Legal status of narco test in India

Table of contents

1. Introduction 2. Term: Narco-analysis 3. Foundation 4. Presumptions 5. Procedure 6. Flaws in narco-analysis test 7. Accomplished stories 8. Judicial Confusion 8. Criticism of narcoanalysis test 9. Conclusion 10. References

Introduction

The intricacy of what can be allowed as evidence in court is inevitable as science has advanced faster than law, or at least how the general public understands it. One such scientific advancement that has grown increasingly—perhaps unsettlingly—common in India is narcotics analysis. Greek word narkç (meaning "anesthesia" or "torpor") is the source of the term "narco analysis," which refers to a diagnostic and psychotherapeutic approach in which barbiturates, in particular, are used to induce a state of unconsciousness in which mental elements with strong associated affects emerge, allowing the therapist to take advantage of them. Horseley came up with the phrase "narco-analysis." At the nexus of law, medicine, and ethics, narcotics analysis raises several issues. Article20( 3 ) of the Constitution protects people from being forced to testify against themselves, and this right is violated by the narco analysis process.

Term: Narco-analysis

A chemo-physiological test called narcoanalysis is used on a criminal suspect who refuses to talk or who lies during a standard interrogation in order to get the truth. It involves questioning a suspect after injecting an intravenous injection of a psychoactive (hypnotic) substance in an appropriate dosage; most often, this is a barbiturate. Sodium thiopentothal or Sodium Amytal, sometimes known as amobarbital, is typically the barbiturate. The injection is given under strict supervision with the goal of lessening or eliminating the subject's capacity for thinking without compromising his memory. Particularly benzodiazepine, the diazepam molecule, is thought to be safer. However, sodium pentothal is the medication that is often utilized in India. The drug has a negative effect on the area of the subject's brain that makes decisions about what is good or harmful for him based on his own beliefs and values. To put it briefly, the medicine impairs his ability to reason and think.

Story writers and journalists give the drug used for this purpose the extravagant label "Truth Serum" in an attempt to draw attention. The procedure is often referred to as the Truth Serum test. In India, the procedure is commonly referred to as narcoanalysis.

Foundation

Since ancient times, it has been known that certain materials have an impact on the brain. Almost everywhere in the world, since prehistoric times, people have used or abused alcohol, opium, cannabis, and other narcotics. the extension of the technique in a manner specialized to questioning refractory subjects using barbiturates to modulate brain functioning under controlled circumstances. In the past, people were unaware of the way in which these medications affected humans. They now understand how they operate.

Circulating blood carries the substances that affect the brain into the brain. They preferentially impact specific areas of the brain. Researchers have identified the specific parts and outcomes that each medicine affects. They discovered medications for interrogation that impair the ability to reason, but not speech or memory. They discovered that the current medication of choice for this purpose is sodium pentothal. Still, research is ongoing, and it is envisaged that in the near future, even better medications will be developed. Alternatively, some more advanced questioning methods might emerge and render the narcoanalysis methods obsolete.

Presumptions

Narcoanalysis is based upon certain presumptions. These presumptions do not necessarily hold good in all cases. Common presumptions are:

1. The hypnotic or other drug injected in the body suppresses the reasoning power of the subject to an extent that his answers are from memory without any effort to appraise. Rationalise or suppress the truth. It is not so always.
2. The subject has not mixed the truth about the vent with his imagination, fantasies or other similar incident.
3. His subconscious mind has not attempted to make sense of what happened.
4. Neither the versions of himself or his loved ones in the media have any influence over him.
5. The confirmational condition does not affect him.
6. Despite being under the influence of the drugs, he is able to remember the events because of his keen and durable memory.
7. When not under the influence of drugs, he lies to protect himself.
8. The hypnotic drug's dosage is sufficient to impair his ability to reason, and its effects persisted during the entire interrogation period. It should be noted that the medication that is frequently taken in India has an extremely short half-life and short duration of action. In that brief window of time, the examiner has to finish questioning the subject.
9. The examiner is an impartial skilled professional who has created non-suggestive questions that can obtain accurate information without relying on his recommendations.

