4.2 grams of Heroin, and Monoacetylmorphines. Prosecution’s case [7]. The prosecution’s case is that the accused persons were found inside a rented house during a police raid conducted by 110 a narcotics team. Evidence from SP3 and SP7 established that the house was locked at the time of the raid, and that OKT1 opened the door with a key in his possession, indicating control over the premises. All three accused were present inside the house and no other person was found there. During the 115 search, the police discovered dangerous drugs concealed beneath the kitchen sink inside a plastic packet labelled “GUANYINWANG Refined Chinese Tea”. The prosecution contends that since the drugs were found within the house occupied by the accused persons, they had custody and 120 control over the premises, and therefore constructive possession of the drugs can be inferred. [8]. The prosecution further argues that accused persons knowledge of the drugs can be inferred from the surrounding circumstances without reliance on the statutory presumption 125 under section 37(d) of the Dangerous Drugs Act 1952. The quantity of Methamphetamine recovered was 426.2 grams, which is far beyond personal consumption. In addition, items commonly associated with drug distribution, such as a weighing scale and empty plastic packets, were found in the 130 same house. The prosecution contends that these surrounding facts, taken together with the accused’s presence and control of the premises, support a reasonable inference that the accused had knowledge of the drugs. The prosecution therefore submits that the totality of the evidence establish a 135 prima facie case of possession and presumption of trafficking against the accused persons. Defence Case [9]. The defence contends that the prosecution has failed to establish a prima facie case against the accused, particularly 140 in proving the essential elements of possession and trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952. The defence submits that mere presence in the premises where drugs were discovered is insufficient to establish possession. Possession in criminal law requires proof of 145 custody or control, knowledge of the drugs, and the power of disposal. The defence argues that the prosecution failed to adduce evidence showing that the accused had any knowledge of the drugs or exercised control over them. The drugs were not found on the accused themselves, and there 150 was no evidence that the accused had handled, guarded, or dealt with the drugs found in the kitchen. The defence further argues that the premises were accessible to others and therefore the prosecution cannot rely on presumptions under s. 37(d) Dangerous Drugs Act without first establishing 155 exclusive custody or control. The premises were observed for only about 10 minutes before the raid, which is insufficient to ascertain that no other person had visited or had access to the premises. This is so in the light of the 3rd bedroom, there were personal items such as blue jeans and a towel which may 160 belong to a person other than the three (3) accused. [10]. The defence also contends that the prosecution failed to prove the element of trafficking and the alleged common intention under section 34 of the Penal Code. There was no evidence of sale, distribution, transportation, or any act preparatory to 165 trafficking attributable to the accused. No forensic evidence, surveillance evidence, transaction records, or communications linking the accused to drug trafficking activities were produced. The defence submits that the prosecution’s case relies solely on the discovery of drugs within the premises and not on any 170 conduct of the accused which proves involvement in drug activities. Accordingly, the defence argues that the evidence, even if taken at its highest, does not disclose the essential ingredients of the offence and therefore the accused ought to be acquitted without being called to enter their defence. 