Kerala High Court
Rojo George vs Deputy Superentendent Of Police on 10 March, 2006
Equivalent citations: 2006(2)KLT197
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
ORDER K. Padmanabhan Nair, J.
1. The petitioner Shri Rojo George, S/o.George is a suspect in Crime No. 292/2005 of Alappuzha North Police Station, re-numbered as Crime No. R.C. 1 (S)/2006/CBI/ SCB/MUM/CHE. The case centres around the missing of a seven year old boy, by name Rahul from Alappuzha. The boy was found playing in a play ground wherein some other children were also playing. From the play ground he had gone to drink water from a nearby water tap. Thereafter he vanished into the thin air. Initial investigation was conducted by the local police. They were not able to get any clue. The investigation was handed over to the Crime Branch. The Crime Branch was also not able to get any clue regarding the missing of the boy. Subsequently as per the order of this Court the investigation was handed over to the Central Bureau of Investigation and now the case is investigated by the CBISCB, Chennai.
2. In the Writ Petition it is averred that the CBI is harassing the petitioner and compelling him to undergo Narco Analysis Test (Truth Serum Test) at Forensic Science Laboratory at Bangalore. It is averred that the petitioner was questioned in connection with the above crime by the first respondent in several occasions and was subjected to polygraph test as well as brain mapping examination (P-300 test) at the Forensic Science Laboratory at Bangalore. It is averred that the petitioner fully co-operated with the Investigating Agency till now. It is further averred that the first respondent filed a petition before the Chief Judicial Magistrate, Ernakulam on 13.2.2006 seeking permission for subjecting the petitioner for narco analysis at Forensic Laboratory at Bangalore. It is averred that while transferring the investigation to the CBI this Court has observed that of CBI makes a request for brain mapping narco analysis, polygraph test etc. the concerned Laboratory shall give top priority to the said request and facility shall be provided out of turn to conduct the test. It is also averred that on 16.2.2006 a notice issued by the court was served on the father of the petitioner whereby the petitioner was directed to appear before the court below on 17.2.2006 at 2.30 p.m. Subsequently the petitioner appeared before the court below on 20.2.2006 and on 21.2.2006 he submitted a written statement expressing his apprehension regarding the marco analysis proposed to be conducted upon him. It is averred that he had pointed out the fact that narco analysis is a complicted procedure which has adverse reactions as well as drastic side effects and some time it may be even fatal. It is averred that the attempt of the Investigating Agency was to shift the responsibility from their shoulders to the court in order to save themselves from the precarious situation. It is averred that that petition was disposed of by the court below stating that the Investigating Agency does not require permission of the court for subjecting the petitioner for narco analysis. It is averred that the court did not consider the main contention raised by the petitioner that the narco analysis may result adverse effects upon the person and some times even fatal. It is further averred that the court below has only considered the propriety of the investigating agency in filing a petition seeking permission. It is averred that on the next day the CBI officers came to the house of the petitioner and directed his parents to produce him before the Investigating Agency or else to face the consequences. It is also averred that they have threatened his father that they would take petitioner into custody and subject him to narco analysis even without his consent since the Chief Judicial Magistrate has given a free hand to the CBI. It is averred that the proposed narco analysis test is highly complicated test conducted after administering sodium pentathol which is an ultra short acting barbiturate that drug depresses the central nervous system, slows heart rate and lowers blood pressure. It is further averred that it is very difficult to determine the correct dosage of the drug to be administered on a subject since the same varies according to the age, sex, physical constitution and also mental attitude and will power. It is further averred that a wrong dose could send a subject into coma or even cause death. It is further averred that the petitioner apprehends that if he is subjected to narco analysis at this young age of 24, it will have far reaching consequences on both his physical and mental constitution. It is averred that the attempt of the CBI is to fasten the criminal liability in the above crime to someone. It is also averred one Krishna Pillai confessed that he committed the offence. But the officers are not prepared to investigate whether that confession is true or not. The petitioner whole heartedly co-operated with the Investigating Agency while conducting brain mapping as well as polygraph test but the Investigating Agency was not able to collect any material. According to the petitioner Investigating Agency is bound to follow the procedure established by law even in the case of a suspect. He may not be compelled to undergo the test without an undertaking from the Investigating Agency that no adverse consequences will result by undergoing that test. It is also averred that subjecting a person into narco analysis will amount to violation of the fundamental right guaranteed to the petitioner under Articles 20(3) and 21 of the Constitution of India. It is averred that the Investigating Agency has no right or authority to insist for such a test. So the Writ Petition is filed for a declaration that the request of the CBI to subject the petitioner for narco analysis as part of the investigation lacks authority of law, as the same is violative of the fundamental rights guaranteed to the petitioner under Articles 20(3) and 21 of the Constitution of India and also for a writ of mandamus or any other appropriate writ, direction or order, directing the respondents 1 and 2 not to compel the petitioner to undergo narco analysis without assuring the petitioner as well as this Court that narco analysis is totally harmless and the same would not in any manner injuriously affect the physical and mental constitution of the petitioner.
