Can a defendant seek to be subjected to a narco test to prove his or her innocence? Responses from the High Court of Kerala

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In a recent judgment, the Kerala High Court refused to allow a defendant’s plea in a POCSO case where he voluntarily submitted to a narco analysis test to prove his innocence in the case.

Noting that even if they are authorized, the statements obtained through the test are not admissible in law, Judge M. Anitha tenuous:

“Disclosures made during Narco Analysis while under the influence of a particular drug cannot be considered a conscious act or a statement made by a person. The possibility that the accused himself would make exculpatory statements to support his defense cannot be excluded either … So the claim of the applicant’s lawyer that, to support his statements under Article 313 Cr.PC, these materials collected by the analysis test of Narco can be used as corroborating evidence, etc., is not at all sustainable in law. “

The applicant was charged under section 376 (2) (i) IPC and section 6 r / w 5 (m) of the POCSO Act.

Lawyers M. Revikrishnan, PM Rafiq, Sruthy N. Bhat. Ajeesh K. Sasi and Pooja Pankaj appeared for the petitioner and argued that he was an unfortunate old man charged with a reverse onus offense and asked the court to comply voluntarily to Narco analysis to prove his innocence.

They further argued that, in accordance with the law set out in Selvi & Ors. vs. State of Karnataka (2010 (7) SCC 263), this would amount to compulsion to testify only if the accused is subjected to scientific tests such as narcoanalysis, brain mapping, polygraph or lie detection by the prosecution without his authorization.

In addition, it has been alleged that Articles 29 and 30 of the POCSO Act provide for the reversal of the burden of proof, including the culpable mental state of the accused. It is therefore up to the accused to rebut these legal presumptions. In such circumstances, the accused’s request for drug testing should be allowed to substantiate his statement under section 313 of the Code,

The question before the Court was whether the accused had the right to ask to be subjected to the Narco analytical test.

The judge noted that in Selvi ‘In that case, the Supreme Court categorically ruled that no individual should be forcibly subjected to any of the techniques in the course of an investigation in criminal cases or otherwise and that this would amount to an unjustified interference with his or her. personal freedom guaranteed by Articles 20 (3) and 21 of the Constitution.

The main concern of the Court was that the possibility that the testimony was not voluntary even if the person freely consents to submit to the test cannot be excluded.

“The danger for the person of not being able to exercise an effective choice to be silent and impart personal knowledge is also present since the results are derived from psychological responses.”

In addition, the Court found that when a narco analysis test is performed with the intervention of certain drugs, the person is not conscious and can make certain revelations from the subconscious mind. The credibility of this revelation falls far short of the fact described under the Evidence Act. The possibility that some people concoct whimsical stories during the hypnotic phase also cannot be ignored.

Responses from a different individual under such circumstances would vary, the result of the lack of uniform criteria for evaluating the effectiveness of the Narco analysis technique is another dictum concern in Selvi’s case, the judge.

It was further noted that the Apex Court had also foreseen the danger that such tests would be authorized at the request of the prosecution since, under the principle of parity of procedure, if the accused files such a request, this must also be allowed. This would lead to the reopening of cases or even could be used to attack the credibility of witnesses during the trial, the Panel observed.

“Therefore, even if the petitioner voluntarily submits for the Narco analytical test, there is no guarantee that the statements are voluntary. Thus, even if the court allows the petitioner to be tested for Narco’s analysis, it has no legal acceptability. “

Accordingly, the Court concluded that disclosures made during a narcotics analysis under the influence of a particular drug cannot be regarded as a conscious act or a statement given by a person. The possibility that the accused himself will make exculpatory statements in support of his defense cannot be excluded either.

In addition, it was noted that the current Investigation Agency was not equipped to assess the credibility of such disclosures by the accused. It would also be difficult for investigators to draw a definitive conclusion regarding the veracity of the revelations thus made and other evidence already collected by them. As such, the petitioner’s claim that to support his statements under Article 313 Cr.PC, these materials collected through a narcoanalytical test can be used as corroborating evidence n is not at all sustainable in law. As such, the Crl.MC was deemed to be devoid of any merit and therefore removed from office.

The defendants were represented by the public prosecutor Sangeetharaj NR, lawyers SS Aravind and MV Amaresan.

Case title: Louis v. Kerala state

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