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Narco-Analysis as a Tool for Criminal Investigation

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Project Submitted in Partial Fulfilment of the Requirements
For The Degree of Master of Laws of the Mahatma Gandhi University.



. In India scientific methods have emerged as a tool for interrogation and extraction of information from uncooperative suspects and witnesses. But the legality of these methods is in peril, mostly because of the procedure involved and the nature of information obtained through these method. Most of these modern techniques are non invasive methods, which can detect deception without causing physical or mental injury to the subject. Narco-analysis is one of the important techniques among them. It makes use of scientific methods by which the medicine “truth serum” is injected to the convicts so as to prove the crime. But they often raise doubts regarding basic human rights and also about their legal validity. Also when some up holds it’s validity in the light of medical and legal principals and others rejects it on the ground of health hazards and a blatant violation of constitutional provisions. Thus the main issue regarding narco-analysis is its ultimate admissibility in court as forensic evidence and its useful in investigation scientific technique.
Recently the supreme court of India in the case of Smt. Selvi and others v. state of Karnataka, has held that involuntary subjecting an accused, a suspect or a witness to narco-analysis test will violate Article 20 (3) of the Constitution, which prohibits self-incrimination. Further the Supreme Court said that subjecting a person to such technique amounts to an intrusion of personal liberty under Article 21 of the constitution. This project intended to analyze the legitimacy of various legal arguments levelled against narco-analysis.
I take this opportunity to acknowlege my deep sense of gratitude to my guide who affectionately promoted me to approach the concept in the manner dealt herein. I also feel immensely indebted to my family members who bestowed their utmost attention upon me all throughout and which I have come to regard as my greatest fortune. I express my heartfelt thanks to the library staff and members who were always ready for their contribution and also, direct and indirect where the ways in which numerous persons came to my help. I would like to express my deep appreciation to all of them.

CONTENTS TITLE PAGE DECLARATION 2 CERTIFICATE 3 PREFACE 4 CONTENTS 6 INTRODUCTION 7 Chapter 1: A BRIEF OUTLINE OF NARCO-ANALYSIS TEST 9 Chapter2: PREPARATION OF THE SUBJECT FOR NARCO-ANALYSIS 12 Chapter 3: LIMITATIONS AND SIDE EFFECTS OF NARCO-ANALYSIS 13 * Observations from Practice 16 Chapter 4: TRUTH SERUM 18 * Sodium pentothal 18 * Sodium pentothal in Narco-Analysis 21 Chapter 5: NARCO-ANALYSIS AND INTERROGATION 24 * History of Narco-Analysis in interrogation 26 Chapter 6: LEGAL AND JUDICIAL POSITION OF NARCO TEST 33 * Narco-Analysis and right against Self Incrimination 34 * Narco-Analysis and the issue of Torture 47 * Narco-Analysis and the issue of Right to Privacy 51 * Narco-Analysis and the issue of Violation of Right to Fair Trail 54 * Reliability of Narco-Analysis 55 CONCLUSION 57 BIBLIOGRAPHY 59

Interrogation is an important aspect of criminal investigation. It plays a major role in investigation whenever there is little or no physical evidence. Police and other investigators depend on interrogations as a principal means of determining facts and resolving issues. With the advancement in science and technology, the investigators are using the forensic techniques such as polygraph or lie detector test, the brain mapping test (P 300), narco analysis, etc. to extract information from suspects or accused persons.
Interrogation by police normally starts with a simple questioning and ends in physical and mental torture or harassment. In some cases it may go up to the use of third degree methods of physical torture. Even then in several cases the police have failed to produce clear and cogent evidence in support of their cases. In criminal prosecutions the law applies the maxims, ‘the party that alleges must prove’ and ‘the accused is presumed innocent until proved guilty’. To obtain a conviction, the prosecution must prove all the constituent elements of the substantive offence in question beyond reasonable doubt. It is the duty of the police to investigate the crime, to gather the evidence and to initiate action against the suspect
The most laborious part of criminal investigation is definitely the extraction of information from an uncooperative source and hence investigators have always been delighted by the development of newer effective aids to interrogation. This quest to find out alternative methods to the painstaking and time consuming interrogative modules at times succumbed to physical coercion and also police excesses. More recently, the police officials in some countries have turned to drugs for assistance in extracting information from suspected persons, on the philosophy that these drugs are presumed to relax the individuals capacity to conceal the facts and thus enable the subject to reveal truth unknowingly.
Most of these modern techniques are non invasive methods, which detects deception without causing physical or mental injury to the subject. Narco analysis is one of the most important techniques among them. It makes use of scientific methods by which the medicine “truth serum” is injected to the convicts so as to prove the crime. But they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity, with some up holdings validity in the light of medical and legal principals and others rejection it on the ground of health hazards and a blatant violation of constitutional provisions. Thus the main issue is regarding, its effectiveness in investigation and its ultimate admissibility in court as forensic evidence.
In India this scientific method has emerged as a tool for interrogation and extraction of information from uncooperative suspects and witnesses. But the legality of this method is in peril, mostly because of the procedure involved and the nature of information obtained through this method. Recently the supreme court of India in the case of Smt. Selvi and others v. state of Karnataka, has held that involuntary subjecting an accused, a suspect or a witness to narco-analysis test will violate Article 20 (3) of the Constitution, which prohibits self-incrimination. Further the Supreme Court said that subjecting a person to such technique amounts to an intrusion of personal liberty under Article 21 of the constitution. This project intended to analyze the legitimacy of various legal arguments levelled against narco-analysis. 1. A BRIEF OUTLINE OF NARCO ANALYSIS TEST:
The term Narco Analysis is derived from the Greek word “narkç” meaning "anesthesia" or "torpor”. The term narco-analysis was coined by Horseley. The test is also known as “truth serum test” .It used to analyse the behaviour of the suspect as well as for the purpose of corroborating the investigating officer’s findings.
The aim behind such administration of drug is that the person under the influence of such drug being deprived of power of reasoning and self control would talk freely and will not be able to manipulate any answer. The underlying theory is that a person can lie only by using his power of imagination thus when devoid of such power a person is born to speak truth..
Generally 3 grams of sodium pentothal dissolved in 3 litre of distilled water are injected in ones vein along with 10 % dextrose slowly over 3 hours. Intravenous injection of 20 ml of 2.5% solution of the drug can cause unconsciousness in 15-30 seconds which lasts for 5-10 minutes. If the drug is given in half the strength the person enters into a “twilight state” a stage between consciousness and unconsciousness. The drug will relax the individual defences to the point where he will unknowingly tell the truth which he has been concealing.
Coming to the test procedures when the drug sodium pentothal is administrated intravenously, the subject ordinarily descends into anaesthesia in four stages namely i. Awake stage ii. Hypnotic stage iii. Sedative stage iv. Anaesthetic stage
A relatively higher dose of sodium pentothal is injected to induce the hypotonic state and the questioning is conducted during the same. The hypnotic stage is maintained for a required period by controlling the rate of administration of the drug. The behaviour exhibited by the subject during this stage has certain specific characteristics namely: 1. It facilitates handling of negative emotional responses (guilt, avoidance, aggression, frustration, non responsiveness) in a positive manner. 2. It helps in rapid exploration and identification underlying conflicts in the subjects mind and unresolved feelings about the past events. 3. It induces the subject to divulge information which would usually not be revealed in conscious awareness and it is difficult for the person to lie at this stage. 4. The reversal from this stage occurs immediately when the administration of the drug is discontinued.. According to the Laboratory Procedure Manual of Forensic Narco- Analysis Directorate of Forensic Science, a team of experts is formed for conducting narco analysis. The team comprise of:- * Anaesthesiologist (APG degree/diploma (MD/DA) from recognized medical college experience of handling individuals for Narco Analysis is desirable. * Clinical/forensic Psychologist/Psychiatrist (M. Phil or Ph. D in either clinical or forensic psychology or MD/DPM in psychological medicine from a recognized university/institution experience in handling individuals for various aspects of clinical/forensic psychology is desirable). * Supporting Nursing staff in O.T, if needed * Interpretator, if needed * General Physician * A videographer (to create video recordings of the test for the subsequent scrutiny).


To examine the fitness of the subject he is subjected a lot of medical examinations. And the medical examination includes a series of tests to evaluate whether the suspect is fit to undergo narco-analysis. Medical tests such as his HB, TC, DC, ESR, Blood Sugar, Fasting Post prandial, Random, Blood urea, Se Creatinine, Urine Complete analysis, BP, Chest X Ray PA, ECG, ECHO and TMT are also taken. The experts who conduct the evaluation will have to certify that the suspect is fit to undergo narco-analysis examination and thereafter only the test will be conducted. the subject will also have to sign a consent form before the test begins. This Test based is on the assumption that a person is able to lie by using his imagination. the subject’s imagination is neutralised by making him semi-conscious. In this state, it becomes difficult for him to lie and his answers would be restricted to facts which he is already aware of. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.
