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5. Learned senior counsel appearing for petitioner argued that though a learned single Judge of this Court in Rojo George v. Deputy Superintendent of Police (2006 (2) KLT 197)held that Narco Analysis Test is not violative of Article 20(3) and 21 of Constitution of India, the earlier Division Bench decision of this Court in Sekharan & Others v. State of Kerala (1979 KLT 337) was not considered in the decision of the single Judge and therefore it is not a binding law. Learned senior counsel also argued that learned single Judge did not properly consider the various decisions of the Supreme Court on these aspects and so it is not binding and therefore this court has to reconsider Crl.M.C.1218/2009 & W.P.(C)8273/2009 4 the decision and if necessary it is to be referred to the Division Bench. Learned senior counsel argued that in any case the question whether Narco Analysis Test is violative of Article 19 of the Constitution of India was not considered in that case and if Narco analysis is to be conducted petitioners are to be taken to Ahammedabad as against their wishes and it is violative of their freedom of movement and in any such test is not permissible under the Code of Criminal Procedure and therefore the order passed by the Chief Judicial Magistrate is to be quashed. Learned senior counsel also argued that when the Investigating Agency approached the Chief Judicial Magistrate for permission to conduct the test stating that they sought consent of the petitioners to undergo the test, fact that petitioners refused to give consent was suppressed from the court and the impugned order was obtained from the court playing fraud and therefore the order is vitiated. Reliance was placed on the decision of the Apex Court in S.P.Chengalvaraya Naidu v. Jagannath (AIR 1994 SC 853) and it was argued that when such material aspect was withheld from the court and the impugned order was obtained by playing fraud, the order is to be set aside. It was also argued that in W.P(C) 35392/2008 the Crl.M.C.1218/2009 & W.P.(C)8273/2009 5 Investigating Agency had undertaken that they will follow the mandate of Section 160(1) of Code of Criminal Procedure while questioning the three witnesses against their wishes and the fact that if petitioners are to be taken outside the State to conduct the Narco Analysis Test, it would be violative of the undertaking given to this court was also suppressed from the Chief Judicial Magistrate and therefore on that ground also the order is to be set aside. Learned senior counsel then argued that the question whether a person could be subjected to Narco Analysis Test without consent came up for decision before the Supreme Court in Venkateswara Rao v State of A.P. (Special Leave to Appeal 5846/2006) and finding that the question whether an accused can be compelled to undergo Narco Analysis test is of some importance, the matter was referred to the larger Bench after recording the submission of the counsel appearing for the CBI that until further orders ,Narco Analysis Test shall not be conducted, hence the petition filed before the Chief Judicial Magistrate is against the said undertaking. It was submitted that the question was later heard by the Supreme Court and a decision is awaited and in such circumstance, the Investigating Agency cannot be permitted to conduct a Narco Analysis Test. Learned senior counsel also pointed out that the Law Commission has Crl.M.C.1218/2009 & W.P.(C)8273/2009 6 recommended to ban Narco Analysis Test finding that it is violative of the fundamental rights and is not followed by civilized countries and in such circumstance the impugned order is to be quashed.

6.The learned counsel appearing for the CBI and the learned counsel appearing for the third respondent supported the impugned order contradicting the submissions. It was pointed out that the undertaking given to the Apex Court in Special Leave to Appeal 5846/2006 relied on by the petitioners is only in respect of the said case and there is no order baning the Narco Analysis Test or prohibiting the CBI from seeking permission to conduct Narco Analysis Test. It was also submitted that even after the order passed in Special Leave to Appeal 5846/2006 dated 20.11.2006 Supreme Court in Special Leave to Appeal 1535/2006 and Crl.Misc. Petition 3381/2006 permitted the CBI to complete renarco analysis test on the suspect on the dates indicated and therefore the submission that Narco Analysis Test was not permitted by the Supreme Court is not correct. They also pointed out that apart from the decision of the learned single Judge of this court, Narco Analysis test was approved by the High Courts of Madras, Bombay and Delhi finding that they are not violative of the fundamental rights enshrined the Constitution and therefore Crl.M.C.1218/2009 & W.P.(C)8273/2009 7 there is no substance in the challenge. Learned counsel also pointed out that the question considered by the Division Bench in Sekharan's case (supra)(1979 KLT 337) whether Narco Analysis Test is violative of the provisions of Constitution of India or is legal was not considered and the passing of reference about Narco Analysis Test in the said decision, did not arise for decision in that case and therefore that reference is not the law and Justice K. Padmanabhan Nair in Rojo George's case (supra) (2006(2) KLT

Therefore the challenge against the order passed by the Chief Judicial Magistrate based on Article 20(3) can only be rejected.

