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2008 DIGILAW 1327 (BOM)

Sampatrao Rajeshwarrao Arvelli v. State of Maharashtra

2008-09-15

A.H.JOSHI

body2008
JUDGMENT:- Rule. Rule is made returnable forthwith and heard final1y by consent of parties. 2. In al1 these matters, a common Question of Law is agitated. Therefore, though the applicants are involved in various offences, the issue, in question, arising from orders of different Courts is one and the same. Hence, on hearing together, applications are decided by this common order. 3. By impugned orders, the permission for Narco Analysis, Brain Mapping and other analogous tests has been granted. The said permission is under challenge. 4. Reliance is placed on copy of proceedings of record of Hon'ble Supreme Court in the case of K. Venkateswara Rao Vs. State of A.P. (Coram: S. B. Sinha & Markandey Katju, n.) dated 20th November, 2006, and copy of Order dated 29th February, 2008 passed by this Court in Criminal Writ Petition No.2429/07 (R. M. Savani Vs. State of Maharashtra) (Coram: Bilal Nazki & S.A. Bobde, n.) 5. Purpose of reliance is that a broader question as to whether in absence of consent/willingness of the accused/witness, who is subjected to the Narco Analysis, Brain Mapping or similar tests, the same should be undertaken by order of Court. 6. The record of proceedings of Hon'ble Supreme Court indicates that in that case, the learned Senior Advocate appearing for the prosecution has made a statement of suspending the tests. 7. Admittedly, there is no stay order in the said case or a general stay order prohibiting undertaking of said tests. 8. In the proceedings before Division Bench of this Court as well, there is no stay granted in particular, i.e., the said case, or in general. 9. The matters at hand are of general importance and larger interest. Article 20 and Article 19, which guarantee fundamental right and are resorted to as a shield for seeking protection against alleged tests, which is not a physical invasion, but an intellectual invasion, will prima facie come within the bracket of reasonable restriction on fundamental rights. 10. Moreover, this question is not finally ruled so far, and upon being ruled, will be governed by effect of Narco Analysis or Brain Mapping, or all tests of like nature when conducted. 11. 10. Moreover, this question is not finally ruled so far, and upon being ruled, will be governed by effect of Narco Analysis or Brain Mapping, or all tests of like nature when conducted. 11. Here is a tie between silencing constitutionally available individual right and prerogative of State to investigation and use, for that purpose, modem medico-forensic aides for larger good of larger number of persons the Community on the whole such individual is a member. 12. In larger interest, it is felt necessary that this modem scientific invention based on anesthetic drugs already in use over decades and electrogram and similar systems already used for over decades and safe enough needs to be allowed, as an aid in the process of investigation and retrieval of data and information stored in the memory of the person concerned. 13. In this background, larger interest should outweigh and individual liberties and fundamental rights and balance can be struck by considering the perspective of reasonable restrictions. 14. Hence in absence of a direct• prohibitory precedent or order, this Court finds no reason as to why the tests sought to be undertaken though the impugned orders should be prohibited. 15. Legal consequences of the results flowing there from, such as admissibility of evidence procured by such tests etc., would be taken care of by Trial Court in the course of process of trial. Ordered accordingly.