# Adesh Kumar v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-17
- **Case number:** Application U/S 482 No.16691 of 2020
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adesh-kumar-v-state-of-u-p-anr-46091
- **Pages:** 18

## Headnote

A.G.A.

Allegation upon the Applicant of enticing and
trying to outrage her modesty-Applicant filed
application for DNA Examination/Narco test to
determine whether the blood and spermatozoa
found in the semen belongs to the accusedSuch DNA test will not conclude that the
Applicant had not committed rape on the
victim.

Application dismissed. (E-9)

Held, the confessions made by a semi-conscious
person is not admissible in court. Deception Detecting
Test report has some validity but is not totally
admissible
in
court,
which
considers
the
circumstances under which it was obtained and
assess its admissibility. Results of such tests can be
used to get admissible evidence, can be collaborated
with other evidence or to support other evidence. But
if the result of this test is not admitted in a court, it
cannot be used to support any other evidence
obtained the course of routine investigation. (para
65) (E-9)

List of Cases cited:

## Text

_Characters 0–39,900 of 65,477. This is a partial read: ask again with offset=39900 for what follows._

11 All. Adesh Kumar Vs. State of U.P. & Anr.
457
Another (supra) and the legal propositions
summarized therein, the proceedings, insofar as
they relate to the offences under the Penal Code
in respect of which cognizance has been taken
by the Magistrate and process/summons have
been issued, cannot be faulted with and the
challenge raised in regard to the same cannot be
sustained and is accordingly rejected.

10. However, insofar as the offences
under the MMDR Act are concerned, the
procedure under Section 22 having not been
followed and in the absence of a complaint by
the authorized officer, the cognizance taken by
the Magistrate cannot be legally sustained and
the proceedings in this regard are set aside and
quashed. It would be open to the authorized
officer to initiate proceedings in this regard as
per the procedure under Section 22 of the
MMDR Act and to lodge a complaint before
the concerned Magistrate along with report
submitted
by
the
investigating
officer
whereupon the Magistrate concerned may take
cognizance after following due procedure and
issue process/summons.

11. The application under Section 482
Cr.P.C. stands partly allowed to the extent
indicated above.
----------
(2021)11ILR A457
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.11.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No.16691 of 2020

Adesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Dwivedi
Counsel for the Opposite Parties:
A.G.A.

Allegation upon the Applicant of enticing and
trying to outrage her modesty-Applicant filed
application for DNA Examination/Narco test to
determine whether the blood and spermatozoa
found in the semen belongs to the accusedSuch DNA test will not conclude that the
Applicant had not committed rape on the
victim.

Application dismissed. (E-9)

Held, the confessions made by a semi-conscious
person is not admissible in court. Deception Detecting
Test report has some validity but is not totally
admissible
in
court,
which
considers
the
circumstances under which it was obtained and
assess its admissibility. Results of such tests can be
used to get admissible evidence, can be collaborated
with other evidence or to support other evidence. But
if the result of this test is not admitted in a court, it
cannot be used to support any other evidence
obtained the course of routine investigation. (para
65) (E-9)

List of Cases cited:

1. Criminal Appeal No.1267 of 2004, Smt. Selvi & ors.
Vs St. of Karn. (decided on 5th May, 2010)

2. Crl. ReVs Pet. No.2329 of 2012, Abdurahiman Vs
St. of Kerala (decided on 10th July, 2013)

3. Criminal Appeal No.111 of 2020, Dashrath s/o
Hiraman Johare Vs St. of Mah. (decided on 14th July,
2020)

4.Crl. ReVs Pet. No.2280 of 2003, Anil Kumar Vs
Ayyappan & anr. (decided on 5th April, 2013)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Rajesh Dwivedi, learned
counsel for the applicant as well as learned
Additional Government Advocate and perused
the record.

2. This application u/s 482 Cr.P.C. has
been preferred for quashing of the impugned
458 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 15.10.2019 passed by the Special
Judge (Protection of Children from Sexual
Offences Act, 2012)/ VIII Additional District
and Sessions Judge, Kanpur Dehat in application
no.28 Kha under section 54 of Cr.P.C. filed by
the applicant in Special Sessions Trial No.167 of
2017 ( State Vs. Adesh Kumar) and further
prayed to direct the Court below to pass an
appropriate order for DNA Test/ Narco Test as
mentioned in the application No.28 Kha as well
as other legal enquiry.

