1) By this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the petitioners seek a direction to the respondent No.2-the Detective Police Inspector, C.I.D. Crime, Palanpur Unit, Gandhinagar to stop further proceedings for narcoanalysis test of the petitioners in connection with the first information report registered vide Danta Police Station I-C.R. No.67 of 2005.
2) The above referred first information report came to be registered with the Danta Police Station for the offence punishable under section 302 of the Indian Penal Code. In the said first information report, the names of the petitioners are not reflected as accused. Pursuant to the lodging of the said first information report, investigation came to be carried out during the course of which, statements of the petitioners and other persons came to be recorded. It appears that, thereafter, the investigation was transferred to L.C.B., Palanpur and the petitioners were continuously called for ten days for investigation and recording of statements and were also subjected to the lie-detector test, however, no clue was found.
3) Thereafter, the investigation was being carried out by the respondent No.2 and by summons dated 19.9.2008, the petitioners as well as other persons were called for interrogation. It is the case of the petitioners that during the course of recording their statements, on 22.5.2009, Police Inspector Shri Solanki of the C.I.D. Crime, Palanpur Unit came to the circuit house and called the petitioners and took signatures on blank papers telling them that they would have to be ready for undergoing narcoanalysis test within a period of three months. Being aggrieved, the petitioners have filed the present petition, seeking the relief noted hereinabove.
4) Mr. Virat Popat, learned advocate for the petitioners submitted that the controversy involved in the present case is no longer res integra inasmuch as the Supreme Court in the case of Smt. Selvi & Ors. Vs. State of Karnataka, AIR 2010 SC 1974, has held that no individual should be forcibly subjected to any technique, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. Doing so would amount to an unwarranted intrusion into personal liberty. The court left room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Attention was also invited to the guidelines referred to by the Supreme Court which are also required to be adopted for conducting the narcoanalysis techniques, which, inter alia, lay down that such tests should not be administered except on the basis of consent of the accused and that such consent should be recorded before a Judicial Magistrate.
5) It was submitted that in the present case, the petitioners herein have not given their consent. Assuming that, as contended by the respondents, the petitioners have given their consent, the filing of the present petition is indicative of the fact that the petitioners have withdrawn any such consent, if at all, given by them. Moreover, under the guidelines laid down by the Supreme Court in the above referred decision, the consent should be recorded before the Judicial Magistrate, whereas admittedly no such consent has been recorded before the Judicial Magistrate. Under the circumstances, the petition deserves to be allowed by restraining the respondent No.2 from subjecting the petitioners to narcoanalysis test.
6) On the other hand, Ms. Krina Calla, learned Additional Public Prosecutor submitted that the petitioners had given their consent at the relevant time for undergoing the narcoanalysis test and necessary orders had been passed by the learned Judicial Magistrate. Under the circumstances, since the narcoanalysis tests were to be carried out with the consent of the petitioners, no case is made out so as to warrant interference by this court.
7) From the facts noted hereinabove, it is apparent that the respondent No.2 being desirous of subjecting the petitioners herein to narcoanalysis test had obtained written consents from them. However, the petitioners by filing the present petition seek a direction against the respondents to desist from subjecting the petitioners to such narcoanalysis tests. Accordingly, in the petition, it has been averred that no such permission for subjecting themselves to narcoanalysis test had been given by the petitioners and that signatures on blank papers had been taken by the concerned Police Inspector, C.I.D Crime on 22nd May 2009.
8) It may be noted that though the aforesaid averments have been made on oath by the petitioners, no counter affidavit has been filed on behalf of the respondents, controverting the same. Under the circumstances, such averments stand uncontroverted and as such are required to be accepted as true. Besides, assuming that the petitioners, at the relevant time had given such consent, the filing of the present petition is indicative of the fact that the petitioners have withdrawn any such consent given by them. The Supreme Court in the case of Smt. Selvi v. State of Karnataka (supra) has held that the right against 'self-incrimination' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. The court further held that compulsory administration of the narcoanalysis techniques amounts to 'testimonial compulsion' and thereby triggers the protection of Article 20(3). In conclusion, the court held that the compulsory administration of the impugned techniques violates the 'right against self-incrimination'. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. The court was of the view that forcing an individual to undergo any of the impugned techniques violates the standard of 'substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose, since the test results could also expose a person to adverse consequences of a non-penal nature. The court, accordingly, held that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unauthorised intrusion into personal liberty. The court, however, left the room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Insofar as the safeguards are concerned, the court observed that the guidelines referred to in the said judgment should be strictly adhered to and similar safeguards should be adopted for conducting the 'narcoanalysis techniques' and the 'Brain Electrical Activation Profile' test. The said guidelines, inter alia, lay down that (i) No Lie- Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test, and (ii) the consent should be recorded before a Judicial Magistrate.
9) Examining the facts of the present case, in the light of the aforesaid decision, it is apparent that the petitioners have not given their consent for administration of the narcoanalysis techniques, and if at all they had given such consent, as is sought to be contended on behalf of the respondents, the same has been withdrawn by them. Moreover, the consent, if any, given by them has not been recorded before the Judicial Magistrate. Thus, neither of the preconditions for subjecting a person to narcoanalysis test, in terms of the guidelines laid down by the Supreme Court is satisfied in the present case. Under the circumstances, in the light of the law laid down in the above referred decision, the respondents cannot be permitted to forcibly subject the petitioners to the narcoanalysis test.
10) For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The respondents are restrained from subjecting the petitioners herein to narco analysis test in connection with the first information report registered vide Danta Police Station I-C.R. No.67 of 2005. Rule is made absolute accordingly.
(HARSHA DEVANI, J.)
Vahid