THIS PROJECT WORK HAS BEEN SUBMITTED TO THE

FACULTY OF LAW, JAMIA MILLIA ISLAMIA

NJNJJTHE TOPIC FOR THE ASSIGNED WORK IS

CONSTITUTIONAL AND EVIDENTIARY

VALIDITY OF SCIENTIFIC TEST
(SPECIAL REFERENCE TO NARCO-ANALYSIS AND POLYGRAPH TEST )

SUBMITTED TO-MS. AAKRITI MATHUR

SUBMITTED BY-

LL.M (CRIMINAL LAW STREAM)

SECOND SEMESTER
 TABLE OF CONTENTS

contents .............................................................................................................................. Error! Bookmark not defined.

INTRODUCTION TO FORENSIC SCIENCE .................................................................................................................... 3

HISTORY.................................................................................................................................................................................. 4
RELEVANT LAWS:-....................................................................................................................................................................... 7
The Indian Constitution ............................................................................................................................................................. 7
The Indian Evidence Act 1872................................................................................................................................................. 7
Section 27 reads as follows.: .................................................................................................................................................... 7
Sec 45 This is the most important section of the Act vis--vis forensics. It states: ................................................... 8
Section 46 ......................................................................................................................................................................................... 9
Illustration ....................................................................................................................................................................................... 9
Section 51 ......................................................................................................................................................................................... 9
Illustration ....................................................................................................................................................................................... 9
Section 53 ......................................................................................................................................................................................... 9
Section 54 ....................................................................................................................................................................................... 10
Section 73 ....................................................................................................................................................................................... 10
Section 159 .................................................................................................................................................................................... 10
Prevention Of Terrorism Act,2002 ...................................................................................................................................... 11
Code of Criminal Procedure, 1973 ....................................................................................................................................... 11
Section 293 .................................................................................................................................................................................... 11
Suggestions provided by the Malimath committee report are as follows- ......................................................... 12
Polygraphy ..................................................................................................................................................................................... 13
Testing procedure .................................................................................................................................................................. 14
Validity : ...................................................................................................................................................................................... 15
Narco-Analysis Test .................................................................................................................................................................... 16
Views of Apex Court in India ........................................................................................................................................ 17
No person accused of any offence shall be compelled to be a witness against himself..................................... 18
Constitutional Validity Of Narco-Analysis Test .............................................................................................................. 19
Reliability and Admissibility of Narco Analysis Test in India: ................................................................................. 21
Criticism of narcoanalysis test .............................................................................................................................................. 24
CONCLUSION ................................................................................................................................................................................ 25
 INTRODUCTION TO FORENSIC SCIENCE

These days forensic science is use to investigate nearly all crime scenes in criminal justice
administration system. Criminal justice administration is the system which focuses on preventing
and punishing illegal activities. Administration of criminal justice refers to the performance of
activities such as detection, apprehension, detention, pretrial release, post-trial release, prosecution,
adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders or
the collection, storage, and dissemination of criminal history record information.1It includes police
,correctio

onal system and judges. With the advancements of science, most forensic science techniques are a
common and necessary part of a criminal investigation. One of the most important aspects of
criminal justice is forensic science or the practice of scientifically examining physical evidence
collected from the scene of a crime or a person of interest in a crime. Many people consider
forensic science the application of science to law enforcement. Forensic science is the use of
science in the service of the law. Sciences used in forensics include any discipline that can aid in
the collection, preservation and analysis of evidence such as chemistry (for the identification of
explosives), engineering (for examination of structural design) or biology (for DNA identification
or matching). Analysis of forensic evidence is used in the investigation and prosecution of civil and
criminal proceedings. Often, it can help to establish the guilt or innocence of possible suspects.
Forensic evidence is also used to link crimes that are thought to be related to one another. For
example, DNA evidence can link one offender to several different crimes or crime scenes. Linking
crimes help law enforcement authorities to narrow the range of possible suspects and to establish
patterns for crimes, which are useful in identifying and prosecuting suspects.\

DEFINITION OF FORENSIC SCIENCE

Forensics is the term given to an investigation of a crime using scientific means. It is also used as
the name of the application of scientific knowledge to legal matters. Forensics means forum
(public place where, in Roman times, senators and others debated and held judicial proceedings).

The term forensic science refers to a group of scientific disciplines which are concerned. with the
application of their particular scientific area of expertise to law enforcement, criminal, civil, legal,
and judicial matters. The summed up definition can be given as follows-

The application of science to those criminal and civil laws that are enforced by
police agencies in a criminal justice system. 2

But even this definition is not quite adequate to describe the scope and magnitude of all that FS
entails.

1http://definitions.uslegal.com/a/administration-of-criminal-justice/

2 Richard Saferstein. Criminalistics, An Introduction to Forensic Science. 8th ed. 2004. Pearson Education Inc. pg
 HISTORY

The ancient world lacked standardized forensic practices, which aided criminals in escaping
punishment. Criminal investigations and trials relied on forced confessions and witness testimony.
However ancient sources contain several accounts of techniques that foreshadow the concepts of
forensic science that is developed centuries later, such as the "Eureka" legend told of Archimedes
(287212 BC). 3 Ancient India too, medical opinion was frequently applied to the requirements of
the law. By law the minimum age for the marriage of girls was fixed at 12 years; the duration of
pregnancy was recognized as being between 9 and 12 lunar months with an average of 10 months
and there is evidence that doctors had to opine on such cases. Sir William Herschel was one of the
first to advocate the use of fingerprinting in the identification of criminal suspects. While working
for the Indian Civil Service, he began to use thumb prints on documents as a security measure to
prevent the then-rampant repudiation of signatures in 1858

In 1877 at Hooghly (near Calcutta) he instituted the use of fingerprints on contracts and deeds and
he registered government pensioners' fingerprints to prevent the collection of money by relatives
after a pensioner's pensioner's death. Herschel also fingerprinted prisoners upon sentencing to
prevent various frauds that were attempted in order to avoid serving a prison sentence.4

In 1897 a Fingerprint Bureau was established in Calcutta (Kolkata), India, after the Council of the
Governor General approved a committee report stating that fingerprints should be used for the
classification of criminal records. Working in the Calcutta Anthropometric Bureau, before it
became the Fingerprint Bureau, were Azizul Haque and Hem Chandra Bose. Haque and Bose were
Indian fingerprint experts who have been credited with the primary development of a fingerprint
classification system eventually named after their supervisor, Sir Edward

Richard Henry. The Henry Classification System, co-devised by Haque and Bose, was accepted in
England and Wales when the first United Kingdom Fingerprint Bureau was founded in Scotland
Yard, the Metropolitan Police headquarters, London, in 1901. Sir Edward Richard Henry
subsequently achieved improvements in dactyloscopy.5

In 1968, the Ministry of Home Affairs, Government of India, set up a Forensic Science Laboratory
for Delhi Police and the Central Bureau of Investigation under the administrative control of the
Central Bureau of Investigation. This laboratory now provides expert opinion on various aspects of
Forensic Science concerning crime investigation. Apart from Delhi Police and the CBI, it also
provides assistance to the Central Government Departments, State Forensic Science Laboratories,
Defense Forces, Government Undertakings, Universities, and Banks etc. in criminal cases. The
laboratory has are search and development set up to tackle special problems. The expertise
available at the CFSL is also utilized in teaching and training activities conducted by the CBI,
LokNayak Jai prakash Narayan, National Institute of Criminology & Forensic Sciences, Police

3 Schafer, Elizabeth D. (2008). Ancient science and Forensis. In AynEmbar- seddon, Allan D. Pass (eds.)
Forensic Science. Salem Press p.40. ISBN 978-1-58765-423
http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Forensic_science.html
4 Herschel, William James (November 25, 1880). Skin Furrows of the hand. Nature 23(578):76
5Sodhi J.S.; Kaur, asjeed (2005). The Forgotten Indian Pioneers Of Fingerprint Science. Current Science 88 (1):

185-191.
Training Institutions, Universities and Government Departments conducting Law Enforcement
Courses etc.