3. Learned counsel for the applicant
submits that an F.I.R was lodged on 20.02.2017
which was registered as Case Crime No.28 of
2017, under Section 376, 506 I.P.C. and section
4 of Protection of Children from Sexual
Offences Act, 2012 at Police Station Satti,
District Kanpur Dehat against the applicant and
his father by the first informant Sri Anand
Kumar stating that on 09.02.2017 at 1.00 P.M.
when the family members had gone for voting
for general election, then the applicant aged
about 18 years enticed her minor daughter and
tried to outrage her modesty.

4. Learned counsel for the applicant further
submits that the applicant has not committed any
offence as alleged in the F.I.R and he has been
falsely implicated in the present case. The real
facts of this case are that some hot talk ensued
between first informant and the mother of
applicant on 18.02.2017 and the first informant has
abused and assaulted with kicks and fists to the
mother of the applicant. The applicant belongs to
S.C./S.T caste and only due to fear and
apprehension that the mother of the applicant
might lodge the FIR under the SC/ST Act against
him, he lodged the present F.I.R. against the
applicant.

5. Learned counsel for the applicant further
submits that the incident as alleged has taken place
on 19.02.2017 at 13.00 hrs and the first
information report was lodged on 20.02.2017 at
15.10 hrs. Thus the F.I.R. was highly delayed
about 1 day but no proper explanation has been
given by the first informant. The applicant is a
good student and he has a bright future as is
evident from his High School certificate. The
applicant has been falsely implicated in the present
case only with malafide intention and with the
purpose for ruining his career. He further submits
that several villagers have given their statements to
the Investigating Officer with their signatures that
the applicant is innocent. The applicant is below 18
years and has given an application before the Court
of Juvenile Justice Board, Kanpur Dehat to declare
him juvenile, which was rejected on 13.09.2017.
The applicant has given an application bearing
application No.28 Kha, u/s 54 of Cr.P.C. on
04.09.2019 before the Court of A.D.J. VIII/
POCSO Act Judge, Kanpur Dehat for D.N.A
Examination/Narco Test to determine whether
human bloods which was found on the body of the
victim is of the accused or not and also to
determine whether the spermatozoa found in the
semen belongs to the accused. The said application
submitted by the applicant was rejected by the
Special
Judge,
POCSO
Act/8th
Additional
Sessions Judge, Kanpur Dehat vide order dated
15.10.2019.

6. Learned counsel for the applicant further
submits that the procedure as mentioned in the
Cr.P.C is a balancing procedure for both sides
i.e. prosecution side as well as defence side but
in the present case, the opportunity of defence
has been curtailed by the court below illegally
and arbitrarily. There are much contradictions in
the prosecution case from the beginning, hence
it is clear that the prosecution is trying to
implicate the applicant on the basis of false
case. Therefore, in the present case, the DNA/
Norco Test is necessary to establish the case
fairly. The Investigating Officer has not
followed the procedure properly and he has
falsely implicated the applicant on the basis of
the statement of the first informant and his
family members.
11 All. Adesh Kumar Vs. State of U.P. & Anr.
459

7. Learned Additional Government
Advocate opposed the argument raised by
learned counsel for the applicant and
submitted that the court below has rightly
passed the impugned order dated 15.10.2019
and further submits that in each and every
case DNA/Narco Test cannot be directed to
be done otherwise the entire system of the
State machinery will collapse. It was further
argued that this present application u/s 482
Cr.P.C. has been filed by the applicant only
for delaying the trial. All the prosecution
witnesses are examined and the case is at the
final stage. Therefore, this application cannot
be entertained at this stage.

8. Considering the arguments advanced
by the learned counsel for the parties and
after perusal of the record, the legal question
involved in the present application filed
under Section 482 CrPC relates to examine
certain scientific techniques and principles
for adjudication of the correctness of the
allegations levelled against the applicant
namely for D.N.A. (Deoxyribonucleic Acid),
NARCO Analysis Test, etc. so that the
Investigating Agencies may arrived at fair
conclusion. To understand this aspect, it is
necessary to examine the ratio of balance
between efficient investigation and individual
rights.
Accordingly,
Law,
Science
and
Technology has a great relevance in our lives.
Law and Science encounter each other in
many ways. When technology intrudes in the
ambit of legal rights it is checked by law, for
example, cyber crimes, in the same manner to
protect legal rights and strengthening the
evidence with the help of science, cannot be
denied.

