1. ) Mohamad Qamarul Muslihuddin Bin Abd Wahab (DA-83D-1417-05/2022)

1.

MUHAMMAD QAMARUL MUSLIHUDDIN BIN ABD WAHAB MUHAMMAD ARIF BIN MAMAT NOH GROUNDS OF JUDGMENT INTRODUCTION [1] This Grounds of Judgment is written in response to an appeal lodged by the Prosecution in lieu of this Court’s decision to acquit and discharge both the Accused for illegal possession of dangerous drug under section 12(2) of the Dangerous Drugs Act 1952, (hereinafter referred as “DDA”) punishable under section 39A (1) of the same Act, read together with section 34 of the Penal Code. [2] The First Accused was acquitted and discharged at the end of Prosecution’s case while the Second Accused was acquitted and discharged at the end of Defence’s case. THE CHARGE [3] The charge proffered against both the Accused is as the following: “Bahawa kamu bersama-sama pada 12/01/2022 jam lebih kurang 1730 hrs, bertempat di tepi jalan hadapan Masjid Mukim Kampung Aril 16090 Kota Bharu Kelantan, di dalam negeri Kelantan telah ada dalam kawalan kamu dadah berbahaya jenis Methamphetamine seberat 23.74 gram (berat bersih). oleh yang demikian kamu telah melakukan suatu kesalahan dibawah seksyen 12 (2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39A(1) Akta yang sama dan dibacakan bersama Seksyen 34 Kanun Keseksaan. Hukuman dibawah seksyen 39A(1) ADB 1952: penjara selama tempoh tidak kurang daripada dua tahun dan tidak lebih daripada 5 tahun dan diwajibkan sebatan rotan tidak kurang daripada 3 dan tidak lebih daripada 9 kali atau kedua-duanya sekali.” THE PROSECUTION CASE [4] On 12/01/2022 at approximately 05.30 pm, acting on tip-off, PW2 and a raiding team consisting of 8 members went to the roadside in front of Kampung Aril Mosque Kota Bharu, Kelantan. [5] There, his team and SP2 carried out an observation for about 1 minute resulting with sighting of 2 purportedly suspicious looking male individual sitting on a statutory Yamaha Y15ZR motorcycle bearing registration number DDW 9724 parked in front of said mosque. [6] Specifically, the First Accused was sitting at the front most portion of the of the motorcycle while the Second Accused was sitting at the back of the motorcycle as a pillion rider. [7] PW2 and the raiding team then proceeded to surround the motorcycle. PW2 later went out of from the police vehicle and introduced himself as the police officer. In response to this, both the Accused fled the scene, causing the motorcycle to overturn to the right. [8] In the fit of this sudden raid by the police, the First Accused ran towards a nearby house and was later apprehended inside of said house’s kitchen while the Second Accused ran shortly before he was stopped by the raiding team by the side of the road near the motorcycle. [9] Upon arrest, both the Accused were brought back to said motorcycle before PW2 proceeded to conduct thorough body search on both the Accused’s person but to no avail in uncovering any illegal item. PW2 then inspected said motorcycle and found in front container a bright plastic package suspected of having contained illegal drug. PW2 then proceeded to confiscate the drug and said motorcycle and arrested both the Accused. [10] This was later followed by several successive raids conducted on several premises following tip-off given by both the Accused. [11] Both the Accused along with all seized items and accompanying documentations was later brought to the attention of PW4. [12] SP4 testified that his investigation found that the motorcycle was registered in the name of the Second Accused based on an extract of detailed vehicle information from the Road Transport Department. [13] As part of his investigation, PW1 then sent the seized items, namely the reddish and greenish pills, to the Malaysian Chemistry Department, Kelantan. [14] In relation to this, PW1 as a Government Chemist confirmed that he had examined said substance suspected of illegal drug and found that the total net weight of substance analyzed is 23.74 grams of Methamphetamine which is listed in the First Schedule of the Dangerous Drugs Act 1952. PRIMA FACIE CASE [15] It is imperative for this Court to assess whether a prima facie case has been successfully made against the Accused. To do so, an exercise of maximum evaluation has to be undertaken against the totality of evidence presented by the Prosecution through their witnesses and in doing so assess these witness’s credibility and reliability, alongside examining whether elementary requirements for offences alleged against the Accused are met by the prosecution. (see Public Prosecutor v Mohd Radzi Abu Bakar [2006]1 CLJ 447, Looi Kow Chai v Public Prosecutor [2003] 1 CLJ 734 and Balachandran v Public Prosecutor [2005] 1 CLJ 85). RUDIMENTARY CONSIDERATIONS IN THIS PROCEEDING [16] There is no need for a lengthy discussion on whether the seized item is listed as dangerous drug defined in DDA [17] This Court finds no reason to discredit the evidence given by PW1 regarding dangerous drugs analysis done. There was no defect in PW1’s analysis and no credible challenge was made on the identity of illicit drug. Thus, this Court is of the view that the nature and the weight of illicit