In the 19th century, it was discovered that almost any contact between a finger and a fixed surface
left a latent mark that could be made visible by a variety of procedures (e.g., the use of a fine
powder). In 1894 in England the Troup Committee, a group established by the Home Secretary to
determine the best means of personal identification, accepted that no two individuals had the same
fingerprintsa proposition that has never been seriously refuted. In 1900 another
committeerecommended the use of fingerprints for criminal identification.

Fingerprint evidence was first accepted in an Argentine court in the 1890s and in an English court
in 1902. Many other countries soon adopted systems of fingerprint identification as well. 6Forensic
Science, an amalgamation of almost all faculties of knowledge is an essential and efficient enabler
in the dispensation of justice in criminal, civil, regulatory and social contexts. Historically our
forefathers in India have practiced forensic application in variety of forms. Present day Indian
forensics, as chronicled, owes its genesis to several British initiated ventures such as Chemical
Examiners Laboratory (Madras, 1849), Anthropometric Bureau (1892), Finger Print Bureau
(1897), Inspectorate of Explosives (1898), Office of Government Handwriting Expert (1904),
Serology Department (1910), Foot Print Section (1915), Note death. Herschel also fingerprinted
prisoners upon sentencing to prevent various frauds that were attempted in order to avoid serving a
prison sentence.

Forgery Section (1917), Ballistics Laboratory (1930) and Scientific Section (1936). Having
subsequently undergone clubbing / regrouping / spreading, as of now, there are 28 State / Union
Territory Forensic Science Laboratories (State / UT FSLs) along with their Regional FSLs (32
RFSLS) and Mobile FSLs (144 MFSLs); they are mostly with the respective Home Department
either directly or through police establishment. 7

WHAT INDIVIDUL SAYS ABOUT IT.

Mathieu Orfelia (1787-1853) considered to be the father of forensic toxicology. In 1814,

published the first scientific treatise on the detection of poisons and their effects on animals.

Francis Galton (1822-1911) Developed the first system of using fingerprints as a

standard for personal identification.

Alphonse Bertillon (1853-191) developed a system of personal identification based upon

body measurements. This system, termed anthropometry, was used for two decades before finally
being replaced by fingerprinting.

6http://www.britannica.com/EBchecked/topic/142953/crime/53437/ The-role-of-forensic-science
7Dr.GopalJi.Misra& Dr. C. Damodaran, Perspective Plan For Indian Forensics, Final Report presented to the
Ministry of Home Affairs Government of India, New Delhi.
 Leone Lattes (1887-1954) discovered that blood can be grouped into different categories.
These categories today are recognized as type A, B, AB and O.

Calvin Goddard (1881-1955) An army colonel, Goddard refined the technique of

examining bullets to see if they had been fired form a particular gun. Using the comparison
microscope, he revolutionized the science of ballistics.

Albert S. Osborn (1858-1946) considered to be the final authority on document

examination, published Questioned Documents in 1910, and is still considered by some to be the
primary resource for document examiners. 8

Walter C. McCrone (1916-2002) One of the world foremost authorities in microscopy,

particularly as applied to forensic science. Dr. McCrone was well known and respected throughout
the scientific world and was responsible for educating thousands of forensic scientists in the
application of microscopic techniques.

Hans Gross (1847-1915) Author of the first work to coalesce various branches of science
into a single volume that described how they could be used in forensic science. A public prosecutor
and judge in Graz, Austria, he spent many years developing his understanding of the various
disciplines to publish them in his work, Criminal Investigations.

Edmond Locard (1877-1966) Locard pioneered the use of forensic science in

practicalapplication to criminal cases. Beginning in an attic above the police department in Lyons
with only a microscope and a simple spectrometer, Locard quickly advanced the use of forensics to
police cases. He was eventually lifted to the office of founder and director of the Institute of
Criminalistics at the University of Lyons, a leading international facility for study and research in
forensic science. It was Locards belief that every criminal that came in contact with another object
or person, that cross transfer occurred. This became known as Locards Exchange Principle and is
still a standard in forensic science today.
There exist certaion presumption regarding to inveastigation and collection of evidence. These are
followed:
one, An investigatorecan not be directed how he have to investigate the perticulare
case, he is free handed to investigate the case in his own procedure but should not
violete the basice premises set by law relating to investigation.
Second,no matter how the evidence is collected these are relevent only if they fulfil
the condition of evidance Act and other related laws and rights.

8http://www.santoshraut.com/forensic/forensichistory.htm
 RELEVANT LAWS:-

The main legal provisions, which govern the expert evidence, are in:

1. Indian Constitution.

2. Indian Evidence Act, 1872.

3. Code of Criminal Procedure, 1973.

4. Identification of Prisoners Act.

THE INDIAN CONSTITUTION

The main provision in the Indian Constitution is the article 20(3) of the Constitution. it states:

No person accused of an offence can be compelled to be a witness against himself.

The problems, which arose from the enactment were legion. Could a person be forced to give
fingerprints, footprints, photographs, measurements, handwriting, etc.?

The constitutional Bench of the Supreme Court has solved the problems since through a landmark
decision. It held that the above type of clue materials become evidence only after their evaluation.
And the evaluation instead of helping the prosecution may help the accused!

THE INDIAN EVIDENCE ACT 1872

According to indian evidence act what may be relevent or not, defined from sec-6 to 55

SECTION 27 READS AS FOLLOWS.:

27. How much of information received from accused may be proved. Providedthat, When any
fact is deposed to as discovered in consequence of informationreceived From a person
accused of any offence, in the custody of a police officer, so much of Such information, whether
it amounts to a confession or not, as relates distinctly to the Fact thereby discovered, may be
proved.

The expression custody which appears in Section 27 did not mean formal custody, which
includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not
formally arrested at the time when the accused gave the information, the accused was, for all
practical purposes, in the custody of the police.
This Court in State of Andhra Pradeshv.GangulaSatya Murthy9held that if the accused is within
the ken of surveillance of the police during which his movements are restricted, then it can be
regarded as custodial surveillance. Consequently, so much of information given by the accused in
custody, in consequence of which a fact is discovered, is admissible in evidence,whether such
information amounts to a confession or not.

Reference may also be made to the Judgment of this Court in A.N.Venkatesh v. State of
Karnataka10

In Sandeep v. State of Uttar Pradesh11, this Court held that it is quite common that based on
admissible portion of the statement of the accused, whenever and wherever recoveries are made,
the same are admissible in evidence and it is for the accused in those situations to explain to the
satisfaction of the Court as to nature of recoveries and as to how they came into the possession or
for planting the same at the place from where they were recovered.

Reference can also be made to the Judgment of this Court in State of Maharashtra v. Suresh12, in
support of the principle. Assuming that the recovery of skeleton was not in terms of Section 27 of
the Evidence Act, on the premise that the accused was not in the custody of the police by the time
he made the statement, the statement so made by him would be admissible as conduct under
Section 8 of the Evidence Act.