9. At present days, when the legal
system has so much advanced, criminals take
care to erase all the evidences of their
involvement, then in such case, scientific and
highly sophisticated methods are required to
trace
the
involvement
of
criminals.
Narcoanalysis,
Polygraphy
and
Brain
Mapping tests collectively called deception
detection tests (DDT) are new kinds of
interrogation techniques including the DNA
Test (Deoxyribonuclie Acid) which are
simple and civilized way of conducting
investigation. But, at the same time, one has
to be conscious of its limitations also. It
infringes fundamental rights under Article
20(3), and also right to privacy and right to
health which are guaranteed under Article 21
of the Constitution of India.

10. In spite of the verily limitations, it
affirms certain attributes also which includes:
''order of court', ''pre-consent of subject'
''non-manipulated statements by subject' and
''secure public interest' Thus, there is a
tension between desirability of efficient
investigation and preservation of individual
rights.

 Let us understand briefly the
Concept Of Investigation-

11. In order to study about the scientific
criminal investigation, we need to understand
the term ''investigation',

"Investigation means to examine,
study, or inquire into systematically, search
or examine into the particulars of; examine in
detail, or, to search out and examine the
particulars of in an attempt to learn the facts
about something hidden, unique, or complex,
especially in an attempt to find a motive,
cause, it is about finding things."

12. According to the Code of the
Criminal Procedure under section 2(h) of the
Code,"
investigation
includes
all
the
proceedings
under
this
Code
for
the
collection of evidence conducted by a police
officer or by any person (other than a
460 INDIAN LAW REPORTS ALLAHABAD SERIES
magistrate) who is authorized by a Magistrate
in this behalf. Investigation, under the Code
includes:-

1. Proceeding to the spot of crime.

2.
Ascertaining
the
facts
and
circumstances of the case.

3. Discovery and arrest of the
suspected offenders.

4. Collection of evidence,

* examination of various persons
including the accused and recording their
statements in writing.

* Search of places or seizures of things
which are considered necessary.

13. Criminal Investigation is an applied
science that involves the study of facts, used to
identify, locate and prove the guilt of a criminal.
A complete criminal investigation can include
searching, interviews, interrogations, evidence
collection and preservation and various methods
of
investigation.
Modern
day
criminal
investigations commonly employ many modern
scientific techniques known collectively as
forensic science.

Application
of
science
and
technology in criminal investigation is also an
important issue to be considered.

14. The search for effective aids to
interrogation is probably as old as man's need to
obtain information from an uncooperative source
and as persistent as his impatience to shortcut
any tortuous path. In the annals of police
investigation, physical coercion has at times
been substituted for painstaking and time
consuming inquiry in the belief that direct
methods produce quick results. The use of
technology
in
the
service
of
criminal
investigations, and the application of scientific
techniques to detect and evaluate criminal
evidence has advanced the investigation process
criminal justice system throughout the country.
According to Cowan in his article "Decision
Theory in Law, Science, and Technology",

"the aim of science, traditionally
put, is to search out the ways in which truth
may become known. Law aims at the just
resolution of human conflict. Truth and
justice, we might venture to say, having
different aims, use different methods to
achieve them. Unfortunately, this convenient
account of law and science is itself neither
true nor just. For law must know what the
truth is within the context of the legal
situation: and science finds itself ever
engaged in resolving the conflicting claims of
theorists
putting
forward
their
own
competing brands of truth."

15. This quote roughly means that the law
needs to find the truth to resolve "human
conflict" and one method of doing so is to use
the field of science. Today's society has
improved upon the methods of the past to bring
about more precise and accurate techniques.
Forensic Science has expanded to Trauma
Inducing Drugs and Psychotropic Substances.
The application of science to matters of law has
made great strides in recent years. Development
of new tools of investigation has led to the
emergence of scientific tools of interrogation.
Before analyzing these techniques it will be
necessary and useful to frame and consider the
question of law in this case.

