Accused not entitled to have himself subjected to Narco Analysis Test: Kerala High Court

The Kerala High Court recently held that an accused in a case is not entitled to have himself subjected to Narco Analysis Test to prove his case as statements obtained through such tests are inadmissible in law [Luis v State of Kerala & Anr]..Justice MR Anithha held so while dismissing a petition filed by an accused who wanted to subject himself to Narco Analysis Test to buttress his statements under Section 313 Code of Criminal Procedure (CrPC).The Court relied on the Supreme Court judgement in Selvi & Ors. v. State of Karnataka in which the top court had found that when a narco analysis test is conducted with the intervention of some medication, the person is not conscious and may make some revelations from the subconscious mind. Therefore, the High Court opined that statements made during such tests are inadmissible in law, even if a person voluntarily subjects himself to it. "The above settled principles of law unequivocally lay down the position that the revelations brought out during Narco Analysis under the influence of a particular drug cannot be taken as a conscious act or statement given by a person. The possibility of accused himself making exculpatory statements to support his defence also cannot be ruled out. There is no mechanism or the present Investigating Agency is also not equipped to assess the credibility of such revelations of the accused. The Investigating Officers also would find themselves difficult to come to a definite conclusion regarding the veracity of the revelations so made and the other evidence already collected by them," the Court said in its order. .The petition was filed by a man who was charged by a Fast Track Special Judge for having committed rape punishable under Section 376(2)(i) of the Indian Penal Code as well under as the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).The case against him at the Special Court stood posted for defence evidence at which juncture, the petitioner sought permission to subject himself to a narco analysis test which was denied by the Special Judge.This prompted him to approach the High Court seeking the same relief.It was argued by the petitioner that the decision in Selvi only prohibits the prosecution from directing a narco analysis test on an accused. However, in this case, the petitioner wishes to subject himself to the test to prove his innocence as he is a hapless old man who was been accused of an offence with reverse burden of proof. In POCSO cases, the burden of prosecution is discharged once evidence to the effect that accused committed an offence is adduced through the victim and witnesses. The court may then presume that it was done with sexual intention. But the burden to establish that it was not done with sexual intent is upon the accused, i.e., reverse burden of proof, it was contended..The Court, however, took a different view of Selvi and going by the same, it held as follows:when a narco analysis test is conducted, a person is under the influence of certain drugs which might lead them to make statements subconsciously; the responses to narco analysis tests can vary from person to person;no uniform criteria for evaluating the efficacy of narco analysis techniques or credibility of testimonies under the influence;even when a person consents to a test, the possibility of testimony not being voluntary cannot be ruled out;persons undergoing the test may not be able to exercise the choice of remaining silent effectively..The Court concluded that statements adduced through a narco analysis test falls short of rigour expected under the Evidence Act and as such are not acceptable in law.Therefore, it declined to permit the petitioner to undergo a narco analysis test..[Read judgment]