Though there is no specific DNA legislation enacted in India, Sec.53 and Sec. 54 of the Criminal
Procedure Code, 1973 provides for DNA tests impliedly and they are extensively used in
determining complex criminal problems.

SEC 45 THIS IS THE MOST IMP ORTANT SECTION OF THE ACT VIS--VIS
FORENSICS. IT STATES :

When a court has to form an opinion upon a point of foreign law or of science or art, or as to the
identity of handwriting or finger impressions, the opinion upon that point, of persons especially
skilled in such foreign law, science or art or in questions as to the identity of handwriting or
finger impressions are relevant facts. Such persons are called experts.

1. This section defines what the nature of expert evidence the courts need is:

Foreign Law.
Art.
Science.
\Handwriting.
Fingerprints.

There has been a lot of confusion about what- constitutes science Contradictory judgments have
cluttered the earlier case law. But by and large the recent Supreme Court judgement has not only

9(1997) 1 SCC 272

10(2005) 7 SCC 714
11 (2012) 6 SCC 107
12(2000) 1 SCC 471
eliminated the absurdity relating to typescript identification but it has also provided the guidelines
for of the induction of new types of scientific evidence (DNA! Voice Identification Pattern
Recognition, Brain Printing, etc.), -

2. Who are experts? This section indicates who experts are: Especially skilled persons! Special
skill has not been defined but by convention it is acquired through:

Basic education
Training
Experience
Research
Participation in scientific gatherings
Publications of Research, Reviews, Case histories, Books

SECTION 46

The other sections of the Indian Evidence Ad, relevant to Forensics are:

Facts bearing upon opinions of experts.-Facts, not otherwise relevant, are relevant if they support or
are inconsistent with the opinion of experts, when such opinions are relevant.

ILLUSTRATION

(a) The question is, whether A was poisoned by a certain poison.

The fact that other persons, who were poisoned by that person, exhibited certain symptoms, which
experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether a certain seawall causes an obstruction to a harbour.

The fact that other harbours similarly situated in other respects, but where there were no such sea
walls began to be obstructed at about the same time, is relevant.

SECTION 51

Grounds of opinion, when relevant-Whenever the opinion of any living person is relevant, the
grounds on which such opinion is based are also relevant.

ILLUSTRATION

An expert may give an account of experiments performed by him for the purpose of forming his
opinion.

SECTION 53 deals with examination of the accused by medical practitioner at the request of
police officer if there are reasonable grounds to believe that an examination of his person will
afford evidence as to the commission of the offence.
SECTION 54 of the Criminal Procedure Code, 1973 further provides for the examination of the
arrested person by the registered medical practitioner at the request of the arrested person. The law
commission of India in its 37th report stated that to facilitate effective investigation, provision has
been made authorizing an examination of arrested person by a medical practitioner, if from the
nature of the alleged offence or the circumstances under which it is alleged to have been
committed, there are reasonable grounds for believing that an examination of the person will afford
evidence.

SECTION 73

The second most important section relating to expert evidence is section 73 of Indian Evidence Act.

In order to ascertain whether a signature, writing or seal is that of a person by whom it purports
to have been written or made, any signature, writing or seal admitted or proved to the satisfaction
of the court to have been written or made by that person may be compared with the one which is
to be proved, although that signature, writing or seal has not been produced or proved for any
other purpose.

The court may direct any person present in the court to write any words or figures for the
purpose of enabling the court to compare the words or figures so written with words or figures
alleged to have been written by such person.

This section applies also, with any modifications, to finger impressions.

The section specifies what comparison material for disputed handwriting, signatures or seals (or for
fingerprints) can be utilised by the courts:

1. Any previous writings admitted or proved to be that of the suspect.

2. Specimens obtained by the courts from the person on orders.

The section has given headache all round. The main controversial points are:

Should the comparison material be examined only by the judge with or without the
assistance of the experts? This controversy has been settled by the Supreme Court in
a land mark judgment: 1 they have decided that the assistance of a handwriting
expert should be obtained as a matter of prudence.
At what stage can the court order a person to give specimens: at the investigation or
at the trial stage? If a person is ordered to give specimens at the investigation stage,
the action may amount to partisan action-helping the prosecution, by the judge! If
the order is made at the time of trial, there will too much delay. This problem needs
perhaps modification of the enacted law. This aspect is still in the melting pot
though Supreme Court has ruled that the court cannot order taking of specimen if
the case is not pending trial before it.

SECTION 159

Refreshing memory-A witness may, while under examination, refresh his memory by referring to
any writing made by himself at the time of the transaction concerning which he is questioned, or so
soon afterwards that the court considers it likely that the transaction was fresh in his memory.The
witness may also refer to any such writing made by any other person, and read by the witness
within the time aforesaid, (f when he read it he knew it to be correct.
When witness may use copy of document to refresh memory.whenever a witness may refresh
his memory by reference to any document, he may, with the permission of the court, refer to a copy
of such document

PREVENTION OF TERRORISM ACT,2002

Sec. 27(1) of Prevention of Terrorism Act, 2002 says when a investigating officer request the court
of CJM or the court of CMM in writing for obtaining sample of hand writing, finger prints, foot
prints, photographs, blood, saliva, semen, hair, voice of any accused person, reasonable suspect to
be involved in the commission of an offence under this act. It shall be lawful for the court of CJM
or the court of CMM to direct that such samples shall be given by the accused person to the police
officer either through a medical practitioner or otherwise as the case may be.

CODE OF CRIMINAL PROCEDURE, 1973

The main sections of this Code which are related to expert evidence are section 292 and section
293. Section 292 is applicable to only Mint Master and other currency officers. Its contents are
similar to those of section 293, which has wider applications.

SECTION 293

Any document purporting to be a report under the hand of a Government Scientific expert to whom
this section applies, upon any matter or thing duly submitted to him for examination or analysis and
report in the course of any proceedings under this Code, may be used as evidence in any inquiry,
trial or other proceedings of the Code.'

The court may, if it thinks fit, summon and examine any such expert as to the subject-matter of the
report

. When any such expert summoned by the court and he is not able to attend personally, he may,
unless the court has expressly directed him to appear personally, depute any responsible person
working with him to attend the court, lf such officer is conversant with the facts of the case and can
satisfactorily depose in court on his behalf

The section applies to the following Government scientific experts, namely

(a) Any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) The Chief Inspector of Explosives;

(c) The Director of Finger Print Bureau;

(d) The Director, Hafflceine Institute, Bombay;

(e)The Director, the Deputy Director or Assistant Director of Central Forensic Science Laboratory
or State Forensic Science Laboratory;

(f) The Serologist to the Government

The section has the following features:

1. Specifies the government experts, who are exempt from personal appearance.

2. Describes modes for personal attendance of the experts for additional evidence etc., for cross-
examination, elucidation, or additional related evidence.

3. Fixes no limitation on the nature/extent of the contents of the reports.

Problems

1. Data usually not given in the reports-Ipse dixit .of the expert has to be accepted.

2. No cross-examination. It eliminates the acid test to evaluate the expert evidence.

In the light of new developments in the forensic science, the home ministry, Govt. of India
constituted a committee under the chairmanship of Dr. Justice V.S Malimath to suggest reforms in
the criminal justice system. This committee suggested comprehensive use of forensic science in
crime investigation. According to the committee DNA experts should be included in the list of
experts given in section 293(4) of Cr.P.C, 1973.

