BEFORE THE HON’BLE THE HON’BLE SUPREME COURT OF TRIALA

ORIGINAL EXTRAORDINARY JURISDICTION

SPECIAL LEAVE PETITION NO. 000 OF 2023

IN THE MATTER OF –

SCICON & ORS. … APPELLANT

V.

UNION OF INDIA … RESPONDENTS

EVIDENCE PSDA MOOT COURT

MEMORIAL ON BEHALF OF THE APPELLANT

SUBMITTED BY

PRERIKA NARANG ANJALI CHATURVEDI

(14517703521) (13017703521)

CHANCHAL KUMAWAT JESTIN VERGHESE

(15217703521) (14217703521)

COUNSEL APPEARING ON BEHALF OF THE

APPELLANT
LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

ISSUES RAISED

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

I. WHETHER THE NARCO ANALYSIS TEST IS CONSTITUTIONALLY VALID?

II. WHETHER THE USE OF ELECTRONIC EVIDENCE IS CONSTITUTIONALLY VALID?

ABBREVIATIONS DESCRIPTION

AIR All India Reports

NHRC National Human Rights Commission
Cal Calcutta
HC High Court
SC Supreme Court
IPC Indian Penal Code
CrPC Code of Criminal Procedure
FIR First Information Report
V. Versus
vs. Versus
Art. Article
Hon’ble Hnourable
SCC Supreme Court Cases
Bom Bombay
Cri LJ Criminal Law Journal
UOI Union of India
u/s. Under Section

PUCL People’s Union for Civil Liberties

INDIAN CASES
1. Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another Civil Appeal
No(s). 9346 of 2019
2. Anuradha Bhasin vs. Union of India AIR 2020 SC 1308
3. Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal CIVIL APPEAL NOS. 20825-20826
OF 2017
4. Balasaheb v. State of Maharashtra, 1994 SCC OnLine Bom 613
5. Bukhari v. Brijmohan Mehra and Others AIR 1975 SC 1788 (1)
6. Dinesh Dalmia v. State of Madras 2006 Crl RC No 259
7. D.K. Basu v. State of W.B., (1997) 1 SCC 416, 429
8. Himanshu Singh Sabharwal v. State of M.P., (2008) 3 SCC 602
9. Kanti Kumari v. State of Jharkhand, 2012 SCC OnLine Jhar 394
10. Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329.
11. KM. Seema Azad v/s State of U.P. 115 CriLJ 22 (2009)
12. KS Puttaswamy v. UOI (2017) 10 SCC 1
13. Malcolm Peter Rebello v. State of Maharashtra
14. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
15. Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424
16. PUCL vs. Union of India AIR 1997 SC 568
17. R. Rajagopal vs. State of Tamil Nadu AIR 1995 SC 264
18. Rakesh Kumar Singla v. Union of India CRM-M no. 23220 of 2020
19. Ramchandra Ram Reddy v. State of Maharashtra, 2004 All MR (Cri) 1704.
20. R. M. Malkani v. State of Maharashtra 1973 AIR 157
21. Rojo George v. DSP, (2006) 2 KLT 197
22. Selvi v. State of Karnataka, (2010) 7 SCC 263
23. Shafhi Mohammad vs State of Himachal Pradesh SLP(Crl.) No. 2302 of 2017
24. Sh. Shailender Sharma v. State Crl. WP No. 532 of 2008
25. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
26. State of Maharashtra v. Prafulla Desai (2003)4 SCC 601

STATUTES
1. The Code for Criminal Procedure, 1908.
2. The Indian Penal Code, 1860.
3. The Evidence Act, 1872.
The Hon’ble Supreme Court of India has jurisdiction in the present matter by Article 136 of the
Constitution of India which reads as follows-