In India, this technique has been administered either inside forensic science laboratories or in the operation theatres of recognised hospitals. While a psychiatrist and general physician perform the preliminary function of gauging whether the subject is mentally and physically fit to undergo the test, the anaesthesiologist supervises the intravenous administration of the drug. The forensic psychologist conducts the questioning process. Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co- operate with the investigators in order to frame appropriate questions.
This technique can serve several ends. The revelations could help investigators to uncover vital evidence or to corroborate pre-existing testimonies and prosecution theories. Narco-analysis tests have also been used to detect `malingering' (faking of amnesia). The premise is that during the `hypnotic stage' the subject is unable to wilfully suppress the memories associated with the relevant facts. Thus, it has been urged that drug- induced revelations can help to narrow down investigation efforts, and thereby saving public resources. There is of course a very real possibility that information extracted through such interviews can lead to the uncovering of independent evidence which may be relevant.
Hence, we must consider the implications of such derivative use of the drug- induced revelations, even if such revelations are not admissible as evidence. Narco analysis tests could be requested by defendants who want to prove their innocence. Demands for this test could also be made for purposes such as gauging the credibility of testimony, to refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials.. 3. LIMITATIONS AND SIDE EFFECTS OF NARCO ANALYSIS: It is also important to be aware of the limitations of the `narco-analysis' technique. The main drawback of this technique is, the drugs used for narco-analysis do not guarantee that the subject will speak only the truth. The statements made in a hypnotic state are not voluntary and are also not in a clear state of mind; hence these have not been admitted as evidence in the court of law. Narco-analysis “without consent” raises certain issues such as (i) a physical assault on the body by giving injections and also multiple painful stimuli such as slapping, pinching, pushing, hitting, shaking the body and so forth to wake a person from hypnotic state to answer the questions, and (ii) mental assault through the effect of the injection on his/her mind and also an unrestricted access to the utmost privacy, the privacy of his/her own mind.
And the test does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the drug- induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects' personal lives. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful.
While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. Subject area also prone to delusions, hallucinations and tend to go along with suggestions made by interrogators. And if the subject is an abuser of other intoxicants/ narcotics the narco analysis might fail on account of the property of “cross tolerance” between Pentothal sodium and other intoxicants, thus the subject could fake the state of semi consciousness and tell lies which are useful to him. And when the investigators are under pressure there is an inadvertent tendency to rely on methods involving coercion, threats, to deliver results. They may also frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the `hypnotic stage'.
It is very difficult to suggest a correct dose of drug for a particular person. The dose of drug will differ according to will power, mental attitude and physique of the subject. Since the responses of different individuals are bound to vary, there is no uniform criterion for evaluating the efficacy of the `narco analysis' technique. Successful narco-analysis test is not dependent on injection. For its success a competent and skilled interviewer is required who is trained in putting recent and successful questions. As such it is possible that a psychiatrist is more capable of eliciting information from suspect than a police officer. On ethical grounds it is criticised that a psychiatrist is not a detective. He/she is for treating mental disorders and should not participate in criminal cases.
Narco analysis test is a restoration of memory which the suspect had forgotten.
He/she can take plea of insanity and can circumvent justice. Narco analysis test result may be doubtful if the test is used for the purposes of confession of crimes. Suspects of crimes may, under the influence of drugs, deliberately withhold information or may give untrue account of incident persistently. Narco analysis is not recommended as an aid to criminal investigation.
In medical uses like in treatment of psychiatric disorders the Narco analysis may be useful. Unless the test is conducted with the consent of the suspect it should not be used in criminal investigations. Studies done by various medical associations in the US adhere to the view that truth serums do not induce truthful statements and subjects in such a condition of trance under the truth serum may give false or misleading answers. In USA, in the case of Townsend v. Sain, it was held that the petitioner’s confession was constitutionally inadmissible if it was adduced by the police questioning, during a period when the petitioner’s will was overborne by a drug having the property of a truth serum. * Observations from Practice:
J. M. MacDonald, who as a psychiatrist for the District Courts of Denver has had extensive experience with narco-analysis, says that drug interrogation is of doubtful value in obtaining confessions to crimes. Criminal suspects under the influence of barbiturates may deliberately withhold information, persist in giving untruthful answers, or falsely confess to crimes they did not commit. The psychopathic personality, in particular, appears to resist successfully the influence of drugs.
MacDonald tells of a criminal psychopath who, having agreed to narco-interrogation, received 1.5 grams of sodium amytal over a period of five hours. This man feigned amnesia and gave a false account of a murder. "He displayed little or no remorse as he (falsely) described the crime, including burial of the body. Indeed he was very self-possessed and he appeared almost to enjoy the examination. From time to time he would request that more amytal be injected."21
MacDonald concludes that a person who gives false information prior to receiving drugs is likely to give false information also under narcosis, that the drugs are of little value for revealing deceptions, and that they are more effective in releasing unconsciously repressed material than in evoking consciously suppressed information.
Another psychiatrist known for his work with criminals, L. Z. Freedman, gave sodium amytal to men accused of various civil and military antisocial acts. The subjects were mentally unstable, their conditions ranging from character disorders to neuroses and psychoses. The drug interviews proved psychiatrically beneficial to the patients, but Freedman found that his view of objective reality was seldom improved by their revelations. He was unable to say on the basis of the narco-interrogation whether a given act had or had not occurred. Like MacDonald, he found that psychopathic individuals can deny to the point of unconsciousness crimes that every objective sign indicates they have committed.10
F. G. Inbau, Professor of Law at North-western University, who has had considerable experience observing and participating in "truth" drug tests, claims that they are occasionally effective on persons who would have disclosed the truth anyway had they been properly interrogated, but that a person determined to lie will usually be able to continue the deception under drugs.
The two military psychiatrists who made the most extensive use of narco-analysis during the war years, Roy R. Grinker and John C. Spiegel, concluded that in almost all cases they could obtain from their patients essentially the same material and give them the same emotional release by therapy without the use of drugs, provided they had sufficient time.
The essence of these comments from professionals of long experience is that drugs provide rapid access to information that is psychiatrically useful but of doubtful validity as empirical truth. The same psychological information and a less adulterated empirical truth can be obtained from fully conscious subjects through non-drug psychotherapy and skilful police interrogation


* Sodium pentothal:
Two of the most commonly used truth serums are members of the barbiturate drug class. Barbiturates are sedatives and hypnotics that are created from barbituric acid. Barbiturates are divided into classes according to the duration of sedation: ultra short, short, intermediate, and long. Ultra short- acting barbiturates are used as anaesthetics whereas long- acting ones are used to treat convulsions.
The drug used for narco analysis is sodium pentothal, also known as sodium thiopental. It belongs to the category of the narcotic barbiturates listed in the Schedule III of controlled substances under the NDPS Act 1985. It directly acts on the inhibitory channels which decrease the neuronal activity of the brain. It has anaesthetic, sedative and hypnotic properties. Sodium pentothal is an ultra short acting barbiturate and hence used in the induction phase of anaesthetic in minor surgical procedures. Sodium pentothal, was developed in 1935 by the Abbot Laboratories, It was developed and tested as an anaesthetic agent. You all know that anaesthesia is given during surgeries. Sodium pentothal is given intravenously and is an ultra-fast-acting anaesthetic. It acts within 45 seconds of being introduced into the bloodstream. Almost60% of it concentrates in the brain and the person immediately starts losing consciousness. It can also be given for a relatively longer period of time. So the surgery can be commenced immediately, and person can be kept under anaesthesia for the duration of surgery. After one stops giving it, it takes 15 minutes to three hours to wear off, and so the recovery from the anaesthesia is also relatively fast. Thus, it is a very useful drug. So even though it is very useful drug, it will kill someone if it is not used judiciously. Its proper use requires the services of a doctor whose sole aim would be to care for the person and not just to extract information by any means. After it was developed, it was used in an emergency situation during the Second World War: the famous Pearl Harbour attack. When it was bombed, the injured persons were given sodium pentothal while being provided surgical care. Several persons died due to the overdose of this anaesthesia. Sodium pentothal is also famous for its use in other areas like euthanasia. The lethal injection that is used in the USA for executing the death penalty has also been using sodium pentothal. It is argued that Sodium Pentothal is a barbiturate which is having very serious side effects and if it is injected without proper care and guidance, even death can occur. The barbiturates have effects on all organs and systems in the body and the Central Nervous System (CNS) is most sensitive to the effects of the barbiturates.