175 Determination [11]. At the close of the prosecution’s case, this court must determine whether the prosecution has established a prima facie case against the accused persons within the meaning of Balachandran v PP [2005] 1 CLJ 85; [2005] 2 MLJ 301; 180 [2004] 2 MLRA 547. The essential elements that must be proved are possession, knowledge of the nature of the drugs, and trafficking. Possession (Custody or Control) [12]. The prosecution relies on the fact that the accused persons 185 were present in the house during the police raid and that drugs were found beneath the kitchen sink. However, the evidence does not establish that the accused persons had exclusive custody or control over the place where the drugs were discovered. The drugs were concealed beneath the sink, a 190 location not obvious to occupants of the house. By contrast, several items associated with drug activities were found openly in bedroom 3. This raises the reasonable possibility that the drugs and the paraphernalia may belong to another individual connected to that bedroom. 195 [13]. The drugs were discovered wrapped in a black plastic bag beneath the kitchen sink, a place that was not readily visible or conspicuous. The kitchen is a common area of the house to which all occupants would ordinarily have access. In addition, the bathroom and toilet were located adjacent to the kitchen, 200 and access to them required one to pass through the kitchen area. In these circumstances, the kitchen cannot reasonably be regarded as a place under the exclusive control of any particular occupant. In contrast, the items associated with drug activities, including the weighing scale and related 205 paraphernalia, were found openly on a table in bedroom 3. However, the investigation did not establish who occupied that bedroom or who owned those items. Given that gap in the investigation, the court cannot discount the reasonable possibility that the person to whom the paraphernalia belonged 210 may also have been connected to the drugs concealed beneath the kitchen sink. Unless that possibility is excluded by credible evidence, a substantial doubt remains. In the circumstances, this unresolved evidential gap in the prosecution’s case, relating to items associated with drug 215 activities creates a strong doubt as to whether the drugs can properly be attributed to the accused. [14]. The material gap in the investigation concerning the items found in the 3rd bedroom, particularly the jeans and the towel shown in photograph P14 (photo 19), needs further 220 elaboration. The inadequacy of the investigation becomes clear from the cross-examination of SP8. At page 302 of the Notes of Evidence, the following cross-examination is referred: PB Hafiz : Bila Inspektor tak siasat siapa yang punya seluar jeans biru dan juga ada tuala warna biru juga tak 225 silap saya. Bila Inspektor tak siasat, Inspektor tak tahu siapa tuan punya seluar dan tuan punya tuala tersebut Inspektor tak tahu siapa yang huni dan duduk dalam bilik (No.3) tersebut? SP8 : Setuju. 230 Further cross-examination at pages 320–322 reinforced this evidential gap: “PB Hafiz: Saya katakan dalam bilik nombor 3, dalam 235 gambar P14, gambar nombor 19, bilik ini dihuni dan John yang tinggal dalam bilik tersebut? SP8 : Tak setuju. PB Hafiz : Pakaian yang ada dalam bilik tersebut, dalam gambar nombor 19 itu, ada seluar jeans, ada tuala 240 adalah milik John? SP8 : Tak setuju. PB Hafiz : Tapi setuju dengan saya, Inspektor tak tahu siapa pemilik pakaian tersebut. Setuju? SP8 : Tak setuju. 245 PB Hafiz : Sorry? SP8 : Tak setuju. PB Hafiz : Siapa pemilik pakaian ini dan apa keterangan yang Inspektor ada bagi membuktikan pakaian ini milik siapa? 250 SP8 : YA, berdasarkan dengan siasatan saya, pakaian semua ini dalam bilik ketiga ini adalah milik B1. PB Hafiz : Ada dibuat apa-apa acu pakai? SP8 : Tiada. PB Hafiz : Ada dirampas pakaian tersebut? 255 SP8 : Tidak. PB Hafiz: Ada ditanya dalam rakaman percakapan pakaian tersebut, pakaian milik siapa? SP8 : Tidak. PB Hafiz : Dan kalau dicadangkan bahawa tadi 260 Inspektor bagi tahu OKT1 kata ini pakaian dia, tapi Inspektor tak rampas pakaian dia? SP8 : Tidak. PB Hafiz : Ada Inspektor tengok pada pakaian tersebut, seluar jeans tersebut, apa saiz seluarnya? 265 SP8 : Tidak. PB Hafiz : Jadi dalam bilik tersebut, bilik ketiga tersebut, tidak ada satu apa-apa barang peribadi milik OKT1 yang dijumpai dalam bilik tersebut dan dirampas oleh Inspektor, setuju? 270 SP8 : Setuju. PB Hafiz : Dan sewaktu Inspektor pergi ke rumah tersebut, bilik-bilik tersebut tidak mempunyai apa-apa kunci khas? SP8 : Tak setuju. 