“ 136. Special leave to appeal by the Supreme Court.-

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, order or decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal
in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed
forces.”
 -Background-
1. In March 2019, QBZ University in Drima City hosted a live screening of a cricket match
between the national teams of Triala and Proshina.
2. After Proshina's victory, five QBZ University students – Scicon, Rimon, Tesha, Rincha, and
Kreja – celebrated loudly, bursting crackers and chanting slogans supporting Proshina. They
also shouted controversial slogans.
-Incident-
3. The university security guard warned the students to stop due to safety concerns, but they
intimidated him and demanded his participation in their celebration.
4. The watchman called the police, fearing for his safety, after the students' intimidation.
5. The students marched towards the university hostel premises, continuing their slogans and
physically assaulting residents who refused to join them. The property was damaged in the
process.
6. The hostel warden Mr. Wilson reported the violent incident to university authorities and
called the police for help.
-Police Allegations and Arrests-
7. The Drima police registered a criminal case against the students under Section 124A of the
Triala Penal Code for sedition.
8. The police alleged the students supported the separatist movement in Kashir City and had
links with the banned terrorist organization Jais-E-Mehmd.
9. Analysis of mobile call records and WhatsApp messages revealed regular communication
with active members of the banned terrorist outfit.
10. The police arrested all five students the next day for further investigation.
-Rimon's Death-
11. After 3 days of police custody, Rimon suffered a medical emergency and was taken to a
hospital by the police.
12. In his statement to the doctor, Rimon alleged that after their arrest, all students were
forcibly subjected to narco-analysis testing while being mercilessly beaten by the police to
extract confessions about their connections with terrorist groups.
13. Soon after making the statement, Rimon passed away in the hospital. The cause of death as
per the doctor was complications suffered due to the improperly performed narco-analysis test.
-Legal Proceedings-
14. The students filed a writ petition in the Drima High Court seeking release from police
custody, challenging the validity of their arrest, and quashing the sedition FIR.
15. They argued their post-match celebration was an exercise of their fundamental right to
freedom of speech and expression, without intentions of inciting hatred or violence.
16. The High Court dismissed the petition, citing reasonable restrictions on freedom of speech
for national security.
17. The students appealed in the Supreme Court challenging charges, illegal detention, Section
124A validity, forced narco-analysis tests, and the use of personal records as evidence.
18. They urged that the laws and actions taken against them were remnants of the colonial era,
violated the basic structure of Triala's Constitution and were incompatible with the country's
democratic credentials.
19. The Supreme Court admitted the appeal and issued notice to the Union and State
governments, framing issues related to students' rights, Section 124A validity, narco-analysis,
and electronic evidence.
 ISSUE I

WHETHER THE NARCO ANALYSIS TEST IS CONSTITUTIONALLY VALID?

ISSUE II

WHETHER THE USE OF ELECTRONIC EVIDENCE ARE CONSTITUTIONALLY

JUSTIFIED
1. WHETHER THE NARCO ANALYSIS TEST IS CONSTITUTIONALLY VALID?

It is humbly submitted that the narco-analysis test is constitutionally invalid and violative of rights on
four grounds: (1.1) It infringes on the right against self-incrimination under Article 20(3) by eliciting
forced testimony as established in Selvi v. State of Karnataka; (1.2) It violates the right to privacy as
recognized in K.S. Puttaswamy v. UOI and amounts to cruel and degrading treatment, infringing
Article 21 protections of personal liberty as held in the same Selvi case; (1.3) The lack of legal
safeguards like representation denies fair trial rights, raising procedural integrity concerns as noted in
Sheela Barse v. State of Maharashtra & Others; and (1.4) Its unreliability makes it susceptible to
misuse and fabrication of evidence as highlighted in multiple cases like NHRC v. State of Gujarat &
Others. Therefore, it is submitted that results from involuntary narco-analysis are inadmissible as
evidence per prior Supreme Court judgements.

2. WHETHER THE USE OF ELECTRONIC EVIDENCE IS CONSTITUTIONALLY

JUSTIFIED?

It is humbly submitted before the Hon’ble Court that the use of electronic evidence, in this case,
constitutes a clear violation of the student's fundamental rights. The use of electronic evidence in
matters raises constitutional concerns as it may infringe on fundamental rights. The right to privacy
under Article 21 is jeopardized when electronic communication records are accessed without proper
justification. The freedom of speech and expression (Article 19(1) (a)) is also at risk, as unrestricted
access to electronic communications may lead to self-censorship. It lacks justification, is procedurally
flawed, and poses a chilling threat to freedom of expression and privacy. Due process rights, guaranteed
under Article 21, are compromised when electronic evidence is obtained without proper warrants or
procedures. Additionally, the unreliability of electronic evidence, susceptibility to manipulation, and
lack of transparency in collection and analysis procedures raise doubts about its trustworthiness in legal
proceedings. Proportionality and justification are essential considerations, emphasizing that intrusive
techniques should be proportionate to the alleged offence and justified by a compelling state interest. To
safeguard individual liberties, the legislature and judiciary must collaborate in establishing clear
guidelines, procedural safeguards, and adherence to international standards in electronic evidence,
ensuring a balance between technological advancements and protecting fundamental rights.
ISSUE 1 - WHETHER THE NARCO ANALYSIS TEST IS CONSTITUTIONALLY VALID?
[By Prerika Narang]

It is respectfully submitted before this Hon’ble court that the narco-analysis test is constitutionally
invalid and ultra vires the Constitution of Triala.

1.1. Narco-analysis test is violative of the Right against Self-Incrimination

1. It is humbly submitted that the narco-analysis test is violative of Art. 20(3) of the Constitution
of Triala. Narco tests are administered in the presence of experts in the field like
anesthesiologists, psychiatrists, clinical psychologists, etc. Before administering such dose prior
consent of the court and of the subject is taken, and the person undergoing the test is explained
the whole procedure. The whole process is video recorded and the report is further submitted to
the investigating authorities. If the accused is found medically fit to undergo the procedure, then
only will it be done, otherwise not. This has been violated in the present scenario as Romi was
not medically fit to be examined for a narco-analysis test.