drug forming the subject matter in this case has been successfully proved (see Public Prosecutor v Chia Leong Foo [2004] 4 CLJ 649). [18] In fact, both parties have stressed from the outset that they do not intend to dispute the identity of the seized item, but rather have chosen to focus more on resolving the issue of whether both the Accused had possession of the seized items as alleged by the Prosecution. [19] A careful examination must then be made of the question of who had control, custody and knowledge of said seized items in determining whether both the Accused were criminally liable for the charge levelled against them. [20] In determining what amounts to “possession”, several questions will have to be answered namely; whether the impugned drugs found with both the Accused were under their control, to what extent did both the Accused had access to the place where the impugned drugs were found and how physically close was the Accused with the impugned drugs. Answering these questions in totality might shed light into the Accused’s ability as the alleged possessor capable of exercising the power to deal with said impugned drugs to the exclusion of others alongside his knowledge of the same. (See Ibrahim Mohamad & Anor v. Public Prosecutor [2011] 4 CLJ 113, Leow Nghee Lim v Regina [1955] 1 LNS 53 & Public Prosecutor v Hong Ah Huat [1970] 1 LNS 186). [21] Possession is only proven when both physical element and mental element are present (See Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237). [22] The law is trite that the onus is upon the Prosecution to adduce cogent evidence capable to rule out access by others to the impugned drugs. (See Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 4 CLJ 1, Pang Chee Meng v Public Prosecutor [1992] 1 CLJ (Rep) 265, Saludin bin Surif v Public Prosecutor [1997] 3 CLJ 529 and Gooi Loo Seng v Public Prosecutor [1993] 3 CLJ). MERE PRESENCE OF THE FIRST ACCUSED ON THE MOTORCYCLE IS NOT INDICATIVE OF HIS KNOWLEDGE, CONTROL AND CUSTODY OF DANGEROUS DRUG FOUND IN SAID MOTORCYCLE [23] Upon close scrutiny of evidence as presented by the Prosecution, this Court opines that based on how the impugned drug was found, supported by the testimonies of witness, most particularly PW2 who was at the crime scene, it is safe to conclude that the First Accused did not have knowledge, custody, and control of such impugned drug. [24] Such is because, no factual link has been established between the First Accused and said motorcycle save for the fact that at the material times when such raid took place, the First Accused was found sitting on the statutory parked motorcycle by the side of the road in front of Kampung Aril Mosque. [25] In the absence of other indicators pointing towards First Accused exercising active control over said motorcycle, it would be unfathomable to suggest that the First Accused could possibly exercise control and custody over impugned drug found in it. [26] Given this finding, it would unsafe to suggest that the First Accused had any semblance of knowledge regarding the existence of impugned drug in the motorcycle which he did not possess any connection whatsoever to it. [27] As narrated by PW2 who led the raid against both the Accused, his team and PW2 carried out an observation for about 1 minute by the roadside in front of Kampung Aril Mosque Kota Bharu, Kelantan. resulting with sighting of 2 purportedly suspicious looking male individual sitting on a statutory Yamaha Y15ZR motorcycle bearing registration number DDW 9724 parked in front of said mosque. [28] More specifically, PW2 sighted the First Accused as the one sitting at the front most portion of the of the motorcycle while the Second Accused was seen sitting at the back of the motorcycle as a pillion rider. [29] Nonetheless, at all material times, PW2 did not see the motorcycle being driven by the both the Accused. [30] It is the considered view of this Court that the First Accused's proximity to the drugs on the motorcycle could not be of any help to the Prosecution to prove a case of possession of illegal drug as no evidence is present to show that the Accused was exercising active control and custody over impugned drug found by riding the motorcycle (See Mohd Fairus bin Salleh v Public Prosecutor [2015] MLRAU 194; [2015] 5 MLJ 105). [31] Such is because despite Prosecution’s best effort to adduce the rationale as set out in Public Prosecutor v Hasbi M Kusin & Anor [2008] 7 CLJ 366 whereby the Accused “must have known of the existence” of plastic packet which was similarly located in the carrier basket of a motorcycle “right in front of the Accused placed between the handle of the vehicle and between his legs when he was riding it”, this Court is of the view that such rationale should not be similarly applicable in the case at hand given that in the present case, there is no evidence that the First Accused was the sole exclusive user of the motorcycle in question at the material times. [32] Hence, this Court found that neither custody nor control had been established against the First Accused. Mere proximity to the motorcycle containing the drug cannot by any