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3. As stated above, the learned Special Judge, Kutch at Bhuj, who tried the case against the accused, after appreciating the evidence on record, found the case against accused No. 1 proved and convicted him for the offence punishable under Section 5(2) of the Prevention of Corruption Act and Section 161 of the I.P.C. However, acquitted the accused No. 2 for want of evidence.

4. Mr. J. G. Shah, learned Counsel appearing for the appellants- accused challenged the judgment of the trial Court on various grounds. Mr. Shah contended that the complainant in the instant case, has not supported the prosecution, and therefore, no reliance can be placed on the so-called admission in the cross-examination when he was declared hostile. In the submission of Mr. Shah, previous statement of the witness cannot be used as a substantive piece of evidence. In support of his argument, he has relied upon the decision of the Supreme Court in the case of Chinnammal v. State of Tamil Nadu, 1997 (1) SCC 145. Mr. Shah also contended that even though the panch No. 2 was available, the prosecution has not examined him, and therefore, the evidence regarding recovery of currency notes is required to be ignored. Mr. Shah then submitted that since the investigating officer in the instant case has used anthracene powder for the trap and no explanation is given as to why phenolphmalein powder was not used and when the witnesses are not clear about what they have seen on the hands of the accused or the currency notes, the accused No. 1 cannot be held guilty of the offence for which he is charged. In support of his submission, reliance is placed on the decision of this Court in the case of Gopalla Ghisulal Chhipa v. State, 1999 (1) GLR 546 and the decision of the Apex Court in the case of Khilli Ram v. State of Rajasthan, 1985 SCC (Cri.) 24 : AIR 1985 SC 79 and the decisions of Allahabad High Court in the case of Devendra Narain v. State of U.P., 1993 (3) Crimes 167. Mr. Shah finally submitted that the panchnama Exh. 20 cannot be relied upon as ir is not a substantive piece of evidence. To substantiate his submission, he has relied upon the decision of this Court in the case of Naginlal Nandlal v. State, 1961 GLR 664.

10. With regard to the contention of using anthracene powder for the trap and no explanation by the prosecution having been coming forth as to why the phenolphthalein powder was not used, and therefore, the accused is entitled to be acquitted, we may only observe that there cannot be any hard and fast rule that the prosecution must use only phenolphthalein powder for the trap. The decision cited by Mr. Shah in the case of Gopalla Chhipa, relying on the decision of the Supreme Court in the case of Khilli Ram v. State of Rajasthan, 1985 SCC (Cri.) 24 : (AIR 1985 SC 79) wherein it is laid down that if a trap is laid for a public servant, it is desirable that 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 dsciding the fate of a public servant. In view of the fact that when the Apex Court has held that it is desirable to use phenolphthalein powder, it cannot be contended that it is a mandatory requirement. Therefore, the findings of this Court in the case of Gopalla Chhipa (supra) relying on the decision of Allahabad High Court in the case of Devendra Narain v. State of U. P. (supra), that the use of phenolphthalein powder is a mandatory requirement, in our opinion, is contrary to the observations of the Apex Court in the case of Khilli Ram (supra). In our opinion, in the instant case, the evidence on record is not of a dubious character. As stated above, the evidence in the instant case consisfs of three independent witnesses; all of them are public servants and have no axe to grind against the accused No. I and once their evidence is accepted as a reliable evidence, merely because the lest is not carried out with phenolphthalein powder, that fact by itself, will not lead to acquittal of the accused No. 1.