SUGGESTIONS PROVIDED BY THE MALIMATH COMMITTEE REPORT

ARE AS FOLLOWS-

Sec. 313 of the CR.P.C must also be amended so as to draw adverse inference against the
accused if he fails to answer any relevant material against him therefore, making it easy for
the law enforcers to use DNA tests against him.

A specific law should be enacted giving guidelines to the police setting uniform standards
for obtaining genetic information and creating adequate safeguards to prevent misuse of the
same.

A national DNA database should be created which will be immensely helpful in the fight
against terrorism.

More well-equipped laboratories should be established to handle DNA samples and

evidence. Efforts should be taken to create more awareness among general public,
Prosecutors, judges and police machinery.
POLYGRAPHY

A polygraph, popularly referred to as a lie detector, measures and records several physiological
indices such as blood pressure, pulse, respiration, and skin conductivity while the subject is
asked and answers a series of questions. 13The belief underpinning the use of the polygraph is that
deceptive answers will produce physiological responses that can be differentiated from those
associated with non-deceptive answers; the polygraph is one of several devices usedfor lie
detection.

The polygraph was invented in 1921 by John Augustus Larson, a medical student at the University
of California at Berkeley and a police officer of the Berkeley Police Department in Berkeley,
California. 14 The polygraph was on the Encyclopdia Britannica2003 list of greatest inventions,
described as inventions that "have had profound effects on human life for better or worse." 15

The efficacy of polygraphs is debated in the scientific community. In 2001, a significant fraction of
the scientific community considered polygraphy to be pseudoscience. 16In 2002, a review by the
National Academies of Science found that in populations untrained in countermeasures, polygraph
testing can discriminate lying from truth telling at rates above chance, though below
perfection.These results apply only to specific events and not to screening where it is assumed that
polygraph would work less well.Effectiveness may also be worsened by countermeasures. 17

In some countries polygraphs are used as an interrogation tool with criminal suspects or candidates
for sensitive public or private sector employment. US law enforcement and federal government
agencies such as the FBI and the CIA and many police departments such as the LAPD use
polygraph examinations to interrogate suspects and screen new employees. Within the US federal
government, a polygraph examination is also referred to as a psychophysiological detection of
deception (PDD) examination.

Polygraph testing is designed to analyze the physiological reactions of subjects. However, research
has indicated that there is no specific physiological reaction associated with lying and that the brain
activity and mechanisms associated with lying are unknown, making it difficult to identify factors
that separate liars from truth tellers. Polygraph examiners also prefer to use their own individual
scoring method, as opposed to computerized techniques, as they may more easily defend their own
evaluations.

13J P Rosenfeld (1995). "Alternative Views of Bashore and Rapp's (1993) alternatives to traditionalpolygraphy: a
critique". Psychological Bulletin117: 159166. doi:10.1037/0033-2909.117.1.159
14"Polygraph/Lie Detector FAQs".International League of Polygraph Examiners.
15"Encyclopdia Britannica's Great Inventions".Encyclopdia Britannica Almanac 2003, via WaybackMachine.Archived
fromthe originalonMay 19, 2012.Retrieved 5 August2014.
16Iacono, W.G. "Forensic 'lie detection': Procedures without scientific basis,"Journal of ForensicPsychology

Practice, Vol. 1 (2001), No. 1, pp. 75-86.

17 The polygraph and lie detection. Washington, D.C: National Academies Press. 2003. pp. 45. ISBN HYPERLINK
"https://en.wikipedia.org/wiki/Special:BookSources/0-309-08436-9" 0- 309-08436-9.
The validity of polygraph testing is again called in to question with the relevant-irrelevant testing
technique, designed to gauge reactions of subjects against crime questions and other non-crime
related questions. Studies have indicated that this questioning technique is not ideal, as many
innocent subjects exert a heightened physiological reaction to the crime relevant questions. 18

The control question test, also known as the probable lie test, was developed to combat the issues
with the relevant-irrelevant testing method. Although the relevant questions in the probable lie test
are used to obtain a reaction from liars, it can also gain a reaction from the innocent subject who is
afraid of false detection. The physiological reactions that "distinguish" liars, may also occur in
individuals who fear a false detection, or feel passionately that they did not commit the crime.
Therefore, although a physiological reaction may be occurring, the reasoning behind the response
may be different. Further examination of the probable lie test has indicated that it is biased against
innocent subjects. Those who are unable to think of a lie related to the relevant question, will
automatically fail the test. 19

Polygraph examiners, or polygraphers, are licensed or regulated in some jurisdictions.The

American Polygraph Association sets standards for courses of training of polygraph operators,
though it does not certify individual examiners.

TESTING PROCEDURE

The examiner typically begins polygraph test sessions with a pre-test interview to gain some
preliminary information which will later be used to develop diagnostic questions. Then the tester
will explain how the polygraph is supposed to work, emphasizing that it can detect lies and that it is
important to answer truthfully. Then a "stim test" is often conducted: the subject is asked to
deliberately lie and then the tester reports that he was able to detect this lie. Guilty subjects are
likely to become more anxious when they are reminded of the test's validity. However, there are
risks of innocent subjects being equally or more anxious than the guilty. 20 Then the actual test
starts. Some of the questions asked are "irrelevant" or IR ("Is your name Fred?"), others are
"diagnostic" questions, and the remainder are the "relevant questions", or RQ, that the tester is
really interested in. The different types of questions alternate. The test is passed if the physiological
responses to the diagnostic questions are larger than those during the relevant questions (RQ).

Criticisms have been given regarding the validity of the administration of the Control
Question Technique (CQT). The CQT may be vulnerable to being conducted in an interrogation-
like fashion. This kind of interrogation style would elicit a nervous response from innocent and
guilty suspects alike. There are several other ways of administrating the questions.

18Iacono, W. G. (2008). Effective policing: Understanding how polygraph tests work and are used. Criminal
Justice and Behavior, 34(10), 1295-1308.
19Iacono, W. G. (2008). Effective policing: Understanding how polygraph tests work and are used. Criminal
Justice and Behavior, 34(10), 1295-1308.
20Lewis, J. A.; Cuppari, M. (2009). "The polygraph: The truth lies within".Journal of Psychiatry andLaw 37(1):

8592.
An alternative is the Guilty Knowledge Test (GKT), or the Concealed Information Test (CIT),
which is being used in Japan. 21 The administration of this test is given to prevent potential errors
that may arise from the questioning style. The test is usually conducted by a tester with no
knowledge of the crime or circumstances in question. The administrator tests the participant on
their knowledge of the crime that would not be known to an innocent person. For example: "Was
the crime committed with a .45 or a 9 mm?" The questions are in multiple choice and the
participant is rated on how they react to the correct answer. If they react strongly to the guilty
information, then proponents of the test believe that it is likely that they know facts relevant to the
case. This administration is considered more valid by supporters of the test because it contains
many safeguards to avoid the risk of the administrator influencing the results.22

VALIDITY :

