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investigating authority is exploring the possibility of a narco analysis test of the petitioner.

In view of such common meeting ground in the investigative process, query was put to the petitioner as to whether he volunteers to undergo a narco analysis test or not, on the previous date of hearing. Learned senior advocate for the petitioner wanted time to take instructions, which was granted.

In course of hearing today, learned senior advocate for the petitioner submits that, although the petitioner is agreeable to undergo a narco analysis test, it is the duty of a senior advocate, as an officer of the Court, to bring to the notice of the Court the law relating to narco analysis test as laid down by the Hon'ble Supreme Court in the Case reported at 2010 (7) Supreme Court cases 263 (Selvi-Vs-State of Karnataka). He refers to various paragraphs of such judgment, particularly to paragraphs 22, 42, 48, 49, 50, 66, 71, 102, 117,122, 132, 139, 146, 227, 262, 264 and 265 thereof amongst others. He submits that, the usefulness of a narco analysis test has been doubted. Moreover, the Supreme Court has held that administration of narco analysis test violates the right against self- incrimination as enshrined in Article 20 (3) of the Constitution of India..

On instructions, the learned senior advocate for the petitioner submits that, the petitioner is willing to undergo a narco analysis test. He, however, submits that, the safeguards enumerated in Selvi (supra) should be followed in undertaking such narco analysis test. He submits that, the writ petition should be kept pending so as to facilitate the investigating authority to submit a report of such examination to this Court.

The learned Additional Advocate General appearing for the respondents submits that, the writ petition is not maintainable. An accused in a criminal proceeding cannot choose the investigating authority. The principal prayer of the writ petition is not available to the writ petitioner. The petitioner is an accused in the concerned police case. In such police case, he is being investigated upon as an accused. He has been called to the police station for the purpose of interrogation. The petitioner is not cooperating in the investigation. The petitioner has not been arrested in spite of the investigating authority having the right to do so in view of the non-cooperation by the petitioner. The petitioner did not turn up on the last date fixed for the purpose of interrogation. The petitioner has, however, filed the writ petition. The State has not taken any steps in view of the pendency of the writ petition. In the event the Court is pleased to allow a narco analysis test, the State has no objection with regard thereto. If the writ petition is kept pending, then an opportunity to file affidavit should be granted to the respondents, provided the point of maintainability of the writ petition is kept open to be adjudicated upon.

I have heard the rival contentions of the parties and the materials made available on record.

The petitioner is an accused in the concerned Muchipara Police Station case. Such police case is being investigated upon. The petitioner was called for the purpose of investigation for five days before the local police station. The petitioner had attended such investigation. According to the investigating authority, the petitioner is not cooperating and, therefore, the investigation is not making further headway. The investigating authority is of the view that the petitioner should undergo a narco analysis test. Selvi (supra) is of the view that, compulsory administration of narco analysis test violates the right against self-incrimination. It violates the scope of Article 20 (3) of the Constitution of India and that the application under Article 20(3) of the Constitution of India extends to the investigative stage in criminal cases. Read with Section 161 (2) of the Code of Criminal procedure, 1971, it protects the accused during the investigation also. However, Selvi (supra) is of the view that, voluntary administration of narco analysis test in the context of criminal justice is permissible, provided the safeguards are adhered to with regard thereto. Selvi (supra) lays down the safeguards to be followed. One of the safeguards is that, there has to be a voluntary act of the accused to undergo such test. Such consent of the accused has to be recorded before a judicial Magistrate.

This order will not be construed as a direction upon the learned Magistrate, who is in seisin of the proceedings. The consent of the petitioner to undergo a narco analysis test must be in terms of the guidelines of Selvi (supra). It is open to the learned Magistrate to pass such orders as he deems appropriate in the facts of the case. The learned Magistrate will not be influenced by any of the observations made in this order in any manner whatsoever.

The learned advocate for the petitioner expresses an apprehension that the evidence so collected in the narco analysis test may be disclosed by the investigating officer to the prejudice of the petitioner and the trial. The learned Additional Advocate General appearing for the respondents submits that, the evidence, if any, collected in the narco analysis test, if the petitioner undergoes the same, would be guided by the relevant law and the directions of the learned Magistrate concerned.