3. Notice on the petition was taken by Shri S. Sreekumar, standing counsel for CBI on behalf of respondents 1 and 2 and learned Public Prosecutor Shri P.M.A. Kalam for respondent No. 3. The CBI has not filed any counter affidavit to the Writ Petition. But Shri Sreekumar had stated the procedure for conducting the narco analysis test.
4. As I have already stated the case centres around the missing of a seven years old boy, by name Rahul on 18.5.2005. He was playing with other children of his age in a nearby field. According to the prosecution case the boy had gone to the nearby water tap for drinking water and thereafter nobody seen him and he disappeared without any trace. Originally the case was investigated by the local police and then by the Crime Branch and finally by the CBI. As per the order passed by this Court in W.P.(C), No. 18083/2005 this Court entrusted the investigation of the case with the CBI. This Court directed the CBI to conduct and complete the investigation as expeditiously as possible. Paragraph 10 of the judgment reads as follows:
If the Central Bureau of Investigation makes a request for Brain Mapping, Narco analysis or Polygraph test, etc, the laboratory concerned shall give top priority to the said request and facility shall be provided out of turn to conduct the test. The CBI shall ensure that the investigation is taken over as expeditiously as possible, at any rate, within 7 days from the date of receipt of a copy of this judgment.
5. The CBI filed a petition before the Chief Judicial Magistrate, Ernakulam seeking permission to subject the petitioner to narco analysis test at Forensic Science Laboratory at Bangalore. The prayer was opposed by the petitioner. The learned Magistrate disposed of the petition holding that the Investigating Agency can conduct the narco analysis on the suspect or persons concerned in the crime for the purpose of effective investigation without obtaining permission from the court. It is further held that nobody can stand in the way of an Investigating Agency for conduct of recognised test for an effective investigation. It is thereafter this Writ Petition is filed by the petitioner.
6. The learned Counsel appearing for the petitioner has argued that the method adopted by the Investigating Agency is to inject Sodium Pentathol which is a barbiturate on the person who is subjected to the test so as to put him in a hypnotic trance. It is argued that Sodium Pentathol is a barbiturate which is having very serious side effects and if it is injected without proper care and guidance, even death can occur. He relied on a text book written by Harold I. Kaplan, MD and Benjamin J. Sadock, MD by name Comprehensive Text Book of Psychiatry (VI Edition), Chapter 32.6 of the book deals with Barbiturates. According to the learned author Barbital, the first barbiturate, was introduced into clinical medicine in 1903. The learned Counsel invited my attention to page 1928 of book wherein "effects on specific organs and systems" are discussed. It is stated as follows:
...the barbiturates have effects on all organs and systems and the CNS is most sensitive to the effects of the barbiturates at clinical dosages most effects are central....
According to the learned Counsel appearing for the petitioner the barbiturate directly affect the central nerve system.
7. The learned Counsel for the petitioner invited my attention to the following passages:
Barbiturates have a marked respiratory depressant action, mediated centrally by the reticular activating system. The effect is of particular concern in patients with other causes of decreased respiratory drive (concurrent use of CNS depressants) or decreased functional respiratory reserve who cannot compensate for the decreased central drive.
Laryngospasm may occur after parenteral barbiturate administration. The ability to maintain an airway is essential whenever parenteral barbiturates are used.
He also invited my attention to the discussion on the subject by sub-title "Precautions and adverse reactions." It is stated as follows:
... Barbiturates are contraindicated in patients with intermittent acute porphyria, in patients with impaired respiratory drive or limited functional respiratory reserve, and in patients with sensitivity to a barbiturate.