Whether these scientific techniques
infringes fundamental rights under Article
20(3) and also right to privacy and right to
health which are guaranteed under Article 21
of the Constitution of India.
11 All. Adesh Kumar Vs. State of U.P. & Anr.
461

16. The following scientific techniques are
important to be considered for the criminal
justice system namely DNA profiling test/Narco
analysis test in the present case. Before
answering the above question, it is relevant to
consider and examine the scientific and legal
aspect of the above techniques along with other
techniques and their use and application in the
field of criminal justice, the following scientific
techniques will be considered and discussed for
adjudication of the case.

*Narco analysis Test

*Brain Mapping Test/ Brain Electrical
Oscillation Signature Profile (Beos)

*Polygraphy Test

*DNA profiling test

* Fingerprinting Test

Narco Analysis Test:

17. The term Narco-Analysis is derived
from
the
Greek
word
narkç
(meaning
"anesthesia" or "torpor") and is used to describe
a diagnostic and psychotherapeutic technique
that uses psychotropic drugs, particularly
barbiturates, to induce a stupor in which mental
elements with strong associated affects come to
the surface, where they can be exploited by the
therapist. The term narco-analysis was coined by
Horseley. Narco analysis first reached the
mainstream in 1922, when Robert House, a
Texas obstetrician used the drug scopolamine on
two prisoners. The narco analysis test is
conducted by mixing 3 grams of Sodium
Pentothal or Sodium Amytal dissolved in 3000
ml of distilled water. Narco Test refers to the
practice of administering barbiturates or certain
other chemical substances, most often Pentothal
Sodium, to lower a subject's inhibitions, in the
hope that the subject will more freely share
information and feelings. A person is able to lie
by using his imagination. In the narco Analysis
Test, the subject's inhibitions are lowered by
interfering with his nervous system at the
molecular level. In this state, it becomes difficult
though not impossible for him to lie .In such
sleep-like state efforts are made to obtain
"probative truth" about the crime. Following
procedure has to be adopted while conducting
narco test:-

#This test is conducted in government
hospitals after a court order is passed instructing
the doctors or hospital authorities to conduct the
test. Personal consent of the subject is also
required.

#Experts inject a subject with hypnotics
like Sodium Pentothal or Sodium Amytal under
the controlled circumstances of the laboratory.

#The dose is dependent on the person's
sex, age, health and physical condition.

#The subject which is put in a state of
Hypnotism is not in a position to speak up on his
own but can answer specific but simple questions
after giving some suggestions.

#The answers are believed to be
spontaneous as a semi-conscious person is unable
to manipulate the answers.

#Wrong dose can send the subject into
coma or even result in death.

#The effect of the bio-molecules on the
bio-activity of an individual is evident as the drug
depresses the central nervous system, lowers blood
pressure and slows the heart rate, putting the
subject into a hypnotic trance resulting in a lack of
inhibition.

#The subject is then interrogated by the
investigating agencies in the presence of the
doctors.

#The revelations made during this
stage are recorded both in video and audio
462 INDIAN LAW REPORTS ALLAHABAD SERIES
cassettes. The report prepared by the experts is
what is used in the process of collecting
evidence.

18. A person is able to lie by using his
imagination. In the Narco Analysis Test, the
subject's imagination is neutralised by making
him semi-conscious. In this state, it becomes
difficult for him to lie and his answers would be
restricted to facts he is already aware of. The
subject is not in a position to speak up on his
own but can answer specific and simple
questions. The answers are believed to be
spontaneous as a semi-conscious person is
unable to manipulate the answers. Narcoanalysis
is a tool which is now being, alarmingly, used by
investigating agencies in criminal cases, as an
interrogation technique. It was first used in
2002, in the Godhra carnage probe. During the
Telgi scam, the use of narcoanalysis came under
the scanner, and then it was used in the Arushi
murder investigation. The scientific validity of
the test has been questioned by medical
professionals, and the legal validity has also
been debated in several international and
national cases.

Brain Mapping Test:

19. Brain-mapping is a comprehensive
analysis of brainwave frequency bandwidths. In
this
test,
forensic
experts
apply
unique
neuroscience techniques to find out if a suspect's
brain recognizes things from a crime scene
which an innocent person's brain will have no
knowledge of.

20. In brain-mapping, sensors are attached
to the suspect's head and he or she is made to sit
in front of a computer screen. The suspect is
then made to see images or hear sounds.

21. The sensors monitor electrical activity
in the brain and register certain waves which are
generated only if the suspect has any connection
with the stimulus (image or sound).