Procedure

1. Narcoanalysis interrogation: Narcoanalysis, as previously mentioned, is an interrogation method used to stop a person from lying while their mental state is altered. Before the narcoanalysis test is administered, the following procedures are completed:
   • A magistrate grants approval for the test.
   • The subject's consent is documented in order to fulfill the requirements of both the Supreme Court's directives and article 20( 3 ) of the constitution, which states that the subject is not being forced to take the test.
   • The subject's suitability for the test is evaluated by a medical professional. He bestows a certificate on it.
2. Narcoanalysis location: Usually, the test is conducted in an operating room so that the participant can receive medical care in the event that it becomes necessary. The only other people in the room except the narcoanalyst are an anesthetist who gives the drug and a general physician who monitors the patient. There are no distractions or noises in the room.
3. The Drug: Sodium pentothal, dissolved in 0.01% clean water, is typically used as the drug during narcoanalysis interrogations. An anesthetist slowly injects straight into a vein on the back of the hand. A typical dose is between 0.25 and 0.50 grams. Sometimes the dosage is as low as one gram. The anesthetist chooses the dosage amount that will guarantee the subject enters a trance-like state. He keeps an eye on and adjusts the level of unconsciousness while the suspect is being questioned.
   The test's most important component is the dosage. A lower dose won't produce the intended semi-conscious state, while an excessive dose has the potential to kill the individual. The person may act as though he is in a trance in this situation, but he is not. He then responds in an attempt to deceive the investigator, defend himself, and possibly implicate other people. When he is in the desired trance, he responds to inquiries without hesitation. These responses are thought to be accurate.
   The dosage of the medication varies from person to person and is determined by his health, his level of willpower, and his outlook on life in general and the test in particular. When choosing the appropriate dosage for a certain patient, the anesthetist takes the patient's physical condition and overall health into account.
4. The subject: The individual must be in excellent physical and mental condition. After performing a medical examination and, if necessary, a biomedical test, a general physician certifies the same. He should be clear of renal and liver issues, high pressure, diabetes, and heart disease. When women participants are being questioned for narcoanalysis, they should not be expecting or breastfeeding children.
   The patient cannot be receiving barbiturates for treatment or be a drug addict. The person in question shouldn't be depressed.
   Before taking the exam, the participant gets used to the surroundings.
5. The examiner: Once semi-consciousness is reached, the narcoanalytic, a forensic psychologist, assumes control of the patient. The psychologist is already familiar with the case's circumstances, has access to all of the investigative findings, and is aware of the purpose of the questioning. Additionally, before the test, he conducted a lengthy discussion with the subject to acquaint them with the many components of the exam, as well as to provide answers to any queries that might arise. To put it briefly, he has allayed the subject's anxieties.
   In order to get the relevant data from the subject, he creates a questionnaire in advance.
   The general physician, who has certified the subject's physical fitness to undergo the narcoanalysis interrogation prior to the test as well as his certification that the test will not have any negative effects on the subject following the test, is present when the anesthetist and psychologist work together.
   Interrogation for narcoanalysis requires teamwork. The three individuals listed above typically make up the team: the forensic psychologist, the anesthetist, and the medical expert.
   An photography specialist records the other test details and captures audio and video images of the. The forensic psychologist sends asking authorities or submits the film in this manner to the courts along with the report.
6. Sources of errors: In spite of the fact that the effect of drugs on human brain is known from time immemorial, there is insufficient research on the process. There are deficiencies and pitfalls, real or imaginary, in narcoanalysis interrogation, including the following:
   1. There is no sure test to indicate that the trance is real or fake.
   2. There is no guarantee that the subject is not just accepting the suggestions of the examiner and is telling what has been told or suggested to him.
   3. There is no surety that the subject is giving facts or mixing them with lies.
   4. The subject may intermingle the present incident with some other incident.
   5. There is no way to judge if the subject is giving non-existing incidents which got fixed in his mind and he believes them to be true in normal state of mind. The result of interrogation maybe the outpouring of such events.
   6. There is no statistical base for the validity of the test.
   7. The answers of the suspect may be the result of disorientation of the brain and interrogation results may be outcome of some delusion, hallucinations, etc.
   8. The subject may be suffering from hyper amnesia and give self-created details.
   9. The subject may have been told many times in normal interrogation you have done it. In narcoanalysis interrogation he remembers the statement and accepts it.
   10. It is alleged that narcoanalysis interrogation suffers from confirmation syndrome, the specialist gives what the investigators want. However, it is not so.
7. Laboratories: India's two State Forensic Science Laboratories, one in Ahmedabad and the other in Bengaluru, are equipped to conduct narcoanalysis interrogations. The test is administered by the former at Bangalore's Victoria Hospital. The Bangalore laboratory's reports are quite positive. It states that the test success rate is really high. Approximately one thousand people have previously been questioned using narcoanalysis.

