NSS has been used for a decade in Indian courts as a Support to Investigation.
NSS Reports are not used as Primary Evidence.
Unlike other technologies which have been used in 2 or 3 cases, NSS has been used in over 700 cases reported by independent Forensic laboratories in areas such as Murders, Insurgency, Poaching, Illegal immigration to name a few.
NSS is routinely used in highly sensitive cases to home in on perpetrators of a crime and differentiate involvement.
In a significant development in 2010 the Supreme Court of India ruled that tests such as Narco, Lie Detection and Brain Electrical Activation Profile can be conducted with Informed consent, and any information or material discovered with the help of BEOS can be admitted as Evidence in court.
Unfortunately the court confused BEAP/BEOS with the outdated and minimalistic P300 technique with which BEOS has no connection.
Excerpt from the Supreme Court judgement-
“However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.
The National Human Rights Commission had published ‘Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the ‘Brain Electrical Activation Profile’ test.
The text of these guidelines has been reproduced below:
(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly
represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a
hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.”