Latest revision as of 17:50, 10 September 2017

[edit] Forced narco tests illegal: SC

From the archives of The Times of India 2010?

Polygraph, Brain Mapping Also Violate Accused’s Fundamental Rights

Dhananjay Mahapatra | TNN

New Delhi: The Supreme Court on Wednesday held as unconstitutional forcible narco-analysis, polygraph and brain electrical activation profile or brain-mapping tests, in a blow to cops who were increasingly using the procedures as investigation tools even when the findings could not be used as evidence.

In an order that virtually spells the demise of the practices which have become popular with cops, the SC said they cannot be used even on those accused of serial killings and bomb blasts as they are violative of the fundamental right of a citizen not to incriminate himself and his right to privacy under Articles 20(3) and 21 of the Constitution.

“No individual should be forcibly subjected to any of these techniques in question, whether in the context of investigation in any criminal cases or otherwise,” the apex court said.

On the face of it, the development is a jolt to investigators, considering that the tests have fetched leads for breakthroughs in major cases, including terror-related ones. But not every policeman was happy with reliance on unorthodox methods which led investigators to neglect more rigorous methods whose results would clear legal scrutiny.

Some investigators often found statements made by the accused during tests as flights of fancy which sent them on wild goose chases.

[edit] 'No Messing With The Mind'

[edit] The Ruling

SC holds forcible narco-analysis, polygraph and brainmapping tests as violating two fundamental rights: Article 20.3 that disallows self-incrimination and guarantees right to silence Article 21 that guarantees right to privacy

[edit] What It Means

Virtually ends role of such scientific & drug-induced tests. Even if accused consents to the test, results won't be admissible as evidence. Also, tests with consent will have to follow NHRC guidelines

[edit] Cases Affected

These high-profile accused cannot be forced to undergo narco-analysis tests now Ramalinga Raju & V Srinivasan in Rs 7,000cr Satyam scam case D G Vanzara in Sohrabuddin fake encounter case Kobad Ghandy, Maoist leader Santokben Jadeja, Gujarat's ‘godmother'

These accused underwent tests and prosecution depended on corroborative evidence based on narco. Will they seek re-trial?

Surinder Koli, Nithari serial killer

Abdul Karim Telgi, ailing fake stamp paper scamster

[edit] Accused can't seek narco test to prove innocence: SC

Dhananjay Mahapatra, Accused can't seek narco test to prove innocence: SC, Sep 9, 2017: The Times of India

Seven years after ruling that investigating agencies cannot force narco analysis test on an accused to elicit evidence, the Supreme Court on Friday said no accused in a criminal case can volunteer to undergo such a test to prove innocence.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud dismissed a petition by Sidhu Yadav, who had volunteered to undergo a narco analysis test to prove his innocence in a case under the stringent Protection of Children from Sexual Offences (POCSO) Act for allegedly sexually abusing a boy.

When the counsel repeatedly pleaded his client's innocence and requested for a direction to Delhi Police to subject Sidhu to the test, the bench said, “The investiga tion falls in the domain of the police and the court cannot order the mode and method of probe. It can only evaluate the evidence gathered by the investigating agency. No accused can say the police must conduct narco analysis test on him. Tomorrow, he may ask for polygraph test. Then there will be no end to the trial in criminal cases.“

When the petitioner's counsel said two high courts had ruled that an accused could volunteer for such tests, the SC said it would clarify when those cases were brought before it.

The FIR against Sidhu was lodged at Malviya Nagar police station in the national capital by an NGO on behalf of Tara Homes, a shelter for abandoned children. The police chargesheeted him. The child recorded his statement before a magistrate under Section 164 of the Criminal Procedure Code and said Sidhu had sexually assaulted him by penetrating his fingers into his anus.

The petitioner had moved an application during the trial, pleading to undergo polygraphnarco analysis brain mapping test while alleging that investigation was conducted in a prejudicial manner as the police deliberately overlooked the fact that at the time of alleged incident, he was using his mobile phone. The cops had examined his phone and found no activity during the time of commission of alleged offence. The trial court had dismissed the application.

The Delhi HC dismissed Sidhu's appeal while quoting a 2016 judgment of Bombay HC, which had said evidence recorded in the course of narco or polygraph test was not admissible and it would be hazardous to permit any accused to undergo such tests to prove his defence.