Barbiturates use may lead to abuse or dependence. If used at all, barbiturates should be prescribed at low dosages for a limited duration for the treatment of specific symptoms. Their use is contraindicated in patients with histories of drug or alcohol abuse or dependence.
It is argued that in some cases barbiturate use is associated with the development of exfoliative dermatitis or Stevens-Johnson syndrome. So according to the petitioner by administering Sodium Pentathol, a barbiturate, is violative of the fundamental rights conferred on a Indian citizen under Articles 20(3) and 21 of the Constitution of India.
8. While considering the effects on specific organs and systems the authors have stated as follows:
At clinically used doses, the oral barbiturates have few cardiac effects. At doses higher than those used for anesthesia, such as an overdose, cardia muscle contractility can be decreased. Generally, barbiturates do not affect blood pressure.
In page 1928 it is also stated as follows:
the FDA has labeled the following barbiturates as safe and effective for the treatment of anxiety and apprehension; amobarbital, aprobarbital (Alurate), butabarbital (Butisol), mephobarbital (Mebaral), Pentobarbital, Phenobarbital and secobarbital.
The FDA has also approved amobarbital for narco analysis. So it is clear that the usage of barbiturates has been approved for narco analysis by many countries.
9. It is true that like any other drug barbiturate use may have adverse reaction. But most of the passages relied on by the petitioner is regarding the effect of the drug and not its adverse reaction. The Central Nervous System is the most sensitive to the effects of the barbiturates but that is not an adverse reaction. It is to be noted that barbiturates are used for the treatment of anxiety and apprehension. So it is administered as medicine to patients. Most of the medicines prescribed by the doctors practising modern medicine is having adverse reaction. When a patient is subjected to X ray or C.T. Scan also the possibility of adverse reaction is there. Still the same is used for diagnosing diseases. When such tests are conducted necessary precautions are to be taken.
10. Sri S. Sreekumar, the learned standing counsel for the CBI has submitted that the test is conducted by the expert scientists attached to the Forensic Laboratory at Bangalore and not by the CBI. It is submitted that CBI will take the person to the Forensic Laboratory and thereafter CBI has no control over the person or the experts. It is submitted that the normal procedure is to administer 3 grams of sodium pentathol dissolved in 300 ml of distilled water. The same is administered intravenously along with 10% dextrose over a period of three hours with the help of anesthetist on the subject. It will drive the suspect slowly into the state of hypnotic trance. The revelations made at that stage are recorded both in video and audio tapes. After the test the suspect is allowed to relax for some time. A report will be prepared by the experts.
11. It is submitted that before conducting narco analysis an evaluation of the suspect will be conducted to find out whether the suspect is fit to undergo narco analysis. Before subjecting a suspect to narco analysis his HB, TC, DC, ESR, Blood Sugar, Fasting Post prandial, Random, Blood urea, Se Creatinine, Urine Complete analysis, BP, Chest X Ray PA, ECG, ECHO and TMT are also taken. The experts who conducted the evaluation will have to certify that the suspect is fit to undergo narco analysis examination and thereafter only the test will be conducted. The entire process will be videographed and after the test report along with video-tape and audio-tape will be handed over to the CBI. It is submitted that since the test is conducted by another agency which is a Government institution, the CBI cannot give any assurance in the matter. The CBI can only give an assurance that while the suspect is in the custody of the CBI they will not cause any harm to the suspect. As I have already stated narco analysis is a scientific test conducted by the experts in the subject after taking all possible precautions. It is true that it has got adverse reactions also. But such adverse reaction can happen while administering any medicine prescribed by doctors practising modem medicine. So merely because there is a remote possibility of adverse reaction, use of such technics in conducting investigation cannot be prevented.
