JUDGMENT Dev Darshan Sud, J. The appellant has challenged his conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The genesis of the case is that HC Satish Kumar (PW14), HHC Chet Ram (PW4) and HC Dhani Ram (PW8) had formed a Nakka at Zero Point Pandoh Dam on 12.3.2008. They were there in official vehicle No. HP-33A-8714 and C. Roshan Lal was its driver. Bus bearing No. HP-32-2299 came from Kullu and was proceeding to Mandi at around 3.15 p.m. The Naka party signaled the bus to stop, when the driver of the bus Shri Roop Lal and conductor Shri Rattan Chand (PW-1) alighted from the bus. According to the prosecution they were associated with the search and seizure of the passengers. The prosecution case is that the accused was occupying seat No. 27 and 28. He was holding a blue coloured bag Ex.P-2 on his lap on which words “Head” was printed. On inquiry, he disclosed his name as Naresh Paliwal and was scared and frightened. This bag was opened in the presence of PW1 Shri Rattan Chand and Shri Roop Lal, driver (not produced as witness) and H.C. Satish Kumar (PW-14), and was found to contain a polythene bag with chocolate like substance, which on smelling and burning tasted like charas. PW4 HHC Chet Ram was sent to bring scales and weights from the shop of Shri Tek Chand (PW2). On weighing, the contraband was found to be 1 kg 600 grams. Two samples of 25 grams each were separated and preserved for analysis. Each sample was wrapped in a piece of white paper and each piece of white paper was wrapped in cloth parcel. Each parcel was sealed with six impressions of seal “H”. Remaining quantity of contraband weighing 1 kg 550 grams was put in the green polythene bag from which it was recovered. NCB form Ex.PW8/A was filled in triplicate, seal impression etc. was put on this form. 3. At this juncture, I need to consider the grounds on which the case of the prosecution has been accepted. The learned Sessions Judge on the evidence concludes that PW1 Shri Rattan Lal does not support the prosecution version and holds that his testimony has been impeached with reference to his previous statement recorded under Section 161 of the Code of Criminal Procedure. The learned Sessions Judge on the evidence concludes that PW1 Shri Rattan Lal does not support the prosecution version and holds that his testimony has been impeached with reference to his previous statement recorded under Section 161 of the Code of Criminal Procedure. The learned trial Court went on to hold that where a prosecution witness was cross-examined by the prosecution, his testimony cannot be relied upon by the defence for contradicting the version of the prosecution. To similar effect are the findings of the learned trial Court with respect to the statement of PW-2 Shri Tek Chand. The learned trial Court then considers the statements of PW4 HHC Chet Ram, PW 14 H.C. Satish Kumar and PW8 HC Dhani Ram, who entered the bus for the purpose of searching the passengers which included the accused and proceeded to convict the accused. Learned trial Court relied upon the decision in Bharwada Bhoginbhai Hirji Bhai versus State of Gurjarat 1983 (3) SCC 217 who states that (a) the witnesses does not have photographic memory; (b) that the contradictions are not material in nature and in this eventuality, unless there are fundamental contradictions in the evidence, the prosecution evidence cannot be discarded and (c) that the evidence of the police officials cannot be discarded. Having dealt with this law, the Court holds that the accused is guilty of the offence and then proceeds to convict and sentence him. 4. I have heard learned counsel Mr. Sanjeev Kuthiala appearing for the appellant and learned Additional Advocate General for the State. Learned counsel for the appellant submits that the basis for conviction which is (a) conscious possession of the contraband and (b) its recovery from the accused, has not been established on record. Learned counsel submits that the evidence on record does not support the case of the prosecution. Adverting to the evidence of PW1 Rattan Chand, (who was declared hostile) learned counsel submits that it was his case that the bag was on the overhead rack above the seat of the accused and he was not in possession of the bag. On the evidence of PW2 Tek Chand, who was also declared hostile and states that no activity took place in his presence. He denied giving weights and scale to the police which were taken to the bus and the contraband weighed. On the evidence of PW2 Tek Chand, who was also declared hostile and states that no activity took place in his presence. He denied giving weights and scale to the police which were taken to the bus and the contraband weighed. Learned counsel submits that the findings recorded by the learned trial Court that the veracity of the testimony of these two witnesses has been impeached, cannot be accepted. 