HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION No.1145 of 2009 Date:24.01.2011 Between: State, rep. by its Inspector of Police, C.B.I, Visakhapatnam. ….Appellant. And: Sri Arjun Banerjee .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION No.1145 of 2009 ORDER: This Criminal Petition is filed under Section 482 Cr.P.C to quash the order passed by the Special Judge for C.B.I Cases, Visakhapatnam in D.D.R.No.237 of 2009 in R.C.No.8(A)/2009. The petitioner herein is represented by the Inspector of Police, C.B.I, Visakhapatnam and they registered a case in R.C.No.8(A)/2009 against the respondent herein and another basing on the complaint given by one Sri K.V. Suresh Kumar, Director, M/s. Kolla Innovative Infotech Private Limited stating that an illegal gratification of Rs.1.00 lakhs was demanded by the respondent for doing official favour. It was further stated that A-1 directed to deliver the amount to A-2. After registering the case, the Officers of C.B.I caught A-2 read-handedly on 9.2.2009 while he was accepting the illegal gratification of Rs.1.00 lakh on behalf of the respondent demanded from the defacto-complainant. During the course of interrogation, A-2 disclosed that he accepted bribe of Rs.1.00 lakh from the defacto-complainant on behalf of A-1. Subsequently, on 10.2.2009, A-2 made a call to A-1, giving information of receipt of Rs.1.00 lakh from the defacto-complainant expressed his intention to hand over the same to A-1. A-1 responded to the call and directed to A- 1 to come to his residence and conversation was recorded in digital voice recorder by the investigating agency. Accordingly, A-2 went to the residence of A-1 and A-1 directed A-2 to keep the tainted amount in the dicky of his Maruti Zen Car. After signal was given by A-2, the Investigating Officers along with the Mediators rushed to the residence of A-1, but he escaped in his car from his house. All efforts made to locate A-1 and his car were in vain and after some time, A-1 was arrested and during the Phenolphthalein test, the right hand of A-1 was turned pink and also the swab collected on the Steering of the car turned pink. In any event, A-1 denied the acceptance of illegal gratification of Rs.1.00 lakh. The prosecution has filed an application before the Chief Metropolitan Magistrate for recording the statement of A-2 under Section 164 Cr.P.C and the learned Judge has already directed the Special Magistrate for Railway Court to record the statement of A-2. As the Investigating Agency could not unearth the truth, a memo was filed by the Inspector of Police, on 16.2.2009 seeking further police custody of A- 1 for 7 more days in order to subject A-1 to Scientific Interrogation i.e., Polygraph Test and Narco Analysis/Brain Mapping Tests. During the course of arguments the prosecution has relied upon a decision of Delhi High Court reported in Sh. Shailender Sharma Vs. State and another[1] wherein the Delhi High Court has held that “subjecting a person to Narco Analysis Test would not infringe any constitutional right or any individual right and as such the said test do not suffer from any constitutional infirmity.” The learned Special Judge for C.B.I Cases has dismissed the application by his order dated 17.2.2009. Aggrieved by the said order, the present application is filed to quash the said order and to permit them to take the accused to police custody for conducting Scientific Interrogation i.e., Polygraph Test and Narco Analysis/Brain Mapping Test. The learned counsel for the petitioner has pleaded that the A-1 has admitted that he accepted the illegal gratification of Rs.1.00 lakh and he has confirmed the same when he was arrested by the C.B.I Police, Visakhapatnam. The C.B.I made a trap to catch hold the present respondent when A-2 hand over the money at his residence. Accordingly, A-2 went to the residence of A-1 and A-1 directed A-2 to keep the tainted amount in the dicky of his Maruti Zen Car and when signal was given by A-2, the Investigating Officers along with the Mediators rushed to the residence of A-1, but he escaped in his car from his house. Now the petitioner wanted the respondent herein for police custody for further interrogation for recovery of the said Rs.1.00 lakh which he received from A-2. The petitioner seeking police custody of the respondent for conducting Scientific Interrogation i.e., Polygraph Test and Narco Analysis/Brain Mapping Test. With regard to conducting of the said test by the investigating agency, the Apex Court in the recent decision rendered in SELVI and others Vs. State of Karnataka[2] considered legality of the conducting of a test during the investigation and held: “The tests when conducted under compulsion violate right against self-incrimination protected under Article 20(3) and right to personal liberty protected under Article 21. Tests also violate the right to remain silent under S.161(2) Cr.P.C.” Therefore, in view of the said decision, the respondent who is accused No.2 cannot be compelled to undergo Polygraph test or Narco Analysis test without his consent. As the respondent has already filed a counter in the above petition pleading that Scientific Interrogation would amount to custodial testimony and the person cannot be subjected to Scientific Interrogation against his consent. Therefore, the respondent is not willing or giving consent for conducting the Scientific Interrogation. Therefore, in view of the above decision of the Apex Court, the respondent cannot be compelled to undergo the Scientific Interrogation like Polygraph test or Narco Analysis test against his will. Therefore, the petitioner is not entitled for the police custody of the respondent for conducting the above said tests and they are not entitled for quashing of the orders passed by the learned Special Judge for C.B.I Cases, Visakhapatnam. Accordingly, the criminal petition is dismissed. _____________________ P.DURGA PRASADJ. Date:24.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION No.1145 of 2009 Date:24.01.2011 Gk. [1] W.P(Crl.) 532 of 2008 2[2] (2010) 7 Supreme Court Cases 263