A convict does not have an indefeasible right to undergo a voluntary narco-analysis test at the appeal stage; such tests are typically permitted only during the trial stage when leading evidence, and their results remain inadmissible as evidence.

IA ORDER

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

By filing the captioned application, the applicant – convict prays for following reliefs:

“PRAYER In view of the above facts and circumstances, it is most respectfully prayed that this Hon'ble Court may be pleased to:

A) Permit the applicant to undergo a narco-analysis test voluntarily, subject to safeguards laid down in Selvi v. State of Karnataka ;

B) Direct that the applicant's consent be recorded before a Judicial Magistrate; and

C) YOUR LORDSHIPS may be pleased to dispense with the filing of affidavit as the petitioners is in jail.

D) YOUR LORDSHIPS may be pleased to pass any other order(s) as this Hon'ble Court may deem fit in the interest of justice.”

2. For seeking such relief as quoted herein above, the applicant – convict has cited following reasons, more particularly, paragraph No.2 to 7 which reads as under:

“2. That the applicant maintains his innocence and submits that certain crucial facts, which could not be effectively brought on record during trial, are necessary for a just adjudication of the present appeal.

3. That the applicant is voluntarily seeking permission of this Hon'ble Court to undergo a narco-analysis test, without any coercion, pressure, or inducement.

4. That the applicant is fully aware of the legal position laid down by the Hon'ble Supreme Court in Selvi v. State of Karnataka (2010) 7 SCC 263, wherein it has been held that:

Narco-analysis tests cannot be conducted forcibly; and Voluntary tests may be permitted subject to judicial safeguards.

5. That the applicant undertakes to:

 Give free and informed consent before a Judicial Magistrate;

 Cooperate fully with all medical and legal procedures; and

 Accept that any statement made during the test shall not be treated as a confession.

6. That the purpose of this application is not to delay proceedings or reopen the concluded trial, but to assist this Hon'ble Court in arriving at the truth in the interest of justice.

7. That no prejudice will be caused to the prosecution, as the is sought voluntarily and only independent test corroborativ evidence, if any, may be considered in accordance with law.”

3. Heard learned Counsel appearing for the applicant – convict and learned APP appearing for the respondent – State.

4. Learned advocate for the applicant – convict would submit that applicant may be permitted to undergo the narco-analysis test voluntarily, subject to safeguards as laid down in the case of Selvi v. State of Karnataka (supra) as the applicant – convict intends to prove his innocence because certain crucial facts which is necessary for proper adjudication of the present appeal. She would further submit that undisputedly, there were no provisions for authorizing such a medical examination in the erstwhile Code of Criminal Procedure, 1973 and therefore in absence of a statutory basis which constrained the Court concerned to hold that the medical examination could not be conducted without the prior consent of the person who was to be subjected to the same.

4.1 By making the above submissions, she would submit that present application may be allowed.

5. Per contra, learned APP while inviting the attention of this Court to the fact that no such averments in support of the application has been made by the applicant – convict and merely citing the decision of the Hon’ble Apex Court the present application has been filed and therefore, in absence of making such averments, the