5. PW1 Shri Rattan Chand states that he was the conductor of the bus having registration No. HP-32-2299 and he had been working for the last 14 years. This bus plies between Sarkaghat and Kullu. On 12.3.2008 at 1.24 P.M. it started from Kullu and reached Pandoh dam at 3.15 P.M. It was stopped by the police party and parked on the side of the road. He and the driver alighted and the police conducted the search of the passengers. The accused (whom he identified in Court) was sitting on seat Nos. 27-28 and the bag containing charas was lying on the shelf above the seat of the accused. It was opened and charas was found in a polythene bag. Accused and the bag were taken towards a shop where bag was sealed after weighing. His and the signatures of the driver were obtained on the pieces of cloth and papers. Ex.PW1/A bears his signature and those of the driver. The signature of the accused was not obtained on sample seal in his presence. Property search and seizure memo Ex.PW1/C bears their signatures. After proving the signatures on the seal etc. he was declared hostile. In cross-examination by the prosecution, he does not admit that when the police went inside the bus the accused had a bag between his legs. He states that on weighing, the charas was found to be 1 kg 600 grams and that he had put his signature on the documents after the police had written them. He had not read anything. One police Official had gone to fetch the scale and weights. The forms were filled in the shop where the charas was weighed. He then denied that he and driver were inside the bus and recovery of charas was effected in their presence by the police from the accused. He was confronted with his statement’s portion A to A and B to B of Mark A which he denied having made to the police. He then denied that he and driver were inside the bus and recovery of charas was effected in their presence by the police from the accused. He was confronted with his statement’s portion A to A and B to B of Mark A which he denied having made to the police. In cross-examination by the defence counsel he states that there were 30 to 35. Many bags were lying on the shelf and he cannot say that who was owner of which bag nor he could remember which passenger was carrying luggage and which passenger was without luggage. The shop was located at a distance of 15-20 meters from Pandoh dam. He and the driver were sitting inside the shop during the entire investigation. 6. PW2 Shri Tek Chand, who is a shopkeeper and from whom the scale and weights were requisitioned by the police as also as stated by PW4 HHC Chet Ram, was tailor who stitched the cloth bags containing samples as also left out remaining portion of the contraband stated in evidence that he was running a shop/tea stall where kept packed snacks. He states “Police came to my shop along with the accused present in the court (identified by pointing). The police did something but I am not aware about the detail. My signature was not obtained on any document. Ex.PW2/A bears my signature. Self stated that I had put signature on the blank paper. The police had not taken any thing from me.” He was declared shotile. In cross-examination he stated that the police did not record his statement. He denies that the police ever took any scale or weights from him. He signs documents only after reading them but he signed Ex.PW2/A (factum of arrest of the accused to be conveyed to his brother Virender Kumar) under threat from the police but did not disclose this fact to any superior officer. He is specific in his denial when he says that weights 1 kg, 500 grams, 200 grams, 100 grams, 50 grams and 25 grams and one scale handed over to the police and that they were returned to him by police at 4.00 P.M. 7. PW4 HHC Chet Ram was part of the search party. He narrates about the bus being stopped and searched in which accused was traveling. He states that at around 3.50 p.m. the bus was signaled to stop. PW4 HHC Chet Ram was part of the search party. He narrates about the bus being stopped and searched in which accused was traveling. He states that at around 3.50 p.m. the bus was signaled to stop. Driver of the bus Shri Roop Lal and conductor Shri Rattan Lal (sic. Shri Rattan Chand, PW1) according to him they were associated in the search and they all went inside the bus. Checking was commenced from seat No.1 and when they reached at seats No. 27 and 28, accused (whom he identified in Court) was occupying these