Trap Cases: A Practical Note

Most prosecutions under Section 7 begin with a trap. The Act says nothing about traps; the procedure is a matter of investigative practice built around the ingredients the section requires, and its object is to convert a demand made in private into evidence that can be proved in open court. The whole exercise is directed at two facts. Was a demand made, and was the advantage accepted? Everything else, including the chemistry, is corroboration.

1. Before the Trap

1. The complaint. The person from whom the demand was made approaches the agency and gives a written complaint setting out the pending work, the officer, the demand, the amount and the date.
2. Verification. The agency ordinarily verifies the demand before committing to a trap, by sending the complainant to meet the officer with a recording device or with a witness. A verified demand recorded before the trap is the single most valuable piece of evidence in the case, because it survives the complainant turning hostile.
3. The decision to lay the trap, taken by an officer of the rank Section 17 requires, and recorded.
4. Approval, where required. Section 17A applies where the offence alleged is relatable to a recommendation made or a decision taken in official functions; it does not apply to a case involving arrest on the spot on a charge of accepting an undue advantage, which is the ordinary trap.
5. The panch witnesses. Two independent witnesses are requisitioned, ordinarily government servants from an unconnected office. One is designated the shadow witness, to accompany the complainant, and the other remains with the team.

2. The Pre-Trap Memorandum

• The complaint is read over to the panch witnesses and the contents explained.
• The currency notes are produced by the complainant, and their denominations and numbers are recorded.
• Phenolphthalein powder is applied to the notes.
• A demonstration wash is performed, so that the witnesses see the colourless powder produce a pink reaction in sodium carbonate solution and can depose to what it signifies.
• Instructions are given. The complainant is told to hand over the money only on a demand being repeated, and the shadow witness is told to remain within hearing, to observe the transaction and to give the agreed signal.
• The memorandum is signed by the witnesses, the complainant and the officer, and the time of departure is recorded.

3. The Trap and the Recovery

1. The demand is repeated and the payment made, in the presence of the shadow witness.
2. The signal is given and the team enters.
3. The recovery is effected, the place from which the notes were taken being recorded precisely, whether from the person, from a pocket, from a drawer or from a table.
4. The numbers are compared with those recorded in the pre-trap memorandum.
5. The washes are taken, the fingers of each hand separately, and the pocket or receptacle where the notes were kept, each solution being collected in a separate bottle, labelled and sealed.
6. The post-trap memorandum records each step, the colour changes and the sealing, and is signed by the witnesses.
7. Arrest and seizure follow, and the bottles are despatched for chemical examination without delay.

4. Electronic and Digital Evidence

• Recording of the demand at the verification stage, and sometimes at the trap itself, is now standard. Its admission requires proof of the device, of the identity of the voices, of the absence of tampering and of the certificate required for electronic records under the Bharatiya Sakshya Adhiniyam, 2023.
• Voice comparison. A magistrate may direct the accused to give a voice sample, following Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1.
• Call detail records and messages, proved with the statutory certificate, establish contact and its timing.
• Payment through electronic channels. Where the demand is satisfied by a transfer rather than in cash, the trap is documented by the transaction record, and the phenolphthalein procedure has no application; the corroboration then comes from the banking record and the communications.
• Chain of custody applies to electronic material as much as to the sealed bottles: the device, the copy made, the hash value where taken, and the custody of each must be provable.

5. The Standard Defences

6. When Witnesses Turn

1. A hostile complainant. After Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731 the prosecution does not fail automatically. Demand and acceptance may be proved by circumstantial evidence drawn from the shadow witness, the verification, the pending work, the recovery, the washes and the conduct of the accused, provided the inference is the only reasonable one.
2. A hostile panch witness. His evidence is not wholly effaced; the part that is credible and consistent with the rest may be acted on, and the memoranda he signed may be proved through the investigating officer, though with less weight.
3. Neither available. Where the shadow witness heard nothing and the complainant does not support the case, what remains is recovery, and the settled rule is that recovery alone does not establish the offence.

7. Who Lays the Trap

• The Central Bureau of Investigation, for central government servants and employees of central undertakings and banks, subject to its jurisdiction in the State concerned under the Delhi Special Police Establishment Act, 1946.
• State anti-corruption bureaux and vigilance departments, for State government servants and employees of State undertakings.
• Lokayukta police wings, where the State legislation creates them.
• The practical differences are of procedure and record-keeping rather than of law: the requirements of rank under Section 17, of independent witnesses, of contemporaneous memoranda and of chain of custody are the same whichever agency acts, and the defence attacks the same points.

8. Related Topics and Provisions