Barbiturates have a marked respiratory depressant action, mediated centrally by the reticular activating system. The effect is of particular concern in patients with other causes of decreased respiratory drive (concurrent use of CNS depressants) or decreased functional respiratory reserve who cannot compensate for the decreased central drive.
The drug is depressant of CNS and myocardium (heart muscles). The drug can cause adverse effects like fall of blood pressure, cardiac arrest larnygospam, broncospasm, respiratory arrest etc. Shock and anaphylactic (fatal allergic reaction) reactions have been reported. It is absolutely contra- indicated in persons with pre existing natural diseases.
Lethal dose of drug varies with person to person and cannot be stated with certainty. It can be as slow as 1 mg/100 ml or still less in combination with other depressant like alcohol. The manufacturers of the drug cautions that this drug could be administered only by competent persons and with respective equipments, like oxygen are to be kept readily available. If cardiac or respiratory arrest develop during anaesthesia. The immediate resuscitative measures should be taken. If cardiac or respiratory arrest is prolonged, person may die due to cerebral anoxia or go into a persistent vegetative state. (Its effects on CNS may lead to retrograde amnesia emergence delirium, besides many other side effects). This is the reason why the drug is administrated in a well equipped hospital with ventilator facility by specialist doctors for anaesthetic purposes taking all measures to counter act adverse effects.
The drug can also suddenly lower the blood pressure, so constant monitoring of it is must. It can suddenly cause cessation of respiration or apnoea, so the respiration is to be monitored. It can cause sudden unexplained constriction of the larynx spasm. This is condition where the air passage gets blocked, and if that happens, often one needs immediate emergency surgery to create a hole in the neck for allowing the person to breathe. The drug can also cause delirium, nausea and headache.
It is true that like any other drug barbiturate use may have adverse reaction. And The Central Nervous System is most sensitive to the effects of the barbiturates but that is not an adverse reaction. It is to be noted that barbiturates are used for the treatment of anxiety and apprehension. So it is administered as medicine to patients.
Most of the medicines prescribed by the doctors practising modern medicine is having adverse reaction. When a patient is subjected to X-ray or C.T. Scan also the possibility of adverse reaction is there. Still the same is used for diagnosing diseases.
From this we can understand that even though there are side effects to narco analysis test, if the test conducted by taking necessary precautions then the defects can be controlled. And though it is argued that narco analysis can cause health hazards, it is. Not supported by proper scientific studies. * Sodium pentothal in narco-analysis:
Now let us understand the assumptions underlying the use of sodium pentothal, an anaesthetic drug, for its intended forensic use in narco-analysis to make a person speak the truth. For that, we first need to understand anaesthesia. There are four different stages of anaesthesia. The first stage is called induction, which is when a person is actually given the anaesthetic substance and its effects start. The second stage of anaesthesia is a phase of excitement and the beginning of the loss of consciousness, when the person is partly conscious or semi-conscious, or is in a trance-like state. As one continues to give the anaesthetic substance, the person goes into the third stage of anaesthesia, which is called the surgical plane, when a person loses sensation and is totally unconscious. It is called the surgical plane because, in order to undertake surgery, the anaesthesia needs to be maintained at this stage by maintaining an appropriate dose level of concentration of the anaesthetic agent. The loss of consciousness in this stage irreversible. However, if more anaesthetic substance is given than the dose required for achieving and maintaining the surgical plane, then it leads to coma. This fourth stage of anaesthesia is called coma or overdose, and is often irreversible. In the fourth stage, there is depression of the brain stem and medullar regions, and it can lead to death. In Pearl Harbour, the deaths happened because the overdose the drug in many persons led to the fourth stage of anaesthesia and beyond.
In narco-analysis, a person is kept at the second stage of anaesthesia by maintaining a dose of sodium pentothal sufficient only to produce that stage. The hypothesis is that, at this dose and stage of anaesthesia, the sodium pentothal produces not only an effect similar to hypnosis (trance-like state) but, by its interaction with certain chemicals of the brain, it also makes the person to speak the truth the hypothesis governing the forensic use of narco-analysis is that the activity of the upper or cortical part of the brain is required in order to filter or alter a person’s response to stimuli.
Another assumption is that, compared to telling the truth, lying demands more complex processing in the brain in order to decide how to lie and what to say as a lie. And this complex processing takes place in the upper or cortical portion of the brain. Simply put, when one wants to say the truth, it is just there, known to the brain clearly, and so the brain does not need to do much voluntary processing. But, in lying, the brain has to voluntarily make an effort to replace the truth by a lie, and so more complex processing takes place. And the final assumption is that, if the above hypothesis is true, then the expert needs to have only a mechanism or a drug that can stop or reduce the influence of the upper or cortical part of the brain whose role is critical in forming a lie. Once that is achieved, the brain’s capacity to lie is altered or controlled by the investigator, and the hypnotic effect produced by the drug would ensure that the person tells the truth when asked a question. Indeed, information in the brain can be brought out without the normal filtering effect of the brain, provided the assumptions are correct. And, if the assumption is correct, what can such non-filtered information be but the truth? Now, have the scientists found in the sodium pentothal such a drug and in narco-analysis such a mechanism that can alter the brain in the manner required, for ensuring that the person gives out information not filtered by that particular portion of the brain? And will that information be the truth?
They claim that it is so; the sodium pentothal has a property of inhibiting the working of a neurotransmitter inhibitor in the brain called GABA or Gamma Amino Butyric Acid. The assumption is that this neurotransmitter inhibits the way the brain controls the response a person gives, and, by inhibiting this neurotransmitter at a certain depth of anaesthesia, the sodium pentothal removes or reduces the inhibitory powers of the upper or cortical brain.
So, a series of assumptions are made here. That lying is a more complex mechanism of the brain than telling the truth. That lying is mediated through GABA by the brain. Since the sodium pentothal has inhibitory effect on the GABA, the person is less inhibited, becomes more lucid at a certain depth of anaesthesia, i.e. in the second stage, which was always known as the stage when the person getting anaesthesia was in a state of excitement. This is picked up to make an assumption that since GABA is inhibited by this particular anaesthetic agent, the person’s capacity to lie is also reduced or removed temporarily. And, above all, the contention is that in such a state, when a well-trained psychologist asks carefully formulated questions, the person’s mind will have no option but to tell the truth 5. NARCO ANALYSIS AND INTERROGATION:
With recent advent of technologies in every sphere of life, criminal investigation is no more left out of its effects. Nowadays the investigation agencies are mainly depended on scientific method of investigation to find the truth. One of the benefits of scientific investigation is that it helps to convert suspicion into reasonable certainty of either guilt or innocence. The foundation of criminal justice system itself is to prove the guilt of accused beyond all reasonable doubt and to protect the innocent from wrongful conviction. Scientific evidences such as biological evidence cannot tell a lie and decision arrived at by such an evidence is said to be justice through science. The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. The advances in science must be used by the police to find out the truth, to solve the mysteries of the crimes. It is the better option for both investigation/interrogation, than the classical interrogation method involving third degree torture.
Where in the accused breaks -down & blurts out the truth, usually, in most of the cases innocents unable to bear the torture confesses to the crimes they have not at all committed. The scientific tools of interrogation must be made mandatory for interrogation. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the narco-analysis test. Scientific forensic evidence is increasingly reliable, cheap and available. It is often a very convenient and direct form of investigation that leads to speedy gathering of evidence.
While investigating the cases some criminals proves to be a hard nut to crack. In such cases, to procure evidence, the investigating teams generally end up by adopting unfair and illegal means Such as third degree methods. Narco analysis is an alternative to adoption of such unfair means. It is fruitful to rely on science. With the advance scientific discoveries, working with their experts, the investigating officer can read the mind of suspects. And dig out concealed information and evidence. Moreover Indian Constitution has permitted legislative system to take necessary steps in making law for justice through science. According to the Constitution of India, Part IV-A, it shall be the fundamental duty of every citizen of India to develop, scientific temper, humanism, the spirit of inquiry and reform.

* History of Narco-analysis in Interrogation: “In vino veritas” which means in wine there is truth. In olden days the investigators believed that one could not lie effectively when drunk, so liquor was used to extract information from an un-communicating subject. Later with the advent of anaesthesia it was observed that during the induction period and particularly during the recovery interval, patients were prone to make extremely novae remarks about personal matters, which, in their normal state, would never have revealed.
The earliest direct attempt to utilize this phenomenon in criminal interrogation stemmed from observations of a mild type of anaesthesia commonly used in obstetrical practice during the period of about 1903- 1915 and known as `Twilight sleep', This anaesthesia was obtained by hypodermic injection of solutions of morphine and scopolamine (also called `hyoscine') followed by intermittent chloroform inhalations if needed. The pain relieving qualities of morphine are well known. Scopolamine appears to have the added property of blocking out memories of recent events. By the combination of these drugs in suitable dosage, morphine dulled labour pains without materially interfering with the muscular contractions of labour, while scopolamine wiped out subsequent memories of the delivery room ordeal. The technique was widely used in Europe but soon fell into disrepute among obstetricians of this country, largely due to over dosage.