22. This test was developed and patented
in 1995 by neurologist Dr. Lawrence A. Farwell,
Director and Chief Scientist "Brain Wave
Science", This method, called the "Brain-wave
finger printing"; the accused is first interviewed
and interrogated to find out whether he is
concealing any information. Then sensors are
attached to the subject's head and the person is
seated before a computer monitor. He is then
shown certain images or made to hear certain
sounds. The sensors monitor electrical activity in
the brain and register P300 waves, which are
generated only if the subject has connection with
the stimulus i.e. picture or sound. The subject is
not asked any questions. Dr. Farwell has
published that a MERMER (Memory and
Encoding
Related
Multifaceted
Electro
Encephalographic Response) is initiated in the
accused when his brain recognizes noteworthy
information pertaining to the crime. These
stimuli are called the "target stimuli". In a
nutshell, Brain finger printing test matches
information stored in the brain with information
from the crime scene. Studies have shown that
an innocent suspect's brain would not have
stored or recorded certain information, which an
actual perpetrator's brain would have stored.

Lie Detecting Test:

23. A polygraph, popularly referred to as a
lie detector, is an instrument that measures and
records several physiological indices such as
blood pressure, pulse, respiration and breathing
rhythms and skin conductivity while a suspect is
asked a series of questions.

24. Deceptive answers are said to produce
physiological
responses
that
can
be
differentiated from those associated with nondeceptive answers.
11 All. Adesh Kumar Vs. State of U.P. & Anr.
463

25. It is an examination, which is based on
an assumption that there is an interaction
between the mind and body and is conducted by
various components or the sensors of a
polygraph machine, which are attached to the
body of the person who is interrogated by the
expert. The machine records the blood pressure,
pulse
rate
and
respiration
and
muscle
movements. Polygraph test is conducted in three
phases- a pretest interview, chart recording and
diagnosis. The examiner (a clinical or criminal
psychologist) prepares a set of test questions
depending upon the relevant information about
the case provided by the investigating officer,
such as the criminal charges against the person
and statements made by the suspect. The subject
is questioned and the reactions are measured. A
baseline is established by asking questions
whose answers the investigators know. Lying by
a suspect is accompanied by specific, perceptible
physiological and behavioural changes and the
sensors and a wave pattern in the graph expose
this. Deviation from the baseline is taken as a
sign of lie. All these reactions are corroborated
with other evidence gathered. The polygraph test
was among the first scientific tests to be used by
the interrogators.

What is DNA

26. Here's a look at what DNA is made of,
how it works, who discovered it and other
interesting DNA facts. As per the writer Rachael
Rettner, DNA stands for deoxyribonucleic acid,
which
is
a
molecule
that
contains
the
instructions an organism needs to develop, live
and reproduce. These instructions are found
inside every cell and are passed down from
parents to their offspring.

27. DNA is made up of molecules called
nucleotides. Each nucleotide contains a phosphate
group, a sugar group and a nitrogen base. The four
types of nitrogen bases are adenine (A), thymine
(T), guanine (G) and cytosine (C).

28. Nucleotides are attached together to form
two long strands that spiral to create a structure
called a double helix. The double-helix structure as
a ladder, the phosphate and sugar molecules would
be the sides, while the base pairs would be the
rungs. The bases on one strand pair with the bases
on another strand: Adenine pairs with thymine (AT), and guanine pairs with cytosine (G-C).

29. Human DNA is made up of around 3
billion base pairs, and more than 99% of those
bases are the same in all people, according to the
U.S. National Library of Medicine (NLM).

30. Similar to the way the order of letters in
the alphabet can be used to form words, the order
of nitrogen bases in a DNA sequence forms genes,
which, in the language of the cell, cells tell how to
make proteins. The shorthand for this process is
that genes "encode" proteins. But DNA is not the
direct template for protein production. To make a
protein, the cell makes a copy of the gene, using
not DNA but ribonucleic acid, or RNA. This RNA
copy, called messenger RNA, tells the cell's
protein-making machinery which amino acids to
string together into a protein, according to
"Biochemistry" (W. H. Freeman and Company,
2002).

31. DNA molecules are long -- so long, in
fact, that they can't fit into cells without the right
packaging. To fit inside cells, DNA is coiled
tightly to form structures called chromosomes.
Each chromosome contains a single DNA
molecule. Humans have 23 pairs of chromosomes,
which are found inside each cell's nucleus.

