Explained | Shraddha Walker Case: Narco-Analysis Test And Legal Position

Aaftab Amin Poonawala, who is accused of the gruesome murder of his live-in partner Shraddha Walker, was taken to a hospital in Delhi's Rohini on Thursday for a narco-analysis test. The scientific technique is used to elicit concealed information from an accused in a criminal case for furtherance of investigation. But what are the implications of such investigative tools in criminal cases? Does it violate a person's right against self incrimination under Article 20(3)? 

Narco Analysis

According to a research paper available on National Library Of Medicine, the test involves intravenous administration of drugs that cause the person to enter into various stages of anaesthesia. It is stated that since the subject becomes less inhibited due to use of drugs, he is more likely to divulge information in response to the questions of the investigator. However, the results of such a technique vary from subject to subject.

The Narco test has always been a subject of legal and ethical debate that whether it violates the fundamental rights of a subject and to what extent the extracted information can be used during trial against the accused. In many cases the accused themselves have sought the narco test to prove their innocence.

Involuntary Narco Analysis Offends Right Against Self-Incrimination

The legal question regarding the use of scientific techniques like narco analysis and polygraph examination was discussed extensively by the Supreme Court in a judgement delivered in 2010. The court in the ruling made it clear that the test results of such techniques cannot be admitted as evidence.

In Smt. Selvi & Ors versus State Of Karnataka, the bench headed by then CJI K.G. Balakrishnan said a subject of narco-analysis test is "encouraged to speak in a drug-induced state" and that there is no reason why such an act should be treated any differently from the verbal answers given during ordinary interrogation

The court in the ruling said if admission of involuntary statement is permitted on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the 'right against self-incrimination' will be rendered meaningless.

"The law confers on 'any person' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course."

The court had also said that provisions under CrPC which allow medical examination of an accused for the purposes of investigation do "not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others".

Thus, it had rejected the argument that 'and such other tests' in Explanation to Sections 53, 53-A and 54 of the CrPC should also include narco analysis technique, polygraph examination and the BEAP test.

"Our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of 'testimonial compulsion', thereby attracting the protective shield of Article 20(3)," the court had ruled.

The court had also expressed concern over public distribution of the narco-analysis interview, saying such actions can expose the subject to undue social stigma and specific risk. "It may even encourage acts of vigilantism in addition to a 'trial by media'," the bench had observed.

It was also held in the judgement that subjecting a person to the techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person's mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination, according to the apex court.

The court had also held that compulsory administration of the impugned techniques constitutes 'cruel, inhuman or degrading treatment' in the context of Article 21.

Voluntary Narco Analysis

However, the court in the ruling had said voluntary administration of the three techniques can be done 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," the apex court held.

However, it clarified that any information or material that is subsequently discovered with the help of "voluntary administered test results" can be admitted in evidence, in accordance with Section 27 of the Evidence Act.

Recent Rulings

A 68-year-old man, an accused in a rape case, in 2021 approached the Kerala High Court and asked to be subjected to narco test. The trial against the accused was at stage of defence evidence. His counsel in the case argued that he is an hapless old man who has been accused of an offence with reverse burden of proof and wants to undergo voluntary narco analysis.

Justice M.R. Anitha, while dismissing the petition, said the possibility of some persons concocting fanciful stories in the course of hypnotic stage also cannot be ignored. The possibility of the testimony being not voluntary even if the person freely consents to undergo the test also is there, the court said.

"Even if the petitioner voluntarily submits for subjecting himself for Narco Analysis Test, there is no guarantee that the statements would be voluntary. So even if the court permits the petitioner to undergo a Narco Analysis test, it has no acceptability in the eye of law," the court said in the ruling.

Similarly, the Madhya Pradesh High Court in Vipin Kushwaha vs The State Of Madhya Pradesh said permitting the applicant to undergo Narco Analysis Test would be a futile exercise as the same is not admissible as evidence.

Delhi High Court in March 2017, while relying on Bombay High Court's decision in Yogesh @ Charu Ananda Chandane Vs. The State of Maharashtra, dismissed a POCSO accused's petition for Polygraph/Narco Analysis/Brain Mapping Test on him. Bombay High Court in the 2016 ruling observed that evidence recorded in the course of Narco Analysis Test or Polygraph Test is not an admissible evidence and it would be a hazardous situation to permit any/every accused to undergo Narco Analysis Test for proving his defence.

On November 03, Andhra Pradesh High Court set aside a trial court order directing accused in a case to undergo Narco Analysis Test in a case dating back to 2008. The court said the Additional Chief Metropolitan Magistrate's order is not tenable under law.

Karnataka High Court on September 02 rejected the prosecution's petition seeking narco-analysis of the accused in a cheating case. The accused had earlier declined consent for the test and the trial court had thus rejected the application. The high court in a 2017 ruling had observed that law has not yet so developed for a court to direct the accused to undergo the said medical examination without his consent.

However, Rajasthan High Court on August 18 in Sunil Bhati vs State Of Rajasthan allowed a man's petition for narco-analysis test, observing that by no stretch of imagination, it can be said that a scientific technique, like a Narco Analysis Test, is of no consequence for the result of the trial of the accused.

"This Court, however, does not wish to enter into the degree of relevance of such a test, but certainly finds that such a scientific technique, which is recognized by the strength of law in the courts and in the legal system of the Country, and is crystallised by the Hon'ble Apex Court in the landmark case of Selvi (supra) wherein the Hon'ble Apex Court has held that the voluntary administration of such scientific techniques in the context of criminal justice may be permitted, and therefore, the same cannot be denied to the petitioner as it would amount to depriving him of the valuable right to defend himself during the trial," Justice Pushpendra Singh Bhati said in the ruling.