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Andhra High Court · body

2008 DIGILAW 411 (AP)

State of Andhra Pradesh v. Inapuri Padma

2008-06-24

G.YETHIRAJULU

body2008
COMMON ORDER :-These revision cases have been filed by the State represented by the Public Prosecutor questioning the order passed by the Chief Judicial Magistrate, Vijayawada, in Criminal M.P. No.276 of 2008 and Criminal M.P. No.277 of 2008 in Crime No.4 77 of 2007 of Ibrahimpatnam Police Station, Vijayawada. The Assistant Commissioner of Police, West Zone, Vijayawada City, filed a requisition before the Chief Judicial Magistrate, Vijayawada, requesting to permit them to undertake Narco Analysis Test for six persons at FSL Bangalore. 2. In the requisition it is mentioned that the persons mentioned in the requisition are neither accused nor suspects in the above crime. The police were suspecting that the above mentioned persons are not disclosing certain facts known to them in respect of the above crime and if a Narco Analysis Test is conducted on the above persons, there is likelihood of those persons disclosing certain facts, which may help the Police in making progress in the investigation. 3. The learned Magistrate in the order observed that the above persons are neither accused nor suspects and they were not arrested by Police, therefore the question of giving those persons to the Police custody for the purpose of Narco Analysis Test does not arise. The Court has no jurisdiction to entertain the requisition or to send the persons for Narco Analysis Test. Hence, the requisition is rejected. 4. The learned Public Prosecutor submitted that the test can be conducted on any person including witnesses and they need not necessarily be accused or suspects. It is the safe test to elicit information relating to the crime from the above persons, instead of resorting to third degree methods, therefore he submitted that the Police may be granted permission to conduct Narco Analysis Test. The learned Public Prosecutor in support of his contention relied on the following judgments. 5. In Santokben Sharmanbhai Jadeja v. State of Gujarat, 2008 Crl. The learned Public Prosecutor in support of his contention relied on the following judgments. 5. In Santokben Sharmanbhai Jadeja v. State of Gujarat, 2008 Crl. LJ 68, the Gujarat High Court, while considering the scope of Article 20(3) with reference to Narco Analysis Test, held as follows : "By conducting/performing the Narco Analysis Test itself would not tantamount to compulsive testimony or testimonial compulsion and the same would not amount to violation of Article 20(3) of the Constitution of India and if the statement recorded during the course of the aforesaid test is used against the accused, enough protection exists in the Criminal Procedure Code and/or Evidence Act and recourse to which can be taken as and when the Investigating Agency seeks to produce such statement as evidence and merely on apprehension and/or presumption that the said statement could be used by the Investigating agency against the person making it that by itself is no ground not to permit the Investigating agency to conduct/perform the Narco Analysis Test upon the accused, more particularly, when the same is needed for the purpose of finding out the truth and to nab the criminal/accused who have committed offence and when the Investigating agency is absolutely in dark. Moreover, considering the various provisions under the Criminal Procedure Code right from Sections 156 to 159 and other related provisions, collection of evidence by the Police Officer is permitted under the Law. Conducting the aforesaid tests on accused is to be considered as process of collection of such evidence by the Investigating Agency. The aforesaid test is a scientific method in furtherance of the investigation. The field of criminology has expanded rapidly and new techniques and methods are used for committing the crimes and offences and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. Thus, aforesaid tests for criminal interrogation is a valuable technique which would help the Investigating agency to further investigate the crime when the Investigating agency finds itself clueless and there is no further headway in the investigation. Thus, aforesaid tests for criminal interrogation is a valuable technique which would help the Investigating agency to further investigate the crime when the Investigating agency finds itself clueless and there is no further headway in the investigation. The Investigating Agency cannot be prevented to interrogate the accused at the stage of investigation and restraining the Investigating Agency to further investigate the crime through the aforesaid test would tantamount to interfere with the right of the Investigating Agency to investigate the crime of which it is statutorily authorized." The Gujarat High Court further held as follows: "The question of consent of subject at the stage of conducting/performing the Narco Analysis and Brain Mapping Test is not required to be considered. Conducting/performing of the aforesaid