2. In the case of Nandini Sathpathy v. P.L. Dani,1 the right to silence during an investigation was
affirmed, emphasizing that statements should not be forcibly extracted from an accused
individual. It is established that an accused has the right to refuse to answer questions that may
incriminate them, and forcibly intruding into a person's mind through narco-analysis violates
this right to silence. When interrogated in a conscious state, individuals may choose to remain
silent, but narco-analysis overrides this choice.

3. The narco-analysis procedure, which involves administering drugs to reduce cognitive abilities
while retaining memory and speech, goes against the principle of "Nomo Tenetur se Ipsum
Accusare." This principle asserts that no one, including the accused, can be forced to respond to

1
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424
 questions that might self-incriminate them.

4. In Selvi v. State of Karnataka,2 the Supreme Court held narco-analysis to be unconstitutional.

First, the Court found that forcing a subject to undergo narco-analysis, brain-mapping, or
polygraph tests itself amounted to the requisite compulsion, regardless of the lack of physical
harm done to administer the test or the nature of the answers given during the tests.3 Secondly,
the Court found that since the answers given during the administration of the test are not
consciously and voluntarily given, and since an individual cannot decide whether or not to
answer a given question, the results from all three tests amount to the requisite compelled
testimony to violate Article 20(3), which states that no person accused of any offence shall be
compelled to be a witness against himself.

5. The potential for coercion and manipulation during the test increases the risk of false
confessions, jeopardizing the right against self-incrimination enshrined in Article 20(3) of the
Constitution. Protection under Article 20(3) does not extend to any kind of evidence but only
self-incriminating statements relating to the charges brought against an accused to bring the
testimony of an accused within the prohibition of constitutional protection, it must be of such
character that by itself it tends to incriminate the accused. invoking the constitutional rights
under article 20(3) a formal accusation against the person claiming the protection must exist.4

6. It was held in the case of Kanti Kumari v. State of Jharkhand5 that no compulsion lies against
any person to give a statement. The Hon’ble Supreme Court observed while interpreting
Article 20(3) that certain essentials need to be strictly followed so as to be eligible for
invoking this particular Article.

1.2. Narco-analysis test is violative of Art. 21

7. Article 21 protects the right to life and personal liberty,6 which has been broadly interpreted to
include various substantive due process protections, including the right to privacy7 and the
right to be free from torture and cruel, inhuman, or degrading treatment.8 Conducting such
tests without the permission of the court is violative of the procedure established under law

2
Selvi v. State of Karnataka, (2010) 7 SCC 263
3
Ibid.
4
Balasaheb v. State of Maharashtra, 1994 SCC OnLine Bom 613
5
Kanti Kumari v. State of Jharkhand, 2012 SCC OnLine Jhar 394
6
The Constitution of India, Article 21.
7
Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329.
8
D.K. Basu v. State of W.B., (1997) 1 SCC 416, 429, para 22 : 1997 SCC (Cri) 92.
 because, the ambit of Article 21, i.e. Right to life, includes the “substantive due process of
law.” In Maneka Gandhi v. Union of India,9 Subba Rao, J. opined that an essential element of
personal liberty is ‘privacy’. Hence it is not just the liberty of an individual that is infringed
but also their privacy when they are forced to undergo such tests without their consent.

8. The Supreme Court found that narco-analysis violated individuals' right to privacy and
amounted to cruel, inhuman or degrading treatment. The Hon’ble Supreme Court after years and
years of refusing to recognise the Right to Privacy finally recognised the Right to Privacy in the
landmark judgement of KS Puttaswamy v. UOI10.

9. The Supreme Court in Selvi v. State of Karnataka declared narco-analysis, brain mapping, and
polygraph tests inadmissible as evidence due to potential violations of privacy and
self-incrimination. the legality and admissibility of narco tests establishing that the involuntary
administration of narco or lie detector tests constitutes an intrusion into an individual's "mental
privacy."

1.3. Lack of Legal Safeguards

10. It is humbly submitted that the appellants allegedly underwent narco-analysis tests without the
presence of legal representation, denying them the opportunity to seek legal advice during a
critical investigative procedure. The absence of legal representation during the narco-analysis
tests deprives the appellants of a fundamental right to a fair trial.11 The Supreme Court held in
Sheela Barsa v. Union Of India (1986), that if an accused is not tried quickly and his case is
pending for an unreasonable amount of time, his fundamental right to a speedy trial will be
violated
11. It is humbly submitted that Rimon's death, purportedly due to an improperly performed narco
analysis test, highlights the lack of medical oversight during the procedure, raising concerns
about the reliability and safety of the test. The Constitution guarantees the right to life and
personal liberty. The lack of proper medical oversight infringes upon these constitutional rights.
The court should scrutinize the procedural safeguards in place during the narco-analysis tests to
ensure compliance with constitutional principles and the well-being of the accused.