seats and on inquiry he disclosed his name as Naresh. He had kept a backpack between his legs. When it was searched, it was found to be containing chocolate like substance, which was kept inside the bag in a green coloured polythene bag. It smelled and tasted (burnt) and was found to be cannabis (bhang). He was sent to fetch weights and a scale which he got from Shri Tek Chand, PW2, who was a shopkeeper. Cannabis (bhang) was weighed and it was found to be 1 kg 600 grams. Two samples each weighing 25 grams were taken for chemical analysis. Rukka was prepared and sent to police station Gohar. In cross-examination by the defence counsel he stated that they reached at Pandoh at around 12.40/12.45 P.M. No naka was set up with the help of barricade or rope. He states that they had checked about 10-12 vehicles and that the National High Way l from Mandi to Kullu is very busy. He states that when he started from the police station he headed the police party. H.C. Dhani Ram, PW8 was also member of this party. He states that he boarded the bus from the front door and C. Roshan Lal another police officials was standing outside the door of the bus. The Investigation Officer and other policemen were also checking the passengers as also searching the bus. He could not recall the number of passengers but states that there were some seats which were occupied. He states that there was luggage in the rack above the seats where bags were lying but he could not recall as to whether the configuration of the seats was 2 by 2 or 2 by 3. He says that they had checked about 15-20 passengers prior to the recovery of the bag containing the contraband. He states that there was luggage in the rack above the seats where bags were lying but he could not recall as to whether the configuration of the seats was 2 by 2 or 2 by 3. He says that they had checked about 15-20 passengers prior to the recovery of the bag containing the contraband. Cloth which was used for making the parcels, was in the kit of the Investigating Officer. Cloth parcel was sewed on the spot with a needle and thread. He admits that the parcel was sewed with the help of sewing machine from two sides and that they had no sewing machine at the spot but it was stitched by tailor Shri Tek Chand, PW2, who according to him sells tea, toffees and biscuits in his shop. He then resiles from his statement portion A to A in mark D when he states that he had not made such statement to the Investigating Officer. 8. PW8 H.C. Dhani Ram states that he was a member of the police party. On 12.3.2008 when they reached at zero point Pandoh Dam in the vehicle bearing registration No. HP-33A-8714 which was being driven by constable Roshan Lal. He signaled bus No. HP-32-2299 to stop at around 3.15 P.M. The driver told him that his name was Roop Lal and that of the conductor Shri Rattan Chand. He then states that “All of us boarded the bus with the driver and conductor and we started checking the bus from seat No.1.” Accused (whom he identified in Court) was occupying seat Nos. 27, 28 and on seeing them he got frightened. He disclosed his name as Naresh Paliwal. He was carrying a blue coloured bag bearing inscription ‘head’ which was checked and found containing a light green coloured polythene bag inside in which chocolate like substance was found. It was smelt and tasted and found to be cannabis. He then states that “I sent HHC Chet Ram to bring scale and weights. He returned with the scale and weight. Charas was weighed and its weight was found to be 1 kg 600 grams. I took two samples each weighing 25 grams for the purpose of analysis.” In cross-examination by the defence counsel he admits that no entry was recorded in the Police Station regarding his forming a nakka at Pandoh. He returned with the scale and weight. Charas was weighed and its weight was found to be 1 kg 600 grams. I took two samples each weighing 25 grams for the purpose of analysis.” In cross-examination by the defence counsel he admits that no entry was recorded in the Police Station regarding his forming a nakka at Pandoh. There were about 20 passengers in the bus, constable Shri Roshan Lal was standing outside the bus near the rear door. All the police officials boarded the bus from the front door. He did not prepare a separate memo of the passengers who were checked by him till he reached seat No.26. The bus was having overhead racks for keeping luggage. He denies that many bags were lying on these racks. There were only two bags according to him. He denied the suggestion that the bag, subject matter of the crime was also lying on the rack. The shop of PW2 Tek Chand was at a distance of 100-150 meters from the place of occurrence and it was not visible from the spot. He did not associate any passenger with the search proceedings. The cloth used for preparing bulk parcel and sample parcel was lying in the kit of the Investigating Officer. He had stitched the parcel at the spot with a needle and thread from all sides. 