tests is a part of investigation and for the investigation by the Investigating agency the consent of the accused is not required, otherwise the Investigating agency will not be in a position to further investigate the case, if the consent of the accused is required. Moreover, when the accused/ person has not told the truth during the investigation, naturally, that accused/person would not be voluntarily giving consent for the aforesaid tests as he is always apprehensive that if the aforesaid two tests are conducted then the same might go against him therefore, he is not bound to give consent. Even it is not expected from a person/accused to give consent for the aforesaid two tests when he has not come forward with the truth. The aforesaid two tests are the scientific methods of investigation and are the part of investigation. There is no provision under the Criminal Procedure Code to have the consent of the accused before or during the investigation. It is also to be noted that before subjecting the accused to Narco Analysis Test his there mental fitness will be ascertained and thereafter only accused will be subjected to Narco Analysis Test. The dosage level required to take a person to the hypnotic stage is found to be % times smaller than those required for stages beyond. Therefore, this low concentration of the drug used in the said test will not have any adverse effect on any system of the body. The dosage level required to take a person to the hypnotic stage is found to be % times smaller than those required for stages beyond. Therefore, this low concentration of the drug used in the said test will not have any adverse effect on any system of the body. Necessary precautions are always taken by the medical experts at the time of examination and the doctors and anesthetists and the experts are present at the time of conducting/performing such test." In the case covered by the above decision, the police sought permission from the Court to conduct Narco Analysis Test against the accused, whereas in the present case, other than the accused persons were sought to be examined, therefore the question of application of Article 20(3) of the Constitution of India does not arise.' 6. In Rojo George v. The Deputy Superintendent of Police, 2006 Tiker-O106, the petitioner was a suspect in Crime No.292 of 2005. He filed the writ petition before the Kerala High Court contending that the C.B.I. is harassing him and compelling him to undergo Narco Analysis Test (Truth Serum Test) at Forensic Science Laboratory at Bangalore, though he has already undergone polygraph test and Brain Mapping examination (P-300 test). The petitioner expressed his apprehension regarding the Narco Analysis Test proposed to be conducted upon him. He further averred that the Narco Analysis Test is a complicated procedure, which has adverse reactions as well as drastic side effects and some times it may be even fatal. He further contended that the attempt of the Investigating Agency was to shift the responsibility from their shoulders to the Court in order to save themselves from the precarious situation. The lower Court disposed of the petition by stating that the Investigating Agency does not require permission of the Court for subjecting the petitioner for Narco Analysis. The lower Court did not consider the main contention raised by the petitioner that the Narco Analysis may result in adverse effect upon the person and sometimes even fatal. The Court below only considered the propriety of the Investigating Agency in filing a petition seeking permission. It was apprehended by the petitioner that Narco Analysis Test is highly complicated test conducted after administering "sodium pentathol, which is an ultra short acting barbiturate, that drug depresses the central nervous system, slows heart rate and lowers blood pressure. The Court below only considered the propriety of the Investigating Agency in filing a petition seeking permission. It was apprehended by the petitioner that Narco Analysis Test is highly complicated test conducted after administering "sodium pentathol, which is an ultra short acting barbiturate, that drug depresses the central nervous system, slows heart rate and lowers blood pressure. It is very difficult to determine the correct dosage of the drug to be administered on a subject since the same varies according to the age, sex physical and mental constitution. He may not be compelled to undergo the test without an undertaking from the Investigating Agency that no adverse consequences will result by undergoing that test. Subjecting a person to Narco Analysis will amount to violation of the fundanlental right guaranteed to the petitioner under Articles 20(3) and 21 of the Constitution of India. Therefore, he filed the requisition seeking to declare that the request of the C.B.I. to subject the petitioner for Narco Analysis as part of the investigation lacks authority of law as the same is violative of fundamental rights guaranteed to the petitioner and direct the respondents not to compel the petitioner to undergo Narco Analysis Test without assuring the petitioner as well as the Court that the Narco Analysis is totally harmless and the same would not in any manner injurious to the physical and mental constitution of the petitioner. 