1.4. Inadmissibility of Narco-Ananlysis Test

9
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
10
KS Puttaswamy v. UOI (2017) 10 SCC 1
Himanshu Singh Sabharwal v. State of M.P., (2008) 3 SCC 602; Sheela Barse v. State of Maharashtra, (1983) 2
11

SCC 96
 12. It is humbly submitted that the narco-analysis test is inadmissible due to its unreliability. The
coercive nature of narco-analysis and its ability to extract involuntary confessions makes it
susceptible to abuse by law enforcement agencies, which is evident in the instant case. This can
lead to the targeting of individuals based on pre-existing biases and the suppression of dissent.
The potential for fabrication of evidence and the lack of transparency surrounding the test
procedure further raise concerns about its potential for misuse. In the case of NHRC v. State of
Gujarat, the National Human Rights Commission of Triala condemned the use of narco-analysis
on Gujarat riot victims, highlighting the potential for abuse and manipulation. Moreover, in the
case of the State of Maharashtra v. Prafulla Desai12, the Hon’ble Bombay High Court observed
that confessions obtained through narco-analysis are inadmissible due to the lack of informed
consent and the potential for coercion.

13. In summary, the narco-analysis test is constitutionally contested on multiple grounds. The
procedure is argued to infringe on Article 20(3)'s protection against self-incrimination, violate
Article 21 by encroaching on the right to privacy, and lack legal safeguards, denying fair trial
rights. Additionally, concerns about its unreliability, coercion, and potential for abuse have been
raised. Considering these constitutional and procedural challenges, it is respectfully submitted
that the narco-analysis test should be declared constitutionally invalid, rendering its results
inadmissible in legal proceedings.

ISSUE 2 - WHETHER THE USE OF ELECTRONIC EVIDENCE IS CONSTITUTIONALLY

JUSTIFIED?
[by Anjali Chaturvedi]

14. It is humbly submitted before the Hon’ble Court that the use of electronic evidence is not
constitutionally justified because of these three pivotal contentions: firstly, an unequivocal
violation of their constitutional right to privacy in electronic communications, spotlighted by
unwarranted access; secondly, the expansive impact of this breach on free speech, inducing a
chilling effect due to potential surveillance concerns; and thirdly, the inherent challenges
surrounding the admissibility of electronic evidence, given its susceptibility to manipulation and
alteration. These contentions collectively underscore the paramount importance of safeguarding
privacy, the imperative for transparent and justifiable surveillance guidelines, and the stringent
12
State of Maharashtra v. Prafulla Desai (2003)4 SCC 601
 safeguards indispensable in the domain of electronic evidence collection.

2.1. Unjustifiable Encroachment on Privacy

15. The violation of the petitioner's constitutional right to privacy, as outlined in Article 21 of the
Triala Constitution, is evident and direct, arising from the unauthorized access to their private
communications. This fundamental right protects individuals from arbitrary and unwarranted
state interference in their personal lives. This breach lacks a compelling justification and unduly
intrudes upon their entitlement to maintain a private sphere. Electronic communications should
receive an equivalent level of privacy protection as their physical space, highlighting the
seamless connection between their personal and digital realms.

16. In the case R. Rajagopal vs. State of Tamil Nadu13, the magazine publisher R. Rajagopal
encountered resistance from the Tamil Nadu government when attempting to publish the
autobiography of Auto Shankar, a convicted prisoner. Rajagopal contended that the
government's opposition infringed upon his freedom of speech and expression. In a
groundbreaking verdict, the Supreme Court acknowledged the implicit right to privacy in
Article 21 of the Indian Constitution, striking a balance with freedom of expression. The Court
sided with Rajagopal, permitting the publication but advising against an overly intrusive
invasion of the prisoner's privacy. This case not only solidified privacy as a fundamental right
but also shaped future legal considerations, particularly in navigating the delicate balance
between privacy and other rights, and its relevance persists in the digital age.

17. In the case of K.S. Puttaswamy v. Union of India14, the Supreme Court of India delivered a
landmark judgment affirming the right to privacy as a fundamental right under the Indian
Constitution. The court, in its judgment, recognized that privacy is a fundamental right that is
intrinsic to the right to life and personal liberty guaranteed by Article 21 of the Constitution.
The right to privacy, according to the court, includes the right to autonomy over personal
decisions, control over personal information, and the right to be left alone.

2.2. Chilling Effect on Free Speech and Expression

18. Indiscriminate access to electronic evidence creates a chilling effect on free speech and
expression. Individuals will be hesitant to engage in open and honest conversations online,
fearing that their communications may be monitored and used against them. Such a chilling
effect contradicts the spirit of free speech protected by Article 19 and undermines the
democratic values integral to the Triala Constitution.

