1. ) Mohd Nazri Bin Mohd Norazmi Segar (Okt 1-meninggal Dunia) (BA-45A-119-08/2022)

Shahril Annuar bin Shahudin (the accused/OKT2) was initially charged together with Mohd Nazri Bin Mohd Norazmi Segar (OKT1), the now-deceased individual.

On 2.4.2024, the Court decided to discharge and acquit Mohd Nazri Bin Mohd Norazmi Segar of the charge upon the prosecution's application. 22/08/2025 16:12:24

Now, the charge preferred against OKT2 in its original text states as follows: Bahawa kamu bersama-sama Mohd Nazri Bin Mohd Norazmi Segar (No.K/P: 880917-56-5491)(telah meninggal dunia pada 7.3.2024), pada 29 Jun 2021 jam lebih kurang 2.20 petang bertempat di tempat letak kereta Matahari Mall, Jalan PJS 2/3, Taman Maju Jaya, 46000, Petaling Jaya, di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Cannabis seberat 956.9 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan.” Hukuman: Mati atau penjara seumur hidup hendaklah, jika dia tidak dihukum dengan hukuman mati, dihukum dengan sebatan yang tidak kurang daripada dua belas tahun.

OKT2 denied the charge and claimed trial.

At the end of the prosecution's case, on 17.7.2025, the Court decided to acquit and discharge OKT2 from the charge.

The prosecution, not satisfied with the Court's decision, filed a Notice of Appeal dated 31.7.2025.

Hence, the full decision of the Court.

The prosecution called six witnesses to prove its case, and they were as follows-PW1 Harlisa Binti Haidir Harminder (the Chemist) PW2 Insp Fadlee Shah Muhamad Rosli PW3 Sjn Ahmad Farid Bin Ali Madinah (Storekeeper) PW4 D/SJN Saripudin Bin Mansor (raiding officer) PW5 Insp Darwis Bin Arifin (raiding officer/complainant) PW6 Insp Muhammad Zuhairi Bin Mohd Yusof PW7 Insp Aisyatul Izzah Binti Ab Hamid PW8 Insp Mohd Azreen Bin Zahari (Investigating officer)

On 29.6.2021, at approximately 11.00 am, while Insp Darwis Bin Aripin, the Complainant (PW5) was on duty at the Criminal Investigation Division, IPD Petaling Jaya, PW5 received information on drug trafficking involving a Malay man using a white Peugeot car bearing the registration number WXH 5935 around the parking area of Matahari Mall, Jalan PJS 2/3, Taman Maju Jaya, 46000, Petaling Jaya.

PW5 then led a team of nine policemen from the Narcotics Criminal Investigation Division of IPD Petaling Jaya conducted a 10-minute observation of a white Peugeot car with registration number WXH 5935 (Exhibit P19), which was in the parking area in front of Matahari Mall, Jalan PJS 2/3, Taman Maju Jaya, 46000, Petaling Jaya, Selangor.

PW5 then approached the car and found that the car engine was running and the air conditioning was also on. The complainant introduced himself as a police officer to OKT1, who was sitting in the driver's seat of the car. The complainant then opened the driver's side door of the vehicle.

At the same time, D/Sjn Saripudin Bin Mansor (SP4) opened the car door on the front passenger side where OKT2 was sitting. During the arrest process, a struggle ensued, and the police successfully arrested both the deceased and OKT2.

As a result of the inspection of the car, the complainant (SP5) found one black/orange zippered backpack [Exhibit P17] in the left front passenger footwell. Upon inspection inside the bag, the complainant found one compressed piece of dried leaves wrapped in transparent plastic [Exhibit P7(A)] suspected to be Cannabis (Estimated weight: 1000 grams).

The complainant then arrested OKT1, and PW4 arrested OKT2 and seized the drug and the black/orange backpack in which the drugs were found. The complainant also seized one set of keys containing five keys from inside the car. There was no one else in the vehicle other than OKT1 and OKT2 during the raid and inspection.

PW5 brought OKT1, OKT2 and all the seized items to the Petaling Jaya IPD Narcotics Office for further investigation.

The impugned drug has been sent to the Malaysian Chemistry Department, and the results of the drug tests and analysis are as per the type and weight stated in the charge sheet.