7. In a Text Book of Psychiatry (VI edition) written by Harold I. Kaplan, Md and Benjamin J. Sadock, MD, Chapter 32.6 deals with Barbiturates. The relevant passages of the text- book are as follows: "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. Laryngospasm may occur after parenteral barbiturate administration. The ability to maintain an airway is essential whenever parenteral barbiturates are used. Barbiturates are contraindicated in patients with intermittent acute porphyria, in patients with impaired respiratory drive or limited functional respiratory reserve, and in patients with sensitivity to a barbiturate. Barbiturates use may lead to abuse or dependence. If used at all, barbiturates should be prescribed at low dosages for a limited duration for the treatment of specific symptoms. Barbiturates are contraindicated in patients with intermittent acute porphyria, in patients with impaired respiratory drive or limited functional respiratory reserve, and in patients with sensitivity to a barbiturate. Barbiturates use may lead to abuse or dependence. If used at all, barbiturates should be prescribed at low dosages for a limited duration for the treatment of specific symptoms. Their use is contraindicated in patients with histories of drug or alcohol abuse or dependence. At clinically used doses, the oral barbiturates have few cardiac effects. At doses higher than those used for anesthesia, such as an overdose, cardia muscle contractility can be decreased. Generally, barbiturates do not affect blood pressure. The FDA has labeled the following barbiturates as safe and effective for the treatment of anxiety and apprehension amobarbital, aprobarbital (Alurate), butabarbital (Butisol), mephobarbital (Mebaral), Pentobarbital, Phenobarbital and secobarbital." 8. The Kerala High Court after considering the submissions made by the petitioner and the C.B.I. observed that the scientific tests like Polygraph, Brain Mapping, Narco Analysis Test etc., are now being used during the course of investigation. The conventional method of questioning the accused may not yield any result. The techniques used by the criminals for the commission of crime are very sophisticated and modern. When such tests are conducted under the strict supervision of the expert, it cannot be said that there is any violation of fundamental right guaranteed to a citizen of India. In text- book of Clinical Psychiatry (IV Edition) written by Robert E. Hales and Stuart G. Yudofsky while considering the effects of polygraphs, brain mapping, etc., the author opined the forensic and legal issues regarding the value of the said test. Whether the Investigating Agency can produce such materials during trial and whether that material can be relied on to convict are matters to be decided at the appropriate stage subject to the law of evidence. An evaluation form placed before the Court shows that the test is conducted by the expert in the field after taking all possible precautions and not by any layman. Of course, the possibility of side effects cannot be ruled out in any case. Normally, the Forensic Science Laboratory will conduct the test strictly in accordance with the procedures prescribed, therefore the relief sought for in the petition cannot be granted. 9. Of course, the possibility of side effects cannot be ruled out in any case. Normally, the Forensic Science Laboratory will conduct the test strictly in accordance with the procedures prescribed, therefore the relief sought for in the petition cannot be granted. 9. The Karnataka High Court in the case of Smt. Selvi and others v. State by Koramangala Police Station, 2006 (6) AIR Kar. 788, observed as follows : "The term narco-analysis was introduced in 1936 for the use of narcotics to induce a trance like state wherein the person is subjected to various queries. The material (literature) produced shown that in the Narco Analysis Test conducted under medical supervision, an accused will be injected with Sodium Pentathol or Sodium Amytal and thereafter the accused will be subjected to interrogation by the investigating agencies in the presence of expert doctors. But, this will be only after carrying out a detailed medical examination by the accused. If accused is found medically fit to undergo the procedure, then only it will be done, otherwise not. After finding an accused medically fit to undergo the test, the accused will be administered small doses of intravenous infusion of sodium pentathol. Sodium pentathol is the most commonly used drug as an induction agent for general anaesthesia routinely contemplated in most of the surgeries and the psychiatrists routinely use sodium pentathol in the diagnosis of mental illness and/or to evaluate the psychological realities. Under the influence of the drug, the patient talks freely and is purportedly deprived of his self-control and will power to manipulate his