During the period of extensive use of `twilight sleep' it was a common experience that women, who were under drug influence, were extremely candid and uninhibited in their statements. They often made remarks which obviously would never have been uttered when in their normal state. In 1916 Arthur S. Lovenhart and his associates at the University of Winconsin, experimenting with respiratory stimulants, were surprised when, after an injection of sodium cyanide, a catatonic patient who had long been mute and rigid suddenly relaxed, opened his eyes, and even answered a few questions.
In 1922 it occurred to Robert House, a Texas, obstetrician that a similar technique used at the time of child birth might be employed in the interrogation of suspected criminals, and he arranged to interview under Scopolamine two prisoners in the Dallas Country Jail whose guilt seemed clearly confirmed. Under the drug, both men denied the charges on which they were held, and both, upon trial, were indeed found guilty. Enthusiastic at this success, House concluded that a patient under the influence of Scopolamine cannot create a lie and there is no power to think or reason.
Dr. House's first paper presented in 1922 suggested drug administration quite similar to the standard `twilight sleep' procedure: morphine sulphate together with 1/100 grain of scopolamine hydro bromide, followed at 20- 30 minute intervals with smaller (1/200 - 1/400 grain) doses of scopolamine and periods of light chloroform anaesthesia. Subjects were questioned as they recovered from the light chloroform anaesthesia and gave answers which subsequently proved to be true. His experiment and his conclusion attracted wide attention, and the idea of a “truth” drug was thus developed and gained attention of the public consciousness.
In 1943 J.Stephen Horsely published a book in which he described a novel psychotherapeutic method, which he termed as narco-analysis. By chance, he observed that people who were under the influence of narcotics were uninhibited, talkative, and answered all questions that were asked of them. Ever since then, the process has been under the scanner with absolutely unflattering results, soon this technique become quite popular among various secret services agencies.
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 intelligence and counter- terrorism operations, as early as the 1950's. The debate over the use of `truth- serums' has been revived with demands for their use on persons suspected of involvement in terrorist activities.
In an infamous project called MUKULTRA - The CIA's program of research in behavioural modification, they promoted the use of LSD on unknowing subjects, Appendix A of the senate committee documents says that another experiment by the CIA called Project ARTCHOKE, using sodium pentothal, was “ended in 1956, but evidence suggests that the Office of Security and the Office of Medical Services’ use of ‘special interrogation’ techniques continued for several years thereafter” (1). It was thus not surprising that after September 11, former CIA and FBI chief William Webster was quick to assert that the administration should look at the use of drugs such as sodium pentothal or other invasive tactics, which are just short of torture.
The biological weapons department 12 of the Russian secret service KGB “claimed that a truth drug codenamed SP-117 was highly effective and has been widely used. According to them, "The 'remedy which loosens the tongue' has no taste, no smell, no colour, and no immediate side effects. And, most important, a person has no recollection of having the 'heart-to-heart talk'" and felt afterwards as if they suddenly fell asleep.
The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping have important clinical, scientific, ethical and legal implications. The DDTs are useful to know the concealed information related to crime. This information, which is known only to self, is sometimes crucial for criminal investigation. The DDTs have been used widely by the investigating agencies.
However, investigating agencies know that the extracted information cannot be used as evidence during the trial stage. They have contested that it is safer than ‘third degree methods’ used by some investigators. Here, the claim is that, by using these so called, “scientific procedures” in fact-finding, it will directly help the investigating agencies to gather evidences, and thereby increase the rate of prosecution of the guilty and the rate of acquittal of the innocent. Investigators could seek reliance on the narco analysis test to extract information from a person who is suspected or accused of having committed a crime. Alternatively these tests could also be conducted on witnesses to aid investigative efforts. As mentioned earlier, this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual. The core debate arising out of the DDT is its legality of using inhuman degrading methods to confess the crime. The interrogation of the accused plays a vital role in collecting evidence. If the accused remains silent and does not answer any questions of the investigating agencies then to what extent the investigating agencies can coerce or force the accused to reveal information. to ensure the citizens' cooperation during the course of investigation legislature had made some provisions in IPC, CrPC and Evidence Act. Under these legislations all citizens have an obligation to co- operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section.
Attention has also been drawn to the language of Section156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. the overall intent of these provisions is to ensure the citizens' cooperation during the course of investigation.
The State has a responsibility towards public safety, justice dispensation and prevention of crime. Narco-analysis plays a vital role in realization of this State interest. In a democratic country the Constitution guarantees certain basic rights and a liberty to the people .and the criminal justice administration protects them by enforcing laws and punishing the offenders. The success of the Constitution largely depends upon the efficiency and effectiveness of the criminal justice administration .If the Constitution is a chariot then the four components of the criminal justice system, viz. the police, bar, judiciary and correctional services are its horses.
Harmonious efforts of all these four agencies are essential for moving the Constitution towards its goal of establishing a egalitarian society. While granting rights and liberties to the people, the framers also envisaged adequate provisions for maintaining public order, morality, decency, security of the State. They empowered the State to impose reasonable restrictions on some of the Fundamental Rights for ensuring protection of national interests.
Framers itself have incorporated some provisions in the Constitution Keeping in view the importance of the criminal justice administration. With which they intended to establish a just, fair and speedy criminal justice to the people. However, the increase of violent crimes; huge pendency and inordinate delay in disposal of criminal cases; and declining conviction rate and declining conviction rate had resulted in the poor performance of the criminal justice administration .the system has been constantly deteriorating, instead of improving. At this stage criminal justice administration needs the help of scientific methods of crime investigation such as narco analysis: 1) to prevent crimes 2) for effective and speedy disposal of investigations and cases 3) to solve the pending cases. In a recent land mark judgement of Supreme Court regarding the use of narco analysis. In Dinesh Dalmia v. State. Dinesh Dalmia v. State the Court conveyed that “investigating agency is required to complete investigation within a reasonable time, if not; the benefit of delay is given to the accused. If accused fails to co-operate with the investigation process undertaken during custodial interrogation, to unravel the mystery surrounding the crime, scientific investigation methods may have to be carried out to find the truth”.In Shailender Sharma v. State. Sh. Shailender Sharma v. State Keeping the same spirit, the court held that “the narco-analysis test is a step in aid of investigation.
It forms an important base for further investigation as it may lead to collection of further evidences. Therefore, with reference to the proliferation of crimes against society, it is necessary to keep in mind the necessity of the society at large and the need of a thorough and proper investigation as against individual rights while ensuring that constitutional rights are not infringed.”
Consequently, in the court's opinion, the narco-analysis test does not suffer from any constitutional infirmity as it is a step in aid of investigation and any self incriminatory statement, if made by the accused, cannot be used or relied upon by the prosecution. These judgments are clearly supporting the use of narco analysis in investigations. 6. LEGAL AND JUDICIAL POSITION OF NARCO TEST The legal position of applying this technique as an investigative aid rises genuine issues like encroachment of an individual’s rights, liberties and freedom. Subjecting the accused to undergo the test as, has been done by the investigative agency is considered as a blatant violation of Art 20(3) of Constitution. Right against self-incrimination' which finds place in Article 20(3) of the Constitution of India.
Article 20(3) reads as follows:
No person accused of any offence shall be compelled to be a witness against himself .This provision consists of the following three components: 1. A right pertaining to a person accused of an offence 2. A protection against compulsion to be a witness; and 3. A protection against such compulsion resulting in his giving evidence against himself.
The interrelationship between the `right against self- incrimination' and the `right to Fair trial' has been recognised in most jurisdictions as well as international human rights instruments. In the International Covenant on Civil and Political Rights (ICCPR), Article 14(3) (g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against him or to confess guilt.
In the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that `everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law’. We must examine the `right against self-incrimination' in respect of its relationship with the multiple dimensions of `personal liberty' under Article 21, which include guarantees such as the `right to fair trial' and `substantive due process'. * Narco analysis and right against Self Incrimination
A cardinal Principle of the English system of criminal jurisprudence is that an accused cannot be compelled to give evidence against himself. This principle is also recognized in the Indian Legal System. The constitutional guarantee of this right in India is that no person accused of any offence shall be compelled to be a witness against himself. The objective of this principle is to eliminate the possibility of use of torture methods against the accused. Some of the provisions in the Indian Evidence Act and Criminal Procedural Code also seek to achieve a similar objective..This Right is also guaranteed by the US Constitution and International Convention on Civil and Political Rights (ICCPR) 1966. Thus the right against self-incrimination is a well recognized and accepted principle of criminal law.