13
R. Rajagopal vs. State of Tamil Nadu AIR 1995 SC 264
14
KS Puttaswamy v. UOI (2017) 10 SCC 1
 19. This self-censorship undermines the very foundation of a democratic society, as recognized by
the Supreme Court in PUCL vs. Union of India.15 In this case, PUCL challenged the
constitutionality of Section 5(2) of the Indian Telegraph Act, which allows phone tapping for
national security and public safety. PUCL argued that this provision violated the fundamental
rights of privacy and freedom of speech and expression.

20. The Supreme Court acknowledged the fundamental right to privacy and declared Section 5(2)
unconstitutional due to its vagueness and excessive scope. However, the Court, recognizing the
need for national security measures, allowed phone tapping under specific safeguards: A written
order from a designated authority, establishing reasonable grounds for national security, public
safety, or crime prevention, oversight by a committee to ensure accountability, making
intercepted information inadmissible in court unless lawful procedures were followed. This case
not only solidified the right to privacy as fundamental in India but also set clear guidelines for
phone tapping, safeguarding individual rights from unwarranted surveillance. It stands as a
pivotal case in addressing privacy and surveillance issues in the country.

21. In the case Malcolm Peter Rebello v. State of Maharashtra the Bombay High Court, in this
case, highlighted the need for strict compliance with legal procedures when conducting
electronic surveillance. The court stated that unauthorized interception of electronic
communication would violate the right to privacy. This decision supports the argument that the
use of electronic evidence without proper authorization infringes upon the right to privacy

2.3. Specificity of Electronic Evidence

22. The admissibility of electronic evidence, such as messages, emails, or digital records, poses
challenges due to its susceptibility to manipulation, alteration, or fabrication. Unlike traditional
forms of evidence, electronic evidence is intangible and can be easily tampered with,
intentionally or unintentionally.

23. The constitutionality of relying on electronic evidence raises questions about the protection of
individuals' rights, particularly in the context of privacy and due process. The potential for
unauthorized access, hacking, or data breaches further undermines the integrity of electronic
evidence. Moreover, the constitutional validity of electronic evidence is called into question
when considering the reliability of the methods used for its collection. If electronic evidence is
obtained without proper authorization, adherence to legal procedures, or safeguards, it may
violate the constitutional rights of individuals, particularly the right to privacy.

15
PUCL vs. Union of India AIR 1997 SC 568
 24. In the case R. M. Malkani v. State of Maharashtra16, while in an older case, the principles
established in Malkani are relevant. The court held that intercepted telephonic conversations are
an intrusion into an individual's privacy. This precedent can be invoked to contend that
gathering electronic evidence, such as intercepted calls or messages, lacking appropriate
authorization and safeguards, amounts to a breach of the right to privacy.

25. In Anuradha Bhasin vs. Union of India17 in this case Anuradha Bhasin, a journalist, challenged
the Jammu and Kashmir government's internet shutdown in August 2019, asserting a violation
of fundamental rights. The government cited public order concerns. The Supreme Court
declared the shutdown unconstitutional, recognizing internet access as a fundamental right
under Article 19. The judgment established principles for justified internet shutdowns,
emphasizing proportionality, transparency, and periodic review. The case is a landmark
providing a framework for balancing security and free expression. The Court stated that
"surveillance powers must be exercised with proportionality and justification."

26. In State of Maharashtra v. Dr Praful B. Desai18 in this legal matter, the Bombay High Court
underscored the imperative of scrupulously following procedures and guidelines when dealing
with electronic evidence. The court accentuated that the prosecution bears the responsibility of
establishing the authenticity and integrity of electronic records. Any deviation from the
prescribed protocols was cautioned to potentially render the evidence inadmissible.

16
R. M. Malkani v. State of Maharashtra 1973 AIR 157
17
Anuradha Bhasin vs. Union of India AIR 2020 SC 1308
18
State of Maharashtra v. Dr Praful B. Desai (2003)4 SCC 601
Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities cited, it
is humbly prayed before this Hon’ble Court that it may be pleased to hold, adjudge and declare that:
a. The narco analysis test is unconstitutional and,
b. The use of electronic evidence is not constitutionally justified

AND/OR

Pass any other Order, Direction or Relief that it may deem fit in the best interests of Justice,
Fairness, Equity, and Good Conscience.

For this Act of Kindness, the Petitioner as in Duty Bound, shall forever Pray.

DATE: Sd/-
PLACE: ( COUNSEL FOR THE APPELLANT)
ISSUE 1 - WHETHER THE NARCO ANALYSIS TEST IS CONSTITUTIONALLY VALID?

It is humbly submitted before the Hon’ble Supreme Court that narco analysis tests are constitutionally
valid. Undoubtedly, the test stands as a valuable and constitutionally sound tool in the contemporary
landscape of criminal investigations, addressing the challenges posed by increasingly sophisticated
criminal activities and providing a pathway to uncovering critical evidence. Pertaining to relevant
provisions, sections 53 and 54 of the CC empower the authorization of a medical examination for an
arrested person during an investigation, at the discretion of the investigating officer or the arrested
individual. These sections also allow the use of force deemed reasonably necessary. Furthermore,
section 39 of CrPC imposes a mandatory duty on every individual to provide information about
offenses. This legal framework establishes a comprehensive basis for the lawful application of narco
analysis tests.