answers. This is because, few drugs are known to relax individual's defence so that unknowingly the person reveals the truth, which he has been trying to conceal. So, during the search for effective aids to interrogation, which is probably as old as man's need to obtain information from an un-co-operative subject, more recent1y, police officials in some countries have turned to the assistance of such drugs in the interrogation of un-co-operative accused persons. The investigating agency uses such drug (of its choice) for getting Information from persons/accused from their subconscious level at which it may be difficult for accused to lie. This is said to be due to lack of inhibition produced by the drug and the accused talks freely and respond truthfully to verbal questions. The investigating agency uses such drug (of its choice) for getting Information from persons/accused from their subconscious level at which it may be difficult for accused to lie. This is said to be due to lack of inhibition produced by the drug and the accused talks freely and respond truthfully to verbal questions. Thus, the use of such drug in police work/interrogation is similar to the accepted psychiatric practice of Narco-analysis and the only difference in the two procedures is the offence in the objectives. But the question is, whether, as a scientific technique in investigations, Narco Analysis Test on an accused could be permitted In other words, the issue is, whether administration of drug to an accused against his consent or wishes during Narco Analysis Test amounts t6 compulsion?" 10. In Ramchandra Reddy v. State of Maharashtra, 2004 All MR (Cri.) 1704, the Bombay High Court observed as follows: "Whether the statement made during the course of the aforesaid test is inculpating or incriminating the person making it, can be ascertained only after the test is administered and not before. Thus, by conducting/performing the Narco Analysis Test itself would not tantamount to compulsive testimony or testimonial compulsion and the same would not amount to violation of Article 20(3) of the Constitution of India and if the statement recorded during the course of the aforesaid test is used against the accused, enough protection exists in the Criminal Procedure Code and/or Indian Evidence Act and recourse to which can be taken as and when the Investigating Agency seeks to produce such statement as evidence and merely on apprehension and/ or presumption that the said statement could be used by the Investigating Agency against the person making it that by itself is no ground not to permit the Investigating Agency to conduct! perform the Narco Analysis Test upon the accused." Narco Analysis Test: The Narco Analysis Test is conducted by administrating 3 gms of Sodium Pentathol or Sodium Amytal dissolved in 3000 ml. of distilled water depending upon the person's sex, age, health and physical condition and this mixture is administered intravenously along with 10% of dextrose over a period of 3 hours with the help of an anaesthetist. The rate of administration is controlled to drive the accused slowly into a hyponotic trance. of distilled water depending upon the person's sex, age, health and physical condition and this mixture is administered intravenously along with 10% of dextrose over a period of 3 hours with the help of an anaesthetist. The rate of administration is controlled to drive the accused slowly into a hyponotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the Investigating Agency in the presence of the doctors. The revelations made during this stage are recorded both in video cassettes. The report prepared by the experts is what is used in the process of collecting evidence. Under the influence of the drug the subject talks freely and is purportedly deprived of his self-control and will power to manipulate his answers. The underlying theory is that a person is able to lie by using his imagination. In the Narco Analysis Test, the subject's imagination is neutralized and reasoning faculty affected by making him semiconscious. The subject is not in a position to speak up on his own but can answer specific and simple questions. In this state it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. His answers are spontaneous as a semi-conscious person is unable to manipulate his answer. Injected in continuous small dosages it has a hypnotizing effect on a person who responds loquaciously when questioned. The ECG and blood pressure are monitored continuously throughout the testing procedure. The entire conduct of the procedure is video graphed. The questions are designed carefully and are repeatedly persistently in order to reduce the ambiguities during drug interrogation. After the Narco-examination is over, the suspect is made to relax for 2-3 hours. 