Polygraphy is widely criticized. Despite claims of 90% validity by polygraph advocates, 23 the
National Research Council has found no evidence of effectiveness. The utility among sex offenders
is also poor 24 with insufficient evidence to support accuracy or improved outcomes in this
population. 25Even using the high estimates of the polygraph's accuracy, false positives occur, and
these people suffer the consequences of "failing" the polygraph. In the 1998 SupremeCourtcase,
United States v. Scheffer, the majority stated that "There is simply no consensus that polygraph
evidence is reliable" and "Unlike other expert witnesses who testify about factual matters outside
the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime
scene, a polygraph expert can supply the jury only with another opinion..." In 2005 the 11th Circuit
Court of Appeals stated that "polygraphy did not enjoy general acceptance from the scientific
community".In 2001 William Iacono, Professor of Psychology and Neuroscience concluded
.Although the CQT [Control Question Test] may be useful as aninvestigative aid and tool to induce
confessions, it does not pass muster as a scientifically credible test. CQT theory is based on naive,
implausible assumptions indicating (a) that it is biased against innocent individuals and (b) that it
can be beaten simply by artificially augmenting responses to control questions. Although it is not
possible to adequately assess the error rate of the CQT, both of these conclusions are supported by
published research findings in the best social science journals (Honts et al., 1994; Horvath, 1977;
Kleinmuntz&Szucko, 1984; Patrick &Iacono, 1991). Although defense attorneys often attempt to
have the results of friendly CQTs admitted as evidence in court, there is no evidence supporting
their validity and ample reason to doubt it. Members of scientific organizations who have the
requisite background to evaluate the CQT are overwhelmingly skeptical of the claims made by
polygraph proponents. 26

Summarizing the consensus in psychological research, professor David W. Martin, PhD, from
North Carolina State University, states that people have tried to use the polygraph for measuring
human emotions, but there is simply no royal road to (measuring) human emotions.Therefore, since

21Don Sosunov (October 14, 2010)."The Admissibility of Polygraph Evidence in Criminal Courts"
22Formore info on the GKT, see the The Guilty Knowledge Test (GKT) as an Application of Psychophysiology:
Future Prospects and Obstacles
23"A scanner to detect terrorists".BBC News. July 16, 2009.
24Meijer, EH; Verschuere, B; Merckelbach, HL; Crombez, G (OctNov 2008). "Sex offender managementusing the
polygraph: a critical review.".International journal of law and psychiatry31 (5): 4239. 57Rosky, JW (Aug 22, 2012)..
25"The(F)utility of Post-Conviction Polygraph Testing.".Sexual abuse : ajournal of research and treatment 25: 259281
26WilliamG. Iacono (2001)."Forensic "Lie Detection": Procedures Without Scientific Basis" (PDF).Journalof Forensic
Psychology Practice
one cannot reliably measure human emotions (especially when one has an interest in hiding his/her
emotions), the idea of valid detection of truth or falsehood through measuring respiratory rate,
blood volume, pulse rate and galvanic skin response is a mere pretense. Psychologists cannot
ascertain what emotions one has, with or without the use of polygraph.

Polygraphs measure arousal, which can be caused by anxiety, anxiety disorders such as PTSD,
nervousness, fear, confusion, hypoglycemia, psychosis, depression, substance induced (nicotine,
stimulants), substance withdrawal state (alcohol withdrawal) or other emotions; polygraphs do not
measure "lies."A polygraph cannot differentiate anxiety caused by dishonesty and anxiety caused
by something else
.

NARCO-ANALYSIS TEST

The term narcoanalysis is used to describe a diagnostic and psychotherapeutic technique that uses
psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with
strong associated affects come to the surface, where they can be exploited by the therapist.
The narcoanalysis test is based on the principle that a person is able to lie using his imagination
and, under the influence of certain barbiturates, this capacity for imagination is blocked or
neutralised by leading the person into a semi-conscious state.27
Narcoanalysis has been the most debated topic amongst the legal fraternity, media and common
masses. With recent advent of technologies in every sphere of life, criminal investigation is no
more left out of its effects. Narcoanalysis is one of such scientific forms of investigation in which
some sort of statement from the accused is acquired which might form evidence. The Evidence Act
is completely silent on such employment of scientific process. Such process has often been
criticised as against the tenets of Constitution and on the other hand has been upheld as a necessity
to evaluate some complicated issues.
There are several issues regarding the validity of narcoanalysis as a scientific tool of investigation
and its admissibility in court of law.

I. Administration of the Test

The narco-analysis test is conducted by mixing three grams of Sodium Pentothal or Sodium Amytal
dissolved in 3000 ml of distilled water. Narco-analysis is carried out only after a detailed medical
examination of the accused. If the accused is found medically fit to undergo the procedure, then
only will it be done, otherwise not.28
Narco test refers to the practice of administering barbiturates or certain other chemical substances,
most often Pentothal Sodium, to lower a subjects inhibitions, in the hope that the subject will more
freely share information and feelings. A person is able to lie by using his imagination.
In the narco-analysis test, the subjects inhibitions are lowered by interfering with his nervous
system at the molecular level. It becomes difficult for the person to lie and his answers would be

27Barcelona Panda, Narcoanalysis and its Evidentiary Value in India, (2011) PL July
28Satyendra K. Kaul and Mohd. H. Zaidi, NarcoAnalysis, Brain Mapping, Hyponsis& Lie Detector Tests in
Investigation of Suspect, Alia Law Agency, Allahabad, 2008, pp. 109-110
restricted to facts he is aware of.29 The statements made by the accused are recorded on audio and
video cassettes, and the report of the expert is helpful in collecting evidence.30

II. Admissibility of Narcoanalysis Results in Court

The narcoanalysis test is often associated with the infringement of individuals fundamental rights
which raises questions about its value as evidence.
Narcoanalysis is not considered very reliable. 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. Sain31it was held that the petitioners confession was constitutionally inadmissible
if it was adduced by the police questioning, during a period when the petitioners will was
overborne by a drug having the property of a truth serum.
The Constitution of India has clearly stated that a person cannot be compelled to be a witness
against himself 32 , and therefore, any statement given during the narcoanalysis test cannot be
considered evidence in the constitutional framework of the country. In fact, studies have shown that
sometimes the subject (person undergoing the test) gives false statements during the test. If the test
was given evidentiary value, the police would harass innocent persons under the garb of tackling
terrorism.33
Narcoanalysis test is a restoration of memory which the suspect had forgotten. This 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 precisely.
Such tests generally dont have legal validity as confessions made by a semi-conscious person are
not admissible in court. The court may, however, grant limited admissibility after considering the
circumstances under which the test was obtained.

VIEWS OF APEX COURT IN INDIA

As the narco analysis test made individual semi conscious state where he has no control over his
mind or thinking and they are unable to imagine anything. It has been proved that administration of
such drug may suppress the power of thinking and reasoning of person subjected. This includes
interference of nervous system of individual subjected for the test and his brain has no control over
his own activity. It shows that the administration of such drugs in the body of a suspected person
leads playing with the life and mind of such person. Thus the test raises fundamental issues such as
right to life and liberty, Human Rights and privilege against self incrimination. The apex court of
India has also given variable opinion in different cases and circumstances. The narco analysis test
was introduced in India in1936 but it was first used in 2002 in Godhara Carnage Case.