14. Secondly the impugned order was challenged on that ground it violates Articles 5,12, and 17 of Universal Declaration of Human Rights 1948 and as declared by th Apex Court in People's Union for Civil Liberties v. Union of India (AIR1997 SC 568) the said convenants are applicable to India and as declared by the Supreme Court in Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465) the International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the words in those Declarations and Convenants have to be given effect to and therefore against the wishes of the petitioners narco analysis test cannot be conducted as it is an intrusion on their privacy. It was argued that though Section 160 of Code of Criminal Procedure enables a Police Officer to Crl.M.C.1218/2009 & W.P.(C)8273/2009 18 require attendance of witnesses to record their statement, it does not enable the Police Officer to take the witness out of his place of residence and that too to Ahammedabad to conduct narco analysis test. The argument is that by administering the narcotic drug stultifies the senses and thereby the freedom of speech and it violates the fundamental rights provided under Article 19 of the Constitution of India and on that ground also the order is vitiated. Learned senior counsel also argued that the order is violative of Article 21 of the Constitution of India, as petitioners cannot be deprived of their life or personal liberty other than following the procedure established by law and when the Code of Criminal Procedure does not provide for conducting narco analysis test that too as against witnesses and the order is violative of Article 21 also. It was argued that as declared by the Apex Court in Kharak Singh v State of U.P (A.I.R. 1963 SC 1295), Govind v. State of M.P. (AIR 1975 SC 1378), R.Rajagopal v. State of Tamil Nadu (AIR 1995 SC 264) the ambit of personal liberty guaranteed under Article 21 is very wide and it concludes the right for their privacy, which cannot be intruded by administering drugs to conduct narco analysis test. It is also argued that Section 53 Crl.M.C.1218/2009 & W.P.(C)8273/2009 19 of Code of Criminal Procedure, does not include subjecting a person for narco analysis and there is no procedure established by law which enables the Investigating Agency to compel a witness to undergo narco analysis. Learned senior counsel also argued that though learned single Judge in Rogo George's case (supra)(AIR 1954 SC 300) overruled the contentions, based on Article 21 and 20(3) of the Constitution, it is not considering all the relevant decisions of the Apex Court and therefore decision warrants reconsideration and in any case the question whether narco analysis is violative of fundamental right under Article 19 was not considered and the further question whether Section 53 of Code of Criminal Procedure permits the Investigating Agency to compel a witness to undergo narco analysis test was also not considered and therefore the dictum in Rojo George's case (supra) cannot be followed.

22. Though learned senior counsel relied on the opinion of Dr.Umadathan and in general submitted that narco analysis is a health hazard, no material based on proper scientific study was placed to hold that narco analysis is a health hazard. The opinion of the expert could have been accepted, if it is based on a scientific study on several persons who were subject to the narco analysis test and that too considering their health condition prior to and subsequent to the test. Even if a cardiac arrest resulted subsequent to a narco analysis test,unless it is established there is direct nexus for the cardiac arrest and the test conducted, for the sole reason that subsequently the person subject to narco analysis had a cardiac arrest it cannot be concluded that it is because of the narco analysis test. Learned counsel appearing for the C.B.I also pointed out that narco analysis test was conducted on the three accused in this case and they did not experience any health hazard. It was also pointed out that eventhough narco analysis test was proposed to be conducted to one Augustine due to his health conditions, he was not subjected to narco analysis and therefore there is no reason to presume that narco analysis would be conducted on the petitioners, if their health condition do not permit it. Therefore on that ground also I do not find Crl.M.C.1218/2009 & W.P.(C)8273/2009 30 any reason to interfere with the order. Justice Padmanabhan Nair in Rojo George's case (supra) considered the plea that narco analysis is a health hazard and found that an expert in the field only after taking all possible precautions would conduct the test and therefore on the health grounds permission granted to C.B.I cannot be interfered. I agree with the view expressed in Rojo George's case.