Kerala High Court: M.R. Anitha, J., held that accused have no rights to claim subjecting themselves to Narcotic Analysis Test to prove innocence. Observing the limitations of Narco Test, the Bench stated,
“The possibility of accused himself making exculpatory statements to support his defence also cannot be ruled out. There is no mechanism or the present Investigating Agency is also not equipped to assess the credibility of such revelations of the accused.”
The question before the Bench was whether the accused has got any right to seek himself to be subjected to Narco Analysis Test. The impugned order had been passed by the Fast Tract Special Judge in a petition filed under Section 45 of the Evidence Act, 1872 and Section 293 of the CrPC, 1973 to subject the accused to Narco Analysis Test. The petitioner accused had been charged under Section 376(2)(i) of the Penal Code, 1860and Section 6 r/w 5 (m) of the POCSO Act, 2012.
Relying on ‘Interpretation of fact’ in the Evidence Act which reads as:- “Fact” – “Fact” means and includes – (1) anything, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious” , the State emphasised that sub-clause (2) provides that only mental condition of which any person is conscious comes under the definition of fact, hence, the accused has no right to subject himself to Narco Analysis Test.
The petitioner submitted that in Selvi v. State of Karnataka, (2010) 7 SCC 263, it was held that subjecting an accused to scientific test like Narco Analysis, Brain Maping, Polygraph, Lie detection Test etc., without the permission of the accused, by the prosecuting Agency will amount to testimonial compulsion and as such cannot be permitted in view of the constitutional safeguard against the same, but in the case at hand he being a hapless old man, accused of an offence with reverse burden of proof and he was himself submitting his willingness to undergo Narco test to prove his innocent.
Noticeably, Sections 29 and 30 of the POCSO Act provide for reverse burden of proof including culpable mental state of the accused. So it is for the accused to disprove such statutory presumptions.
Considering that the limitations of the `narco analysis’ technique, i.e. it does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information, the Bench stated that the submission of that petitioner that Narco Analysis Test was necessary to buttress his statements under Section 313 CrPC was unacceptable as revelations brought out during Narco Analysis under the influence of a particular drug cannot be taken as a conscious act or statement given by a person.
Further, considering the possibility of accused himself making exculpatory statements to support his defence, and that there is no mechanism or the present Investigating Agency is also not equipped to assess the credibility of such revelations of the accused, the Bench opined that the Investigating Officers would find themselves difficult to come to a definite conclusion regarding the veracity of the revelations so made and the other evidence already collected by them.
Therefore, the Bench held that the contention of the petitioner that in order to buttress his statements under Section 313 CrPC, these materials collected through Narco Analysis Test could be used as corroborative piece of evidence etc., was not at all sustainable in law. [Louis v. State of Kerala, 2021 SCC OnLine Ker 4519, decided on 19-11-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance by:
For the Petitioner: Advocate M. Revikrishnan, Advocate P.M. Rafiq, Advocate Sruthy N. Bhat, Advocate Ajeesh K. Sasi and Advocate Pooja Pankaj
For the Respondents: Advocate S.S. Aravind, Advocate M.V. Amaresan and P.P. Sangeetharaj N.R