JUDGMENT T.S. Doabia, J. 1. Learned counsel appearing for the appellant summits that in the matter of recording finding against the appellant the court below has placed reliance on evidence which according to various judgments of the. Supreme Court of India was liable to be ignored. The prosecution did not followed any of the norms which are required to he followed, in a case dealing with laying of trap against a public servant. Before noticing the various submissions made by the learned counsel, the facts in brief be noticed : 2. Appellant Omprakash Singh stands convicted in a special Trial under section 161 of the Indian Penal Code and 5 (1) (d) of the Prevention of Corruption Act, 1947. He has has been sentenced to 1 year's rigorous imprisonment and a fine of Rs. 500/- has also been imposed. 3. The prosecution story is as under: 4. One Brijnarain Khare P.W. 3 was posted as Revenue Inspector in Tehsil Pichhore. He was so posted w.e.f. 15.9 1980. This Brijnarain Khare was keep to go on deputation to Rajghat Dam Project U.P. For the requisite administrative approval his confidential report was required to be sent to the office of Assistant Settlement Officer. Pichhore. These report and other papers were to be sent to Head Office at Shivpuri so that these could be forwarded to Rajghat Project. 5. The further fact is the Ramaswami Naidu P.W. 2, was the Assistant Settlement Officer posted at Pichhore. The appellant was a clerk in the Establishment Section of Assistant Settlement. Officer's Office. In the normal official routine papers were to he forwarded to Head Office, Shivpuri by Assistant Settlement Officer, but it is alleged that the appellant was to take initial steps and was to prepare the file for sending the same to the office of the Assistant Settlement Officer. 6. It be seen that Assistant Settlement Officer was on leave for 20 days. As per Brijnarain Khare P.W. 3 the appellant had demanded an amount of Rs. 50/-as illegal gratification for sending the said file to Head Office Shivpuri. Shri Brijnarain Khare P.W. 3 expressed his inability to pay the said amount. He was however, agreeable to pay to the accused an amount of Rs. 25/-. According to the prosecution. Brijnarain Khare P.W. 3 made a complaint regarding this to the Collector. Shivpuri. This is dated 5.12.1980. 50/-as illegal gratification for sending the said file to Head Office Shivpuri. Shri Brijnarain Khare P.W. 3 expressed his inability to pay the said amount. He was however, agreeable to pay to the accused an amount of Rs. 25/-. According to the prosecution. Brijnarain Khare P.W. 3 made a complaint regarding this to the Collector. Shivpuri. This is dated 5.12.1980. The Collector is said to have warned P.W. 3 that in case the complaint is found to be false, action would be taken against him. The Collector gave direction in this connection to Sub Divisional Officer (Police (i.e. Shri Kidwai P.W. 5. This witness was informed. Shri Khare met this police officer at police station at Pichhore. 7th of December 1980, was fixed for proceeding further in the matter. Later on the date was changed as 7th of December 1980 was a Sunday. It was 8. 12.1980, as the date fixed for laying the trap. 7. According to the prosecution on the date so fixed P.W. 5, Shri Kidwai called Shri Khare P.W. 3 and directed him to arrange for a shadow witness. P.W. 3 suggested the name of Chochuram P.W. 4. Chochuram was called accordingly. After taking all these steps Shri Kidwai P.W. 5, took Brijnarain Khare P.W. 3 and Chochuram P.W. 4 to Tehsildar Shri Narendra Pratap Singh P.W. 1. This Tehsildar i.e. P.W. 1 asked P.W. 3 to produce currency notes worth Rupees twenty five. This was done. Two currency notes of the denomination Rs. 10/-each and 1 note of Rs. 5/- denomination was available. These notes were initialed. A panchnama P-3 was drawn up. 8. As per the prosecution. Shri Kidwai P.W. 5 asked P.W. 3 Brijnarain Khare to proceed and deliver currency notes worth Rs. 25/- to appellant Omprakash Singh. Shri Khare left the place for handing over the notes to Omprakash Singh appellant. It is alleged that P.W. 3 handed over currency notes of Rs. 25/- to accused appellant. The appellant put these currency notes in the pocket of his pant. It is alleged that P.W. 3 signaled Shri Kidwai SDOP and Tehsildar Shri Narendra Pratap Singh to reach there. They came on the spot. According to Shri Kidwai P.W. 5 the appellant handed over the notes to him. 9. The appellant as staled above was tried by Additional Sessions judge, Shivpuri and convicted as indicated above. 10. It is alleged that P.W. 3 signaled Shri Kidwai SDOP and Tehsildar Shri Narendra Pratap Singh to reach there. They came on the spot. According to Shri Kidwai P.W. 5 the appellant handed over the notes to him. 9. The appellant as staled above was tried by Additional Sessions judge, Shivpuri and convicted as indicated above. 10. Learned counsel for the appellant has argued that: (i) In a case of bribe, the most important thing that is to be considered is whether the accused had an occasion to demand bribe and; (ii) whether there was some justification for the demand. 11. The counsel for the appellant submits that there was absolutely no motive for Brijnarain Khare P.W. 3 to pay the bribe to the appellant and there was no occasion for the appellant to demand or accept the same. 12. The counsel has pointed out that it has come on the record that administrative file had already been sent to Head Office Shivpuri on 26.11.1980 and as such, there was no occasion for the accused to demand bribe on 5.12.1980 nor was there any occasion for Brijnarin Khare to pay him and the entire case is false. 