32. Rosalind Elsie Franklin (1920-1958)
was a british chemist and crystallographer who
is best known for her role in the discovery of the
structure of DNA. DNA was first observed by
Swiss biochemist Friedrich Miescher in 1869,
according to a paper published in 2005 in the
journal Developmental Biology. Miescher used
biochemical methods to isolate DNA -- which he
464 INDIAN LAW REPORTS ALLAHABAD SERIES
called nuclein -- from white blood cells and
sperm, and determined that it was very different
from protein. (The term "nucleic acid" derives
from "nuclein.") But for many years, researchers
did not realize the importance of this molecule.

How does DNA function?

33. Genes encode proteins that perform all
sorts of functions for humans (and other living
beings). The human gene HBA1, for example,
contains instructions for building the protein
alpha globin, which is a component of
hemoglobin, the oxygen-carrying protein in red
blood cells.

34. DNA sequencing involves technology
that allows researchers to determine the order of
bases in a DNA sequence. The technology can
be used to determine the order of bases in genes,
chromosomes or an entire genome.

35. Accordingly, what has been discussed
above the three Tests namely Narco Analysis
Test, Brain Mapping Test and Lie Detecting
Test are called Deception Detecting Test which
implies psychological evaluation of human
brain. Deception, in another word means lying,
it may lead to a serious aftermath in the
enforcement of law and the proceedings in the
courtroom, deception is defined as a deliberate
attempt to mislead others. Hence, much effort is
devoted by the forensic psychologists in
developing different techniques and methods to
detect lies. The deception detection tests (DDT)
such as polygraph, narco-analysis and brainmapping have important clinical, scientific,
ethical and legal implications. The DDTs are
useful to know the concealed information related
to crime. This information, which is known only
to self, is sometimes crucial for criminal
investigation.

36. The narcoanalysis is used as a tool of
investigation, the procedure of narco analysis
finds legal sanction under the newly amended
Section 53 of the Criminal Procedure Code. In
2005, an Explanation clause was added to
Section 53 of the Criminal Procedure Code, the
relevant part of which reads as follows: (a)
examination" shall include the examination of
blood, blood stains, semen, swabs in case of
sexual offences, sputum and sweat, hair samples
and finger nail clippings by the use of modem
and
scientific
techniques
including
DNA
profiling and such other tests which the
registered medical practitioner thinks necessary
in a particular case; The expression 'such other
tests' signifies a provision for recognizing newly
developed techniques in forensic science and
permitting the same in investigative procedures.

37. The present criminal justice system is
obsessed with individual liberty and freedom
and in this context a safe passage forgone and
criminals due to weakness in the criminal justice
system leading to dilution of evidence. Since the
validity of the test and admissibility of DDT
upheld
taking
into
consideration
the
circumstances under which it was obtained,
there is a little possibility of miscarriage of
justice when administered as per procedure
prescribed and observing the due safety
precautions, the apprehension on the part of
counsels of accused and critics is unwarranted.

38. Deception detecting test comes under
the general power of investigation (Sections
160-167,Cr.P.C.).But it must be realized that it
is
prerogative
of
the
person
to
allow
himself/herself to be put to the test or not and it
should not be left to the discretion of police.
Unless it is allowed by law and the accused
himself, it must be seen as illegal and
unconstitutional. But, if it is conducted with free
consent' of the person it may be permitted. The
person should be made well aware of the
technicalities of the procedure, the effect of the
narcotics under whose influence he shall be
interrogated
as
well
as
the
physical,
11 All. Adesh Kumar Vs. State of U.P. & Anr.
465
psychological
and
legal
ramifications
of
undergoing the procedure, this knowledge
becoming the basis on-which he renders his
voluntary consent.

39. ''Free consent' means it is voluntary
and is not given under coercive circumstances.
For example, If a person says, "I wish to take a
lie detectors test because I wish to clear my
name". It shows his/her free consent but it is still
to be shown that whether this voluntariness was
under coercive circumstances or not. If a person
is told by police "If you want to clear your name
take a lie detector test" or" take a lie detector test
and we will let you go" then it shows that police
has linked up the freedom to go with the lie
detector test and as such it cannot be held
voluntary.

