At this juncture, it is apposite to note guidelines given by the National Human Right Commission for administration of such tests on an accused, found in paragraph 265 of the judgment of the Hon'ble Apex Court in the matter of Selvi and Others v. State of Karnataka reported in MANU/SC/0325/2010 : (2010) 7 Supreme Court Cases 263. It reads thus :
"The National Human Rights Commission had published 'Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the 'Narcoanalysis technique' and the 'Brain Electrical Activation Profile' test. The text of these guidelines has been reproduced below:(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. 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 a hospital) and conducted in the presence of a lawyer.(viii) A full medical and factual narration of the manner of the information received must be taken on record."
41. Bare perusal of these guidelines shows that consent of the accused is sine-qua-non for conducting such test and physical, emotional and legal implications of such tests are required to be communicated to such accused. His consent is required to be recorded before a Judicial Magistrate. The accused is entitled to take assistance of his lawyer. The evidence on record does not show that these guidelines given by the National Human Rights Commission for conducting such tests were followed before subjecting appellant/accused No. 1 Mohd.Samir for Polygraph, Brain Mapping and Narco Analysis Tests. Evidence of PW15 Dr. Malini Subramanyam on aspect of consent of appellant/accused No. 1 for subjecting himself to such tests is as sketchy as it can be. She has merely stated that appellant/accused No. 1 Mohd.Samir had given consent for such tests. This witness has not stated that appellant/accused No. 1 Mohd. Samir was made aware about physical, emotional and legal implications of such tests and his consent was free consent not influenced by coercion, duress, undue influence or fraud. Perusal of Exhibit 90 goes to show that consent of appellant/accused No. 1 Mohd. Samir was obtained by getting his signature on the consent form which is having stereotyped contents. This consent form at Exhibit 90 was meant for Polygraph test. It appears that subsequently the word scientific was added to this consent form at Exhibit 90. There is no separate consent for Brain Mapping as well as Narco Analysis Test given by appellant/accused No. 1 Mohd. Samir to the authorities of Forensic Science Laboratory at Bangalore. There is no positive evidence to demonstrate that appellant/accused No. 1 was made aware about test to which he was being subjected at that laboratory. Even there is no positive evidence to show that appellant/accused No. 1 Mohd.Samir had consented for such type of test before the Judicial Magistrate. PW22 Vikas Wagh, API, had taken appellant/accused No. 1 Mohd. Samir to Forensic Science Laboratory, Bangalore for these scientific tests. This witness has not deposed about obtaining consent of the appellant/accused No. 1 for subjecting himself to such tests before the Judicial Magistrate. The term Narco Analysis is derived from Greek word NARKCA meaning anesthesia or tarpor by administering psychotropic drug to the subject. His capacity for imagination is blocked or neutralized by leading him into semiconscious state during conducting such test on him, because a person is able to lie by using his imagination. Salutary provisions of Article 28(3) of the Constitution of India and Section 161(2) of the Code of Criminal Procedure provides that a person cannot be compelled to be a witness against himself. No one can forcibly extract a statement from the accused and his right to remain silent during the course of investigation is vindicated by these statutory provisions. One may say that right granted under Article 20(3) of the Constitution of India can be waived by the person himself but for that purpose evidence in respect of consent of such person must be of an impeachable character. However, in the case in hand, evidence on record does not indicate that appellant/accused No. 1 Mohd. Samir was subjected to scientific tests by strict adherence to the guidelines given by the National Human Rights Commission. Apart from this, in Narco Analysis Test the subject does not exercise conscious control over the responses during such tests.
42. Perusal of evidence of PW15 Dr. Malini Subramanyam, PW23 Shivaji Nehman Investigating Officer, along with transcript of Narco Analysis Test of appellant/accused No. 1 at Exhibit 151 coupled with report of Narco Analysis Test at Exhibit 96 goes to show that incriminating material against appellant/accused No. 1 Mohd. Samir is sought to be brought on record from statement given in trans by appellant/accused No. 1 Mohd. Samir. His revelations during such tests are inculpating or incriminating appellant/accused No. 1 Mohd. Samir as well as other co-accused. Such revelations are inadmissible in evidence. At this juncture, it is apposite to quote observations of the Hon'ble Supreme Court in the matter of Selvi (supra) found in paragraph 264, which reads thus :
"264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872."
43. In this view of the matter, as evidence in respect of consent for Narco Analysis Test is doubtful and as the result thereof are inculpatory, the same cannot be used against appellants/accused.
IN THE HIGH COURT OF BOMBAY
Criminal Appeal Nos. 255 of 2009 and 1241 of 2008
Decided On: 10.01.2017
Mohd. Samir Mohd. Juber Shaikh Vs. The State of Maharashtra
Hon'ble Judges/Coram:V.K. Tahilramani and A.M. Badar, JJ.
Citation: 2017 ALLMR(CRI)1143
