EVIDENTIARY VALUE OF THE SNIFFER DOGS:PERSPECTIVE OF INDIAN JUDICIAL AUTHORITY IN CONTRAST WITH FOREIGN JUDICIAL AUTHORITY
The author of this blog is Mr. Ankur Jain, third-year Student at the Institute of Law, Nirma University.
Sniffer dogs are very proficient in the investigation by the police; they are considered as knowledgeable and highly trained animals as they have a tremendous olfactory sense, which helps to trace the offender. However, this evidence not been regarded as strong evidence unless the Court examined the reliability of sniffer dog's skill, and his past patterns of performance were checked. The evidence of the Tracker dog is scientific evidence. The handler of the tracker dog must be highly trained to handle such dogs and can understand the body language of the dogs. In the case of R v Lindsay [1], it was seen that it is on the Dog handler to set up that a dog has been appropriately trained and that over a while the dog's responses show that it is a reliable pointer to the presence of ascent from a particular individual, and then the evidence should properly be admitted. Initially, sniffer dog evidence was not admissible by all countries' judicial authorities, but with time, in the modern era, courts have become considerably more receptive to it, provided that after carefully scrutinizing the dog and its handler evidence.
In India, evidence of tracker dog is placed in Court with the force of section 45 of the IEA, 1872 [2], which has the provision of the experts' opinion. By this handler of a tracker, dog can be cross-examined to check the reliability of the sniffer dog’s evidence, and he can establish the credibility of the tracker dog. In India till now, Judicial authorities have not considered dog tracker evidence as influential in criminal proceedings. Indian authority on the dog tracker evidence had been disuniform from the past and in the present also.
In the case of Abdul Rajak Murtaja Dafedar v. State of Maharashtra [3], the Supreme Court of India gave two objections against the reception of dog tracking evidence. First, that dog cannot take an oath and submit himself for cross-examination; however, his handler can go to report dog evidence and this is hearsay evidence. Secondly, there is an unjust feeling that the liberty of human beings should not leave to be decided by dog inference. In this case, the evidence of the tracker dog was not admissible and it is opined by judges, even if admissible, is not usually of much weight.
The evidence of Sniffer dogs is not admissible unless there is other circumstantial evidence found to be reliable and corroborative to prove the same. In the case of Shaikh v. State of Maharashtra [4], the tracker dog led police to the house of the suspect, which was admissible with prior scrutiny and other circumstantial evidence present to support the dog tracker evidence. In this case, a more receptive approach to Sniffer dog's evidence was imminent and gave the four guidelines which must be borne in mind while scrutinizing the tracker dog evidence. The service of Sniffer dogs has been ordinarily utilized by investigating agencies to trace the Culprits. Trained dogs pick up the scent of any object from the place of the crime scene and will trace out the root by which culprit would have gone to his bolt-hole. However, the evidence traced by dog tracker is not admissible in the court proceedings as there is a high possibility of an error on the part of the dog or its handler. In the case of Ramesh v. State of Assam [5], it was observed by SC that, "Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them."
In a recent landmark judgment, the trial court convicted accused based on the five circumstantial evidence in which one circumstance is “the police Dog Squad proved the guilt of the accused persons," later in the appeal, SC upheld the conviction, but that was done after excluding the evidence of Dog Squad.[6] Now, this was settled as law in India, that the Sniffer dog's services may be taken for Investigation, but it cannot be made to establish the guilt of the accused person. International authorities have considered that the evidence traced by the sniffer dogs should be admitted, provided that sufficient scrutiny must be done. The below cited are the case laws which settled the position of sniffer dog's evidence in distinct international judicial authorities.
In the case of R v. Sykes [7] [English Court of Appeal], it was found that evidence of the tracker dog should be admissible, provided that the dog handler able to prove the reliability of the dog and the correctness of the traced evidence. Patterson v. Nixon [8] [Scotland's Supreme Courts] found that the dog must have to pass through the rigorous test if he passed fit than his evidence could be admissible in Court. Authority also opined that the evidence of sniffer dogs should be taken into consideration bearing the circumstances of the particular case, as each case has different elements.