The major argument against the method of narco-analysis is that it is violative of the right against self-incrimination. To find answer to this question we need to make a deep study of Article 20(3) of constitution.
Before the introduction of right against self-incrimination, torturing a person to extract information has been practiced by law enforcement agencies, as a convenient, fast and direct method of investigation to bypass the expensive and arduous processes of lengthy investigation. So to protect the interest of accused the doctrine ‘Right against Self Incrimination’ was evolved by the courts, it states that ‘no person, accused of any offence, shall be compelled to be a witness against himself’. A sovereign State has no right to compel a sovereign individual to surrender his right to self defence .This privilege against Self Incrimination limits the power of the State to acquire and present evidence through the accused himself in the interests of his autonomy and privacy; it thus interferes with the State’s ability to control crime and maintain order in pursuance of the same interests. Today these interests are seen as fundamental in acting as a check against rapidly growing government power. It enables the maintenance of human privacy and the observance of civilized standards of criminal jurisprudence. The major features of this privilege are:
1. The accused is presumed to be innocent and the State has to make a case of prosecution independent of his involvement in the trial.
2. That it is for the prosecution to establish his guilt.
3. That the accused need not make any statement against his will.
This privilege is also known as the right to remain silent; in essence barring coercion and other forms of duress in the State’s endeavour of criminal prosecution. This represents a form of the ‘Liberty – Order’ debate and, the nature of the privilege affords no exact idea, as to placing a balance between the competing interests of State order and individual liberties unlike various other rights. Modern jurisprudence has sought to place such a balance.
The Mallimath committee on Criminal Justice Reforms on examination of the inquisitorial system followed in France, Germany and other continental countries recommends that some of the good features of this system be adopted in the adversarial system to make it more effective. With regard to the right to silence, the committee recognizes the accused as the best source of information and feels that without subjecting him to any duress, a way to tap this critical source of information must be found; it prescribes the freedom of the court to question the accused and elicit relevant information and drawing adverse inferences upon refusal to answer. These recommendations have been rejected by the Law Commission on grounds of maintaining this balance- between the State and individual- unequivocally in favour of individual liberties.
The admissibility of a science in a court of law demands that 3 major requirements be met: namely validity, reliability and legality. The same must be used to analyse the science of narco analysis and its prospective admissibility in our courts.
Validity demands that the evidence procured be the result of a scientifically validated method and that it measures all that it claims to measure with a reasonable amount of accuracy.
Reliability on the other hand is an indication of consistency in the accuracy of the results procured, the success rate of the tests conducted and other consequences of the same. A review of scientific literature on the use of narco-analysis and other lie detection methods ‘for detection of crime ’shows an insufficiency of material to assure us that these are scientifically researched methods. The leading report on this two pronged approach – viz. validity and reliability- is a paper on ‘Narco-Analysis’ by the Forensic Science Laboratory, Bangalore. This report however, does not make a mention of the health hazards of the test and the basis of narco-analysis as an investigative technique.
Confessions formed the major basis of convictions in Ancient English Common Law. It has been argued that ‘confessions’ have over the years turned out to be a very weak source of evidence. An increase in the use of scientific evidence as an investigative technique reduced the burden of the court on confessions. Two critical issues need to be examined here. The first and most important is if such replacement of confessions by scientific methods would lead to the principles of ‘Self Incrimination’ governing Confessions to be automatically grafted onto scientific evidence. This would lead us to believe that scientific methods of investigation are equally limited by the privilege of self incrimination. The second assumption is that scientific methods are being used to bypass confessions; therefore the principles of the privilege controlling confessions are also bypassed and can be conveniently used by the courts.
Scientific forensic evidence is increasingly reliable, cheap and available. It is often a very convenient and direct form of investigation that leads to speedy gathering of evidence. The use of scientific evidence therefore relates inversely to confessions in an investigation. The question that this poses is if new techniques that are substitutes to confessions will be guided by the same principles that guide the courts and protect the accused. In answering this question, the nature of narco-tests needs to be brought into the picture. Whether blending narco-tests with the Right Against Self Incrimination relates to the admissibility of the results procured thereof or to subjecting the accused to the tests itself is a factor that needs to be examined. The case of State of Bombay v. Kalu Kathi answered in the affirmative by stating that this protection is available to a person accused of an offence not merely with respect to evidence to be given in the court room in the course of trial but at all the previous stages if an accusation has been made against him. Hence subjecting a person to narco analysis against his will violates his right against the same.
On analysis of Art.20 (3) of the Constitution of India, it is found to contain the following components.1 It is a right available to a person ‘accused of an offence’.; 2. It is a protection against ‘compulsion’ ‘to be a witness’; 3. It is a protection against such ‘compulsion’ resulting in his giving evidence ‘against himself’. To claim the protection of this right, all three ingredients must necessarily co-exist .M.P.Sharma v. Satish Chandra gave this right a broad interpretation and held that it is not possible to limit this provision to oral evidence; the Supreme Court here brought in various other forms of evidence such as ‘production of a thing’ and evidence by other modes within the ambit of this Article. Scientific evidence has not been accorded its due place in our country owing to the pace of developments in the field. Thus even though Sharma v. Satish attempted to answer all major questions posed to the Self Incrimination Doctrine in its current times, advancements in forensic science quickly put forth new challenges to it. Kalu Kathi answered the question of compelling the accused to give specimen handwriting, thumb impressions and signatures stated that the right of the accused against self incrimination is not violated in such cases since “self incrimination must mean conveying information based upon the personal knowledge of the person giving the information” and covers only “personal testimony which must depend upon his volition”. Here the court restricted the meaning of the phrase “to be witness” to furnishing evidence in the form of oral or written statement and not large enough to include impressions and specimen signatures. The leading case that has guided precedent in our country with respect to narco-tests has been U.S v. Solomon where the United States Supreme Court held used expert witnesses to establish that adequate safeguarding against the unreliability of narco-tests was possible; on the whole however, while narco-tests were held as unreliable, their acceptance as an investigative technique was upheld. The question of compulsion was answered by the Indian Supreme Court in Dinesh Dalmia v. State of Maharashtra wherein it said that consent played no role in court-ordered narco-tests. This decision was however based on a technical irregularity. If this decision is to be upheld as valid, then it can be considered a valuable landmark in the course of the self incrimination doctrine in India; this case however said that while subjecting a person to narco-tests was compulsive, the revelations made are entirely voluntary; as such it has been held to widespread criticism by the proponents of this right. The most recent development as far as consent of the accused for conducting narco-analysis has been in the form of a stay order by the Supreme Court in November 2006 on narco-analysis being carried on K.Venkateshwar Rao in a case involving Krushi Cooperative Urban Bank. This is considered a welcome move; however consent implies ‘informed consent’. The person giving this consent must not only be made aware of his right against incriminatory evidence, but he must also in cases of such consent be made aware of the procedure to be carried on him and the consequences of such procedures. These two conflicting judgments however, leave us in hazy ground with respect to the role of consent in conducting such tests. Such a vital component of the privilege against Self Incrimination demands better scrutiny by the courts. A previous judgment of the court in the case of Nandini Satpathy v. P.L.Dani places any form of duress, physical or mental under the definition of ‘compelled testimony’ and holds it as violative of the privilege. The aspect of narco analysis, keeping in mind the compelling interest of the state in security and order, cannot be put away without further explanation. The drafting committee on “National Criminal Justice System Policy” headed by Prof. N.R.Madhavanan has recommended various measures to be taken by the government to amend various parts of the Criminal Procedural Code for effective /management of the overall science and technology needs of the criminal justice system .Section 53 of the Cr.P.C was amended to allow medical examination of an accused in the interests of justice, “as maybe reasonably necessary”. Narco-tests may be considered reasonable under such circumstances as terrorist attacks and other grave cases. A question relates to how the graveness of such an issue is to be decided; it is, under the said Section, the discretion of the prescribed police officers to make such a move and as evident is open to abuse. Section 45 of the Indian Evidence Act 1872 affords, in the interests of justice the opinions of experts as admissible in the court; it is however silent on the complicated question of narco-tests. This complication arises from the fact that the result of a narco-test is submitted to the court in the form of a report by the expert doctor under whose supervision such a test is conducted. The problem therefore, is threefold. First relates to the compulsive subjugation of a person to narco-tests; second is relating to the right extending to all stages of investigation and not merely to the trial stage. The third is relating to the form in which the results of such tests are submitted to the court. An answer could be sought by considering, as discussed earlier, that narco-tests, like other forms of scientific evidence are alternatives to confessions and likewise are meant to bypass the privilege guaranteed against self incrimination. Going strictly by precedent, no conclusive answer can be reached to either of the question posed above; however as Cardozo.J has said “the right against Self Incrimination is a right that might be lost and justice still be done.” The answer demands more insight into the rights guaranteed to the citizen. It is argued that Narco-Tests satisfy all the requirements of the UN definition of torture. If this argument is accepted, there can be no question as to the admissibility of Narco-tests in a court of law the situation however is different owing to the counterargument that it is in fact a substitute third degree methods of extracting information from an accused. Kishore Singh v. State of Rajasthan prescribed humane treatment of an accused as far as possible unless absolutely necessary as long as he was in police custody. The case of Gobind Singh v. State of Madhya Pradesh ruled on the ‘Right to Privacy’ of an individual as extending to the physical and mental state of the individual. Further developments in this area have clearly pointed out as ultra vires the authority of the State to forcibly expose the parts of an individual’s life that he wishes to keep to himself within his private sphere. An approach to the issue of Narco analysis guided by the sole motives of individual liberties would therefore hold the same to be in contravention of the rights guaranteed under Articles 20(3) and 21of the Constitution of India The term ‘blending’ used to relate Narco Analysis and Art.20(3) can have two distinct connotations; one could be to consider Narco Analysis as a form of confession or incriminating evidence and thus bring it within the ambit of Art.20(3) thereby affording an accused a protection against it. A majorly different viewpoint to this would be to allow Narco Analysis, owing to its complex nature, to bypass this protection.
