the instance of the prosecution since on the principle of parity of procedure, if the accused files such application that also has to be allowed. This would result in re-opening of cases or even can be used for the purpose of attacking the credibility of witnesses during the trial, the Bench observed. "Hence 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 eye of law."Accordingly, the Court concluded that the revelations brought out during narco analysis under the influence of a particular drug cannot be taken as a conscious act or statement given by a person. The possibility of the accused himself making exculpatory statements to support his defence also cannot be ruled out. Moreover, it was noted that the present Investigating Agency was not equipped to assess the credibility of such revelations of the accused. The Investigating Officers also would find it difficult to come to a definite conclusion regarding the veracity of the revelations so made and the other evidence already collected by them. As such, the contention of the petitioner that to buttress his statements under Section 313 Cr.P.C , these materials collected through narco-analysis test can be used as a...

Can An Accused Seek To Be Subjected To Narco Analysis Test To Prove His Innocence? Kerala High Court Answers

Hannah M Varghese

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