ISSUE 2 - WHETHER THE USE OF ELECTRONIC EVIDENCE IS CONSTITUTIONALLY

JUSTIFIED?

It is humbly submitted before the Hon’ble Supreme Court that electronic evidence is valid under
Section 65B of the Indian Evidence Act, requiring compliance for its admission. The acquisition and
transmission of data through electronic means, such as mobile phones, computers, laptops, networks,
etc., in a malicious context fall under the purview of cybercrime, and evidence gathered from such
sources is referred to as electronic evidence. As per Section 3 of the Indian Evidence Act, 1872,
electronic records presented for the scrutiny of a court are treated as documentary evidence. Such
evidence holds greater reliability compared to oral evidence. Further, the gathering and presentation of
electronic evidence are conducted without compromising the right to privacy, ensuring a balanced
approach to justice and individual rights. This harmonization upholds constitutional principles in the
legal process.
ISSUE 1 - WHETHER THE NARCO ANALYSIS TEST IS CONSTITUTIONALLY VALID?
[by Jestin Verghese]

1. It is humbly submitted before the Hon’ble Court that narco analysis tests are constitutionally
valid, the reason for which are three-fold in nature, firstly [1] Narco analysis test does not
violate fundamental rights. Secondly [2] CrPC Sections 53 and 54 authorize medical
examinations during investigations, allowing discretion for the investigating officer or the
arrested individual and permitting reasonable force if necessary. Lastly, [3] section 39 of CrPC
imposes a mandatory duty on every individual to provide information about offenses. \

1.1. Not Violative Of Any Fundamental Right

2. It is humbly submitted that the narco-analysis test, while yielding self-incriminating statements
during its application, raises questions of admissibility in a court of law. However, its utility lies
in its constitutionally sound use as a tool for investigation rather than a direct source of evidence
during trial proceedings. In today's complex society, where crimes against the community and
national integrity are escalating, it becomes crucial to weigh the interests of the larger society.

3. The narco-analysis test emerges as a supportive measure in investigations, laying a critical

foundation for further evidence collection. Recognizing the growing prevalence of crimes
against society, it is imperative to prioritize the community's well-being and conduct thorough
investigations. This necessitates a delicate equilibrium with individual rights, ensuring the
preservation of constitutional rights. Notably, any self-incriminating statements elicited during
the test are not admissible in court. But here in, the extracted information was used only for
investigation and not as evidence during the trial stage. thus, the narco-analysis test is
considered constitutionally sound, serving as a valuable tool in the investigative process

4. In Dinesh Dalmia v. State of Madras19 and Sh. Shailender Sharma v. State,20 it was held by
the Madras High Court that scientific investigation methods may have to be carried out to find
the truth. Narco-analysis test is a step to aid of an investigation. It forms an important basis for
further investigation as it may lead to collection of further evidences.

5. The KM. Seema Azad v/s State of U.P.21, or the Shashi murder case, involves the disappearance

19
Dinesh Dalmia v. State of Madras 2006 Crl RC No 259
20
Sh. Shailender Sharma v. State Crl. WP No. 532 of 2008
21
KM. Seema Azad v/s State of U.P. 115 CriLJ 22 (2009)
 and murder of law student Shashi. The narco analysis and polygraph tests on the main accused,
Vijaysen Yadav, revealed that BSP MLA Anand Sen allegedly ordered Shashi's murder due to
an illicit relationship. Anand Sen was arrested based on this information, showcasing the
significant role of narco analysis in the case.

6. With crimes increasingly adopting sophisticated, hi-tech approaches and criminals adopting
professional tactics, to overcome this problem, it becomes mandatory for for the administrative
system to embrace modern technologies and innovative crime investigation methods that are
efficient, fair, and easy to manage. In the case of Rojo George v. Deputy Superintendent of
Police22, the court, while permitting the use of narco analysis tests, acknowledged the increasing
use of sophisticated and modern techniques by criminals. Given the evolving sophistication in
criminal methods, conventional investigative and questioning approaches may prove inadequate
for resolution. Therefore, there is a necessity to employ new techniques such as polygraph, brain
mapping, and narco analysis for effective crime-solving.

7. In a noteworthy judgment, the Bombay High Court, in the case of Ramchandra Ram Reddy v.
State of Maharashtra23, affirmed the legality of employing P300 or brain-mapping and the
Narco-Analysis test. The Court explicitly stated that evidence obtained under the influence of
the NarcoAnalysis test is admissible. In conclusion, the narco-analysis test is a vital and
constitutionally sound tool in modern investigations, maintaining a delicate balance between
societal welfare and individual rights. With legal precedents endorsing its use, especially in the
face of sophisticated criminal tactics, it emerges as a crucial component in contemporary law
enforcement.