29Kumari, S. Kusuma, Narcoanalysis Right to Self-Incrimination Versus Public Interest, 2007 Cri LJ J
30Daubert v. Merrell Dow Pharmaceuticals, 125 L Ed 2d
31372 US 293 (1963)
32Kriti Das, Narco-Analysis: A Breakthrough in Indian Investigation, The Viewspaper, 2009 available at

www.theviewspaper.net/narco-analysis-a-breakthrough-in-indian-investigation
33Rojo George v. DSP, (2006) 2 KLT 197
 It was in 2004 when Bombay High Court gavejudgementin Ramchandra Ram Reddy Vs. State of
Maharashtra34 case, people started debating this issue. In this case main issue was whether use of
scientific technology specially brain mapping and lie detector is violation of Article 20(3) or not,
the Bombay High Court opines that

NO PERSON ACCUSED OF ANY OFFENCE SHALL BE COMPELLED TO BE

A WITNESS AGAINST HIMSELF .
It provides a privilege against testimonial compulsion. The apex court made a technical distinction
between a Statement and a Testimony and said

What is required to be made under compulsion by an accused is a statement. In our opinion

undergoing tests targets certain framed questions which drawn by expert after treatment that the
person posses certain knowledge about the crime and in relation totargeted question put before
him. So no way it can be said that any stretch of imagination which end result is statement. At
the most it can be call as information received or taken out from witness. In our opinion they do
not violate right against self incrimination given under article 20(3) of Indian constitution. 35

In M.P.Sharma Vs. SatishChandra 36 there was a issue that Article 20(3) provides right to the
person witness in courtroom and not beyond that and same issue has been raised by the respondent
in the KathikaluOghad case which apex court clearly observed and held that since Article 20(3) has
words to be a witness and not to appear as a witness so the protection is extended to compelled
evidence obtained even outside of courtroom. The privilege against self-incrimination enables the
maintenance of human privacy and right to silence pronounced by the Supreme Court.

In the case of NandiniSatpathyVs. P.L. Dani 37 Supreme Court said that No one can extract
statements from the accused, who has right to silence during the course of interrogation
(investigation). It was also claimed that the right to keep silence is by the virtue of Article 20(3) of
the constitution of India and section 161(2) of Criminal procedure code and same was upheld by
the apex court.

In the case of Ram JawayaKapoor, Court clearly said that the executive power cann't intrude on
constitutional rights and liberty or any other rights of the person and if it is related with
fundamental rights then must struck down as unconstitutional. However, there is an argument from
the investigating agencies that the Narco analysis test is used as an aid for collecting evidence and
helps the investigation so it cannot amount to testimonial compulsion as given under Article 20(3).

In the case of Dinesh Dalmia Vs. State38, the Madras High Court while hearing the case held that
the scientific tests such as polygraph, Brain Mapping and narco analysis conducted on accused to
bring out truth would not amount to breaking his silence by force.

In the case of Selvivs State of Karnatka39 it was held by the Supreme Court of India that the results
of the test cannot be admitted as an evidence even though consented by the accused because there is
no conscious control is being exercised by the subject during the course of test but the court left one

34MANU/MH.0067/2004
35Ramchandra Ram Reddy Vs. State of Maharashtra, MANU/MH.0067/2004.
36AIR 1954 SC 300.
37AIR 1978 Sc 1025
382006 Crl.L.J. 2401
39AIR 2010 SC 1974
option that if the subject consented for the test then any material or information discovered that can
be admitted under section 27 of the Indian Evidence Act, 1872. Further it was also held that
according to section 25 of Evidence Act Confession made before any police officer are not
admissible as evidence before the court. Thus the court is of the view that the statements made by
the subject during custody are not admissible as evidence unless same has to be cross examined or
judicially scrutinized.

In the case of Rojo George Vs. Deputy Superintendent of Police 40 , while allowing the
narcoanalysistest Court is of the opinion that in present day the criminals started to use very
sophisticated and modern techniques for committing the crime. So the conventional method of
investigation and questioning to the criminals will not be successful for solution and there is need
to utilize some new techniques such as polygraph, brain mapping and narco analysis. Court also
said that when such techniques used in the presence of expert then it cant be raised that the
investigating agencies violated the fundamental human rights of any citizen of India.

CONSTITUTIONAL VALIDITY OF NARCO-ANALYSIS TEST

In this test the person to whom it is administered does need to make statement and it can lead to
self incrimination if theperson in question is really involved in a crime .however ever if something
come out it will not be admissible as evidence although it can help in investigation of crime

In the case of SantokbenSharmabhaiJadeja Vs. State of Gujarat41the court while upholding the
order for conduction of Narco Analysis test on the accused SantokbenSharmabhaiJadeja, it was
observed that when after exhausting all the possible alternatives there was no possibility to find out
the truth or nab the criminals and it is found by the prosecuting agency that there is no further
headway of investigation, they are absolutely in dark then it is necessity of such tests. On the basis
of this revelation if investigating agency finds some clues or records, some statement which helps
or assists for further investigation of crime then there will not be any violation of Article 20(3) of
constitution of India.

In the case of DharampalVs. State it was clearly said by the Apex court that the criminal justice
system cannot act properly if the person living in the society would not be cooperative so it is the
duty of every person to assist the state in bringing criminal justice and detecting the crime. It must
be known that no one can withhold criminal informationand escape from social responsibility by
avoiding such information in the name of right to privacy which itself is not an absolute right.

State of Gujarat Vs. AnirudhSingh42 , the Supreme Court of India held that, it is statutory duty of
every witness who has knowledge of commission crime to assist the state in giving evidence and it
seems justified that if a person is not willing to give information which is necessary for
investigation then adverse impression must be taken against them and no Article 20(3) has stop to
do this. In this way Supreme Court harmonised between protection given under Constitution and
narcoanalysis.It is a protection against compulsion to be a witness:

40 AIR 1953 SC 131

41 2008 Cr.L.J. 3992

42MANU/SC/0749/1997
The protection is against compulsion to be witness

In M. P. Sharma VsSatish Chandra43The Supreme Court interpreted the expression to be witness

very widely so as to include oral, documentary and testimonial evidence. The prosecution under
Article 20 (3) covers not merely testimonial compulsion in a court room but also compelled
testimony previously obtains any compulsory process for production of evidentiary document.
Which are reasonably likely to support the prosecution against him.

If a person is suspected to have some information regarding the commission of offence .In one case
the Supreme Court in State of Bombay v KathiKaluOghad and others44 , held that there is no
compulsion when a police officer, in investigating a crime against, a certain individual, asks him to
do a certain thing. The fact that a person was in police custody when he made the statement is not a
foundation for an inference that he was compelled to make the statement. The mere questioning of
an accused by a police officer, resulting in a voluntary statement, which may ultimately turn out to
be incriminatory, is not compulsion.

Considering all these issues on Narco Analysis test we can easily conclude that Narco Analysis
does not violate Article 20 (3) to the extent that the person undergoing such a test is not compelled
to do so, rather it is done with the consent ofthe person who has full knowledge of such a test. there
should be no prohibition on conducting a Narco Analysis test on him as the protection under Article
20 (3) is available only to a person accused of an offence. Another requirement of Article 20 (3) is
that there should be no compulsion on the accused to give testimony against him. However, in
Narco Analysis test, the question of compulsion does not arise because the prior consent of the
person who is supposed to undergo such a test is always taken.

It is a protection against such compulsion resulting in his giving evidence against himself: The
protection under Article 20 (3) is available only against the compulsion of accused to giveevidence
against himself. But left to himself he may voluntarily wave his privilege by entering into the
witness box or by giving evidence voluntarily on request. Request implies no compulsion therefore
evidence given on request is admissible against the person giving it. The Indian Courts have so far
refused to admit the Narco Analysis as evidence, but Narco Analysis is being carried out by the
investigators. The reason is that although confession made to the police or in the presence of police
is not admissible in Courts, the information is admissible by which an instrument or object used in
commission of crime is discovered.

