Trap Cases and the Evidence of Decoy Witnesses under the Bharatiya Sakshya Adhiniyam, 2023

Bribery is a transaction between two willing people in private, and there is rarely an independent witness. The trap is the answer the system has developed: the complainant pays, officers watch, and the money is recovered. Everything then turns on the evidence of people who took part in the very transaction charged — which raises the question whether they are accomplices requiring corroboration. They are not, and the reason why explains how their evidence is assessed.

1. The Question

A trap produces three classes of witness, and the evidentiary treatment of each is different.

The question that arises is whether the first class are accomplices within Section 138, so that illustration (b) to Section 119 applies and corroboration in material particulars is required as a rule of prudence.

2. The Leading Authority

The distinction the decision draws is between two quite different reasons for caution, and they should not be run together.

The approach in Bhanuprasad Hariprasad Dave v. State of Gujarat, AIR 1968 SC 1323 is to the same effect, the Court holding that a person who pays money to a public servant in circumstances amounting to extortion — where the payment was demanded and he was the victim rather than a willing participant — is plainly not an accomplice, having committed no offence at all.

3. The Interested Witness Framework

If a trap witness is not an accomplice, the framework that applies to him is the one governing interested witnesses, and the settled propositions carry across directly.

Partisan evidence is not to be mechanically rejected. Masalti v. State of Uttar Pradesh, AIR 1965 SC 202 holds that discarding evidence on the sole ground that it is partisan would invariably lead to failure of justice, and that the proper course is to examine it with care and caution.

Status is irrelevant; truthfulness is everything. Girja Prasad v. State of Madhya Pradesh, (2007) 7 SCC 625 holds that credibility is considered on the touchstone of reliability, trustworthiness and consistency, and not on the basis of the status of the witness — which disposes of the submission that trap officers are to be distrusted because they are police officers.

Independence is a question of fact. The panch witnesses are described as independent, and frequently are not — the same persons appear as panchas in case after case, or are subordinate employees of the department. Where that is shown, their evidence is assessed as partisan rather than independent, and the court looks for support elsewhere.

4. What a Trap Case Must Establish

The evidentiary question is not only about the witnesses. In a prosecution under the Prevention of Corruption Act, 1988 two things must be proved and the first is where most cases fail.

The primacy of demand is settled. In B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55 the Court held that proof of demand is indispensable, and that in its absence the mere recovery of tainted currency cannot sustain a conviction — the presumption under Section 20 of the Prevention of Corruption Act, 1988 being attracted only once acceptance of gratification is itself proved.

The decision is important for the topic because it removes the proposition that a trap case collapses automatically when the complainant turns hostile. What survives is a requirement that the foundational facts be proved — by whatever evidence is available — before the presumption does any work. That is the same structure as every other reverse burden in the Adhiniyam, and the framework in Noor Aga v. State of Punjab, (2008) 16 SCC 417 applies.

5. The Supporting Evidence

A trap generates material of several kinds, and each has its own evidentiary basis under the Adhiniyam.

The recording of the demand deserves separate mention, because it has transformed trap cases in practice. A complainant who records the demand on his own telephone before approaching the agency supplies direct evidence of the element that is otherwise hardest to prove. Under the Adhiniyam his own device is ordinarily primary evidence by force of Explanation 3 to Section 57, the record existing in more than one file, so the certificate question may not arise at all. Where the recording is produced from another source, the conditions in Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 on the admissibility of tape recordings apply — authenticity, accuracy, relevance, and the voice being duly identified.

6. How a Trap Case Is Attacked

Six lines of attack recur, and each engages a different provision.

1. No demand proved. The strongest line, and the one on which most acquittals rest. Recovery without demand is not the offence — B. Jayaraj.
2. The panch witnesses were not independent — departmental subordinates, or persons who appear repeatedly as panchas. Their evidence is then partisan rather than independent.
3. The currency was planted or thrust. Where the accused says the money was pushed into his pocket, the chemical test proves contact and not acceptance, and the distinction is real.
4. The pre-trap proceedings are defective — numbers not recorded, the memorandum prepared afterwards, the phenolphthalein treatment not witnessed.
5. The complainant has a motive — a pending adverse decision, prior enmity, or a desire to avoid a legitimate demand made by the public servant in the discharge of duty.
6. The presumption was applied without foundational facts. Section 20 of the 1988 Act operates only once acceptance is proved, and a court that presumes the demand from the recovery has inverted the exercise — Neeraj Dutta.

7. The Wider Category of Decoy Evidence

Traps are not confined to bribery, and the same reasoning applies wherever a person participates in a transaction in order to detect an offence.

• Narcotics cases, where a decoy purchases a controlled substance.
• Counterfeiting and excise cases, where an officer or a decoy buys the article.
• Sting operations conducted by private persons or journalists, where the participant is neither an officer nor acting under supervision.

The last of these is the least settled. A private person conducting a sting is not acting under the direction of an investigating agency, and there is no pre-trap memorandum, no independent panch and no supervised recovery. The material such an operation produces is ordinarily an electronic record, and the questions that arise are those of Sections 61 to 63 — authenticity, integrity, and the certificate where the record is secondary evidence — rather than the accomplice question. A court assessing it looks at how it was made, whether it has been edited, whether the maker had a motive, and whether the record is complete or shows only what suits him.

8. Practical Points

1. Do not concede that a decoy is an accomplice. He is not, and the corroboration rule in illustration (b) to Section 119 does not apply — Basawan Singh.
2. Establish demand independently of recovery. It is the indispensable element and the point on which the case will turn.
3. Where the complainant has turned hostile, build demand from circumstantial evidence — Neeraj Dutta — rather than treating the case as lost.
4. Prove the foundational facts before invoking Section 20 of the 1988 Act; the presumption does not supply them.
5. Establish that the panchas were genuinely independent, and be ready to meet the suggestion that they are habitual witnesses.
6. Where there is a recording of the demand, consider Explanation 3 to Section 57 — the complainant's own device may be primary evidence, and no certificate need arise.
7. For the defence, separate contact from acceptance. A positive chemical test establishes the first and not the second.
8. Scrutinise the pre-trap memorandum — when it was prepared, who witnessed the treatment of the currency, and whether the numbers were recorded before the trap.

9. The Position Stated Shortly

1. A trap or decoy witness is not an accomplice, his purpose being detection rather than participation.
2. Section 138 and illustration (b) to Section 119 therefore do not apply, and corroboration is not required as a rule.
3. His evidence is scrutinised with care as partisan evidence, and may be acted upon without corroboration if found reliable — Basawan Singh.
4. Partisan evidence is not to be mechanically rejected — Masalti — and status is irrelevant to credibility — Girja Prasad.
5. There is no defence of entrapment in India, though the origin of the transaction bears on whether demand is proved.
6. Demand is indispensable and cannot be inferred from recovery alone — B. Jayaraj.
7. Demand may be proved by circumstantial evidence where direct evidence is unavailable — Neeraj Dutta.
8. The presumption under Section 20 of the 1988 Act operates only once the foundational facts are proved, and the rebuttal is on a preponderance of probabilities.

10. Related Topics and Provisions