12. The learned Counsel appearing for the petitioner vehemently argupd that by subjecting the petitioner to such a test the fundamental rights guaranteed under Articles 20(3) and 21 of the Constitution of India are violated. It is argued that by subjecting a suspect to narco analysis against his will amount to testimonial compulsion and also amounts to denial of fair procedure of reasonable and just in the context of Article 21 of the Constitution of India. In State of Punjab v. Mahinder Singh Chawla AIR 1997 SC 1225 the Apex Court has held that the right to life include right to health. Subjecting a person to a scientific test as part of investigation will not amount to denial of health. It will not amount to denial of reasonable and just procedure. See Maneka Gandhi v. Union of India AIR 1978 SC 597. The right to life and right to personal liberty in India have been guaranteed by Article 21 of the Constitution of India. But subjecting a person to narco analysis will not amount to deprivation of personal liberty or intrusion into one's own privacy. It is pertinent to note that in M.K. Sharma v. Bhenal Electronics Ltd. AIR 1987 SC 1792 a section of workers of a Public Sector Undertaking filed a case claiming compensation for being exposed to ill effects of x-ray radiation. The Apex Court issued directions as to check and safeguards to be adopted to guard against radiation but did not allow the prayer for compensation. It was held that the consequence may appear later no compensation at that stage was warranted. So I do not find any merit in the argument advanced by the counsel for the petitioner that if CBI is allowed to proceed with the test it will amount violation of the fundamental right guaranteed under Article 21 of the Constitution of India.
13. It is argued that recording of a statement of a person undergoing narco analysis will amount to testimonial compulsion and the same is violative of Article 20(3) of the Constitution. The protection against compulsion to be a witness is limited to persons accused of an offence. There is no constitutional protection to persons other than the accused. See Narayan Lal v. Manick AIR 1961 SC 29. The immunity under Article 20(3) does not extend to compulsory exhibition of the body or giving blood specimen as held in Daslagir v. State of Madras AIR 1960 SC 756. My considered view is that the same principle should apply to narco analysis also because it is also a scientific test conducted by a team of scientists and not will amount to custodial interrogation by Police.
14. It is true that Article 20(3) gives protection against testimonial compulsion. In Nandmi Satpathy v. S.L. Dani AIR 1978 SC 1025 the Apex Court has held protection given to the accused commences as soon as a formal accusation is made whether before or during prosecution. The Supreme Court has also considered application of third degree methods to extract confession from the accused. The principle laid down in Nandini Satpathy's case has no application to narco analysis, which is a scientific test conducted during investigation. A Division Bench of the Bombay High Court in an unreported decision in Rama Chandra Reddy v. State of Maharashtra (Criminal Writ Petition No. 1924 of 2003) decided on 9.3.2004 held that compelling a person to undergo narco analysis will not amount violation of the constitutional protection given to a citizen under Article 20(3) of the Indian Constitution. A learned Single Judge of Madras High Court in Dinesh Dalmia v. State SPECBI BS & FC New Delhi Crl. RC. No. 259 of 2006 decided on 7.3.2006 also held that such a course does not amount to testimonial compulsion.
15. In present days the technics used by the criminals for commission of crime are very sophisticated and modern. The conventional method of questioning may not yield any result at all. That is why the scientific tests like polygraph, brain mapping, narco analysis, etc. are now used in the investigation of a case. When such tests are conducted under strict supervision of the expert, it cannot be said that there is any violation of the fundamental rights guaranteed to a citizen of India.
16. The learned Counsel for the CBI has handed over the reports of brain mapping test and polygraph test conducted on the petitioner. A perusal of the reports shows that the stand taken by the CBI that the petitioner shall under go truth serum test is correct and reasonable.
17. It is argued that the result of this test has no use in conducting the trial of the case and the result is inadmissible in evidence. The learned Counsel appearing for the petitioner relied on a text book of 'Clinical Psychiatry' (IV Edition) written by Robert E. Hales and Sturart G.Yudofsky. While considering the effects of polygraph, brain mapping, etc. the learned author has opined the forensic and legal issues regarding the value of the said test. It is premature to consider the admissibility and relevancy of such a report at this stage. Whether the Investigating Agency can produce such materials during trial and whether that material can be relied on to convict are matters to be decided at the appropriate stage subject to the law regarding evidence on this point. So I am not considering that issue in this proceedings.
18. In this petition, the CBI and the State of Kerala alone are parties. An evaluation form provided for the perusal of this Court shows that the test is conducted by an expert in the field after taking all possible precautions and not by any layman. Of course the possibility of side effects cannot be ruled out in any case. Even in the case of normal administration of medicine or surgery that can happen. So this Court cannot insist for any undertaking by the CBI in this regard. Normally the Forensic Science Laboratory will conduct the test strictly in accordance with the procedures prescribed. So the reliefs sought for in the petition cannot be granted. The petition is only to be dismissed. In the result, Writ Petition is dismissed.