stretch of the imagination be equated with custody or control (See Roslan Bin Hanapi v Public Prosecutor [2015] MLJU 2151). [33] It is settled law that to sustain a conviction either for the offence of possession or trafficking under the Act, exclusivity of area or place where the drug was found, must be proved by the prosecution. It is therefore incumbent on the prosecution to discharge this burden. If there are gaps, the prosecution must close the gaps. There is also no duty on the defence to prove possibility of access by others to the dangerous drugs but on the prosecution to exclude such possibility (See Public Prosecutor v Sim Keng Tee [2008] 1 LNS 500). [34] In other words, possession is not made out merely because the Accused was situated so near to the impugned drug (See Romi Amora Amir v Public Prosecutor [2011] 1 CLJ 870). [35] Nevertheless, the same conclusion could not be said in respect to Second Accused’s connection to the same motorcycle as this affirmative link is bolstered by the result of investigation done concerning the state of said car where the impugned drug was found. [36] PW4’s investigation had successfully established the Accused’s control over said car as his investigation found that the motorcycle was registered in the name of the Second Accused based on an extract of detailed vehicle information from the Road Transport Department (See Aaron Chong Chernlin v Public Prosecutor [2022] 1 LNS 2750). SHOCKED REACTION AS THE RAID PROCEEDED IS NOT A DEFINITIVE INDICATION THAT THEY WERE AWARE ABOUT THE EXISTENCE OF SAID IMPUGNED DRUG. [37] This Court could not agree with the line of argument ventured by Prosecution that Section 8 of the Evidence Act should be applicable in explaining the both the Accused's shocked reaction as an indication that both of them knew about the existence of dangerous drug found in the motorcycle carrier basket near where both the Accused were spotted sitting prior to the raid taking place. [38] As explained in Public Prosecutor v Karuma Hassan Ansaq [2021] 1 LNS 74, such reaction of both the Accused is also consistent with the natural reaction of a person who was frightened and surprised by the sudden appearance of the police. If there is another possible explanation for the conduct or reaction, it cannot be concluded that both the Accused had knowledge of drugs based on their reaction and conduct alone. Therefore, such evidence cannot be viewed in isolation but must be considered with the other evidence and circumstances. Having examined all the evidence, if more than one inference arises, it is the duty of the court to draw a conclusion in favour of both the Accused. [39] In the case before this Court today, the conduct of the First Accused which the Prosecution sought to adduce in an effort to show knowledge of the existence of drugs is typical to anyone in his shoes in the face of sudden appearance by the police. No further evidence was adduced to show that the First Accused had knowledge of the contents of the plastic apart from the evidence of their conduct. Therefore, the Court is more inclined to rule in favour of the First Accused. [40] Unless knowledge is proved, an item however close to a person, could just be miles away (See Romi Amora Amir v Public Prosecutor [2011] 1 CLJ 870). [41] Nevertheless, the same could not be said in relation to the Second Accused. Circumstances of this raid whereby said motorcycle was proven to be a belonging of the Second Accused, made it imperative for the Second Accused to offer some sort of explanation regarding his conduct in order to successfully deny the inference of knowledge of the existence of the impuned drug in his motorcycle. This failure in turn gives rise to an inference that the Second Accused did have knowledge of the possession and existence of the impugned drug at the material times. [42] In this circumstance, explanation for his reaction must therefore be offered by the Second Accused himself as required by section 9 of the Act. However, as the Second did not offer any explanation for his reaction upon being approached by the police, it could be validly used as evidence against him. In the circumstances, the inference to be drawn from the evidence was that he knew what he was controling. (See Parlan Bin Dadeh v Public Prosecutor [2009] 1 CLJ 717 , Amathevelli A/P Ramasamy v Public Prosecutor [2009] 2 MLJ 367) [43] Coming back to the present case, it is vital to note that no reasonable explanation was given in order to justify the Second Accused’s agitation and anxiety upon him being raided by the police which drove him to run away shortly before being apprehended by the police. [44] Given that the element of control or custody of the drug found is successfully proved against the Accused, presumption under section 37(d) of the Dangerous Drugs Act 1952 was invoked against him, whereby whenever the Accused was 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 have known the nature of such drug. [45] Upon examining evidence as presented by the Prosecution, this Court finds that based on the facts of how the drug was found and who effectively exercised care and custody of said