The Right against Self-Incrimination guaranteed in the Constitution of India, though clear in its wording, owing to equally compelling factors such as the State’s interest in preservation of law and order, has failed to generate a set of concrete workable principles that a court can use to decide and defend the outcomes of particular cases. The maxim Nemo Tenetur Seipsum accusare meaning ‘no man is bound to accuse himself’ had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogation of accused persons. A proper analysis of the this protection, and its implications on the system of criminal justice vis-à-vis providing exceptions to this Right and its implications on individual liberties will demand a very objective understanding of the ethical, scientific and legal aspects of Narco Analysis and Self Incrimination. Absolute reliability on the findings of Narco-tests cannot be placed.
The concerns over the health aspects of such tests raise issues of a different nature altogether; the ethical dimension to this can be mooted to infinity. If it is the legality of admitting narco analysis results that we discuss , then the situation as it stands today clearly indicates that our Supreme Court has not yet delved into a direct juxtaposition of Narcoanalysis and violation of article 20(3). Narco analysis in India is a nascent form of investigation. There is an absence of rules and regulations governing the admissibility and plausibility of the same. Certain situations demand such drastic investigative techniques, in the words of Justice Krishna Iyer “More than human dignity of the accused involved; the human personality of others in the society must also be preserved. Thus the values reflected by the privilege are not the sole desideratum; society’s interest in of equal weight.”Who decides the graveness of a crime and ergo the modus operandi of the investigation process to be followed? This question demands a set of guidelines governing the admissibility of narco analysis. The present situation is functioning in a confused manner but is commendable in so far as, whether or not a person is subjected to such tests, due regard is given to his right against the same; a conclusion is reached only by a balancing act against the overpowering interests of the State and society. An alternative to this could be to decide each case on its merits and leave it to the court of law to decide the admissibility or subjection of a person to such tests. Such an alternative is not feasible in light of need of speedy criminal prosecution. The individual-State balance can be reached only by empowering the State in its endeavour of public order and control of crime and at the same time placing clear and distinct limits upon such power
The above said facts were affirmed by the H’ble Supreme court in Smt. Selvi’s case. The Supreme Court after analyzing the precedents in relation to right against self-incrimination came to the conclusion that, the right against self-incrimination is applicable even in the stage of investigation and a witness or a suspect can also avail its protection. The administration of narco-analysis without the consent of the accused will amount to a compulsive testimony under compulsion and will affect Article 20(3). Further it is held that, “the relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or furnish a link in the chain of evidence which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.
Thus this right against self incrimination is applicable only if there is an element of compulsion. Normally narco-analysis is conducted after obtaining necessary permission from the persons. But in certain cases the persons are not willing to participate in this process. However in such cases also where narco-analysis may be conducted on a unwilling person one cannot detect any element of compulsion in this test, because once the truth serum is injected to the person he will speak voluntarily to the questions which are asked during the test. But one may pose an argument that the information which is collected in such a way from the person when he is in dazed and half-conscious state is invalid. However this argument is not sound because under Section 29 of Indian Evidence Act a confession obtained under similar circumstance are valid. This section says: If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for obtaining it, or when he was drunk, or because it was made in answer to questions which need not answered, whatever may have been the form of those questions or because he was not warned that he was not bound to make such confession and that evidence of it might be given against him.
Where the confession is the outcome of a fraud being played with the accused, it is nevertheless relevant. Thus in a case where the two accused persons who were left in a room thought they were all alone, but secret tape recorders were recording their conversation, the confession thus recorded were held to be relevant. Similarly, where an accused was persuaded to submit to a medical examination for an innocent purpose, his statements to the doctor and doctor’s report were held to be relevant at the discretion of the court. If under Section 29 of the Indian Evidence Act, the above mentioned method of collection of evidence is accepted, narco-analysis can should also be treated as a technique which comes under this section. Thus it is submitted that the investigating agency can use the information extracted through narco-analysis as a base for further investigation and for collecting other valuable evidence.

* Narco-analysis and the issue of Torture:
As narco-analysis involves the involuntary injection of mind altering drugs into one’s body, there necessarily arises a question whether it may constitute torture. A number of commentators have argued that the use of truth serum for the purpose of extraction information constitutes torture.. Torture as a method of interrogation is endemic in India and this is a fact acknowledged by the authorities and widely documented. Torture is systematically used in the criminal justice system as a method of investigation and it cannot be denied that the increasingly dysfunctional criminal justice system coupled with custodial torture and torture in custody constitutes a vicious circle of deficient interrogation, falsified investigation results and distrust of the criminal justice system.
In Smt. Selvi’s case, the Supreme Court held that, the definition of torture indicates that the threshold for the same is the international infliction of physical or mental pain and suffering, by or at the instance of a public official for the purpose of extracting information or confessions. Cruel, inhuman or degrading treatment has been defined as conduct that does not amount to torture but is wide enough to cover all kinds of abuses.
Hence proving the occurrence of cruel, inhuman or degrading treatment would require a lower threshold than that of the torture. So it is quite conceivable that administration of any of these techniques could involve the infliction of mental pain of suffering and contents of their results could expose the subject to physical abuse.
When a person undergoes a narco-analysis test, he/she is in a half conscious system and subsequently does not remember the revelations made in a drug induced state. However when he or she later learns about of the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be use to prosecute other individuals. The realization of such consequences can indeed cause mental pain or suffering of the person who was subjected to these tests. We must also contemplate situations where a threat given by the investigators to conduct any of the impugned test could prompt a person to make incriminatory statements or to undergo some mental trauma, especially in cases of individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advise the mere apprehension of undergoing scientific test that supposedly reveal the truth could push them to make confessional statements.
Hence the act of threatening to administer the impugned test could also elicit testimony. It is also quite conceivable that an individual may give his or her consent to undergo the said test on account of treats, false promises or deception by the investigators.
The criticism of torture at a universal level dates back to at least as far back as the Universal Declaration of Human Rights, International law has condemned torture in the strongest possible terms. More recently, the widespread against torture has been given legal effect with the signing of a variety of international instruments. In India there is no law as yet to define the term torture.
The most commonly cited definition of torture is found in Article 1(1) of the united nation convention against torture (CAT). As per this Convention, the first component says that torture produces physical/mental suffering and is a degrading treatment. The second one says that it is always intentionally inflicted. The third component says that it is inflicted for certain purposes such as getting information, confession, etc. the fourth component of this definition is says that it is inflicted by an official actor or an actor acting on behalf of an official.
An analysis of the definition of torture under Article 1(1) of CAT shows that it is always pointing to an act which ca produces either physical or mental pain. As some commentators have pointed out, Article 1 fails to cover the use of mind control and other objectionable techniques that simply do not involve pain. It is particularly difficult to see how Article 1 might apply to substances such as sodium pentothal, which, far from causing suffering, are commonly used precisely for their pain relieving properties.
The CAT’s negotiating history furnishes one strong reason for rejecting the notion that the treaties definition of torture includes the use of truth serum. During the Convention Against Torture and Other Cruel, Inhuman or degrading Treatment or Punishment (CAT) drafting, Barbados (a Careebean Island Country) specifically suggested that the definition of torture be expanded to include the use of “truth drug”. Thus, the negotiators of the instrument clearly had the opportunity to ban the use of truth serum if they had wanted to. The fact they decided against such a move strongly indicates that the use of such methods does not amount to torture.
