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2011 DIGILAW 270 (GUJ)

State of Gujarat v. Ashishbhai Kapilbhai Nanda

2011-03-31

SONIA GOKANI

body2011
Judgment Ms. Sonia Gokani, J.—This petition is preferred under Section 397 read with Section 401 of the Criminal Procedure Code challenging the order of the Sessions Court in Sessions Case No. 107 of 2006 passed below Exh.26 rejecting the request of carrying out Narco-Analysis test of the accused essentially since the accused objected to undergo narco analysis test as proposed by the prosecuting agency. 2. After hearing both the sides, learned Additional Sessions Judge had rejected the application moved by the prosecuting agency to carry out test of narco analysis. For various grounds enumerated in the petition, the said order is under challenge before this Court. Learned Additional Public Prosecutor Mr. K.P. Raval fairly submitted that the issue is no longer res integra and has been squarely covered by the judgment of the Apex Court. Instead of delving on the facts of the instant case, it would be apt to consider the case of Selvi and others vs. State of Karnataka reported in (2010) 7 SCC 263 where speaking for the Bench the then Chief Justice concluded the issue in following manner:— “264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted instrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872. 265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the “narcoanalysis technique” and the “Brain Electrical Activation Profile” test. The text of these Guidelines has been reproduced below: (i) No lie detector tests should be administered except on the basis of consent of the accused. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the “narcoanalysis technique” and the “Brain Electrical Activation Profile” test. The text of these Guidelines has been reproduced below: (i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. (ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before the Judicial Magistrate. (iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawwyer. (v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a “confessional” statement to the Magistrate but will have the status of a statement made to the police. (vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record.” 3. Undisputedly, in the instant case, the accused had objected to undergo the said test and, therefore, there does not arise the question of interfering with the order passed by the learned Sessions Judge rejecting the request of prosecuting agency to so do it. Accordingly, the present petition is dismissed. No order as to costs. Rule is discharged.