40. If an accused volunteers for a liedetector test, then he should be given access
to a lawyer and the physical, emotional and
legal implications of such a test should be
explained to him by both police and his
lawyer. Moreover, the consent should be
recorded before a judicial magistrate and
during the hearing, the person who has
agreed to the test should be duly represented
by a lawyer. Among other things, NHRC
guidelines say the actual recording of the lie-
detector
test
should
be
done
by
an
independent agency like a hospital and in the
presence of a lawyer. Also, a full medical and
factual narration of the manner of the
information received must be put on record.

41. The use of Deception Detecting Tests
has been questioned in courts. The main
argument against it is the infringement of the
fundamental right under Article 20(3)and under
Article 21 of the Constitution, which provides
for a privilege against self incrimination and
right to health and privacy, respectively. The
revelations made during the Narco analysis have
been found to be of very useful in solving some
sensational cases. Thus, it is right to say that
DDT is proving to be a useful tool in the field of
criminal investigation. Legal questions are
raised about their validity with some upholding
its validity in the light of legal principles and
others rejecting it as a blatant violation of
constitutional provisions.

42. Accordingly, a person's DNA contains
information about their heritage, and it can
sometimes reveal whether they are at an elevated
risk for certain diseases. DNA tests, or genetic
tests, are used for a variety of reasons, including
to diagnose genetic disorders, to determine
whether a person is a carrier of a genetic
mutation that they could pass on to their children
and to examine whether a person is at risk for a
genetic disease.

43. Genetic test results can have
implications for a person's health, and the tests
are often provided along with genetic counseling
to help individuals understand the results and
consequences.

44. People also use the results of genetic
testing to find relatives and learn about their
family trees.

45. Applicability of Section 27 in The
Indian Evidence Act, 1872 in respect of above
scientific techniques:- How much of information
received from accused may be proved.- Provided
that, when any fact is deposed to as discovered
in consequence of information received from a
person accused of any offence, in the custody of
a police- officer, so much of such information,
whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered,
may be proved.

46. The right to remain silent is a legal
right recognized, explicitly or by convention, in
many of the world's legal systems. Universal
Declaration of Human Rights, 1948 under Art.
466 INDIAN LAW REPORTS ALLAHABAD SERIES
11.1 declares, "Everyone charged with a penal
offence has the right to be presumed innocent
until proved guilty according to law in a public
trial at which he has had all the guarantees
necessary for his defence." The International
Covenant on Civil and Political Rights, 1966 to
which India is a party states in Art. 14(3)(g)
"Not to be compelled to testify against himself
or to confess guilt". The European Convention
for the Protection of Human Rights and
Fundamental Freedoms states in Art. 6(1) that
every person charged has a right to a ''fair' trial
and Art. 6(2) thereof states:

47. "Everyone charged with a criminal
offence shall be presumed innocent until proved
guilty according to law." The right covers a
number of issues centered around the right of the
accused or the defendant to refuse to comment
or provide an answer when questioned, either
prior to or during legal proceedings in a court of
law. This can be the right to avoid selfincrimination or the right to remain silent when
questioned. The right usually includes the
provision that adverse comments or inferences
cannot be made by the judge or jury regarding
the refusal by a defendant to answer questions.

48. The constitutional provisions against
self incrimination the Courts have required the
prosecution to prove guilt beyond reasonable
doubt and there has been no encroachment
whether at the stage of interrogation or trial, into
the right to silence vested in the suspect or
accused.

49. The right against forced selfincrimination, widely known as the Right to
Silence is enshrined in the Code of Criminal
Procedure (CrPC) and the Indian Constitution.
In, CrPC, the legislature has guarded a citizen's
right against self-incrimination. S.161 (2) of the
Code of Criminal Procedure states that every
person "is bound to answer truthfully all
questions, put to him by [a police] officer, other
than questions the answers to which would have
a tendency to expose that person to a criminal
charge, penalty or forfeiture".

50. The constitution of India guarantees
every person right against self incrimination
under Article 20(3) of the Indian Constitution
"No person accused of any offense shall be
compelled to be a witness against himself."

51. It is well established common law
doctrine that every accused person is presumed
innocent unless proved guilty and it is for the
prosecution to prove the guilt and in the process
the accused cannot be compelled to make a self
incriminating statement.

52. The term ''self-incrimination' means the
act of accusing oneself of a crime for which a
person
can
then
be
prosecuted.
Selfincrimination can occur either directly or
indirectly: directly, by means of interrogation
where information of a self-incriminatory nature
is disclosed; indirectly, when information of a
self-incriminatory nature is disclosed voluntarily
without pressure from another person.