For argument sake one can accept that those who are subjected to truth serum might very well experience psychological pain and suffering at the pretext of having information extracted from them that they wished to keep private. But these types of sufferings have been expressly excluded from the definition of torture under the said Article 1 of CAT in its last portion, which states that, “it does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. So under this circumstance it is difficult to support the argument that narco-analysis comes under the term meaning of the torture. * Narco-analysis and the issue of Right to Privacy:
It is also argued that the subjecting of persons to such intrusive tests against their will is a violation of their right to privacy. The right to privacy is not expressly mentioned in the Constitution of India, but falls in ambit of the ‘personal liberty’ guaranteed under Article 21 of the Constitution. Narco-analysis arguably falls within in the scope of Article 21 by virtue of the invasion of the body and mind, which constitutes an invasion of piracy.
The test directly intrudes on the mental processes of the subject, who lacks control over his mind during the questioning due to the effects of the drug. There is a risk that the unconscious mind may reveal personal information that is irrelevant to the investigation. It is therefore imperative to establish standards of confidentiality and other safeguards, as privacy can be violated only by “procedure established by law”. No such safeguards exist in India and therefore narco-nalysis particularly if performed without consent amounts to a violation of privacy.
In Smt. Selvi’s case the Supreme Court opined that, ‘so far the judicial understanding of privacy in our country had mostly stressed on the protection of the body and physical spaces from intrusive actions by the state’. While the scheme of criminal procedure as well as evidence law mandated interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same could not be the basis for compelling a person ‘to impart personal knowledge about a relevant fact’.
Moreover, the court held that the theory of inter-relationship of rights mandated that the right against self-incrimination should also be read as a component of ‘personal liberty under Article 21. According to the court, the understanding of the ‘right to privacy’ should account for its intersection with Article 20(3).
Furthermore, the ‘rule against involuntary confessions’ as embodied in sections 24,25,26 and 27 of the Evidence Act, 1872, sought to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. While holding that the test is violative of right to privacy, the court thus concluded;
A conjunctive reading of the Article 20(3) and 21 of the constitution along with the principles of evidence law leads us to clear answer. We must recognize the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges and penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy.
Though the right to privacy is not provided explicitly under Article 21, the judiciary through its dynamic interpretation brought this right under article 21. This basis for such an action is Article 17 of ICCPR. This right is not an absolute right. It was in Mr.’X’ v. Hospital ‘Z’. that the supreme court observed that as one of the basic human right, the right of piracy was not treated as absolute and was ‘subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others. In the case of Sharda v.Dharmpal, Supreme court was confronted with the issue of whether subjecting a person to a medical underscored the significance of the concept of the law of piracy in India and opined that the right to piracy in terms of Article 21 of the Constitution was not absolute right. In Rojo George v. Deputy Superintendent of police, the Kerala High court held that the narcoanalysis test did not amount to deprivation of personal liberty or intrusion into privacy.
A close analysis of Article 17 of ICCPR reveals that only unlawful and arbitrary interference with this right is prohibited. so if an interference is lawful and non-arbitrary it is valid . here the word unlawful connotes something which is prohibited by law. At present in India there is no law prohibiting the conduct of narcoanalysis. The human rights Committee’s General Comment to Article 17 makes it clear that the touchstone of the arbitrariness inquiry is whether interference with privacy is “reasonable in the particular circumstances”. Thus if the circumstances justify the conduct of a narco-analysis, the challenge on the basis of right to privacy will lose its stand. * Narco-analysis and the issue of Violation of Right to Fair Trail
In Selvi case the Supreme Court held that, “in the light of a conjunctive reading of Article 20(3) of the constitution and Section 27 of the Evidence Act, if the fact of compulsion is proved, the test results will not be admissible a evidence. However, for the sake of argument if we were to agree with the respondents and allow investigators to compel individual to undergo these tests, it would also affect some of the key components of the ‘right to fair trial’”. The major component which was identified by the court was access to legal advice at time of custody. The court opined that if the investigating officer uses the narco-analysis test then the objective of providing access to legal advice is frustrated. Further, the court held that, at the stage of trial, the prosecution is obliged to supply copies of all incriminating materials to the defendant but reliance on the impugned tests could curtail the opportunity of presenting a meaningful and wholesome defence. If the contents of the revelations or inferences are communicated much later to the defendant, there may not be sufficient time to prepare an adequate defence.
Right to fair trial is an important element of criminal justice administration in our country. This right is conferred under Article 21 of Indian constitution. Like other rights under Article 21, this right is also not an absolute right. Any right which is conferred under Article 21 can be restricted by an appropriate procedure established by law.
The collection of evidence and prosecuting an accused is a compelling public interest. When the investigating agency is in darkness and if they can make any significant move by using narco-analysis test, the test should be allowed in such cases. * Reliability of Narco-analysis:
The narco-analysis test has also been criticized for its unreliability. Scientific studies demonstrate that the test is not foolproof and even induces confessions from innocent persons, as the subject is in a highly suggestible state and prone to give false or misleading answers to questions that may be improperly framed. Research suggests that these tests are ineffective on individuals who are determined to lie, as they are usually still able to lie even when drugged. It is also feared that memories may be “planted” in the subject’s brain during questioning; a person may come to believe that he has committed the crime, even though in reality he is entirely innocent. Research shows that there is a very high risk of “a gross miscarriage of justice through undue dependence upon unreliable statements”.
In Smt. Selvi case the Supreme Court held that, in respect of narco-analysis technique, it was observed that there is no guarantee that the drug-induced revelations will be truthful. Furthermore, empirical studies have shown that during the hypnotic stage, individuals are prone to suggestibility and there is a good chance that false results could lead to a finding of guilt or innocence.
According to the Scientists of Forensic Science Laboratory, Bangalore, a premier institution in India for conducting narco-analysis, the revelations made during the solving of sensational cases of Mumbai serial train blasts, narco-analysis was found to be very useful. It was also found to be useful in solving of cases involving blasts at Delhi, Malegoan and more recently in Hyderabad and in various other sensational cases of National and International ramifications. In most of these cases, the revelations made have led to discovery of incriminating information’s favoring probative truth and consequently recoveries have been made in large number of cases under section 27 of Indian Evidence Act.
It is found in some important cases that, the strength and confidence levels of inforamtions obtained from narco-analysis one confirmed by brain mapping test results. The discovery of information about conspiracies and attempts to dislodge evidence in some important cases have found place under section 120 B, 201 Indian Penal Code. More recently, the revelations obtained through narco-ananlysis have helped the investigating agencies to reach logical conclusions in man/woman missing cases.
It is also established that 20% of the total number of the individuals subjected to narco-analysis were found to be innocent. Therefore, this technique not only helps to identify the real perpetrators of crime, their motive and modus operandi, the conspiracies, disfigurement and displacement of evidentiary items etc but also helps to identify the innocents within a short period of time. It is pertinent to note here that the information receives from narco-analysis is not admissible as a direct evidence. Only that evidence which is collected on the basis of information received under narco-analysis is admissible and that too with adequate corroboration. In such circumstances even if the information received in a narco-analysis is false it will not do any harm to the accused.
Narco-analysis has emerged as significant tool in criminal investigation for extracting information from suspects and witnesses. Though its importance and necessity is widely acknowledged, it is still a debating question all over the world as well as in India. In spite of the fact that the use of narco-analysis has been accepted as an effective step and an alternative to the conventional methods of interrogation, the recent judgment of the Apex Court of India has put a restriction on its use as this. method can serve as a best tool for criminal investigation as it involves less time and there is no element of torture. This test is also significant in certain situations, for example, when investigating officer is hard pressed for time and needs to elicit critical information for preventing a major offence planned in the near future, especially by terrorist outfits. Another major advantage of this method is that it is less time consuming. And hence with the help of this method the investigating officer can finish his work very soon. It is also helpful to the innocent suspects as his innocence will be declared immediately.
Though the Indian judiciary has accepted this test as a valid one not yet laid down any guidelines for the conduct of the same. So the need of the hour is to make adequate guidelines for the use of this method so that the abuse/misuse of this process can be prevented. In conclusion it can be summarized that the narco-analysis is not a threat to the right against self incrimination. On the contrary if it is properly utilized the narco-analysis test will be the best alternative to the traditional methods of torture in criminal investigation.

[ 2 ]. Ashuthosh Pitliya, “a critical analysis of narco-analysis” nyaya deep, official journal of Nalsar volume x , issue 2, April 2009 p. 83.
[ 3 ]. Aneesh v. Pillai, “Narcoanalysis as a tool for criminal investigation: A critique of Selvi’s case”, Cochin university law review, volume xxxiv, p.353-354.
[ 4 ]. Subhojyothi Acharya, “Is Narco-Analysis A Reliable Science?-present legal scenario in india” ,,visited on 16thSeptember 2012.
[ 5 ]. Ashuthosh Pitliya, “a critical analysis of narco-analysis” nyaya deep, official journal of Nalsar volume x, issue 2, April 2009 p. 83.