motorcycle , it is safe to conclude that the Second Accused had knowledge, custody, and control over the drug as alleged against him. [46] At the end of the prosecution’s case, upon analysing the evidence given by prosecution’s witnesses and the documents tendered into this Court together with the submissions submitted by the learned counsel, on a maximum evaluation as guided in Mohd Radzi Abu Bakar [2006] 1 CLJ 447, this Court opines that it is unsafe to call the First Accused to defend himself on the charges brought against him. [47] Therefore, the Prosecution has failed to prove a prima facie case against the First Accused for the offence charged. The Court therefore orders that the Respondent be discharged and acquitted of the charge without being called to defend himself. [48] As for the Second Accused, this court finds that the Prosecution has succeeded in proving prima facie case against the Second Accused. Thus, the Second Accused is called to enter his defence. [49] The options required under section 173(ha) of the Criminal Procedure Code have been explained in a language conversant to the Accused. THE DEFENCE CASE [50] The Second Accused decided to give his sworn testimony from the witness box. [51] The Second Accused alleged that said motorcycle was lent to and was subsequently parked by the road in front of Kampung Aril Mosque by a man named Marzuki who in turn contacted the Second Accused to retrieve his motorcycle. It was only then, did the First and the Second Accused came to the crime scene and were later apprehended by a group of plain-clothed policemen. [52] This assertion was further bolstered by testimony given by DW3, an office-bearer at Kampung Aril Mosque who testified that as he was walking about the mosque prior to Asar prayer, said motorcycle was already parked in front of the mosque with no one around it. Only then did he see both the Accused crossing over the road and approached said motorcycle before he saw both of the Accused being apprehended by a group of plain-clothed policemen who came in 2 unmarked cars. [53] It was also alleged that the Second Accused had not knowledge nor control and custody of impugned drug found by those policemen given that prosecution witness PW2 did not see the motorcycle being driven by the two Accused. [54] The Accused alleged that it the impugned drug was not of his belonging rather it was that of Marzuki where was alleged to have borrowed the motorcycle from the Accused prior to said raid. [55] It was claimed that Marzuki had been a friend who resided near to the Second Accused and they came to know each other due to the fact of having lived as neigbours for quite some time. [56] This allegation was purportedly supported by DW2 and DW3 who vouched that said motorcycle was already parked in front of the mosque with no one around it. Only then both the Accused crossed over the road and approached said motorcycle before he saw both of the Accused being apprehended by a group of plain-clothed policemen who came in 2 unmarked cars. [57] It was further alleged that the arrest made against the Second Accused was nothing more but a plot to frame him for possession of illegal drug of which the Accused claimed that he had no knowledge of. BURDEN OF PROOF AT THE END OF THE DEFENCE CASE [58] At this stage, this Court's role is merely to assess whether the Accused has raised reasonable doubt, or in cases involving presumptions, whether the Accused has rebutted that presumption on the balance of probabilities. (See Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16) [59] In so doing, this Court is barred from revisiting the case which has been made at the prosecution stage and is therefore confined to considering whether the defence has succeeded in raising a reasonable doubt in the prosecution’s case (See Sha’ari A Samat v Public Prosecutor [2017] 8 MLJ 553, [2017] 6 CLJ 424, [2017] 1 AMR 600, [2017] 1 MLRH 283). DEFENCE WITNESSES’S TESTIMONIES SHOW REASONABLE DOUBT IN PROSECUTION’S NARRATIVE OF EVENTS LEADING UP TO ARRESTS MADE AGAINST THE ACCUSED. [60] The success of prosecution against the Second Accused is heavily dependent on the ability to present a clear and holistic evidentiary narrative that is capable of convincing this court that only the Second Accused, and not anyone else, who has control over the handling of the impugned drugs found. [61] Upon evaluation of evidence as presented during the trial on the light of principles explained above, this Court finds that there is a reasonable doubt in the narrative build by prosecution against the Second Accused as the existing evidence indicates the existence of concrete possibility that there is someone other than the Second Accused who has control over the handling of the impugned drug found. [62] This is apparent as we examine testimonies given by defence witnesses starting from the Second Accused who alleged that said motorcycle was lent to and was subsequently parked by the road in front of Kampung Aril Mosque by a man named Marzuki who in turn contacted the Second Accused to retrieve his motorcycle. It was only then, did the First and the Second Accused came to the