This is clear from the wording of Section 27 of the Indian Evidence Act, 1872. Section 27 of the
Indian Evidence Act, 1872 is founded on the principle that if the confession of the accused is
supported by the discovery of a fact, the confession maybe presumed to be true, and not to have
been extracted. It comes into operation only-

43AIR(1951 )SC 300[Emphasis added]

44AIR(1961) SC 1808 ; RKDalmia v. Dehli Adm. AIR 1962 SC 1821; Joseph v. Narayana ,AIR 1964 SC 1552;
V.Ibrahimv.State of Maharashtra AIR1967 SC 1167 ; Balakrishnan v. state of Maharashtra AIR 1981 SC 379
I. if and when certain facts are deposed to as discovered in consequence of information received
from an accused person in police custody; and

II. if the information relates distinctly to the fact discovered. If the self incriminatory information
given by an accused person is without any threat that will be admissible in evidence and will not be
hit by Article 20 (3)

RELIABILITY AND ADMISSIBILITY OF NARCO ANALYSIS TEST IN

INDIA:
Although the result of this test is not 100% accurate but it can be take in an account on the basis of
some collected evidence or correlated. There is question in the mind that whether this test or the
report of this test is admissible as evidence before court? There are several issues on the same point
in India. However doubts are raised whether it amounted to testimonial compulsion in judiciary and
violation of fundamental rights and human rights of an individual. The results of Narco analysis
and P300 tests are admissible as evidence in courts, as they claim that confessions made by a
semiconscious person is not admissible in court. A Narco analysis test report has some validity but
is not totally admissible in court, which considers the circumstances under which it was obtained
and assessed its admissibility. Results of such tests can be used to get admissible evidence, can be
collaborated with other evidence or to support other evidence. But if the result of this test is not
admitted in a court, it cannot be used to support any other evidence obtained the course of routine
investigation. In India, Narco Analysis was first used in 2002 in the Godhra carnage case. It was
also in the news after the famous Arun Bhatt kidnapping case in Gujarat wherein the accused had
appeared before NHRC and the Supreme Court of India against undergoing the Narco-Analysis.

It was again in the news in the Telgi stamp paper scam when Abdul KarimTelgi was taken to the
test in December 2003. Though in the case of Telgi, immense amount of information was yielded,
but doubts were raised about its value asevidence.

The Bombay High Court, in a significant verdict in the case of Ramchandra Reddy and Others v
State of Maharashtra 45 upheld the legality of the use of P300 or brainmapping and narco-
analysis test. The Court also said that evidence procured under the effect of narco-analysis test is
also admissible. As crimes going hi-tech andcriminals becoming professionals, the use of narco
analysis can be very useful, as theconscious mind does not speak out the truth, unconscious may
reveal vital information about a case. The judgment also held that these tests involve minimal
bodily harm. The court also said that evidence procured under the effect of Narco Analysis test is
also admissible.

In 2004, the Bombay High Court ruled in famous Telgi case that subjecting an accused to certain
tests like Narco-analysis does not violate the fundamental right against self-incrimination.
Statements made under Narco-analysis are not admissible in evidence. However, recoveries
resulting from such drugged interview areadmissible as corroborative evidence.
But it seems in the offing, as in 2006 the Supreme Court of India stayed the order of a metropolitan
judge to conduct Narco Analysis on K. VenkateswaraRao in the Krushi Cooperative Urban Bank
case. Krushico op. Bank case 69 Supreme Court held that it is interesting to note that the Forensic
Science Laboratory in Gandhi Nagarin fact refused to conduct the test on a suspect when he did not

452004 All MR (Cri) 1704.

give his consent. The Magistrate nevertheless ordered the laboratory to conduct the test. However,
the Supreme Court stayed the order of a Metropolitan Judge to conduct Narco Analysis. Utility in
investigative processes the scientific tests may be employed in two ways, that is, they may directly
be used as evidence in court in a trial or they may be usedmerely as clues for investigation. Where
the tests involve the making of a statement, they may be directly adduced in evidence, provided
they do not amount to a confession because proof of a confession before a police officer or in the
custody of apolice officer is prohibited 46. However, if the statements are merely admissions, they
may be adduced in evidence SurenderKoli was main accused in the Nithari case, was brought to
Forensic Science Laboratory in Gandhinagar in January 2007 for narco analysis. Polygraph test was
conducted on Moninder Singh Pandher and his servant SurenderKoli, accused of serial killing of
women and children in Nithari, to ascertain the veracity of their statements made during their
custodial interrogation. Various confessional statements were made by the accused under the effect
of the drug, he could remember the names of the females he had murdered and revealed his urge
torape them after murdering them. Supreme Court upholds death penalty for Nitharis accused.

In Selvi v. State of Karnataka47 , the Supreme Court rejected the High Courts reliance on the
supposed utility, reliability and validity of narco analysis test and other tests as methods of criminal
investigation. First, the Court found that forcing a subject to undergo narco-analysis, brain-
mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the lack of
physical harm done to administer thetest or the nature of the answers given during the tests.
Secondly, the Court found that since the answers given during the administration of the test are not
consciously and voluntarily given, and since an individual does not have the ability to decide
whetheror not to answer a given question, the results from all three tests amount to the requisite
compelled testimony to violate Article 20(3). The Supreme Court found that narco-analysis
violated individual right to privacy and amounted to cruel, inhuman or degrading treatment.

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 narco-analysis technique
and the Brain Electrical Activation Profile test. The text of the 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 a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly
represented by a lawyer.

46For more details visit http://www.nerve.in/news:253500170205

47Section 25and 26 of the Evidence Act, 1872.
(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
arape them after murdering them. Supreme Court upholds death penalty for Nitharis accused.

In Selvi v. State of Karnataka48 , the Supreme Court rejected the High Courts reliance on the
supposed utility, reliability and validity of narco analysis test and other tests as methods of criminal
investigation. First, the Court found that forcing a subject to undergo narco-analysis, brain-
mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the lack of
physical harm done to administer thetest or the nature of the answers given during the tests.
Secondly, the Court found that since the answers given during the administration of the test are not
consciously and voluntarily given, and since an individual does not have the ability to decide
whetheror not to answer a given question, the results from all three tests amount to the requisite
compelled testimony to violate Article 20(3). The Supreme Court found that narco-analysis
violated individual right to privacy and amounted to cruel, inhuman or degrading treatment.

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 narco-analysis technique
and the Brain Electrical Activation Profile test. The text of the 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 a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly
represented by a lawyer.

(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
ahospital) and conducted in the presence of a lawyer.

48AIR (2010) 7 SCC 263.

(viii) A full medical and factual narration of the manner of the information received must be taken
on record.

CRITICISM OF NARCOANALYSIS TEST

Narcoanalysis has been criticised on the ground that it is not hundred per cent accurate. It has been
found that certain subjects made totally false statements. It is often unsuccessful in eliciting truth as
such it should not be used to compare the statement already given to the police before use of drug.
It has been found that a person has given false information even after administration of drug. 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.49

For its success, a competent and skilled interviewer is required who is trained in putting recent and
successful questions. Narcoanalysis is not recommended as an aid to criminal investigation. Unless
the test is conducted with the consent of the suspect it should not be used in criminal investigation

After analysing the cases of higher courts in India, it can be said that even Indian judiciary is not
very much clear while in few cases court has affirmative view on the process of narco analysis but
in some other cases court denied and clearly said it cann't be permitted. In their judicial
pronouncements the courts have given conditional utilization of process. It can be said that the
judiciary took harmonious construction regarding the use of this process and given interpretation of
conditional utilization so that the process absolutely could not be ignored nor it can be used in each
and every cases of crime. The judiciary by giving such type of interpretation started protecting the
interests of individuals as well as society. Protection from crime and maintenance of law and order
is the first priority of every state which is in social interest and at the same time to maintain human
dignity and human rights is also the priority of state so the conflict of social interests and individual
interests can be regulated by the judiciary.