The prosecution contended that the ingredients of the offence under section 39B of the DDA 1952 had been successfully proven. The prosecution heavily relied on the testimonies of PW4, PW5 and PW8 to prove the elements of custody, control and knowledge of OKT2 on the drugs found in the backpack.

PW5 had proved the element of possession that OKT1 and OKT2 had custody and control over the drugs based on the evidence that PW5 found the drug in the partly open zipped backpack (exhibit P17) on the footwell at the front passenger seat of the car.

The prosecution further alleged that SP5's testimony was further corroborated by SP4, who stated that exhibit P17 was found at OKT2's feet.

The prosecution also contended that the prosecution had established the element of knowledge based on the following subsequent conduct by OKT2 under section 8 of the

During the raid, the car doors were closed.

When SP5 introduced himself as a police officer and ordered OKT1 to exit the car, a struggle ensued. Still, the police successfully detained OKT2 and OKT1. When OKT2 was about to be arrested by PW4, he struggled to escape, but PW4 successfully detained him.

The position of the seized drugs located in the front passenger seat's footwell in a partly open zipped backpack was certainly easy to see from where the deceased and OKT2 were sitting in the car.

As the prosecution had proven the elements of custody, control and knowledge, the prosecution further contended that the presumption under section 37(da)(vi) of the DDA 1952 is applicable in light of the weight of the cannabis seized in this case.

The above essentially formed the basis of the prosecution's case.

The defence, on the other hand, contended that the prosecution had failed to establish custody, control and knowledge. As such, the presumption under section 37(da)(vi) of the DDA 1952 does not apply to the facts of the case. In the context of the case, based on clear principles of law propounded by the apex Court and the appeal court, the prosecution is not entitled to invoke the presumption.

Contrary to the prosecution's submission, the defence strongly argued that there was a material contradiction between the testimonies of PW4 and PW5. PW4, who arrested OKT2, testified that he did not see the backpack (Exhibit P17) at the time of the arrest, nor was there any "smell" of cannabis.

Thus, the defence argued that the law has been settled on this issue by the Federal Court decision in (PP v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129) whereby Arifin Zakaria FCJ (as YAA then was), held that having only custody or control over the said drugs, is insufficient to establish "possession", which is an essential ingredient in the charge of trafficking.

Moreover, the defence argued that the car did not belong to OKT2. It was indeed OKT1 (the deceased), the vehicle's owner. The prosecution failed to tender any evidence to prove otherwise. The prosecution also failed to prove that the drug was concealed in any concealed compartment, thereby disqualifying the prosecution from invoking the presumption of knowledge under Section 37(h) of the DDA 1952.

The defence also argued that the prosecution failed to prove custody and control of the backpack containing the impugned drugs, as proximity to the drugs alone in the backpack at the footwell of the front passenger seat cannot establish custody and control. The Federal Court decision in PP v Lin Lian Chen [1992] 1 MLRA 297 was relied on by the defence.

OKT2's reaction, "meronta-ronta," cannot infer knowledge, as OKT2's response is consistent with that of an innocent person in a state of shock. Abdullah Zawawi v PP [1993] 3

The defence strongly questioned the credibility of PW5 (Insp. Darwis) (raiding officer). This is especially so where a doubt arises as to the identity of an exhibit; a failure to produce evidence to provide the necessary link in the chain of evidence would be fatal to the prosecution at this stage.

PW5 arrested OKT 1(deceased) and SP4 arrested OKT2 at the Matahari Mall, PJS 2/3 (1st raid), then went to IPD PJ. After interviewing OKT 1, PW5 later took only OKT1 with the drugs found in the car at Matahari Mall to Mutiara Apartment in Brickfields (2nd raid) for another raid, which became the Kuala Lumpur High Court case (WA-45A-95-11/2021).

The question is whether the acceptable SOP of the police officer for carrying the drugs "around" from the 1st raid to the 2nd raid, when they had the opportunity to leave it in the hands of the IPD officers. When cross-examined by the defence counsel, PW5 answered yes, because he raided the Matahari Mall area, and kept the drugs within himself. Still, PW5 didn't deny that the drugs in Kuala Lumpur were also cannabis. PW5 contradicted and agreed with the suggestion by the defence counsel that the failure to keep the Matahari Mall drugs seizure (1st raid) at the IPD PJ was in breach of the SOP.