Flaws in narco-analysis test

• Since the chemical is injected into the subject's body during the narcoanalysis test procedure, the dosage is determined by the subject's physical characteristics, mental capacity, and willpower. An incorrect chemical dosage can put a person in a coma or possibly cause them to die.
• If the person is drug addicted, the process won't be as successful as it needs to be in order to gather evidence and extract the truth.
• Since the subject gathered the information while still semiconscious, the veracity of the information provided by the subject may also be questioned.
• Article 20( 3 ) of the Indian Constitution states unequivocally that no one may testify against themselves. Consequently, this could be interpreted as a breach of the fundamental rights guaranteed by the Constitution.
• According to Section 25 of the Indian Evidence Act of 1872, a confession given by an individual detained by the police is not admissible as evidence. It implies that there could be a chance that the evidence is not admissible. If the narcoanalysis test is performed in front of a magistrate, it will be accepted as a legitimate confession.

Accomplished stories

An interrogation using narcoanalysis is not common in the world. The primary cause of the neglect is the lack of widespread recognition of the procedure among the scientific and legal communities due to insufficient research on the topic. As a result, gaps and anomalies have not been conclusively resolved by use of comprehensive statistical data.

Karnataka State Laboratory has conducted the greatest number of narcoanalysis interrogations in India. The lab claims an extraordinary success rate (over 90%). They have successfully questioned hundreds of criminals. Here are a few success stories from India.

1. Shraddha Walkar’s murder case, 2022: The most gruesome and talked-about murder case in India concerned Shraddha Walker, who was allegedly killed by his live-in partner Aftab Poonawala, who then chopped and disposed of her body parts throughout Delhi.
   The police requested the test after suspecting Aaftab of deceiving them by making inconsistent claims. He has been frequently altering his statements. The narco test had been approved by the Saket court, and Aaftab had given his approval.
   Poonawala's narco test proceeded without a hitch. He was questioned about the circumstances leading up to the killing, how he later managed to dispose of the body parts, and other relevant topics. The case's verdict is now pending.
2. Nithari Serial Murders: Serial killings occurred in the home of transporter Mohinder Singh Pandher in Nithari hamlet, close to Noida, Uttar Pradesh, between 2005 and 2006. 16 girls' bodies, or portions of them, were found in a nearby sewage. On February 13, 2009, the trial judge found him and his servant Surender Koli guilty of the four victims' charges, sentenced them to death. It was deemed the "rarest of the rare cases" by the judge. In three other instances, Koli has received death sentences. Trials for the two accused in the other cases of the serial killings are still ongoing.
   In the course of the serial murder inquiry, the two accused were effectively questioned using narcoanalysis in the State PSL located in Gandhinagar. Information from the interrogation was helpful. The test result showed that Koli had killed the victims by strangulation on his own. It was also disclosed that he would rape his victims, dismember them in his bathtub, and then dispose of their remains down the drain after killing them.
   Under the influence of the drug, he was able to provide the identities of the majority of the victims.
   Koli claims that Pandher refrained from participating in murders. However, Pandher's narconalaysis interrogation revealed that he was a depressive and womanizing individual.
3. Bombay serial Blast, 1993: Abu Salem was the Mumbai Serial Blasts' mastermind. In 1993, he was a member of Don Dawood Ibrahim's gang. He is wanted in cases including large-scale kidnapping, extortion, and murder. Following his split with Dawood, he was forced to flee both India and Dubai. In 2002, he and his spouse, Monica Bedi, were apprehended by Interpol in Lisbon. Under specific terms, both were deported to India in 2005. He is being held at the high security Arther jail after being found guilty of the Mumbai Serial Blast.
   A team of specialists, including a physician, an anesthetist, and a forensic psychologist, employed narcoanalysis interrogation to obtain data about the 1993 blast and other cases handled at the State PSL Bengaluru. He could provide an enormous amount of helpful information.