275 PB Hafiz : Adakah bilik-bilik tersebut dikunci sewaktu Inspektor pergi? SP8 : Tidak. PB Hafiz : Ada apa-apa kunci khas diletakkan pada pintu-pintu bilik tersebut? 280 SP8 : Mohon ulang soalan. PB Hafiz : Ada apa-apa kunci khas yang diletakkan pada tombol pintu-pintu bilik tersebut? SP8 : Tiada. PB Hafiz : Dan dalam bilik tersebut juga, dicadangkan, 285 bilik ketiga ini juga, dicadangkan juga terdapat ada botol-botol minuman. Adakah dirampas apa-apa botol minuman? SP8 : Tiada.” 290 [15]. This cross-examination reveals that although SP8 asserted that the clothing belonged to OKT1, no investigative steps were taken to verify that claim. The clothes were not seized, not examined for size, not subjected to any fitting test, and no statement regarding ownership was recorded from the 295 accused. Importantly, SP8 also agreed that no personal items belonging to OKT1 were seized from the 3rd room. In these circumstances, the court finds that the ownership of the jeans and towel remains unestablished, leaving open the reasonable possibility that they may belong to another person, including 300 the individual referred to as “John.” This evidential gap weakens the prosecution’s attempt to link OKT1 to the occupation of the 3rd bedroom. [16]. The principle in Ooi Chee Seong & Anor v PP [2014] 3 MLJ 593; [2014] 7 CLJ 505; [2014] 7 MLRA 95, is relevant and 305 instructive. The Court of Appeal held that where the defence raises the existence of another real person who may be connected to the premises or the drugs, the prosecution must call that person or otherwise negate that possibility. Failure to do so creates a serious gap in the prosecution’s case. 310 [17]. The defence submission further relies on Ooi Chee Seong v PP (supra), read together with Ibrahim Mohamad v PP [2011] 1 MLRA 181; [2011] 4 CLJ 113;[2011] MLJU 1491, which emphasises the need for the prosecution to exclude other persons who may have had access to or control over the 315 premises. In Ooi Chee Seong, Abdul Malik Ishak JCA referred to a passage from Ibrahim Mohamad, where Zulkefli Ahmad Makinudin FCJ (as he then was) stated: “…Hence the need for the prosecution to exclude the possibilities that other individuals may have access to 320 the drugs in question. We find on a proper perusal of the evidence it would show that the prosecution had failed to exclude the possibility of others having access to the said vehicle. No evidence whatsoever was adduced by the prosecution to exclude the possibility that … other 325 individuals had access…” [18]. In my judgment, the above analogy applies to the present case. The jeans and towel found in the 3rd bedroom was not seized, no fitting test was conducted, no size was checked, 330 and no statement was recorded to establish ownership. Despite these omissions, SP8 asserted that the items belonged to OKT1 without any objective verification, while simultaneously agreeing that no personal belongings of OKT1 were seized from that bedroom. When questioned on the 335 occupancy of the 3rd bedroom, SP8 admitted that he had not investigated the matter and had merely assumed that OKT1 and OKT3 were the occupants. On these facts, as in Ooi Chee Seong’s case, the investigation left unresolved the real question of who actually occupied or used the bedroom and 340 failed to exclude the possibility of others having access. This failure, coupled with the evidence that OKT2 was merely a visitor, creates a clear evidential gap and materially weakens the prosecution’s attempt to link the 3rd bedroom and its contents to the accused through reliable evidence rather than 345 inference alone. [19]. In the view of this court, the issue is not merely the existence of a gap in the chain of evidence, but the failure to address and close that gap through proper investigation. Instead of pursuing further investigation, SP8 resorted to an unwarranted 350 assumption that the jeans and towel belonged to OKT1. This court cannot treat such an omission lightly. The investigating officer could easily have conducted a fitting test or questioned the accused persons regarding ownership of the items. Whether the accused denied ownership or whether forensic 355 examination yielded no result is beside the point. What is material is that the investigation ought to have been