Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] This is an appeal by the Public Prosecutor against the decision of the High Court in Ipoh acquitting and discharging the respondents on the charge framed under s. 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") read with s. 34 of the Penal Code without calling upon their defence. The facts relevant to this appeal may be shortly stated. On 24 January 2002 at about 10pm PW3, PW4 and PW5, all police officers were on their rounds. At about that time they came to the Tapah rest area. Their evidence is that they saw the respondents acting suspiciously. According to PW3 and PW5 the first respondent was seated on a motorcycle number AEF 2360. The second respondent was standing next to the motorcycle. The police, suspecting that something was afoot, approached the two respondents and identified themselves as police officers. Thereupon the respondents took flight. They ran in different directions. They were eventually apprehended. While his fellow policemen were pursuing the respondents PW5 stood guard over the motorcycle. He noticed a black sling bag (exh. P12) in the motorcycle's carrier. After their arrest the respondents were taken to the police station where PW3 lodged a police report (exh. D20). The contents of exh. P12 were sent to the chemist who after a chemical analysis found it to be 976 grams of cannabis. The respondents were then charged with the offence of trafficking.

[3] The learned trial judge acquitted the respondents on two main grounds. First, he found PW3 to be a witness unworthy of credit and therefore had his evidence impeached. Besides this he also held PW3's evidence to be wanting in credibility. Second, he held that there were insufficient circumstances to establish that the respondents had trafficked in the proscribed drug in question. Taking the first point, the learned judge's decision on the evidence of PW3 turned on what he considered to be material contradictions between the evidence of that witness in court and what he had stated in exh. D20. In fairness to the learned judge it must be said that he listed the contradictions that warranted a finding that PW3 was a witness unworthy of credit under s. 155(c) of the Evidence Act. The learned deputy who has argued this appeal has submitted that the discrepancies upon which the learned judge relied are in truth nothing more than mere omissions. In ably putting the case for the appellant before us, she submitted that a witness' credit should not be impeached for mere omissions save in exceptional cases. It is the Public Prosecutor's contention that PW3 had merely stated more in his evidence than what he had set out in his police report exh. D20. In other words the omissions in D20 ought not to have been relied upon by the learned judge in arriving at the conclusion that PW3 was a witness unworthy of credit. With these arguments we are entirely in agreement.

[4] In Muthusamy v. Public Prosecutor ; [1948] MLJ 57, the locus classicus on the subject under discussion, Taylor J had this to say:

A mere omission is hardly ever a discrepancy. The police statement is usually much briefer than the evidence.

Again in Dasu v. State [1985] CRI LJ 1933, 1938 the court held as follows:

In order to see whether there is a contradiction by omission it is necessary to find out whether the two statements cannot stand together. It is also necessary to see whether the statement which the witness has made in the witness-box should have been made by him while reporting the matter soon after the incident. If the two statements made by the witness cannot stand together and the statement in the Court is such that the witness would necessarily have made at the time of his earlier statement, then a lone omission thereof can be considered to be a contradiction.

[5] Applying the test in Dasu, we are unable to say with any conviction that the statements made by PW3 on oath would necessarily had been made by him in exh