PW5 claims no handphones were confiscated. Then how did they (OKT 1 and OKT 2) communicate with the "buyers" or was there actual trafficking, or was the bag found in the car or were there drugs in the vehicle?

It's challenging to digest the evidence of PW5 that the deceased (OKT1) and OKT2 (OKT2) were without any handphones in this modern era of communication, especially in dangerous drug trafficking cases. Communication is vital for selling and buying drugs, transporting and delivering drugs, too. If handphones confiscated by the police were sent to PDRM Forensics to identify call logs or SMS, the value of such evidence may be corroborative. Still, that corroborative evidence would "nail" OKT2. Without the PDRM Forensics, the prosecution has nothing to prove that there was indeed trafficking of dangerous drugs.

The defence further argued that OKT1, may be the actual owner of the drugs as there were more drugs in his house in Kuala Lumpur and the failure to confiscate the handphones of OKT2 and deceased in this case whether there were buyer(s) becomes questionable just like whether the identity of drugs [non marking] from Matahari Mall is the same as the one recorded at IPD PJ after the KL raid or was a mixture of drugs as both "raids" were cannabis, PJ and KL.

The assessment of the credibility of the witnesses called by the prosecution raises concerns about accepting the uncorroborated and inconsistent evidence of SP4, SP5, and SP8 on material particulars. DUTY OF THE COURT AT THE END OF THE PROSECUTION

Section 180(1) of the Criminal Procedure Code provides the Court's duty at the end of the prosecution case to decide whether the prosecution has succeeded in proving a prima facie case.

The cases of PP v Dato' Seri Anwar Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 AMR 2017; [1999] 2 MLJ 1, Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203 respectively laid down clear principles of law that at the end of the prosecution case, the evidence must be subject to a maximum evaluation for the Court to determine whether the prosecution succeeded to establish a prima facie case. ANALYSIS AND FINDINGS OF THE COURT AT THE END OF THE PROSECUTION CASE

There was no challenge by the defence on the first element of the offence.

The Court is satisfied that the prosecution has established the first element of the charge that the drugs found in the backpack were cannabis, which is dangerous drugs under the DDA 1952.

It is incumbent upon the Court to revisit the most celebrated case of Chan Pean Leon v PP [1956] MLJ 237, regarding possession, where Thompson J said: "Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition, page 304):- "A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need." To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. OKT2 must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shows such an intention. Or it must be clear that the circumstances in which it is found show such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. It is true that in prosecutions under the Dangerous Drugs Ordinance a lack of evidence in this connection may be made good by the statutory presumptions contained in that Ordinance. But there are no such presumptions in the Common Gaming Houses Ordinance nor are there any such presumptions in relation to possession of stolen property. Once possession is proved then before OKT2 person can be convicted it is necessary in addition to prove mens rea. And for this purpose as was pointed out by Gordon-Smith Ag. C.J. in the case of Toh Ah Loh and Mak Thim v. Rex [1948] 1 LNS 72; [1949] MLJ 54, supra, it is necessary to prove that the person in possession knows the nature of the thing possessed. If the thing, as in Toh's case, is in a box which itself is in the possession of OKT2 it must be proved that he knew what was in the box. If, as in Lee's case, it was a lottery document it must be proved that he knew it was a lottery document. Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in OKT2's behaviour that shows knowledge, or the nature of the thing may be so obvious that it is possible to say "he must have known what it was" or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence."

Hence, the prosecution bears the burden of proving possession, and they must demonstrate that OKT2 had physical control or custody of the drugs. Not only that, but the prosecution must also prove that OKT2 knew of the contents of what was in his custody.

Based on the narratives of the case, this Court found that it is not a direct case of trafficking where the police found the drugs on the accused's body, i.e., the police arrested the accused red-handed, carrying a sling bag strap on the accused's body.

But this is a case where the prosecution attempted to implicate the accused with the drugs in a backpack found in a car based on circumstantial evidence. It is the prosecution's case that OKT2 had custody and control, as well as knowledge of the impugned drugs. The prosecution heavily relied on the evidence of PW4, PW5 and PW8 to establish a case against OKT2 for a drug trafficking case.