8. The Bombay High Court, in a significant verdict in Ramchandra Ram Reddy v. State of
Maharashtra24, while upholding the legality of the use of brain-mapping and narco-analysis
test. The Court also said that evidence procured under the effect of a narco-analysis test is also
admissible. As crimes go hi-tech and criminals become professionals, the use of narco-analysis
can be very useful, as the conscious mind does not speak out the truth, the unconscious may
reveal vital information about a case25. The judgment also held that these tests involve minimal
bodily harm. Surender Koli, the main accused in the Nithari case, was brought to the Forensic
Science Laboratory in Gandhinagar in January 2007 for narco-analysis. A polygraph test was
conducted on Moninder Singh Pandher and his servant Surender Koli, accused of serial killing
of women and children in Nithari, to ascertain the veracity of their statements made during their

22
Rojo George v. DSP, (2006) 2 KLT 197
23
Ramchandra Ram Reddy v. State of Maharashtra, 2004 All MR (Cri) 1704.
24
Selvi v. State, (2004) 7 Kant LJ 501; Rojo George v. DSP, (2006) 2 KLT 197; Ramchandra Ram Reddy v. State of
Maharashtra, 2004 All MR (Cri) 1704.
25
Syed Tazkir Inam, “Scope of Narco-Analysis in Criminal Investigation” <http://ssrn.com/abstract=1681526>.
 custodial interrogation. Various confessional statements were made by the accused under the
effect of the drug, he could remember the names of the females he had murdered and revealed
his urge to rape them after murdering them.

9. In the case of United States v. Solomon,26 the expert opinion given to the Court established that
truth serum is generally accepted as an investigative technique. It need not be said that the
prevention of crime and punishment for the crime are the duties of the State. Fetters on these
duties can be put only in extreme cases where the protection of fundamental rights weighs more
than the fundamental duty cast on the state moreover every person is required to furnish
information regarding offences.27

1.2. There Is Legal Authorization For Medical Examinations In Investigations Under Section 53
And 54 Of Crpc

10. Sections 53 and 54 of the CrPC empower the ordering of medical examinations for arrested
individuals either by the investigating officer, the arrested person, or the court itself. The court's
authority extends to cases of released persons on bail or those granted anticipatory bail. Section
53 allows the use of 'force as is reasonably necessary' during the examination, granting
investigators and examiners the discretion to employ a reasonable degree of physical force as
directed by the court.

11. In the landmark judgment of Selvi & Ors vs State Of Karnataka,28 the observed that, Once a
Court has directed the medical examination of a particular person, it is within the powers of the
investigators and the examiners to resort to a reasonable degree of physical force for conducting
the same. DNA profiling technique has been expressly included among the various forms of
medical examination in the amended explanation to sections 53, 53A and 54 of the Code of
Criminal Procedure, 1973.

1.3. Section 39 Of Crpc Imposes A Mandatory Duty On Every Individual To Provide Information
About Offenses.

12. Section 39 of the Criminal Procedure Code (CrPC) establishes a legal obligation mandating
every individual to furnish information about offenses. This provision places a categorical duty
26
United States v. Solomon 753 F 2d 1522 (9th Cir 1985).
27
Section 39 of the Code of Criminal Procedure, Selvi; Sharda v. Dharmpal, (2003) 4 SCC 493; State of Gujarat v.
Anirudhsing, (1997) 6 SCC 514 : 1997 SCC (Cri) 946.
28
supra
 on members of the public to provide pertinent details or knowledge they may possess regarding
criminal activities. The imposition of this mandatory duty aims to facilitate effective law
enforcement and enhance the investigatory process by ensuring a cooperative and informed
citizenry

ISSUE 2 - WHETHER THE USE OF ELECTRONIC EVIDENCE IS CONSTITUTIONALLY

JUSTIFIED?
[by Chanchal Kumawat]

13. It is humbly submitted before the court that use of electronic evidence is constitutionally
justified. The reasons for which are three fold in nature. Firstly, [1] section 65B of the Indian
evidence act mandates compliance for admission of electronic evidence. Secondly, [2]
Electronic evidence does not infringe upon the right to privacy. Lastly, [3] WhatsApp chats and
call records hold admissibility as electronic evidence

2.1. Section 65B of the Indian evidence act mandates compliance for admission of electronic
evidence

14. In the digital age, where electronic records play a crucial role, this section establishes the
framework for ensuring the reliability and authenticity of such evidence in the pursuit of justice.
The Supreme Court's three-judge panel in Arjun Panditrao Khotkar v. Kailash Kishanrao
Goratyal29 (known as “Arjun v. Kailash”) has now defined how Section 65B should be
interpreted-
“Section 65B of the Evidence Act provides for the admissibility of electronic records. This
section states that any information contained in an electronic record that is printed, stored,
recorded, or copied on optical or magnetic media as a result of a computer (referred to as
computer output) shall be deemed a document.”