53. It is well established that the Right to
Silence has been granted to the accused by
virtue of the pronouncement in the case of
Nandini Sathpathy vs P.L. Dani Hon'ble
Supreme Court was pleased to hold that " no one
can forcibly extract statements from the accused,
who has the right to keep silent during the
course of interrogation (investigation). By the
administration of these tests, forcible intrusion
into one's mind is being restored to, thereby
nullifying the validity and legitimacy of the
Right to Silence. Moreover, under the influence
of the drug, the accused has garbled speech and
tends to talk about fantasies, and labours under
delusions. For example, a person may talk about
a crime s/he fantasized about committing, even
if they actually have not done it. Their state
resembles that of a person in delirium. So, it
11 All. Adesh Kumar Vs. State of U.P. & Anr.
467
ultimately constitutes self incrimination of a
person because it is difficult to distinguish
reality from fantasy.

54. Self-Incrimination, Privilege Against
the constitutional right of a person to refuse to
answer questions or otherwise give testimony
against himself or herself which will subject him
or her to an incrimination.

55.

Self-Incrimination:
Acts
or
declarations either as testimony at trial or prior
to trial by which one implicates himself in a
crime. The constitutions and laws, prohibit the
government from requiring a person to be a
witness against himself involuntarily or to
furnish evidence against himself.

56. Thus, Right to Privacy is implicit in
the Right to life and liberty guaranteed to the
citizens of India by Article 21 of the
Constitution of India. None can publish
anything covering the above matters without
his consent whether truthful or otherwise and
whether laudatory or critical. If done so, it
will be violating right to privacy of person
concerned and would be liable in an action
for damages.

57. Deception detection tests amounts to
an invasion of privacy if it involves eliciting
personal information from the accused
known only to him. However, it must be
noted that the test assumes the character of a
restriction imposed by law on the said right.

58. It is further necessary to elaborate that
the Society has the right to be protected against
the criminal, and all of society's rights are
manifestly superior to those of the criminal.
There can be no gainsaying the fact that a
suspect is either innocent or guilty, and no one
knows the truth better than does the suspect
himself. It, therefore, stands to reason, that
where there is a safe and humane measure
existing
to
evoke
the
truth
from
the
consciousness of the suspect, that society is
entitled to have the truth. If society has the right
to take property, liberty, and life for its
protection, then society has the right to make, by
trained men, the use of truth serum legal. The
framers of the Bill of Rights believed the rights
of society were paramount to the rights of the
criminal. It was an instrument for the protection
of the innocent and not intended for the acquittal
of the guilty. If the right against self
incrimination is upheld against the public
interest and it would weaken the evidence and
thereby denial of justice to the public.
Murderers, money launderers, terrorist are
allowed to walk away Scott free exploiting the
loopholes in the legal system. Ironically in all
these issues we apply criminal procedures only
to protect the individual freedom of the accused
while rights and lives of many people have been
sacrificed.

59. The DDTs are useful to know the
concealed information related to crime. This
information, which is known only to self, is
sometimes crucial for criminal investigation.
The DDTs have been used widely by the
investigating agencies. However, investigating
agencies know that the extracted information
cannot be used as evidence during the trial
stage. They have contested that it is safer than
''third
degree
methods'
used
by
some
investigators. Here, the claim is that, by using
these so called, "scientific procedures" in
fact-finding,
it
will
directly
help
the
investigating agencies to gather evidences,
and thereby increase the rate of prosecution
of the guilty and the rate of acquittal of the
innocent. Recently, these methods are being
promoted as more accurate and best to none,
without convincing evidence.

60. In this regard, the Hon'ble Supreme
Court has taken similar view in Criminal
Appeal No.1267 of 2004, Smt. Selvi and
468 INDIAN LAW REPORTS ALLAHABAD SERIES
others vs. State of Karnataka (decided on 5th
May, 2010) and was pleased to observe in
paragraph nos. 217, 218, 219, 220, 221, 222 and
223 of the judgment as under:-

217. Even though the main task of
constitutional adjudication is to safeguard the
core organising principles of our polity, we must
also highlight some practical concerns that
strengthen the case against the involuntary
administration of the tests in question.