[ 6 ]. Forensic medicine, scientific method of crime investigation p.310.
[ 7 ]. Selvi & Others v. state of Karnataka, A.I.R 2010, S.C.1974.
[ 8 ]. Laboratory Procedure Manual –“Forensic Narco- Analysis” ,Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi – 2005.
[ 9 ]. Rojo George v. Deputy Superintendent of police, 2006(2) KLT 197.
[ 10 ]., visited on 15th september2012.
[ 11 ]. Suresh Bada Math,”Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a bane” http//,visited on 11 thseptembr 2012.
[ 12 ]. Ashuthosh Pitliya, “a critical analysis of narco-analysis” nyaya deep, official journal of Nalsar volume x , issue 2, April 2009 p. 86
[ 13 ]. Selvi& Others v. state of Karnataka, A.I.R 2010 S.C.1974.
[ 14 ]. Madhur Gupta “Critical Study on validity of Narco Analysis with reference to Article 20(3) of the Indian Constitution” ,visited on 12 september2012.
[ 15 ]. [372 US 293 (1963)]
[ 16 ]. Raghul Sudheesh & Renu C. Paul, “NARCO ANALYSIS TEST- Can it strike a balance?,” on 10 September 2012.
[ 17 ]. George Bimmerle,”truth drugs in interrogation”,, visited on10thseptember 2012.
[ 18 ]. BelindaRowland,Truth serum, visited on13th september 2012
[ 19 ]. Forensic medicine, scientific method of crime investigation p.310
[ 20 ]. Ashuthosh Pitliya, “a critical analysis of narco-analysis” nyaya deep, official journal of Nalsar volume x , issue 2, April 2009 p. 86.
[ 21 ]. Forensic medicine, scientific method of crime investigation p.310
[ 22 ]. Ashuthosh Pitliya, “a critical analysis of narco-analysis” nyaya deep, official journal of Nalsar volume x , issue 2, April 2009 p. 86
[ 23 ]. Amar jesani, ,”narco analysis torture. And democratic rights”, 22th Dr Ramanadham Memorial Meeting,Peoples Union For Democratic Rights, visited on 8th September 2012.
[ 24 ]. Barcelona Panda, Narco-Analysis and its Evidentiary Value in India, The Practical Lawyer, : (2011)PLJuly, on 8 th September 2012.
[ 25 ]. George Bimmerle,”Truth Drugs In Interrogation”, visited on 8th September 2012.
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[ 27 ]. gautham swarup , Article 20 (3) Of The Constitution Of India And Narco Analysis – Blending The Much Awaited, on 8 th september2012.
[ 28 ]. Gagandeep Kaur, Narco Analysis: A Volcano In Criminal Investigation System, , visited on8 th sepetembr2012.
[ 29 ]. c.w. muehlberger, “introgation under drug influence”,, visited on 8 th september 2012.
[ 30 ]. Selvi& Others v. state of Karnataka,judgement dated 5.5.2010 , on 8 th sepetember 2012.
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[ 32 ]. Selvi& Others v. state of Karnataka,judgement dated 5.5.2010 , on 8 th sepetember 2012.
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[ 34 ]. Wikipedia, the free encyclopedia” truth drug”,, visited on8 th September 2012.
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[ 36 ]. Selvi& Others v. state of Karnataka,judgement dated 5.5.2010 , on 8 th sepetember 2012.
[ 37 ]. Dalbir Bharti, The Constitution And Criminal Justice Administration,, visited on 8 september 2012.
[ 38 ]. Crl. R.C. No. 259 of 2006.
[ 39 ]. Crl. WP No. 532 of 2008.
[ 40 ]. Selvi& Others v. state of Karnataka,judgement dated 5.5.2010 , on 8 th sepetember 2012.
[ 41 ]. Article 20 (3) which read as: “No person accused of any offence shall be compelled to be a witness against himself”.
[ 42 ]. Indian Evidence Act, ss. 24-26 and Criminal Procedure Code, s.316.
[ 43 ]. S.M.A. Qadri, Criminology, Eastern Book Company, Lucknow(2005), p.46.
[ 44 ]. Fifth Amendment of the US Constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for same offense to be twice put in jeopardy of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.
[ 45 ]. Article 14 (3) (g), it provides: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality… Not to be compelled to testify against himself or to confess guilt”.
[ 46 ]. M. Sivananda Reddy, “Narco Analysis and Truth Serum”, %20serum_129200522355%20PM.pdf
[ 47 ]. M.P.Jain, “Constitution of India”, 7th ed. (2006), p. 1244.
[ 48 ]. Mallimath Committee Report on Reforms in the Criminal Justice System, para.8-9
[ 49 ]. Mallimath Committee Report on Reforms in the Criminal Justice System, Para.13.
[ 50 ]. Twenty Second Dr. Ramanadham Memorial Meeting on “Narco Analysis, Torture and Democratic
Rights” conducted by the Peoples’ Union for Democratic Rights, p.12.
[ 51 ]. S. Malini and B.M. Mohan, “Narco Analysis”, with the Forensic Science Laboratory, Bangalore,, [ 52 ]. AIR 1961 SC 1808
[ 53 ]. M.P.Jain, “Constitution of India”, 7th ed. (2006), p. 1244.
[ 54 ]. AIR 1954 SC 300 : 1954 SCR 1077.
[ 55 ]. AIR 1961 SC 1808.
[ 56 ]. 753 F.2d.1522 (9thCir. 1985).
[ 57 ]. Cri LJ (2006) 2401.
[ 58 ]. AIR 1978 SC 1025
[ 59 ]. Section 53 – “Examination of a Person”
1. When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of this person will afford evidence as to the commission of this offence, it shall be lawful for a registered medical practitioner, acting at the request of the police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person as reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
[ 60 ]. Section 45 - Opinions of experts
When the Court has to form an opinion upon a point of foreign law or of science or art, or as identity of handwriting 1 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 2 [or in questions as to identity of handwriting] 1 [or finger impressions] arerelevant facts.
[ 61 ]. Palko v. Connecticut, 302 U.S, 319,325 (1937)
[ 62 ]. Article 1 of the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 26th June 1987 defines torture to have 4 components; mainly 1) physical or mental suffering and is a degrading treatment, 2) it is intentionally inflicted, 3)it is inflicted with specific purposes such as eliciting information and 4) it is inflicted by an official actor or and actor acting on behalf of such official.
[ 63 ]. AIR 1981 SC 265 : 1981 Cri LJ 17
[ 64 ]. AIR 1975 SC 1378
[ 65 ]. See M.P.Sharma v. Satish Chandra AIR 1954 SC 300; PUCL v. Union of India 1997 (1) SCC 301
(97); R.Rajagopal v.State of Tamil Nadu AIR 1995 SC 264.
[ 66 ]. Article 21, Constitution of India: “No person shall be deprived of his life or personal liberty except according to procedure established by law.
[ 67 ]. Shwetali Bajpal,”Narco Analysis and the Constitution”,visited on 8 September2012.
[ 68 ]. Nandini Satpathy v. P.L.Dani, AIR 1978 SC 1025
[ 69 ]. Amar jesani, ,”narco analysis torture. And democratic rights”, 22th Dr Ramanadham Memorial Meeting,Peoples Union For Democratic right,, visited on 8th September 2012.
[ 70 ]. Criminal Appeal No. 1267 Of 2004, Decided On 5th May, 2010, paras 200-206.
[ 71 ]. International Covenant on Civil and Political Rights and the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
[ 72 ]. Amar jesani, ,”narco analysis torture. And democratic rights”, 22th Dr Ramanadham Memorial Meeting,Peoples Union For Democratic right,, visited on 8th September 2012.
[ 73 ]. .
[ 74 ]. Article 21 of Indian Constitution, states that, “no person shall be deprived of his life or personal liberty except according to the procedure established by law”.
[ 75 ]. Criminal Appeal No. 1267 Of 2004, Decided On 5th May, 2010, paras 192-193.
[ 76 ]. Criminal Appeal No. 1267 Of 2004, Decided On 5th May, 2010, Para 193.
[ 77 ]. Article 17 of ICCPR states : “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’
[ 78 ]. A.I.R. 1999 S.C. 495.
[ 79 ]. 2006 (2) K..L.T. 197.
[ 80 ]. Aneesh v. Pillai, “Narcoanalysis as a tool for criminal investigation: A critique of Selvi’s case”, Cochin university law review, volume xxxiv, p.364-365.
[ 81 ]. M. Shivananda reddy,” narcoanalysis and truth seruam”availble at,visited on8 th September 2012.
[ 82 ]. Aneesh v. Pillai, “Narcoanalysis as a tool for criminal investigation: A critique of Selvi’s case”, Cochin university law review, volume xxxiv, p.365-366.

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