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State Of Gujarat v. Ashishbhai Kapilbhai Nanda And Another
Factual and Procedural Background
This petition was filed under Section 397 read with Section 401 of the Criminal Procedure Code challenging the Sessions Court's order in Sessions Case No. 107 of 2006, which rejected the prosecuting agency's request to conduct a narco-analysis test on the accused. The accused had objected to undergoing the narco-analysis test. The Sessions Court, after hearing both parties, dismissed the application for the test, and the prosecuting agency challenged this order before the High Court.
Legal Issues Presented
- Whether the accused can be compelled to undergo a narco-analysis test despite objection.
- The applicability of safeguards and legal principles governing the voluntary administration of narco-analysis and related techniques in criminal investigations.
Arguments of the Parties
Prosecuting Agency's Arguments
- Requested the court to allow the narco-analysis test on the accused as part of the investigation.
Respondent's Arguments
- The accused objected to undergoing the narco-analysis test, implying refusal to consent to the procedure.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Selvi and others vs. State of Karnataka, (2010) 7 SCC 263 | Established that no individual should be forcibly subjected to narco-analysis, polygraph, or brain electrical activation profile tests; such tests require voluntary consent with safeguards. Test results alone are not admissible as evidence, but information discovered subsequently may be admitted under Section 27 of the Evidence Act, 1872. National Human Rights Commission guidelines on administration of polygraph tests apply analogously to narco-analysis tests. | The court relied on this precedent to affirm that since the accused objected to the narco-analysis test, the Sessions Court's order rejecting the test was correct and should not be interfered with. |
Court's Reasoning and Analysis
The court noted that the issue of compulsory narco-analysis testing is settled by the Supreme Court in Selvi and others vs. State of Karnataka. The Supreme Court held that no individual should be forcibly subjected to such tests as it intrudes upon personal liberty. Only voluntary tests with prescribed safeguards are permissible. The court highlighted the guidelines laid down by the National Human Rights Commission, emphasizing consent, legal representation, and proper recording procedures. Since the accused in the instant case objected to the narco-analysis test, the court found no reason to interfere with the Sessions Court's order rejecting the prosecuting agency's application.
Holding and Implications
The petition is dismissed.
The court upheld the Sessions Court's rejection of the narco-analysis test application due to the accused's objection, reinforcing the principle that such tests cannot be conducted without voluntary consent. The decision directly affects the parties by denying the prosecuting agency's request but does not set any new precedent beyond affirming existing Supreme Court rulings and guidelines.
JUDGEMENT :-
Sonia Gokani, J.
1 This petition is preferred under Section 397 read with Section 401 of the Criminal Procedure Code challenging the order of the Sessions Court in Sessions Case No. 107 of 2006 passed below Exh.26 rejecting the request of carrying out Narco-Analysis test of the accused essentially since the accused objected to undergo narco analysis test as proposed by the prosecuting agency.
2 After hearing both the sides, learned Additional Sessions Judge had rejected the application moved by the prosecuting agency to carry out test of narco analysis. For various grounds enumerated in the petition, the said order is under challenge before this Court. Learned Additional Public Prosecutor Mr. K.P. Raval fairly submitted that the issue is no longer res integra and has been squarely covered by the judgment of the Apex Court. Instead of delving on the facts of the instant case, it would be apt to consider the case of Selvi and others vs. State of Karnataka reported in (2010) 7 SCC 263 where speaking for the Bench the then Chief Justice concluded the issue in following manner:
"264. In light of these conclusions, we hold 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 unwarranted instrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.
265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the "narcoanalysis technique" and the "Brain Electrical Activation Profile" test. The text of these Guidelines has been reproduced below: (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
(ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer,
(iii) The consent should be recorded before the Judicial Magistrate,
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawwyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a "confessional" statement to the Magistrate but will have the status of a statement made to the police.
(vi) The. Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer,
(viii) A full medical and factual narration of the manner of the information received must be taken on record."
3 Undisputedly, in the instant case, the accused had objected to undergo the said test and, therefore, there does not arise the question of interfering with the order passed by the learned Sessions Judge rejecting the request of prosecuting agency to so do it. Accordingly, the present petition is dismissed. No order as to costs. Rule is discharged
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