carried out to eliminate doubt and ensure that no material gap remained in the chain of evidence. Knowledge of the Drugs 360 [20]. The prosecution bears the burden of proving that the accused had knowledge of the existence and nature of the drugs discovered. The prosecution submits that knowledge of the drugs is proved from the surrounding circumstances without relying on the presumption under section 37(d) of the 365 Dangerous Drugs Act 1952: “(d)any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to 370 have known the nature of such drug”. They submit that the drugs were found in an open and accessible area beneath the kitchen sink, a common space used daily by occupants, and were visible and not concealed. Given the large quantity of drugs recovered, it is argued that the occupants could not 375 reasonably be unaware of their presence. This inference, the prosecution submits, is further strengthened by the discovery of drug-related paraphernalia in the 3rd bedroom, indicating ongoing drug activities. The prosecution contends that the defence failed to provide any credible explanation. Further, the 380 suggestion of third-party involvement is merely speculative. [21]. Knowledge cannot be inferred merely because the accused persons were present in the house. In the present case, the drugs were concealed beneath the kitchen sink, a location not obvious to occupants of the house. The concealment of the 385 drugs, coupled with the absence of any direct evidence linking the accused to that location under the sink, creates reasonable doubt as to whether the accused even knew of the existence of the drugs. [22]. It is a settled principle that mere presence in premises where 390 drugs are discovered is insufficient to establish possession or knowledge. In PP v Muhamad Nasir Shaharuddin & Anor [1994] 2 MLJ 576; [1992] 4 CLJ 2028; [1992] 2 MLRH 390, the High Court held: “[50]… the mere fact that someone had knowledge of 395 the drugs cannot be equated with possession of the drugs without establishing some form of control by the said person. It is often misunderstood that where the police raid a house occupied by two or more persons and a quantity of drugs are found, all such persons are 400 in joint possession. The correct principle of the law is that unless all such persons had custody or control over the drugs, they are not in possession of the drugs.” [23]. Similarly, the Court of Appeal in PP v Mohd Sairi Abdul 405 Samat [2013] 7 MLRA 305; [2013] 10 CLJ 30; [2013] 6 MLJ 741, emphasised that mere occupation of a place where drugs are hidden does not automatically establish possession. Her Ladyship Aziah Ali JCA observed: “[12]… even though it was established that the 410 respondent was the occupier of the room, mere occupation of the room per se was insufficient to prove custody, control and possession of the drugs…” … [14]… knowledge of the place where the drugs were 415 lying hidden did not necessarily constitute possession by the respondent unless there was further evidence produced by the prosecution that it was the respondent who had hidden the drugs there.” (Underline emphasised) 420 [24]. The prosecution submits that knowledge of the drugs can be inferred from the surrounding circumstances without relying on the presumption under section 37(d) of the Dangerous Drugs Act 1952. 425 [25]. In Ibrahim Mohamad & Anor V. PP [2011] 1 MLRA 181; [2011] 4 CLJ 113; [2011] MLJU 1491, the Federal Court reinforced this requirement that the prosecution must first exclude the possibility of access by others before possession can be attributed to the accused. His Lordship Zulkefli Ahmad 430 Makinudin FCJ at page 183, paragraph [11], quotes from Abdullah Zawawi bin Yusoff v. PP [1993] 1 MLRA 416; [1993] 3 MLJ 1; [1993] 4 CLJ 1: "...the onus was not on the defence to prove possibility of access by others but on the prosecution to exclude 435 such possibility." His Lordship further states this in paragraph [12]: "Hence the need for the prosecution to exclude the possibilities that other individuals may have access to the drugs in question. We find on a proper perusal of the 440 evidence it would show that the prosecution had failed to exclude the possibility of others having access to the said vehicle." [26]. This principle has been consistently