ROJO GEORGE Vs. THE DY. SUPERINTENDENT POLICE

JUDGEMENT

(1.) The petitioner Shri Rojo George, S/o.George is a suspect in Crime No. 292/2005 of Alappuzha North Police Station, re-numbered as Crime No. R.C. 1 (S)/2006/CBI/ SCB/MUM/CHE. The case centres around the missing of a seven year old boy, by name Rahul from Alappuzha. The boy was found playing in a play ground wherein some other children were also playing. From the play ground he had gone to drink water from a nearby water tap. Thereafter he vanished into the thin air. Initial investigation was conducted by the local police. They were not able to get any clue. The investigation was handed over to the Crime Branch. The Crime Branch was also not able to get any clue regarding the missing of the boy. Subsequently as per the order of this Court the investigation was handed over to the Central Bureau of Investigation and now the case is investigated by the CBISCB, Chennai.

(2.) In the Writ Petition it is averred that the CBI is harassing the petitioner and compelling him to undergo Narco Analysis Test (Truth Serum Test) at Forensic Science Laboratory at Bangalore. It is averred that the petitioner was questioned in connection with the above crime by the first respondent in several occasions and was subjected to polygraph test as well as brain mapping examination (P-300 test) at the Forensic Science Laboratory at Bangalore. It is averred that the petitioner fully co-operated with the Investigating Agency till now. It is further averred that the first respondent filed a petition before the Chief Judicial Magistrate, Ernakulam on 13.2.2006 seeking permission for subjecting the petitioner for narco analysis at Forensic Laboratory at Bangalore. It is averred that while transferring the investigation to the CBI this Court has observed that of CBI makes a request for brain mapping narco analysis, polygraph test etc. the concerned Laboratory shall give top priority to the said request and facility shall be provided out of turn to conduct the test. It is also averred that on 16.2.2006 a notice issued by the court was served on the father of the petitioner whereby the petitioner was directed to appear before the court below on 17.2.2006 at 2.30 p.m. Subsequently the petitioner appeared before the court below on 20.2.2006 and on 21.2.2006 he submitted a written statement expressing his apprehension regarding the marco analysis proposed to be conducted upon him. It is averred that he had pointed out the fact that narco analysis is a complicted procedure which has adverse reactions as well as drastic side effects and some time it may be even fatal. It is averred that the attempt of the Investigating Agency was to shift the responsibility from their shoulders to the court in order to save themselves from the precarious situation. It is averred that that petition was disposed of by the court below stating that the Investigating Agency does not require permission of the court for subjecting the petitioner for narco analysis. It is averred that the court did not consider the main contention raised by the petitioner that the narco analysis may result adverse effects upon the person and some times even fatal. It is further averred that the court below has only considered the propriety of the investigating agency in filing a petition seeking permission. It is averred that on the next day the CBI officers came to the house of the petitioner and directed his parents to produce him before the Investigating Agency or else to face the consequences. It is also averred that they have threatened his father that they would take petitioner into custody and subject him to narco analysis even without his consent since the Chief Judicial Magistrate has given a free hand to the CBI. It is averred that the proposed narco analysis test is highly complicated test conducted after administering sodium pentathol which is an ultra short acting barbiturate that drug depresses the central nervous system, slows heart rate and lowers blood pressure. It is further averred that it is very difficult to determine the correct dosage of the drug to be administered on a subject since the same varies according to the age, sex, physical constitution and also mental attitude and will power. It is further averred that a wrong dose could send a subject into coma or even cause death. It is further averred that the petitioner apprehends that if he is subjected to narco analysis at this young age of 24, it will have far reaching consequences on both his physical and mental constitution. It is averred that the attempt of the CBI is to fasten the criminal liability in the above crime to someone. It is also averred one Krishna Pillai confessed that he committed the offence. But the officers are not prepared to investigate whether that confession is true or not. The petitioner whole heartedly co-operated with the Investigating Agency while conducting brain mapping as well as polygraph test but the Investigating Agency was not able to collect any material. According to the petitioner Investigating Agency is bound to follow the procedure established by law even in the case of a suspect. He may not be compelled to undergo the test without an undertaking from the Investigating Agency that no adverse consequences will result by undergoing that test. It is also averred that subjecting a person into narco analysis will amount to violation of the fundamental right guaranteed to the petitioner under Articles 20(3) and 21 of the Constitution of India. It is averred that the Investigating Agency has no right or authority to insist for such a test. So the Writ Petition is filed for a declaration that the request of the CBI to subject the petitioner for narco analysis as part of the investigation lacks authority of law, as the same is violative of the fundamental rights guaranteed to the petitioner under Articles 20(3) and 21 of the Constitution of India and also for a writ of mandamus or any other appropriate writ, direction or order, directing the respondents 1 and 2 not to compel the petitioner to undergo narco analysis without assuring the petitioner as well as this Court that narco analysis is totally harmless and the same would not in any manner injuriously affect the physical and mental constitution of the petitioner.

(3.) Notice on the petition was taken by Shri S. Sreekumar, standing counsel for CBI on behalf of respondents 1 and 2 and learned Public Prosecutor Shri P.M.A. Kalam for respondent No. 3. The CBI has not filed any counter affidavit to the Writ Petition. But Shri Sreekumar had stated the procedure for conducting the narco analysis test.