crime scene and were later apprehended by a group of plain-clothed policemen. [63] This assertion was further reiterated by testimony given by DW3, an office-bearer at Kampung Aril Mosque who testified that as he was walking about the mosque prior to Asar prayer, said motorcycle was already parked in front of the mosque with no one around it. Only then did he see both the Accused crossing over the road and approached said motorcycle before he saw both of the Accused being apprehended by a group of plain-clothed policemen who came in 2 unmarked cars. [64] It is now apparent that the Second Accused had not knowledge nor control and custody of impugned drug found by those policemen given that aforesaid testimonies from all defence witnesses has been confirmed by prosecution witness PW2 who in his testimony explained that he did not see the motorcycle being driven by the two Accused. [65] DW3’s testimonies must not be simply disregarded as a mere recent invention nor as an afterthought defence as prosecution witnesses namely PW2 and PW5 had earlier on agreed that a person such as DW3 who would be habitually present at Kampung Aril Mosque would surely have sighted the whole incident leading up to the Accused’s arrest near his vicinity. [66] At all material times, credibility of defence witnesses remains untainted and unriddled by inconsistency as no successful challenge has been made by the Prosecution against their creditworthiness. To my mind, these witnesses had successfully presented an unbroken evidentiary narrative which in effect raised reasonable doubt against prosecution’s case. [67] Up until now, there is no evidence that the Second Accused is the sole exclusive user of the motorcycle in question. It is settled law that to sustain a conviction either for the offence of possession or trafficking under the Act, exclusivity of area or place where the drug was found, must be proved by the prosecution. It is therefore incumbent on the prosecution to discharge this burden. If there are gaps, the prosecution must close the gaps. There is also no duty on the defence to prove possibility of access by others to the dangerous drugs but on the prosecution to exclude such possibility. [68] In light of DW2 and DW3’s testimonies confirming the Second Accused’s allegation that he had just crossed to road to approach the parked motorcycle prior to raid conducted against him, the mere fact of the Second Accused's proximity to the drugs on the motorcycle could not be of any assistance the Prosecution to prove the charge laid against the him as there was no evidence that the he rode said motorcycle (See Mohd Fairus bin Salleh v Public Prosecutor [2015] MLRAU 194; [2015] 5 MLJ 105) [69] Conviction against the Second Accused is also not safe considering given the open access nature of the location where such impugned drug was found given the earlier finding by this Court that the Prosecution had failed to deny any possibility that there was any other individual other than Accused who could be said to have had possession of said impugned drug found during the raid. [70] Per DW3’s testimonies, said motorcycle was parked in front of the mosque prior the presence of both of the Accused. Clearly, this circumstance shows that such impugned drug was found in the motorcycle container which was open and accessible to others who might have been present there prior to both the Accused’s presence near the crime scene. Clearly, there is unanswered question regarding who actually had control and custody of the dangerous drugs found during the raid. (See Choo Yoke Choy v. PP [1992] 1 CLJ (rep) 43). [71] Given that no sufficient explanation is offered, this Court is left with no other viable option but to choose an inference in favour of the Second Accused by acquitting and discharging from charges laid against him (See Husin Sitorus v Public Prosecutor [2012] 7 CLJ 205; Azizan Yahaya v Public Prosecutor [2012] 8 CLJ 405). CONCLUSION [72] Looking at the totality of the narrative evidence presented, this Court finds that no clear and conclusive indication has been presented to discharge the burden of proof to exclude the possibility of access to the drug by anyone other than the Accused. As of present, no sufficient evidence was to proffered to convince this Court that the Accused handled the impugned drug or had knowledge of it. [73] Bearing in mind that the requirement of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence, irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. (See Sia Soon Suan v. PP [1965] 1 LNS 165; [1966] 1 MLJ 116) [74] In lieu of doubts raised and inadequacy as discussed above, it is unsafe for this Court to convict both the Accused on the charge brought against them. Accordingly, this Court orders both the Accused be discharged and acquitted of the charge against them. Prepared by, ………………………………… (RAIS IMRAN BIN HAMID) Magistrate Magistrate Court Kota Bharu Kelantan Dated: 28th of September 2025 For the Prosecution: Muhammad Syamsul Ikhmal bin Ramli (Deputy Public Prosecutor,Kelantan State Legal Advisor’s Office) For the Accused: Muhammad Izzat bin Hasizan (The Law Office of Amirul &