Coming back to the narratives of the case, it was an undisputed fact that the police found the drugs in the car, which OKT2 did not own. OKT2 was neither the owner nor the driver of the vehicle.

Now, the critical question for this Court is whether OKT2 knew about the drugs found in the backpack. In other words, based on the principles of law propounded in Chan Pean Leon (supra), did OKT2 have possession of the drugs, which OKT2 has the power to deal with as the owner, to the exclusion of all other persons? The Court emphasized that both a physical element and a mental element must be present before the prosecution establishes possession.

This Court is aware of the trite principles of law based on cases decided by the apex Court and the Court of Appeal, which held that proximity to the impugned drugs does not necessarily establish possession. The fact that OKT2 was the only passenger in the car does not prove that OKT2 had custody and control of the drugs found in the backpack. Refer: Ahmad Azhari Ahmad Zaini v PP [2015] 1 CLJ 157.

Moreover, in this case, there is a material contradiction between the testimonies of the prosecution's witnesses, PW4 and PW5, regarding where the backpack was found. The Court disagreed with the prosecution's submission that PW5's testimony that the backpack, which contained the drugs, was found on the footwell where OKT2 was seated at the front passenger's seat, was corroborated by PW4.

Indeed, PW4, when cross-examined by the defence, agreed with the defence that he did not see the backpack when he arrested OKT2 when OKT2 testified, "Setuju tidak nampak kedudukan bag galas."

PW5 found the backpack while searching the car. Even PW4 also agreed with the defence's suggestion that OKT1 may be the owner of the backpack, as OKT1 was the target, based on the information received by PW5, who led the raiding team.

The dispute over who owned the backpack, which contained the impugned drugs, became more critical as PW5 did not find any identification card/Mycard belonging to either OKT1 or OKT2 in the backpack. Not only that, there was no evidence adduced to show that the police had proved the backpack had been dusted for fingerprints or a handphone seized to connect OKT2 with the charge. Refer: PP v. Lin Lian Chen [1992] 4 CLJ 2086.

Hence, the place where PW5 found the backpack is critical to prove not only custody and control, but also OKT2's knowledge of the drugs in the backpack.

If it were true that the police found the backpack in the car, knowledge of the drugs found in the footrest at the front passenger seat may give rise to an extreme suspicion towards an inference. However, it is a trite law that strong suspicion is no substitute for proof.

It is undeniable that the car does not belong to OKT2. Therefore, finding according to SP3 (RO) to prove possession by physical evidence and from inferences of such physical evidence that the bag at the footrest of the front passenger seat, and the drugs therein, was not in any concealed compartment to attract the provision of s. 37(h) deeming the accused as the person in charge (which he is not) of the car.

Thus, a question arises as to who put the backpack in the car, as the accused was not the car's owner but only a passenger. In an attempt to prove its case, the prosecution initially sought to tender OKT1 (the deceased) statement by referring to section 32(1)(i) of the Evidence Act 1950. The defence counsel objected to the application based on section 113 of the Criminal Procedure Court. Eventually, the prosecution did not pursue its initial attempt.

Thus, based on the lack of evidence by the prosecution, the Court could not infer that OKT2 had knowledge of the impugned drugs found in the backpack.

Based on the above, the Court found that the prosecution failed to prove custody, control and knowledge. Therefore, the prosecution too failed to justify the invocation of the presumption under section 37B(da) of the DDA 1952.

This Court refers to the Federal Court decision in Ibrahim Mohamad & Anor v PP [2014] 4 CLJ 113 at page 121, which held: "it is trite that possession is an important ingredient in the charge of trafficking. Unless there is direct evidence of trafficking, the prosecution must prove the ingredient of 'possession' and the trial judge must make an affirmative of 'possession' before the presumption of trafficking under section 37(da) can be invoked."

The paramount question here, is whether upon a maximum evaluation of the all the evidence at the end of the prosecution stage and based on the available evidence and credible evidence, is the Court prepared to convict OKT2 should OKT2 elect to remain silent if the Court were to call OKT2 to enter his