Evidentiary Value of the Phenolphthalein Test
It is now a well-settled principle of law that the Phenolphthalein test comes under the ambit of Section 156 of the Indian Evidence Act. Corroborative evidence mentioned under Section 156 allows the witness to depose any other new material fact in order to strengthen the existing evidence provided by the witness. It is meant to test the truthfulness of a witness.[1]
Section 45 recognizes the relevance of expert evidence.[2] Reports on forensic evidence by experts are admissible in court under Section 45 of the Indian Evidence Act. Here, the opinion of an especially skilled scientist is taken into consideration by the courts. The scientist’s job is to identify the presence of Phenolphthalein powder in the solution collected by the officers conducting the raid.
Section 45 of the Evidence Act states that the Courts can take the opinion of people skilled in science as judges also have cognitive limits. Such persons are called experts. Under Section 63 of the Indian Evidence Act, the report produced by the expert becomes secondary evidence as it signifies the tests of the results conducted by the agency. The phenolphthalein test, thus, comes under the ambit of forensic evidence, as the solution collected by the party must be sent to Forensic Experts for testing. Once confirmed, it is exhibited in the case file.
Constitutionality of the Phenolphthalein Test
“It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice”. – The State Of Bombay vs Kathi Kalu Oghad And Others Article 20(3) is a constitutional right which acts as a defence to the accused against self-incrimination. The legislature has deliberately excluded certain types of evidence from the purview of Article 20(3) in order to strike a balance between the investigative facilitators and the need to safeguard individual rights. The Supreme Court has held that the term ‘to be witness’ has a restricted meaning as the investigative agencies could not be denied their legitimate powers to investigate effectively. The term is restricted to furnishing evidences in the form of oral or written statements, however, it is not wide enough to include impressions of thumb, palm, foot, finger, or specimen writing or exposing any body part. Moreover, following the concept of interpreting legislative intent, the Supreme Court concluded that in the light of English Law[3] on the issue, the Constitution makers would have intended to protect the accused from the hazards of self-incrimination, and not to create hurdles for the investigative agencies while bringing criminals to justice.
According, to the Hon’ble Andhra Pradesh High Court[4] the term self-incrimination, in context of Article 20(3) means, “conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw light on any point in controversy, but which do not contain any statement of the accused based on his personal knowledge.”
The Supreme Court has clarified that the protection offered by Article 20(3) extends to the investigation stage, including police too. After a thorough analysis of the Kathi Kalu Oghad case, the Supreme Court in the famous case of Selvi & Ors vs. State of Karnataka, confirmed and divided the testimonial compulsion in two limbs. First, the accused’s statement should convey his personal knowledge which amounts to his personal testimony. In the majority of cases, this personal testimony could be easily distinguished from material evidence such as physical objects or other bodily substances. Second, the oral and written statements given by the accused can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. In other words, material evidence is free from the protection of Article 20(3), thus validating the forensic evidence like Thumbprint, DNA and Phenolphthalein Test etc.
This has been confirmed by various High Courts, including Hon’ble Punjab and Haryana High Court[5], which commented that Article 20(3) is not violated when the physical facts can be noticed as they speak for themselves.The Phenolphthalein Test merely speaks for the acceptance of currency notes by the accused given during the trap laid down by the Anti-Corruption Bureau.
Moreover, when a trap is laid against someone by the investigative team in which there is no element of duress, coercion or compulsion then such person won’t be allowed to claim his right against self-incrimination under Article 20(3). Following the same track in the trap cases, there is no compulsion on the accused to accept the currency notes and does not have any compulsion to dip his hands in the solution in order to prove his non-acceptance of the bribe. It is his own free will through which the trap party collects the material evidence. This makes Phenolphthalein test physical evidence as opposed to testimonial evidence against the accused.
Conclusion
As corruption is one of the biggest issues that India is facing today, the use of scientific methods to collect evidence against an accused individual has empowered investigative agencies like never before. However, on the evidentiary front, the Phenolphthalein test is a mere instrument of confirmation of the acceptance of bribes but is not concrete proof of corruption. The transcending of the powder on the hands of the accused can be done in many ways, giving rise to a plethora of imaginative situations where the accused might have touched the currency note without the intention of taking bribe like in the case of Mohd. Dastagir vs State of Madras. This concern is further solidified in cases where the accused falls prey to the ill-will of the bribe giver. In such cases there is no eye witness of transferring the currency except the bribe giver, who’s ill-will can subject the accused to the extreme trauma generated because of the allegations of bribery. Hence, giving rise to ethical concerns regarding the tests which cannot be overlooked as the charge of corruption on a diligent officer is followed by deep mental, societal, financial and physical impact.
From the investigative side, the Supreme Court has reduced the evidentiary value by categorizing the Phenolphthalein test as corroborative evidence. It has identified the flaws of the test, yet it has not recommended any changes in the test and has overlooked the availability of better options. It is observed that the apex court has always been the flag bearer of remarkable changes in government systems. The transition from Phenolphthalein will not be a landmark change but will surely contribute towards a more scientific approach of investigation.
Further, the courts have also provided the clear demarcations with which Phenolphthalein test can safely be considered outside the protection of Article 20(3) as investigative agencies who are serving the goal of public policy by bringing criminals to the justice, should also be appropriately equipped with modern tools in order to solidify their allegations against the accused.
On the administrative front, the Vigilance commission, in its manual, has admitted the flaws of Phenolphthalein test but has failed to recognize any kind of advances to improve it on the ground level. Neither have they added hydroquinone in phenolphthalein. nor have they made any visible efforts to completely replace phenolphthalein with anthracene powder. Presumably, this is because of the low level of impact the change may cause, as they have added the anthracene powder in suggestion but have not mandated it.
The lower impact level has been confirmed through a personal interview with Mr. Sunil Lokhande, Superintendent of Police, Anti-Corruption Bureau (Thane, Maharashtra). He revealed that some police forces like Mumbai police force have started using anthracene instead of phenolphthalein but on the other hand Nagpur police force still uses phenolphthalein. The Official agreed that anthracene is better than phenolphthalein as the rate of discrepancy in the facts is low in anthracene, but mentioned that this difference does not creates a deep impact during the raid, as the results for both the tests have same evidentiary value in the courts. Hence, there is no pressing need for the change.
However, there is a need to upgrade the evidence collection methodology implemented by anti-corruption agencies in order to ensure that culprits do not escape the justice system owing to mere technicalities. However, ‘police’ is a state subject and it’s the prerogative of the states to implement suggestions and changes. There is an unwillingness of the police forces in various parts of the country to change or improve the phenolphthalein test. Thus, the courts and the central vigilance department should put additional emphasis on the evolution of such changes as it will push the system towards a more scientific approach.
[1] RATANLAL, DHEERAJ LAL, THE LAW OF EVIDENCE, 703(26th ed. 2017)
[2] AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE, 253(24th ed. 2020)
[3] HODGE M. MALEK, JONATHAN AUBURN, RODERICK BAGSHAW, PHILSON ON EVIDENCE (20th ed. 2017)
[4] Naveen Krishna Bothireddy v. State of Telangana and another 2017 SCC ONLINE HYD 49
[5] Pakhar Singh And Another V. The State 1958 SCC ONLINE P&H 51
Shashank Maheshwari
3rd Year (VI Sem), NMIMS School of Law, Mumbai (Kpmsol)