reaffirmed by the Court of 445 Appeal in Karthi Gopal v. PP [2016] 5 MLJ 274; [2015] CLJU 1443; [2015] MLRAU 371, where the Court of Appeal emphasised that mens rea possession cannot be fastened to an accused where the prosecution fails to exclude other individuals who had access to the premises. His Ladyship 450 Tengku Maimun Tuan Mat (as she then was) said: “[16] The core of the defence case was that others too had access to the drugs in question and as such, mens rea possession cannot be fastened to the appellant for the following reasons:(i) the prosecution had not 455 excluded the other occupants of the said house who had access to the drugs;(ii) the back room was unlocked;(iii) the T-shirt had the DNA of another person “[27]… It is a settled principle of law that for the prosecution to establish possession, it must exclude the 460 possibility of access by others to the drugs… “ [27]. In the present case, the evidence does not establish that the accused persons had exclusive custody or control over the place where the drugs were found. The drugs were concealed 465 beneath the kitchen sink in a common area of the house. At the same time, the investigation revealed the existence of Bedroom 3, where items associated with drug activities were found openly, yet the prosecution failed to establish who occupied that bedroom. The jeans and towel found there were 470 neither seized nor examined, and their ownership was never investigated. [28]. Courts have also recognised that where drugs are concealed in common areas accessible to multiple persons, the prosecution must demonstrate exclusive control. In Pendakwa 475 Raya lwn Teyo Yen Leong [2017] 8 MLJ 636; [2016] CLJU 973; [2016] MLRHU 1226, where ammunition was discovered in the kitchen, the court held: “Maka tidak boleh dikatakan hanya tertuduh mempunyai kawalan atau jagaan eksklusif ke atas rumah tersebut 480 serta kawalan atau jagaan ke atas dadah Methamphetamine, Heroin dan Nimetazepam yang berada dalam bilik ketiga rumah tersebut serta 185 butir peluru yang berada di bahagian dapur rumah tersebut iaitu untuk berurusan dengan barang-barang tersebut 485 sebagai kepunyaan beliau dan bukan orang lain” [29]. Likewise, in PP v Eddi Md Kasim & Anor [2020] CLJU 329; [2020] MLJU 00667; [2020] MLRHU 487, the High Court acquitted the accused where drugs were concealed in 490 common areas of the premises, observing: “The impugned drugs were found concealed in a bag in the cabinet and a zipper bag on a table. They were not found exposed in any common area. PW4 testified that it took almost 20 minutes for the police to gain entry into 495 the Premises… the circumstances of the facts do not conclusively point towards guilt” [30]. Applying these principles to the present case, the court is not satisfied that the prosecution has established that the accused 500 had custody or control over the place where the drugs were discovered, particularly to the exclusion of other persons who may have had access. In the absence of such proof, the element of knowledge cannot be safely inferred from the surrounding circumstances. Further, without establishing this 505 foundational fact of custody or control and excluding the possibility of access by others, the presumption under section 37(d) of the Dangerous Drugs Act 1952 cannot be invoked, even if the prosecution sought to do so. [31]. Furthermore, the principle emphasised in PP lwn 510 Yagambaram Chettiar Kaparoom & Yang Lain [2024] CLJU 2586; [2024] MLJU 3016 reinforces that the prosecution must conduct a thorough investigation and exclude the possibility that the drugs may belong to other persons who had access to the premises. 515 [32]. In the present case, the investigation did not exclude the possibility that another individual had access to the house or to the 3rd Bedroom, where items associated with drug activities were found. In these circumstances, the court is unable to safely conclude that the accused knew about the drugs 520 discovered beneath the kitchen sink. The prosecution has therefore failed to establish this essential element of knowledge. Trafficking [33]. The prosecution relies on the quantity of methamphetamine 525 recovered, namely 426.2 grams, to invoke the presumption of trafficking under section 37(da) of the Dangerous Drugs Act