9. PW14 HHC Satish Kumar also corroborates the prosecution evidence about stopping the bus, its driver being Shri Roop Lal and conductor Shri Rattan Chand, search was being carried out by H.C. Dhani Ram, PW8. He was also a member of the search party. He then states about the seizure of the contraband, preparation of parcels etc. He states that he reached the spot in official vehicle which was a Bolero. 10. DW1 HHC Chet Ram was produced in defence. He states that he was posted as driver in police station Gohar since June, 2010. Log book Ex.DW1/A of the movement of the official vehicle was proved by him. He states in cross-examination that it is in the handwriting of Constable Roshan Lal who was posted as driver on 12.3.2008. Log book was filled by driver and was signed by the SHO. What I find from Ex. DW1/A is that on 12.3.2008 there was no entry assigning any vehicle for transporting the police officials to the spot. 11. He states in cross-examination that it is in the handwriting of Constable Roshan Lal who was posted as driver on 12.3.2008. Log book was filled by driver and was signed by the SHO. What I find from Ex. DW1/A is that on 12.3.2008 there was no entry assigning any vehicle for transporting the police officials to the spot. 11. Learned counsel Shri Sanjeev Kuthiala appearing for the appellant submits that there is no proof of conscious possession of the contraband. He submits that the learned trial Court has not adjudicated in consonance with law. He relied upon the decision of the Supreme Court in Paramjeet Singh alias Pamma versus State of Uttarakhand, (2010)10 SCC 439 , dealing with the hostile witnesses the Court holds: “………………………………………………………….. 15. In State of Gujarat v. Anirudhsing, (1997) 6 SCC 514 , this Court observed as under : "Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. Every citizen who has knowledge of the commission of cognizable offence has a duty to lay information before the police and cooperate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. He is further enjoined to adopt scientific and all fair means to unearth the real offender, lay the charge-sheet before the court competent to take cognizance of the offence. The charge-sheet needs to contain the facts constituting the offence/s charged. The accused is entitled to a fair trial. Every citizen who assists the investigation is further duty-bound to appear before the Court of Session or competent criminal court, tender his ocular evidence as a dutiful and truthful citizen to unfold the prosecution case as given in his statement. Any betrayal in that behalf is a step to destabilise social peace, order and progress." 16. The fact that the witness was declared hostile at the instance of the public prosecutor and he was allowed to cross examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide : State of Rajasthan v. Bhawani & Anr., (2003) 7 SCC 291 ) 17. This Court while deciding with the issue in Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., (2006) 2 SCC 450 , observed as under: "7. .....It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof." 18. In Mahesh v. State of Maharashtra, (2008) 13 SCC 271 , this Court considered the value of the deposition of a hostile witness and held as under: "49…..... If PW 1, the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution". 19. In Rajendra & Anr. v. State of Uttar Pradesh, (2009) 13 SCC 480 , this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa & Ors. 19. In Rajendra & Anr. v. State of Uttar Pradesh, (2009) 13 SCC 480 , this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa & Ors. v. State of Karnataka, (2010) 6 SCC 533, observing that the deposition of a hostile witness can be relied upon at least upto the extent he supported the case of the prosecution. 20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.” (emphasis supplied) (pp.447-449) On standard of proof, in Paramjeet Singh’s case (supra), the Court holds: “………………………………. 10. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide : Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 ; State of Punjab v. Jagir Singh Baljit Singh & Anr., AIR 1973 SC 2407 ; Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC 765 ; Mousam Singha Roy & Ors. v. State of West Bengal, (2003) 12 SCC 377 ; and Aloke Nath Dutta & Ors. v. State of West Bengal, (2007) 12 SCC 230 )…….” (emphasis supplied) (pp.445-446) 12. Learned counsel also placed reliance upon the judgment of the Supreme Court in Ram Krushna versus State of Maharashtra, (2007) 13 SCC 525 holding: “6. Dr. Rajeev Masodkar, learned counsel appearing on behalf of the appellant in support of this appeal inter alia would submit: (i) As the sole eyewitness PW3 had turned hostile, a judgment of conviction cannot be sustained. (ii). The High Court committed a serious irregularity in not scrutinizing deeply the statements of PW8 as he was not an eye witness and furthermore contradicted himself in material particulars. (iii). The butt of the knife having been recovered from an open place, no reliance could have been placed on the recovery thereof. (iv). The High Court did not deal with the question of motive for commission of the crime elaborately. 7. Mr. Ravindra Keshavrao Adsure, learned counsel appearing on behalf of the respondent on the other hand, in support of the judgment would submit: (i) The courts below did not commit any mistake in relying upon the evidence of PW3 which clearly supports the prosecution case. (ii) PW4 having proved the recovery of the handle of the knife, the involvement of the appellant stands proved. (iii) The serologist report clearly establishes that samples of human blood found on the butt of the knife and that of the deceased were of the same group. 19. It is well settled that the courts are entitled to rely upon a part of the testimony of a witness who has been permitted to be cross-examined by the prosecution. 20. In State of U.P. v. Ramesh Prasad Misra, (1996)10 SCC 360 this Court opined: (SCC p.363, para 7): “7. 19. It is well settled that the courts are entitled to rely upon a part of the testimony of a witness who has been permitted to be cross-examined by the prosecution. 20. In State of U.P. v. Ramesh Prasad Misra, (1996)10 SCC 360 this Court opined: (SCC p.363, para 7): “7. ………It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.” (See also Gurpreet Singh v. State of Haryana, (2002)8 SCC 18 and Gagan Kanojia v. State of Punjab, (2006)13 SCC 516” (pp. 527 & 529). 13. On the same principle, learned counsel relied upon the decision of the Supreme Court in Himanshu alias Chintu versus State (NCT of Delhi), (2011)2 SCC 36 holding: “30. In Prithi v. State of Haryana, (2010)8 SCC 536 decided recently, one of us (R.M. Lodha, J.) noticed the legal position with regard to a hostile witness in the light of Section 154 of the Evidence Act, 1872 and few decisions of this Court as under: (SCC pp.544-45, paras 25-27) “25. Section 154 of the Evidence Act, 1872 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Some High Courts had earlier taken the view that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. However this view has not found acceptance in later decisions. As a matter of fact the decisions of this Court are to the contrary. In Khujji v. State of M.P. (1991)3 SCC 627 a three-Judge Bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana (1976) 1 SCC 389 , Rabindra Kumar Dey v. State of Orissa (1976)4 SCC 233 and Syad Akbar v. Stateof Karnataka, (1980) 1 SCC 30 reiterated the legal position that: (Khujji case, SCC p.635, para 6) ‘6…….the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treat as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof.’ 26. In Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999)8 SCC 624 this Court again reiterated that testimony of a hostile witness is useful to the extent to which it supports the prosecution case. It is worth noticing that in Bhagwan Singh, (1991)3 SCC 627 this Court held that when a witness is declared hostile and cross-examined with the permission of the court, his evidence remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence. 27. The submission of the learned Senior Counsel for the appellant that the testimony of PW6 should be either accepted as it is or rejected in its entirety, thus, cannot be accepted in view of the settled legal position as noticed above.” (pp.45 & 46) 14. Lastly in C. Muniappan & Ors. versus State of Tamil Nadu, AIR 2010 SC 3718, the Court holds” “70. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766 :(1996 AIR SCW 3468), this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is a consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra (2002)7 SCC 543 : ( AIR 2002 SC 3137 : 2002 AIR SCW 3619); Gangan Kanojia & Anr. V. State of Punjab (2006) 13 SCC 516 ; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951 ; (2006 AIR SCW 421); Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320 : (2007 AIR SCW 6843; and Subbu Singh v. State, (2009) 6 SCC 462 : (2009 AIR SCW 3937). Thus, the law can be summarized to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defendant. Thus, the law can be summarized to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defendant. ………….” (emphasis supplied) (p. 3736) 15. In Ramesh Kumar versus State of H.P., Latest HLJ 2006 (HP) 446 on the question of possession Division Bench of this Court holds: “22. A careful scrutiny of the facts and circumstances of the present case as well as the material on record shows that the prosecution has not been able to prove the possession of the bag containing the “Charas” by the accused persons, leaving alone the conscious possession of the same within the meaning of the term ‘conscious possession’, as enunciated by the Hon’ble Supreme Court in this judgment. It is not in dispute that two bags were lying, allegedly on the seat between the accused persons. In our opinion, the prosecution has not been able to prove beyond reasonable doubt out of which bag the contraband was found and whether this bag in the possession of the accused persons. No doubt, there is a presumption of culpable material state as per the provisions of Sections 35 and 54 of the Act but for the provision of those Sections to come into place, it has first to be established by the prosecution that the contraband was in the possession of the accused persons. In the first instance, the possession of the contraband by the accused persons will have to be established by the prosecution. Only then will the onus of proof that they were not in conscious possession will shift upon the accused persons. In the present case, the material on record does not establish beyond reasonable doubt that the accused persons were in possession of the contraband much less in conscious possession.” 30. The flaw in the present case is that the evidence of the police officials is neither clear not cogent. Rather, there seems to be a basic confusion in the case of the prosecution as to which seats the accused persons were sitting on and from where the bag containing the ‘Charas’ was recovered. Further it is not clear whether the bag was kept in between the accused persons or on the shelf. Rather, there seems to be a basic confusion in the case of the prosecution as to which seats the accused persons were sitting on and from where the bag containing the ‘Charas’ was recovered. Further it is not clear whether the bag was kept in between the accused persons or on the shelf. If kept in between the accused persons, where could it have been kept since the accused persons were occupying seat Nos. 37 and 38 as per the prosecution version and there could have been no seat in between. Neither has it been brought out whether seat No.39 was occupied or unoccupied. Further, the very possession and ownership of the bag by the accused persons is shrouded in doubt. All these aspects have been minutely gone into the discussed in detail.” (pp.453 & 455) 16. Learned counsel submits that conscious possession is a sine qua non for prosecution for convicting the accused. He placed reliance upon the judgment of this Court in Dole Ram versus State of Himachal Pradesh, Latest HLJ 2007 (HP) 678 holding: “6. Again PW8 Narinder Kumar himself has rendered the prosecution version highly doubtful when he says that he enquired from all the passengers about the ownership of the bag. When according to his testimony, the bag was lying on the same bench, which was occupied by the appellant and he was holding its straps, where was the occasion or need to make enquiries with other passengers as, to the ownership of the bag. This statement itself suggests that Narinder Kumar PW-8 was not sure that the appellant was the owner of the bag containing charas. 7. The conductor of the bus, namely, PW7 in his testimony stated that there were 30 to 35 passengers and that majority of them had alighted from the bus for taking tea and snacks at the nearby stalls, when the police party came and asked him and the driver to require the passengers to occupy their seats as they wanted to search the persons and the luggage of all the passengers and that thereafter the passengers were made to occupy their seals. The testimony of this witness belies the testimony of PW-8 Narinder Kumar, Inspector that there were only 15 to 20 passengers in the bus, when the checking was done and that the checking was done after getting the bus stopped, when it appeared from Mandi side.” (pp.680&681) He submits that this principle has been followed and applied by this Court in Nathu Ram versus State of H.P., Latest HLJ 2008 (HP)709, Satnarayan versus State of H.P., Latest HLJ 2010 (HP)18 and Nanha versus State of H.P., Latest HLJ 2011 (HP) 1195. 