15. When the original documents like laptop, computer, tablet and mobile phone etc. (primary
evidence) is produced then requirement under Section 65(B)(4) is not mandatory. In the case of

29
Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal CIVIL APPEAL NOS. 20825-20826 OF 2017
 Shafhi Mohammad vs State of Himachal Pradesh30 the Apex Court, while dealing with
Section 65 B(4) of the Act held that a party cannot be asked to provide a certificate for the
admissibility of electronic documentary evidence. Thus, any documentary evidence by way of
an electronic record can be proved only in accordance with the procedure prescribed under
Section 65B of the Evidence Act.

2.2. Electronic evidence does not infringe upon right to privacy

16. Right to privacy is a fundamental right recognized under the constitution of India. But it's not an
absolute right. Electronic evidence often plays a pivotal role in unveiling criminal activities and
ensuring justice. In many cases, it serves as a crucial tool for law enforcement to establish facts,
track criminal behavior, and protect society. The responsible use of electronic evidence can be
seen as a necessary measure to balance individual privacy rights with the overarching need for
public safety and order.
17. In Justice K.S. Puttaswamy v. Union of India31, where the national identity project, the
Aadhaar project, was challenged, a larger panel of nine judges concluded in 2017 that the right
to privacy is a fundamental right and is safeguarded by Articles 14, 19, and 21. This significant
decision reversed the last two rulings and concluded that any violation of a basic right must be
justified by a legal standard requiring a just, fair, and reasonable approach. The question arises
whether recording personal conversation and presenting it as evidence would amount to
infringement of the fundamental right of privacy?
18. The question to this answer was given by Justice Anup Singh Bhambani in the case of Deepti
Kapur v. Kunal Jhulka32. The court was of the opinion that any evidence collected with breach
of the fundamental right would not make evidence inadmissible in the court of law. The court
observed that the “right to privacy must yield the right to a fair trial”
19. Thus, there is always a need to draw a balance between the legitimate interest of the state and
the privacy of the individuals. The life and liberty of an individual are inalienable rights which
are recognized by our constitution. While the right to privacy is a fundamental aspect of

30
Shafhi Mohammad vs State of Himachal Pradesh SLP(Crl.) No. 2302 of 2017
31
Justice K.S. Puttaswamy v. Union of India AIR 2017 SC 4161
32
AIR 2020 Delhi 156
 individual liberty, its boundaries may be flexed in the pursuit of a fair trial, emphasizing the
intricate legal considerations that courts grapple with when adjudicating on the interplay
between these fundamental rights.

2.3. WhatsApp chats and call records hold admissibility as electronic evidence

20. In the age of rapid communication through platforms like WhatsApp, conversations and call
records hold substantial evidentiary value. WhatsApp, being a pervasive medium, has become a
crucial source for legal evidence. The admissibility of both call records and WhatsApp chats in
court is a contemporary legal consideration, reflecting the evolving nature of communication in
the digital era.
21. In Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another33, the
Supreme Court referred to WhatsApp chats while hearing a petition challenging an injunction
order. In its judgement dated 16 January 2020, the court held that WhatsApp chats are matters of
evidence as they are virtual verbal communications, the meaning and contents of which can be
verified by evidence- in-chief and cross-examination during trial. This judgement thus allowed
the admissibility of WhatsApp chats as evidence. In Rakesh Kumar Singla v. Union of India34
The Punjab and Haryana High Court granted the Narcotics Control Bureau the liberty to rely on
WhatsApp conversations of the accused after having complied with the conditions under
Section 65B of the Evidence Act while hearing a bail application in an NDPS case.
22. Furthermore, Indian courts had recognized the contents of tape recording as evidence for some
time before the IT Act. The Court of India in the case of Bukhari v. Brijmohan Mehra and
Others35 observed that are a 'document’, as defined by Section 3 of the Act, which stands on no
different footing than photographs, and they are admissible as evidence. In essence, electronic
evidence, supported by Section 65B of the Indian Evidence Act, is constitutionally justified. Its
use is carefully balanced, respecting privacy rights and demonstrated in recent court rulings that
recognize the admissibility of WhatsApp chats and call records as valuable legal evidence.

33
Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another Civil Appeal No(s). 9346 of 2019
34
Rakesh Kumar Singla v. Union of India CRM-M no. 23220 of 2020
35
Bukhari v. Brijmohan Mehra and Others AIR 1975 SC 1788 (1)
Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities cited, it
is humbly prayed before this Hon’ble Court that it may be pleased to hold, adjudge and declare that:
a. The narco analysis test is constitutional and,
b. The use of electronic evidence is constitutionally justified

AND/OR

Pass any other Order, Direction or Relief that it may deem fit in the best interests of Justice,
Fairness, Equity, and Good Conscience.

For this Act of Kindness, the Respondent as in Duty Bound, shall forever Pray.

DATE: Sd/-
PLACE: ( COUNSEL FOR THE RESPONDENT)