Reply To: Procedure For the NARCO Analysis Test

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Whether before conducting/performing Narco tests, the consent of the subject is required?

In other words, whether in absence of consent of the accused person, the aforesaid two tests are permissible? As held merely conducting of or performing of the aforesaid two tests on the accused would not take away the protection guaranteed under Article 20(3) of the Constitution of India and the said aspect is not required to be considered at the time of performing/conducting the aforesaid two tests and only when the statement which has been recorded during the course of the Narco Analysis Test, if it is used against the person as evidence at that stage, the same is required to be considered. Therefore, the question of consent at the stage of conducting/performing the aforesaid two tests is not required to be considered. As stated hereinabove, conducting/performing of the aforesaid tests is a part of investigation and for the investigation by the Investigating Agency the consent of the accused is not required, otherwise the Investigating Agency will not be in a position to further investigate the case, if the consent of the accused is required. At this stage, it is also required to be noted that the accused has not allegedly come forward with the truth and therefore, scientific tests are resorted to by the Investigating Agency. When the accused/person has not told the truth during the investigation, naturally, that accused/person would not be voluntarily giving consent for the aforesaid tests as he is always apprehensive that if the aforesaid two tests are conducted than the same might go against him therefore, he is bound to not give consent. Even it is not expected from a person/accused to give consent for the aforesaid two tests when he has not come forward with the truth.

As stated above, the aforesaid two tests are the scientific methods of investigation and are the part of investigation. There is no provision under the Criminal Procedure Code to have the consent of the accused before or during the investigation. It is also to be noted that before subjecting the accused to Narco Analysis Test his/her mental fitness will be ascertained and thereafter only accused will be subjected to Narco Analysis Test. The dosage level required to take a person to the hypnotic stage is found to be 3-4 times smaller than those required for stages beyond. Therefore, this low concentration of the drug used in the said test will not have any adverse effect on any system of the body. Necessary precautions are always taken by the medical experts at the time of examination and the doctors and anaesthetists and the experts are present at the time of conducting/performing such test. Under the circumstances, the contention on behalf of the petitioner-accused that before conducting/performing the aforesaid two tests, the consent of the accused person who will be subjected to the aforesaid tests is required cannot be accepted and the answer to such question is in negative.

Gujarat High Court in Santokben Sharmanbhai Jadeja vs State Of Gujarat [2008 CriLJ 68, (2008) 1 GLR 497, 2008 (2) KLT 398]