17. Adverting to the evidence on record, PW1 Rattan Chand, conductor and PW2 Tek Chand have been declared hostile on the ground that they do not support the prosecution case. PW1 Shri Rattan Chand does not support the prosecution case when he states that the bag was not in possession of the accused but was lying in the overhead rack of the bus. PW2 Shri Tek Chand also denies any seizure of bag containing charas in his presence as also the fact that any weights and scale were procured from him. PW4 HHC Chet Ram says that he was sent to fetch weights and weighing scale from the shop of Shri Tek Chand, PW2. He admits that he had no sewing machine but the cloth parcels were stitched with the sewing machine by Shri Tek Chand, PW2, who also sells tea, toffees etc., in his shop. He admits that 1-2 bags were lying on the luggage racks but he does not know about the configuration of the seats. PW8 Dhani Ram corroborates this witness by stating that he was sent by him to fetch scale and weights etc. from the shop of PW2 Shri Tek Chand and to similar effect is the statement of PW14 HC Satish Kumar. What I find from the evidence of PW1 Shri Rattan Chand is that (a) accused was traveling in the bus and (b) that this bus was in fact stopped and searched, (c) he supports the prosecution case when he says that the bus was stopped and accused was traveling in it, there were 30 to 35 passengers in the bus (d) but at the same time he says that there were many bags lying on the overhead rack but he could not identify their owners. (e) He says that search and seizure memo contains his signature but does not support the prosecution case when he says that the accused was not carrying the bag and says that the accused and the bag were taken towards the shop when the bag was sealed after weighing. When read with the statement of PW2 Shri Tek Chand who says that police came to his shop along with accused but does not know what happened thereafter. He denies that HHC Chet Ram, PW4 asked him for weights etc. Adverting to the evidence of PW4 HHC Chet Ram, PW8 HC Dhani Ram and PW14 HC Satish Kumar, who states that the driver and conductor of the bus were associated in the search, I do not find that this part of their evidence/testimony stands proved but is directly contradicted by PW1 Shri Rattan Chand and PW2 Shri Tek Chand. It is not the rule of the law that the police officials do not state the truth and are only interested in securing conviction of the accused by hook or by crook. This principle settled has been in a long line of decisions of the Supreme Court inter alia in Anil versus State of Maharashtra, (1996) 2 SCC 589 , Pattu Lal vs. State of Punjab (1996) 8 SCC 228 , Abdul Majid vs. State of Gujrat (2003) 10 SCC 198, Balabir Singh vs. State (1996)11 SCC 139 , Girja Prasad vs. State of H.P. (2007) 7 SCC 625 and Aher Raja Khima vs. State of Saurashtra AIR 1956 SC 217 . Conviction can be based on the evidence of the police officials though the rule of prudence requires a careful scrutiny of the evidence. 18. Adverting to the facts and circumstances of the case, I find that there is no evidence to establish that the accused was in fact in conscious possession of the bag which was seized by the police and all weighing and sealing etc., of the contraband seems to have been done inside the shop of PW-2 Shri Tek Chand but again what I find is that a tailor and tea shop owner as admitted by PW4 HHC Chet Ram, could have been having sewing machine, weights and scale. This is the reason which puts this Court to scrutinize their testimony carefully. This is the reason which puts this Court to scrutinize their testimony carefully. No implicit reliance can be placed on their testimony when coupled with the fact that Shri Roop Lal was not examined (it was stated by the prosecution that he had been won over by the accused without there being any evidence to establish this fact). The evidence on record does not establish that the appellant was in fact in conscious possession of the bag. The testimonies of PW1 Shri Rattan Chand and PW2 Shri Tek Chand cannot be rejected out right but are in direct conflict with the other evidence of the police officials on record. In these circumstances grave doubt in the mind of this Court as to whether the accused/appellant was in conscious possession of the contraband. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. In these circumstances, this appeal is allowed and the judgment of the learned trial Court is quashed and set aside. Fine amount if deposited be refunded to the accused forthwith. The appellant/accused be released from the jail forthwith in case he is not wanted in any other offence.