In the case of R v. Haas [9] [Canada Court of Appeal], it was established that once the capabilities of the sniffer dog to follow the scent and the skills of dog handler are established, then the evidence is admissible. The qualification of the sniffer dog must be proved like the qualification of the expert’s opinion.
In the case of Florida v. Jardines [10] [US Supreme Court], In this case, the authorities’ puts restriction on the use of sniffer dogs to investigate the home and its surroundings, as the 4th amendment to the US constitution, protects the citizens from unreasonable interference in their private property by the government. This judgment limits the use of sniffer dog skills to investigate.
In Conclusion, the evidence traced by the sniffer dogs is considered as the quasi-scientific evidence, which must be passed through scrutiny to make it admissible before the Court. The scrutiny must be done vigilantly for the strong base because if it proves false than it can be more inimical rather than probative. In the earlier time, the use of Sniffer dogs was not much and their evidence was also not admissible but with time, the use of sniffers while conducting the Investigation became usual and their testimony was also considered as a good piece of evidence in Court against the accused. However, Indian Courts are not receptive to it, they even today considered it as the weak type of evidence which cannot be admissible in court against the accused person because the dog has not been subjected to the system of checks and balances. Excluding India, other International judicial authorities [mostly] considered sniffer dog evidence as to the importance in the criminal law proceedings and the use of sniffer dogs is proliferating with time.
Endnotes:
[1] (1970) NZLR 1002.
[2] Indian Evidence Act 1872, Section 45, read as:
“Opinions of experts.—When the Court has to form an opinion upon a point of foreign law or of science or art, or as to the identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to the identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts.”
[3] AIR 1970 SC 283.
[4] 1993 CriLJ 2808.
[5] (2001) 6 SCC 205.
[6] State of U.P. v. Ram Balak & Anr, AIR 1974 SC 2165.
[7] (1977) Crim LR 752.
[8] (1995) 2 Cr App R 11.
[9] (1962) 35 DLR (2d) 172.
[10] 569 US 1 (2013).
Sniffer dogs are very proficient in the investigation by the police; they are considered as knowledgeable and highly trained animals as they have a tremendous olfactory sense, which helps to trace the offender. However, this evidence not been regarded as strong evidence unless the Court examined the reliability of sniffer dog's skill, and his past patterns of performance were checked. The evidence of the Tracker dog is scientific evidence. The handler of the tracker dog must be highly trained to handle such dogs and can understand the body language of the dogs. In the case of R v Lindsay [1], it was seen that it is on the Dog handler to set up that a dog has been appropriately trained and that over a while the dog's responses show that it is a reliable pointer to the presence of ascent from a particular individual, and then the evidence should properly be admitted. Initially, sniffer dog evidence was not admissible by all countries' judicial authorities, but with time, in the modern era, courts have become considerably more receptive to it, provided that after carefully scrutinizing the dog and its handler evidence.
In India, evidence of tracker dog is placed in Court with the force of section 45 of the IEA, 1872 [2], which has the provision of the experts' opinion. By this handler of a tracker, dog can be cross-examined to check the reliability of the sniffer dog’s evidence, and he can establish the credibility of the tracker dog. In India till now, Judicial authorities have not considered dog tracker evidence as influential in criminal proceedings. Indian authority on the dog tracker evidence had been disuniform from the past and in the present also.
In the case of Abdul Rajak Murtaja Dafedar v. State of Maharashtra [3], the Supreme Court of India gave two objections against the reception of dog tracking evidence. First, that dog cannot take an oath and submit himself for cross-examination; however, his handler can go to report dog evidence and this is hearsay evidence. Secondly, there is an unjust feeling that the liberty of human beings should not leave to be decided by dog inference. In this case, the evidence of the tracker dog was not admissible and it is opined by judges, even if admissible, is not usually of much weight.