In India the conviction rate is very less and crime rate is very high. The main factor responsible for
this gap is poor investigation, which can only be solved through improvement in the investigation
and for this reason scientific method like narco test is a must.Various cases like Abu Salem,
Nithari case, Arun Bhatt Kidnapping case etc. the Narco Analysis was very much useful in
solving the cases. Thus using this method the complex offences can be resolved. Now a days
criminals are going on high-tech and indulging in cyber and internet crimes. To extract truth from
them with traditional method of investigation is not much effective in the criminal justice system.
World's best investigation Agency like US had used the Narco- Analysis test for extracting truth
after September 11 incident and it was written by Gerald Posner that US agency also privately
believes that the Supreme Court of US also implicitly approved using such test where the public
safety is at risk. The head of Drafting Committee of the National Criminal Justice System Policy

49AbhyudayaAgarwal&PrithwijitGangopadhyay, Use of Modern Scientific Tests in Investigation and Evidence:

Mere Desperation or Justifiable in Public Interest, (2009) 2 NUJS Law Review 31.
Prof. N.R. Madhavan also recommended for the utilization of scientific method in investigation
process in India.

CONCLUSION

It is doubtful that results from lie-detector tests will ever be held admissible in courts. While
proponents of polygraph evidence claim that test results are a definitive indication of the veracity of
an accused denial of guilt, such results are hearsay and amount to a self-serving statement which is
inadmissible at both common law, and pursuant to statutory rules of evidence. Further, there does
not appear to be any general acceptance of the validity and reliability of polygraphs within the
scientific community worldwide. It is extremely doubtful that polygraphs will ever gain general
acceptance within the scientific community. There are simply too many reasons why polygraphs
results or interpretations of test results may be flawed. Indeed reliance on these instruments as an
indicator of the veracity of a subject testimony is reminiscent of archaic judicial methods of
determining guilt or innocence.

The results of these tests have produced little scientific support for polygraphs as a method of
detecting the truth. Stories about the inaccuracy of these devices are legion. Going by the above
decisions of the courts in various countries, lie-detectors cannot be used without trading upon
constitutional rights or creating fear, animosity, discord and frustration among the persons
examined and the business or Government involved or impinging upon one privacy and desires, or
not running counter to society mores and humanistic concerns. So far as the judiciary is concerned,
there is no way in which the lie-detector can be used satisfactorily, whether for negative or for
corroborative purposes.

However, the polygraphic evidence should not be rejected as push-button legal evidence and needs
to be treated as a product of mechanical jurisprudence. Since ascertainment of facts becomes the
most important function of the nisi prius tribunals, judicial or administrative, today technology in
conjunction with the psychological behaviourism should be culminated in a legal approach. Hence,
a fullfledged scientific study is required to ascertain the validity of polygraphic and narco-analysis
tests with necessary suggestions to evolve a set of valid tests and procedures.

For the above, the Government by way of a legislation should constitute a statutory body consisting
of legal luminaries, scientists and psychologists to determine which tests are valid, reliable and who
should be the examiners and the interpreters with their qualifications, etc. The Law Commission
also may undertake this study and come out with necessary recommendations

In polygrahy test, the person being tested is not required to make any statement . Article 20(3) of
the constitution does not hit this because there is no element of compulsion involved.50

As far as Narco-analysis isconcerned , it is controversial because in this test the person to whom it
is administered thus make a statement and that to under the influence of a drug.His mind is

50 Supra 44
conditioned and therefore it may be contended that he is being compelled,even if a truth serum test
is allowed a statement made will attract the bar of article 20 ( 3) only if it is inculpating or
incriminating the person making it.

Whether it is so or not can be ascertained only after the test is administered and not before.
Furthermore. Such statements will be inadmissible as evidence although they can be useful for
investigation. It can also be argued that such a test intoxicates the mind and can even cause coma or
death in case of an overdose and. therefore it violates the right guaranted under article21of
constitution. Therefore, as has been stated earlier. the courts should grant permission for conducting
narcoanalysisonlv in exceptional circumstances and the test must be properlv conducted in the
presence of qualified experts.

It was stated by the apex court in Kathikalu51that the words used in article 20(3) are not appear as
a witness against himself. It covers the stage of investigation also and protects all action of
accused person that may be used against him at the trial. In M. P. Sharma v. Salish Chanara52,
wherein after studying the judicial trend in England and America and the standard text books on
evidence. likePhipson and Wigmore, and other authorities, the Supreme Court had observed that
the guarantee in article 20 is against testimonial compulsion. The court said that there was no
reason to confine the content of the constitutional guarantee to this barely literal import. To so limit
it would amount to robbing the guarantee of its substaintial purpose. it was also stated that
materials produced before the court are neither oral nor documentary evidence but belong to the
third category of material evidence, which is outside the limit of testimony. However, if the self-
incriminatory information has been given by an accused person without any threat, that will be
admissible in evidence and that will not be hit by the provisions of article 100) of the Constitution
for the reason that there has been no compulsion from this it clearly follows that if there is no use of
threat or compulsion no question of unconstitutionality arises. Prevention of crime and to punish
the criminal is the duty of the state. Therefore, in certain cases a likely suspect may be subjected to
the test at least to aid the police in the investigation stage if not the prosecution at the trial stage.
Under a properly monitored procedure established by law, the test may be allowed. Afier all,
societys need outweighs the privilege of an individual in certain cases. The law enforcement
authorities must be allowed to garner truth from every quarter in order to discover guilt and
administer justice. Though the Constitution framers may have intended to protect an accused
person from the hazards of selfincriminationin the light of the English law on the subject, they
could not have intended to put obstacles in the way of efficient and effective investigation into
crime and of bringing criminals to justice because it is as much necessary to protect an accused
person against being compelled to incriminate himself, so as to arm the agents of law and the law
courts with legitimate powers to bring offenders to justice.

51 Supra 44
52 Supra 43
 BIBLIOGRAPHY
PRIMARY SOURCES

1. The Code Of Criminal Procedure, 1973

2. The Indian Evidence Act, 1872
3. The Indian Penal Code ,1860
4. Narcotic Drugs and Psychotropic Substances Act, 1985:

SECONDARY SOURCES

BOOKS:

1. Forensic Science in Criminal Investigation & Trials, B. R. Sharma, Fourth Edition,

Universal Law Publications.
2. Law Relating to Narcotic Drugs and Psychotropic Substances in India, R. P. Kataria,
Second Edition, Orient Publications.
3. Forensic Science in Criminal Investigation, Dr. Jai Shanker Singh, Unique Law
Publications.
4. Medical Jurisprudence and Toxicology, Moitra&Kaushal, Third Edition, Delight
Publications
5. FORENSIC CHEMISTRY, David Collins, Brigham Young UniversityIdaho

WEBSITES:

1. http://www.geocities.com/CapeCanaveral/4329/

2. http://www.exploreforensics.co.uk/forensic-toxicology.html
3. (http://books.google.co.in/books)

4. en.Wikipedia.org/forensic_chemistry

5. www.crime-scene-investigator.net

6. www.thefreedictionary.com/narcotic