13. The learned counsel for the appellant has argued that recovery of the currency notes is extremely discrepant. He points out that P.W. 1 Shri Narendra Pratap Singh Tehsildar in para-3 stated that Shri Kidwai started searching the pockets of the pant and shirt worn by the appellant and on such search currency notes worth Rupees 25 were found from the pant's pocket. In cross-examination (para-11) he admitted that he could not see as to from where Shri Kidwai P.W. 5 recovered the notes. Para-12 of the statement indicate that he had seen the notes being recovered from the hand of Omprakash Singh. In para -13 he again stated that the notes were recovered from the hand of the appellant but he could not say as to from which hand. In para-14 of his statement he got more confused and stated that Shri Kidwai P.W. 5 had asked the appellant to open his list and the currency notes were recovered accordingly. 14. Chochuram P.W. 4 shadow witness has not supported the prosecution. He stated that Brijnarain Khare had not given currency notes worth Rs. 25/- to the accused in his presence. 14. Chochuram P.W. 4 shadow witness has not supported the prosecution. He stated that Brijnarain Khare had not given currency notes worth Rs. 25/- to the accused in his presence. According to him, Shri Kidwai brought the appellant outside the room and at that time his list was closed. It was opened and there upon the notes fell down on the ground. This witness was of course declared hostile. 15. Shri Kidwai P.W. 5 slated that the accused took out the notes from his pocket. These were seized. This is however not so stated in para-6 of his statement. This witness was conformed with Ex. P-6 in which there is no mention that the notes were recovered from the pocket of the pant of the accused. In cross-examination. Shri Kidwai stated that he had not searched the accused. He also stated that panchanama was prepared inside the office and he had not brought the accused outside. He denied that notes were recovered from the fist of the appellant. 16. Brijnarain Khare P.W. 3 it be seen slated (Para -5) that accused-appellant had kept the notes in his pants pocket. He is not sure as to in which pocket the notes were kept. In para-7 he staled that it is incorrect to suggest that the notes were found in the pocket of the accused. According to him, the notes were found from the fist of the accused. In para - 16. P.W. 3 staled that Shri Kidwai P.W. 5, had brought Omparakash Singh outside the room and at that time the list of the appellant-accused was closed. Thus, there are material discrepancies in the matter of recovery of the currency notes. If these were recovered from first then, the possibility that there were put in his hands cannot be ruled out. The witnesses are not consistent as to whether the money was in the pockets of the appellant and as to whether it was in his hands. There are thus two versions in this regard. 17. In Khilliram vs. State of Rajasthan AIR 1985 SC 79 , in para-10, Supreme Court of India with regard to this type of discrepancy has observed : There is again material discrepancy as to from where the amount was recovered. PW 2 has stated that the accused kept the notes of Rs. 50/- given by him in the left side pocket of his shirt. PW 2 has stated that the accused kept the notes of Rs. 50/- given by him in the left side pocket of his shirt. PW 6 has stated "When Prabhu Dayal conducted the search of the accused. Exts. P-1. 2. 3. 4 and 5 notes of the denomination of Rs. 10/- each were found out from the right side pocket of the shirt of the accused. There is thus, a discrepancy as to the place from where recovery was made. 18. The position in this case is the same and it is difficult to conclude that prosecution was successful in proving its case. The prosecution should have resorted to some scientific method and should have used and treated the currency notes with phenolphthalein powder. While dealing with this aspect of the matter the Supreme Court of India has observed in Raghuvir Singh vs. State of Punjab as under: We may lake this opportunity of pointing out that is would be desirable if in case of this kind where a trap is laid for a public servant, the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant. It is but meet that science-oriented detection of crime is made a massive programme of police, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swerving by traditional oral evidence only, thereby discouraging liberal use of scientific research to prove guilt. 19. Again in Khilli Ram vs. State of Rajasthan AIR 1985 SC 79 , in para-11, Supreme Court quoted the aforesaid passage and observed in para-12: Ordinarily in cases of this type the powder treatment is made. There is no material at all on the record to explain why such a process was not followed in the instant case even though detection is alleged to have been handled by experienced people of the Anti-Corruption Department.....It is difficult for us to accept the position that he was not aware of the powder treatment. There is no material at all on the record to explain why such a process was not followed in the instant case even though detection is alleged to have been handled by experienced people of the Anti-Corruption Department.....It is difficult for us to accept the position that he was not aware of the powder treatment. It has been in vogue for well over three decades now. If such powder treatment had been made, the passing of the bribe would indeed not have been difficult to be proved. In the present case, for reason best known to the prosecution and without there being any explanation for the same, powder treatment has not been resorted to. May be the Police Officer was not aware of this method or he was in hurry. The absence to follow this method cast a shadow of doubt on the prosecution. 