Judicial Confusion

Since confessions made by someone who is only partially aware are not acceptable in court, such examinations typically lack legal value. Nonetheless, the court may allow restricted admissibility after taking the test-taking conditions into account. In one instance, the petitioners claimed that the courts could not order the prosecution to conduct lie detector tests, brain mapping, or narcotics analysis against the consent of the accused since doing so would violate Article 20( 3 ) of the Constitution. Art. 20( 3 ) of the Indian Constitution is the primary clause pertaining to criminal inquiry and prosecution. It addresses the right not to incriminate oneself. Common law criminal jurisprudence is based on the basic principle of the privilege against self-incrimination. The privilege is embodied in Art. 20( 3 ), which states that "No person accused of any offence shall be compelled to be a witness against himself." Many people view it as a flagrant breach of Art. 20( 3 ) of the Constitution for the investigating agencies in India to subject the accused to testing.

The basic issue relating to legal problems and human rights is raised by the implementation of the Narcoanalysis test. The judicial consequences of using this method as an investigative tool raise serious concerns about the invasion of someone's freedom, rights, and liberties. It must be demonstrated in the State Bombay v. Kathikalu case that the accused was forced to make a statement that would likely implicate him. Compulsion refers to coercion, which includes assaulting, threatening, or imprisoning a person's spouse, parent, or kid. Art. 20( 3 ) does not applicable in situations when the accused confesses without being threatened or induced.

Thus, the protection of individual privacy and adherence to decency in the application of criminal justice are made possible by the legal right against self-incrimination. Nemo Tenetur se Ipsum Accusare, which states that "No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of," is also violated by this. The confession from the accused shall be dismissed by the court if it results from any moral or physical coercion (including hypnotic states of mind). The Indian Constitution and the Code of Criminal Procedure (CrPC) both guarantee the right to remain silent in the face of coerced self-incrimination, sometimes referred to as the Right to Silence.

A citizen's right against self-incrimination has been protected by the legislature in the CrPC. According to the Code of Criminal Procedure, Section 161( 2 ), all individuals are required to provide honest answers to all inquiries posed to them by police officers, with the exception of those that may potentially result in criminal charges, penalties, or forfeitures. Narco analysis has been accused as being mental torture, which breaches Article 21's right to privacy and, consequently, the right to life. Once more, the legislation prohibiting invasions of privacy would prevent brain fingerprint evidence from being presented in court.

It is commonly known that the accused has the right to remain silent during questioning (investigation), as guaranteed by the ruling in the Nandini Sathpathy v. P.L. Dani case. No one may coerce the accused into making statements against their will. The validity and legitimacy of the Right to Silence are undermined by the conduct of these tests, which restores the practice of coercive mental intrusion. She asserted that she was entitled to quiet under Section 161( 2 ) of the Criminal Procedure Code and Article 20( 3 ) of the Constitution. The Supreme Court upheld her pleas. Furthermore, it is thought that tests like Narcoanalysis are not very trustworthy. Research conducted by US medical associations supports the belief that truth serums do not cause people to speak honestly, and that people who are in this kind of trance while taking a truth serum may provide inaccurate or misleading information. In the USA, the Townsend v. Sain case established that a confession made by a petitioner during police questioning while under the influence of a substance that possesses truth-seer qualities was not admissible under the constitution.

Testimonial compulsion does not exist when gathering evidence and assisting with an inquiry are done. As a result, it complies with the constitutional clause protecting people from being forced to testify against themselves.

The Apex Court noted in M.P. Sharma v. Satish Chandra that the protection extends to coerced evidence acquired outside of the courtroom because Article 20( 3 ) uses the words "to be a witness" rather than "to appear as a witness." In the instance of Kathi Kalu Oghad, the identical argument was made again. The phrase "right to privacy" refers to a broad range of rights that are understood to constitute concepts of ordered liberty or inherent rights. The right to privacy is the freedom from unjustified publicity and the right to be left alone. The right to life and liberty that India's inhabitants are granted under Article 21 of the Indian Constitution implicitly includes the right to privacy. Without his permission, no one may write anything on the aforementioned topics, whether it be positive or negative, factual or not. If this is done, it will be considered a violation of the person's right to privacy and may result in legal action for damages. Articles 14, 19, and 21 of the Indian Constitution are the best examples of any constitution that opposes the right to privacy. The protection of life, liberty, and freedom has been interpreted throughout the document.

