Dev Darshan Sud, J.
1. The appellant has been charged and convicted for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). According to the prosecution, the appellant was found in conscious possession of 1 Kg. 900 grams of 'charas'.
2. On 8-6-2004, SI Kanwar Singh Guleria, (P.W. 8), SHO Police Station, Arki went to Pau-Ghatti while on routine patrolling duty. At about 8 a.m. he received information from some reliable source that a man by the name of Ram Karan, wearing a Kurta-Pyjama and holding a walking stick, was travelling in the bus which was proceeding from Arki towards Jai Nagar. He was told that this person was carrying charas. This information was reduced into writing and sent to Superintendent of Police, Solan, through constable Ramesh Kumar (P.W. 5).
3. At about 8.40 a.m. when the bus reached the spot where P.W. 8 was waiting, the driver and the conductor of the bus were asked to get down and informed that a man by the name of Ram Karan, was travelling in the bus who was carrying charas with him. The conductor and driver of the bus, namely, P.W. 1 Bhupinder Singh and P.W. 2 Sunil Datt, asked the passengers to alight from the bus one by one. When the appellant alighted, he was asked if his name was Ram Karan since his description tallied with that of the person who was supposed to be carrying charas as per information received by SI Kanwar Singh, P.W. 8. The appellant admitted that he was Ram Karan. P.W. 8 S.I. Kanwar Singh then informed him that since he was suspected to be carrying charas, his personal search was required to be carried out which could be done by the police or in the presence of a Magistrate or a gazetted officer. According to the prosecution, the accused consented to be searched by the police officer. He was carrying a bag in which there was another bag containing charas. It was weighed and found to contain 1 kg. and 900 grams of charas. Two samples weighing 25 grams each were separated. The samples and the bulk charas were packed into separate parcels and sealed. Specimen impressions of the seal were taken on four pieces of cloth. Search and seizure memo, was prepared. The accused was arrested and grounds of arrest were communicated to him in writing. A written report was prepared and sent to police station for formal registration of the case. Consequently, case FIR No. 73 of 2004, was registered against the appellant.
4. The prosecution examined 9 witnesses. One witness was also examined in defence. According to the learned trial Court, the evidence of the search consisting of P.W. 1 Bhupinder Singh, P.W. 2 Sunil Datt, the conductor and driver, respectively of the bus; P.W. 8 S.I. Kanwar Singh Guleria and P.W. 3 Amar Lal, Head Constable coupled with other documentary evidence on record, conclusively established the guilt of the appellant. It was held that the accused-appellant was in conscious possession of charas and, therefore, convicted and sentenced under Section 20(c) of the Act for 10 years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for a further period of two years.
5. We have heard learned Counsel for the parties and have gone through the record of the case.
Learned Counsel for the appellant submits that the learned trial Court was not correct in appreciating the evidence holding the appellant guilty of the offence. He submits that if the evidence is read in its totality, no conclusion except that of innocence of the appellant is established. Learned Counsel has taken us to the statements of P.W. 1 Bhupender Singh and P.W. 2 Sunil Datt, the two independent witnesses produced by the prosecution. P.W. 1 Bhupinder Singh is the conductor of the bus, he stated that the police stopped the bus at Paughatti. He was informed by the SHO to direct the passengers to alight from the bus as one of them was carrying charas with him. He complied with this direction. According to his statement, the accused-appellant was not carrying any bag with him. He also been subjected to searching cross-examination, but nothing material has been elicited from him which would render his evidence unworthy of credence. On cross-examination by the defence counsel, he has admitted that the appellant was asked to pick up one bag, which was lying on the over-head rack of the bus.
6. P.W. 2 Sunil Datt is the driver of the bus. Although he states that the accused was asked to get down from the bus while he was holding a bag in his hand, but he does not know as to where the seals were kept after being affixed on the bag. P.W. 8 S.I. Kanwar Singh Guleria has admitted in his statement that the bus was packed with passengers at that particular point of time.
7. Learned Counsel for the appellant has urged that considering the totality of evidence, the appellant could not be attributed with the conscious possession of charas. More importantly, he has drawn our attention to the evidence of P.W. 9 Ashwani Kumar, HC No. 30 who states that he was posted as MHC in Police Station, Arki since November, 2001. On 8-6-2004, a report Ext. PG was brought to him on the basis of which FIR Ext. PL was registered. On that very day, the case property was deposited with him by P.W. 8 SI Kanwar Singh Guleria. He states categorically that the case property consisting of three parcels, one containing the bulk and two containing the samples, was deposited with him. One parcel was sent to the Chemical Laboratory for analysis by road certificate through constable Ram Gopal, P.W. 6. He states that he sent the special report to the Superintendent of Police on the same day. He is categoric in deposing that the case property and the samples remained intact with him and nobody tampered with their contents. His cross-examination is most telling. He denies the suggestion that no report was brought to him on 8-6-2004. When confronted with the case property register, he states that one deposit was made on 3-6-2004 and the subsequent entry is of 10-6-2004, meaning thereby that no entry has been made on 8-6-2004. He also admits over-writings and interpolations in various entries have been made, have not been authenticated.