The evidence of Sniffer dogs is not admissible unless there is other circumstantial evidence found to be reliable and corroborative to prove the same. In the case of Shaikh v. State of Maharashtra [4], the tracker dog led police to the house of the suspect, which was admissible with prior scrutiny and other circumstantial evidence present to support the dog tracker evidence. In this case, a more receptive approach to Sniffer dog's evidence was imminent and gave the four guidelines which must be borne in mind while scrutinizing the tracker dog evidence. The service of Sniffer dogs has been ordinarily utilized by investigating agencies to trace the Culprits. Trained dogs pick up the scent of any object from the place of the crime scene and will trace out the root by which culprit would have gone to his bolt-hole. However, the evidence traced by dog tracker is not admissible in the court proceedings as there is a high possibility of an error on the part of the dog or its handler. In the case of Ramesh v. State of Assam [5], it was observed by SC that, "Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them."
In a recent landmark judgment, the trial court convicted accused based on the five circumstantial evidence in which one circumstance is “the police Dog Squad proved the guilt of the accused persons," later in the appeal, SC upheld the conviction, but that was done after excluding the evidence of Dog Squad.[6] Now, this was settled as law in India, that the Sniffer dog's services may be taken for Investigation, but it cannot be made to establish the guilt of the accused person. International authorities have considered that the evidence traced by the sniffer dogs should be admitted, provided that sufficient scrutiny must be done. The below cited are the case laws which settled the position of sniffer dog's evidence in distinct international judicial authorities.
In the case of R v. Sykes [7] [English Court of Appeal], it was found that evidence of the tracker dog should be admissible, provided that the dog handler able to prove the reliability of the dog and the correctness of the traced evidence. Patterson v. Nixon [8] [Scotland's Supreme Courts] found that the dog must have to pass through the rigorous test if he passed fit than his evidence could be admissible in Court. Authority also opined that the evidence of sniffer dogs should be taken into consideration bearing the circumstances of the particular case, as each case has different elements.
In the case of R v. Haas [9] [Canada Court of Appeal], it was established that once the capabilities of the sniffer dog to follow the scent and the skills of dog handler are established, then the evidence is admissible. The qualification of the sniffer dog must be proved like the qualification of the expert’s opinion.
In the case of Florida v. Jardines [10] [US Supreme Court], In this case, the authorities’ puts restriction on the use of sniffer dogs to investigate the home and its surroundings, as the 4th amendment to the US constitution, protects the citizens from unreasonable interference in their private property by the government. This judgment limits the use of sniffer dog skills to investigate.
In Conclusion, the evidence traced by the sniffer dogs is considered as the quasi-scientific evidence, which must be passed through scrutiny to make it admissible before the Court. The scrutiny must be done vigilantly for the strong base because if it proves false than it can be more inimical rather than probative. In the earlier time, the use of Sniffer dogs was not much and their evidence was also not admissible but with time, the use of sniffers while conducting the Investigation became usual and their testimony was also considered as a good piece of evidence in Court against the accused. However, Indian Courts are not receptive to it, they even today considered it as the weak type of evidence which cannot be admissible in court against the accused person because the dog has not been subjected to the system of checks and balances. Excluding India, other International judicial authorities [mostly] considered sniffer dog evidence as to the importance in the criminal law proceedings and the use of sniffer dogs is proliferating with time.
Endnotes:
[1] (1970) NZLR 1002.
[2] Indian Evidence Act 1872, Section 45, read as:
“Opinions of experts.—When the Court has to form an opinion upon a point of foreign law or of science or art, or as to the identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to the identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts.”
[3] AIR 1970 SC 283.
[4] 1993 CriLJ 2808.
[5] (2001) 6 SCC 205.
[6] State of U.P. v. Ram Balak & Anr, AIR 1974 SC 2165.
[7] (1977) Crim LR 752.
[8] (1995) 2 Cr App R 11.
[9] (1962) 35 DLR (2d) 172.
[10] 569 US 1 (2013).
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