11. The field of criminology has expanded rapidly during the last few years and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. The Investigating Agency has statutory right to investigate the crime and to find out the truth and to reach to the accused. Narco Analysis Test for criminal interrogation is valuable technique, which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice. The Investigating Agency has statutory right to investigate the crime and to find out the truth and to reach to the accused. Narco Analysis Test for criminal interrogation is valuable technique, which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice. The Investigating Agency cannot be prevented to interrogate the case at the stage of investigation relating to crime in which he is shown as accused. If the aforesaid two tests are permitted, it would assist the Investigating Agency in finding out the truth and find out the real culprit of the commission of an offence. When the Investigating Agency is absolutely in dark and after all efforts and exhausting all the alternatives still there is no further headway in the investigation, the aforesaid two tests would help the Investigating Agency to further investigate the crime and during the course of the aforesaid two tests and/or after completion, the Investigating Agency may get some clue and may be able to further investigate the crime and reach to the real accused/culprit who has committed offence. 12. In the accusations made in India, the Police are attributed with applying third degree methods in eliciting information and there are instances of the culprits or suspects dying in lockups during the course of interrogation on account of application of third degree methods, therefore, there is a blame that the Indian Police are t1agrantly violating the human rights and fundamental rights guaranteed under Article 21 of the Constitution of India. Therefore, there is every need to apply scientific tests to elicit the information from the culprits or the suspects in getting the information to make further investigation in the crimes. The scientific tests like polygraph test, P.300 test are like taking MRI or CT Scan and when the accused are not corning forward with the truth, the scientific tests are resorted to by the Investigating Agency to find out the truth and to have a further clue in the matter to further investigate the crime. Such scientific tests are prayed only as a last resort after exploring all the alternatives and when the Investigating Agency is not in a position to reach the accused and find out the truth. Under Section 161 of the Cr.P.c., the Police are empowered to examine not only the witnesses, but also the accused during the course of investigation. Such scientific tests are prayed only as a last resort after exploring all the alternatives and when the Investigating Agency is not in a position to reach the accused and find out the truth. Under Section 161 of the Cr.P.c., the Police are empowered to examine not only the witnesses, but also the accused during the course of investigation. It is the duty of every person to furnish the information known to him regarding the commission of the offence and it is the duty of every citizen to assist the Police in taking the crimes and to bring the criminals to Justice. Unless the culprits are nabbed by applying the scientific methods, there is every danger of the criminals gaining an impression that there is no agency that can bring them to the book making them answerable for the commission of the crimes. If the above tests are conducted, it is not known what statement comes from the person who undergoes the test, whether incriminatory or not, therefore the protection given under Article 20(3) from compulsory testimony cannot be applied in respect of these tests. 13. When the Narco Analysis Test is made under the supervision of medical experts, the likelihood of complications, are very rare and fatality is very remote. 14. In the present case, since the respondents are not the accused arrested by the Police, there is no need to obtain any permission from the Court to undertake Narco Analysis Test, if they express no objection for undertaking the said test. In cases where the witnesses are not willing to undergo the test, then only it is required by the Police to make an application to the Court seeking permission for undertaking a test against such persons. The Police are required to convince the Court as to what are the circumstances that made the Police to gain an impression that the persons proposed to be put to Narco Analysis Test, likelihood of knowing something about the commission of the offence. Since the respondents are not the accused or suspects in the above crime, the question of putting the test of testimonial compulsion in these applications does not arise. 15. The criminal revision cases are accordingly allowed. Since the respondents are not the accused or suspects in the above crime, the question of putting the test of testimonial compulsion in these applications does not arise. 15. The criminal revision cases are accordingly allowed. The Police concerned are required to take all precautions as required under the medical jurisprudence to undertake Narco Analysis Test to be conducted in the presence of medical experts to monitor the condition of the subject to avoid any complications of the above test.