Role of Narco-analysis in proving innocence under special trials

  • Ei incumbit probation qui dicit, non qui negat” is the elixir of criminal jurisprudence in the common law nations including India. It means the burden of proof lies on him who asserts, not on him who denies. The presumption of innocence is a legal principle which states that the legal burden of proving a crime is on the prosecution, which must present compelling evidence to the judge in order to bring home, the conviction of the accused. But this golden principle of criminal law is diluted when we talk about criminal trials under special Acts, such as NDPS Act 19851, POCSO Act 20122, Customs Act 19623 & Income tax Act 19614. Where reverse onus clauses are inserted to add another bow in the prosecution’s quiver. Now when it is the legal obligation of the accused to prove his innocence, how can he adduce evidence when the crime alleged is that of a secluded nature, i.e. inside the four corners of a room, or is devoid of any eye witnesses to support the accused . It is then, next to impossible for the accused to prove his innocence by leading evidence. Then the role of Narco analysis tests, or the brain mapping techniques becomes crucial to bring out the truth before the court. For that matter of fact, the method of such Narco test is important to note. The same was explained in the judgment of Selvi & ors. v. State of Karnataka5 by the apex court, in a Narco Test : a controlled administration of intravenous hypnotic medication commonly known as the „truth serum‟ which is sodium pentothal, scopolamine and sodium amytal used to produce vital information by pushing the subject into anesthetic sub conscious states, in which the information which is within the memory of the accused is narrated by him, during the conscious levels this information can be withheld but during the administration of the drug it is very difficult for a man to withhold any word of information.
  • With the advent of modern technology, world has taken a huge leap forward and the investigating agencies also are coping up with the new demands of time, use of DNA Evidences , ossification tests, brain mapping tests, polygraph tests, narco analysis etc are some of its examples.
  • For Eg Section 29 of POCSO Act compels the special court to presume that the accused is guilty of the offence unless he „proves‟ the contrary. In such a situation burden of proving innocence beyond reasonable doubt is on the accused thus Polygraphy/Narco-analysis/Brain Mapping tests are the only options left, relying on which the accused can prove his innocence as there are no eye witnesses in such crimes .
  • Right to a fair trial is a fundamental right under Article 21 of the Constitution of India as stated by the Hon‟ble SC in the case of Rattiram & ors v. State of M.P and it is pivotal to note that a fair trial also includes a right of the accused to prove his innocence which was laid by the Hon‟ble court in the case of Kalyani Baskar v. M. S. Sampoornam. Hence, disallowing the voluntary applications of such tests blows the right to defend oneself into smithereens amounting to be a bar on the accused to prove his innocence which is there by a violation of the fundamental right provided under Article 21 of Indian Constitution. Importantly right to defense flows from Article 21 as stated by the Hon‟ble court in the case of T. Nagappa v. Y. R. Murlidhar. Special enactments like POCSO, Further section 30 of the Act states that: In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Hereby even the special enactment is providing the accused with a right of defense, that means he can opt for a Narco test.
  • All the contentions were dissolved by their Lordships in the stellar verdict of Selvi & ors. v. State of Karnataka wherein Hon‟ble court has allowed voluntary Polygraph/Narco-analysis/Brain Mapping test by the accused subject to certain safeguards. Relying on this even the Hon‟ble Gujarat High Court has allowed voluntary Polygraph/Narco-analysis/Brain Mapping test in the case of Sunilkumar Virjibhai Damor Vs. State of Gujarat to prove his innocence when alleged under POCSO Act. Further in such cases the testimony of a child cannot be entirely relied upon there are chances of it being tutored and no conviction should be based on such doubt of it being tutored. Further, the High Court has held in the case of Dr. Purshottam Swaroopchand Soni Vs. The State of Gujarat.That when there is no direct evidence, the accused is allowed to give such tests to prove his innocence case. The voluntary Narco test ought not to be a privilege but a right of the accused.
  • Interestingly, Section 106 of the Indian Evidence Act, 1872 states: Burden of proving fact especially within knowledge- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Here in the present scenario under reverse onus clauses the burden of proving the innocence is on the accused, as he has the special knowledge of the fact/alleged act, hence he should be allowed of a Narco-analysis/Brain Mapping test. As it is the only way out for the accused to polygraph/prove his innocence which is ultimately his fundamental right12. Because only on the presumption of such guilt, the accused can be behind the bars, and contrary to this the fact stands still “not proved”13 only alleged. In order to negate it, the accused has to lead convincing evidence from his end and Narco analysis, polygraph tests or a Brain mapping test with the accused’s consent is crucial and vital to bring out the correct version before the court as the main aim of a criminal trial is the pursuit of truth.

1 The Narcotic Drugs and Psychotropic Substances Act, 1985, § 35, No. 61, Acts of Parliament, 1985 (India).; The Narcotic Drugs and Psychotropic Substances Act, 1985, § 54, No. 61, Acts of Parliament, 1985 (India).
2 The POCSO Act, 2012, § 29, No. 32, Acts of Parliament, 2012 (India).; The POCSO Act, 2012, § 30, No. 32, Acts of Parliament, 2012 (India).
3 Customs Act, 1962, § 138A, No. 52, Acts of Parliament, 1962 (India).
4 The Income-tax Act, 1961, § 278E, No. 43, Acts of Parliament, 1961 (India).
5 Selvi & Ors. v. State of Karnataka, AIR 2010 SC 1974.
6 Rattiram and Ors v. State of M.P through Inspector of Police, AIR 2012 SC 1485.
7 Kalyani Baskar v. M. S. Sampoornam, 2007(93)DRJ401.
8 T. Nagappa v. Y. R. Murlidhar, AIR 2008 SC 2010.
9Selvi & Ors. v. State of Karnataka, AIR 2010 SC 1974.
10Sunilkumar Virjibhai Damor v. State of Gujarat, (2019) 2 GLR 1310.
11 Dr. Purshottam Swaroopchand Soni v. The State of Gujarat, (2007) 3 GLR 2088.
12 CONST IND. ART. 21.
13 Indian Evidence Act, 1872, § 03, No. 01, Acts of Parliament, 1872 (India).

Author: Ajj Murjani, BBA-LLB student pursuing his 5th year from United World School of Law.

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