Admissibility in the court

Although narcoanalysis produced a wealth of information, it also raised a number of concerns because some critics were deeply sceptical about the use of serum to coax truth from the witness. Narcoanalysis is regarded as an instrument or assistance for gathering and corroborating evidence. There are questions, nevertheless, about whether this constituted to testimonial compulsion in court and a violation of people's freedoms, rights, and individual liberty.

There is disagreement among advocates on the admissibility of test results from Narco analysis and P300 because some argue that confessions from people who are only partially conscious should not be allowed in court. A Narco analysis test report has some validity but is not entirely admissible in court; the admissibility of the report is determined by taking into account the circumstances surrounding its acquisition.

The results of these tests can be combined with other evidence, utilised as supporting evidence, or obtained as admissible proof. However, the results of this test cannot be used to bolster any other evidence gathered during a standard inquiry if they are not admitted into evidence in court.

Narco-analysis was first applied in India in the Godhra atrocity case in 2002. It also made headlines following the well-known Arun Bhatt abduction case in Gujarat, in which the accused refused to submit to a narco-analysis and appeared before the National Human Rights Commission and the Indian Supreme Court. When Abdul Karim Telgi was put to the test in December 2003, the Telgi stamp paper scam made headlines once more. Even though Telgi produced a vast amount of material, questions were raised regarding its admissibility as proof. In a landmark decision in the matter of Ramchandra Reddy and Others v. State of Maharashtra, the Bombay High Court maintained the validity of the P300, or brain mapping, and narco analysis test. The court further declared that evidence obtained as a result of the narcoanalysis test is admissible. Nonetheless, defense counsel and human rights advocates believed that the narco analysis test was an extremely archaic kind of inquiry and third-degree care, and that there were legal inconsistencies in drug-assisted questioning. In light of the notorious serial killings in Nithari village (Noida), narcotics analysis is receiving attention. Narco analysis tests were conducted in Gandhinagar on Mohinder Singh Pandher and Surendra Kohli, the two primary suspects in the Nithari serial killings.

Criticism of narcoanalysis test

The argument against narcoanalysis is that it is not entirely accurate. It has been discovered that several subjects gave completely erroneous information. Since it frequently fails to elicit the truth, it shouldn't be used to compare statements made to the police prior to drug use. It has been discovered that an individual who provided misleading information even after receiving medication. In the event of dishonest people or evasive, dishonest people, it is not very helpful. It is exceedingly challenging to recommend the right dosage of a medication to a certain individual. The drug dosage will vary depending on the subject's physical attributes, mental state, and willpower. An injection is not necessary for a narcoanalysis test to be successful. A knowledgeable and experienced interviewer with experience crafting effective and up-to-date questions is necessary for its success.

A narcoanalysis exam helps the suspect remember things they may have forgotten. If the test is used to induce criminal confessions, the results may be questioned. When under the influence of narcotics, suspects in crimes may purposefully suppress information or repeatedly give false accounts of incidents. It is not advised to use narcoanalysis to support criminal investigations. Narcoanalysis has potential medical uses, including as the treatment of psychiatric disorders. The test should not be utilized in a criminal investigation unless the suspect gives permission for it to be performed.

Conclusion

Law is a dynamic process that adapts to shifts in society, science, ethics, and other areas. As long as scientific advancements serve society's interests and do not contravene fundamental legal precepts, the legal system ought to include them. There has been much discussion over the use of Narco analysis tests as interrogation techniques in India. In the near future, more information on its acceptance within our legal system and society will become available. Numerous High Court rulings have supported the applicability of narcotics analysis. These rulings stand in sharp contrast to the Supreme Court's previous interpretations of Art. 20( 3 ).

The truth is that there are now no regulations or guidelines governing the use of narcotics analysis as an interrogation method in the Indian criminal justice system. Numerous High Court rulings have supported the applicability of narco analysis. These rulings stand in sharp contrast to the Supreme Court's previous interpretations of Art. 20( 3 ). India's commitment to individual freedoms and a clean criminal justice system is at risk, thus the central government needs to take a firm stance on the matter.

References

1. B.R. Sharma, “Forensic Science in Criminal Investigations and Trials”.
2. http://www.rmlnlu.ac.in/webj/sonakshi_verma.pdf