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Whether Narco Analysis test is violative of Article 19, 20(3) or 21 of Constitution of India?, (2) whether Narco Analysis is injurious to health and thereby illegal?,(3) whether Narco Analysis test can be conducted without consent?. These are questions to be considered in these petitions.

2. The Investigating Agency, Central Bureau of Investigation, filed Crl.M.P.2696/2009 before Chief Judicial Magistrate, Ernakulam for permission to conduct Narco Analysis test on three witnesses, the petitioners in Crl.M.C.1218/2009 and also a Senior Police Officer. As per order dated 12.3.2009, Chief Judicial Magistrate permitted it and directed the four witnesses to appear before the Director of the Forensic Laboratory, Ahammedabad as and when required the Investigating Agency to bear their expenses. W.P. (C) No.8273/2009 was filed under Article 226 of Constitution of India by the first petitioner in Crl.M.C.1218/2009, for a declaration that she cannot be Crl.M.C.1218/2009 & W.P.(C)8273/2009 2 compelled to undergo Narco Analysis test without her consent and also to declare that the Narco Analysis test is injurious to health and violative of Article 21 of Constitution of India and for a direction to the Investigating Agency not to conduct the Narco Analysis test on her before she obtains copy of the order passed by the Chief Judicial Magistrate in Crl.M.P.2696/2009 so as to challenge it. Crl.M.C is filed challenging the order in Crl.M.P.2696/2009. The contentions raised in the Writ Petition by the first petitioner and by the petitioners in Crl.M.C.1218/2009 is one and the same. First petitioner in Crl.M.C.1218/2009 is the petitioner in W.P(C) 8273/2009.

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

11. A single Judge of the Madras High Court in Dinesh Dalmia v. State (2006 Crl.L.J.2401) had considered the question whether Investigating Officers have a right to direct the accused to undergo scientific test like narco analysis and whether it is violative of the Article 20(3) of the Constitution of India. Learned single Judge rejected the resistance based on Article 20(3) of the Constitution of India and uphold the right of the Investigating Agency to get a narco analysis test conducted on the accused. Division Bench of the Bombay High Court in Ramachandra Ram Ready v. State of Maharashtra (2004-BCR (Cri)1-657) considered the question whether conducting narco analysis test is violative of Article 20(3) of Crl.M.C.1218/2009 & W.P.(C)8273/2009 13 Constitution of India. It was held that narco analysis test (truth serum test) is not barred under Article 20(3) of the Constitution of India. Learned single Judge of the same High Court in Sampatrao R.Arvelli and another v. State of Maharashtra and Others (2009(1) KLD 541) also considered the question whether a narco analysis test on the accused/suspect is violative of Article 19, 20 and 21 of the Constitution of India. As in this case, it was contended before the learned single Judge that in view of the order passed by the Apex Court in K.Venkatarao v. State of A.P. Dated 20th November, 2006 referred to earlier and argued that narco analysis test cannot be permitted. It was found that there is no order of stay either in that particular case or a general stay order prohibiting undertaking the narco analysis test and when there is a tie between silencing constitutionally available individual right and prerogative of State to investigate and use, for that purpose, modern medicoforensic aides for larger good of larger number of persons of the community in larger interest modern scientific invention based on anesthetic drugs already in use over decades and electro gram and similar systems already used for over decades need to be used as an aid in the process of investigation and narco Crl.M.C.1218/2009 & W.P.(C)8273/2009 14 analysis test is not violative of Article 19, 20(3) or 21 of Constitution of India. The same question was considered by a learned single Judge of the Delhi High Court in Sh.Shailender Sharma v. State and Another (2009(1) KLD