8. He has also drawn our attention to the evidence of D.W. 1, who in terms supports the version put forth by P.W. 1 and P.W. 2; namely, Bhupender Singh and Sunil Datt that the appellant accused was not in possession of the charas. According to him, the appellant was made to pick up a bag which was lying on the overhead rack in the bus. He further states that he did not pick up the bag and the policeman picked it up and handed it over to the accused to be carried out.
9. Learned Counsel for the appellant-accused submits that the evidence led by the prosecution with respect to the conscious possession of charas is highly unsatisfactory and does not connect the appellant with the recovery of the charas. We are in agreement with the learned Counsel. We find that although PW. 1 and P.W. 2 have been declared hostile, they have been corroborated on the factum of recovery by D.W 1. We find that the learned trial Court has incorrect in applying the ratio in Jagdish v. State of M.P. : 2002(80)ECC3 , wherein their Lordships have held that it would not be safe to rely on the prosecution case on the sole testimony of the official witnesses. One very important fact which needs to be noticed and which has been brushed aside by the learned trial Court is regarding the deposit of the seized contraband and its safe custody. As we have noticed, P.W. 9 HC Ashwani Kumar has admitted that there is no entry in the Malkhana register between 3-6-2004 and 10-6-2004. The prosecution case is that the case property was deposited on 8-6-2004. Where, how and in what condition the contraband remained, is not clear. P.W. 9 has also admitted to a number of other interpolations in the Malkhana register which have not been initialled or explained. We find from this testimony that the safe keeping of the contraband, the fact that it was not tampered with, or that it was sent to the Chemical Examiner for analysis, has not been established by the prosecution. Thus the totality of circumstances coupled with the evidence of P.W. 1 Bhupender Singh, P.W. 2 Suneel Dutt, P.W. 9 HC Ashwani Kumar and D.W. 1 leaves no doubt in our mind whatsoever that the appellant cannot be charged with conscious possession of charas. We find that the learned trial Court has been in error in appreciating the evidence in the manner in which it has done. On the testimony of P.W. 9, the learned trial Court has ignored his cross-examination which is destructive on all material points on what he had stated in examination-in-chief. The learned trial Court was not correct in ignoring his cross-examination. Similarly, on the testimony of P.W. 1, the learned trial Court has not appreciated the evidence regarding conscious possession. He states that the appellant was made to pick up the bag lying on the overhead rack of the bus which in terms is the evidence of D.W. 1.
10. On the question of the appreciation of evidence of the witnesses, the Hon'ble Supreme Court has laid down the principles in Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble : 2003CriLJ4548 , wherein their Lordships have held that the maxim 'falsus in uno falsus in omnibus' is not applicable in India. Their Lordships further held that falsity of a particular material would not vitiate the entire testimony of the witness concerned. A duty has been cast upon the Court to separate the grain from the chaff and when this is not feasible, the entire evidence in toto is to be discarded. Their Lordships in terms have held as under (paras 26 and 27 of Cri LJ):
25. It is the duty of the Court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has no aplication in India and the witnesses cannot be branded as liars. The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence.' (See Nisar Ali v. State of U.P.) 1957 Cri LJ 550.
26. The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. 1972 Cri LJ 1302 and Ugar Ahir v. State of Bihar 1965 (1) Cri LJ 256). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M. P. 1954 Cri LJ 230 and Balaka Singh v. State of Punjab 1975 Cri LJ 1734. As observed by this Court in State of Rajasthan v. Kalki 1981 Cri LJ 1012) normal discrepancies in the evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar 2002 Cri LJ 2645; Gangadhar Behera v. State of Orissa 2003 Cri LJ 41 and Rizan v. State of Chhatisgarh 2003 Cri LJ 1226.
11. As noticed by us above, the totality of the circumstances including the fact that the Malkhana register does not show any entry on 8-6-2004 when the contraband was supposed to have been deposited leaves no doubt in our mind that the appellant is not guilty of the offences for which he was charged. Why and under what circumstances the entries were not made nor the register exhibited in the Court, further strengthens our conclusion that the appellant is innocent of the offences.
12. In these circumstances, we accept this appeal and acquit the appellant. He shall be set at liberty forthwith in case he is not wanted in any other offence.