20. Again the Supreme Court of India is of the view that a shadow witness plays a very important role. Shadow witness in this case is Chochuram P.W. 4. He has not supported the prosecution. With regard to a shadow witness the Supreme Court of India in Lachman Das vs. State of Punjab AIR 1970 SC 450 in para-8 has observed:- In trap cases at least some pinches overhear the conversation or see something to which they can depose....... On the whole therefore, we are satisfied that there is considerable room for doubt in this case and that the statement of Kishorilal which alone is the foundation of the charge against the appellant cannot be accepted without corroboration. 21. Again in Khilli Ram v. State of Rajasthan 1985 SC 79 the Supreme Court observed: The two punch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. 22. Same reasoning would he found in G.V. Nanjundiah vs. State (Delhi Adm.) AIR 1987 SC 2402 . As in this case, the shadow witness has not supported the prosecution at all the case of prosecution becomes doubtful. 23. There is another aspect of the matter P.W. 3 admitted (Para-15) that while giving currency notes to the accused, he told him that he was giving him the money as demanded by him. One Reserve Inspector was sitting there P.W. 2 Ramaswami Naidu has also admitted (para-6) that the table of one Ghanshyam Sharma and accused was continuous to each other. One Reserve Inspector was sitting there P.W. 2 Ramaswami Naidu has also admitted (para-6) that the table of one Ghanshyam Sharma and accused was continuous to each other. This Ghanshyam Sharma was in the office on the day trap was laid. One Girdharilal was also on duty in the same room (P. W. 2 para-5). P.W. 2 has admitted that in between his and appellants table, Ghanshyam used to sit on a stool. This could be hardly place where some one would accept bribe. The reason given in AIR 1987 SC. 2402 where the Supreme Court has observed that it is commonsense that a person would not accept bribe in the presence of a stranger." would apply to this case also. The Supreme Court observed :- It is also difficult to believe that the appellant would accept the bribe in the presence of Verma. 24. There is another small but a significant factor. There was no occasion left for Shri Khare P.W. 3 to pay the amount. Again the accused had no occasion to demand bribe, as the file had already been cleared. In this connection it is relevant to refer to the statement of PW. 2 Ramaswami Naidu. He admitted (para-2) that appellant was not competent to depute Shri Brijnarain Khare P.W. 3 on deputation. The ultimate order could be passed only by the competent officer. In para-3 of his statement he admits that papers relating to posting or not on deputation of Shri Brijnarain Khare had already been despatched by post on 26.11.1980. In fact, the office of the Assistant Settlement Officer was not competent to depute Shri Brijanrain Khare on deputation. In para-4 this witness has stated that the papers could be forwarded to Shivpuri by him alone. P.W. 3 Brijnarain Khare himself admitted (para-8) that the papers for deputation could be forwarded only by the Assistant Settlement Officer and that the same could not have been done by the appellant. He also admitted that the appellant could not have done anything unless there were directions of the Assistant Settlement Officer. This witness does not make any report of the Assistant Settlement Officer about the appellant demanding bribe. He admitted that he had handed over the papers on 11.11.80 (para 12). He admitted that the accused had already informed him that the concerned papers stood forwarded to Shivpuri on 26.11.1980 (para 13). This witness does not make any report of the Assistant Settlement Officer about the appellant demanding bribe. He admitted that he had handed over the papers on 11.11.80 (para 12). He admitted that the accused had already informed him that the concerned papers stood forwarded to Shivpuri on 26.11.1980 (para 13). He admitted that the papers had already reached Shivpuri Office and the accused accepted the bribe thereafter. This goes on to show that there was absolutely no occasion for the appellant to demand bribe and there was no occasion for Shri Khare to pay. 25. There is yet another lacuna, P.W. 5 never offered his person to be searched. This is also material discrepancy in the method of searching the appellants. Thus, I am of the view : (i) The evidence is at variance as to how the and from where the currency notes were recovered ; (ii) The shadow witness docs not sport the prosecution; (iii) Scientific method of using phenolphthalein was not restarted to; (iv) The place where currency notes were given other person were sitting and they were not associated as pinches. (v) There was no occasion left to give or accept bribe. In view the above findings the question regarding legal sanction is not being gone into, This appeal is accepted. The conviction recorded under section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act, 1947 is set aside. Fine if paid by the appellant be refunded.