This omission is significant. It is a settled principle of law, as established in the landmark case of Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281, that where a party makes a positive assertion on a material issue, the failure of the opponent to contradict it is generally treated as an admission of that fact. Applying this principle to the present circumstances, the prosecution’s choice not to reply to the affidavit filed by the accused means the allegations contained therein are deemed admitted. Specifically, the inordinate delay in progressing with the section 39B charges, which effectively been left in abeyance, leads to the inescapable conclusion that the prosecution is disinterested in pursing the matter. [11] Furthermore, it is evident that the prosecution has failed to obtain the requisite consent to proceed with the trafficking charges. The continued reliance on the excuse of pending investigations, is untenable given the significant lapse of time. This unjustified delay reinforces the conclusion that there is a lack of cogent evidence. Such inaction signals a clear lack of interest in pursuing the charges (See PP v Au Seh Chun (1998) 6 MLJ 179). Moreover, prolonged detention without trial constitutes a breach of Article 5 (1) of the Federal Constitution and violates the right to a speedy trial under section 172B (4) of the CPC. Even prior to the enactment of section 172B (4), the Federal Court in the case of Ooi Ah Phua v Officer in Charge Criminal Investigation [1975] 2 MLJ 198, affirmed that an accused person is entitled to an expeditious determination of his legal status. [12] The above reasoning aligns with the broad grounds of judgment delivered by this court, as follows: The core request in Criminal Application No. WA-44-143-08/2025 is for the court to convert a Discharge Not Amounting to an Acquittal (DNAA) order for the Second Applicant, Cheng Ruey Hoe, to an order of Discharge and Acquittal (DAA). The Second Applicant, Cheng Ruey Hoe, was arrested on September 9, 2023, and initially faced two charges under s.39B of the Dangerous Drugs Act 1952 (the 39B Charge). On August 2, 2024, the Public Prosecutor withdrew the 39B charges, citing a lack of the Public Prosecutor's consent to prosecute further, resulting in the court ordering a DNAA. Immediately after the DNAA, Cheng Ruey Hoe was re-charged in the Sessions Court with one count under s.39A (2) of the Dangerous Drugs Act 1952 (the 39A (2) Trial). More than a year later, on August 26, 2025, the Public Prosecutor informed the court of its intention to reopen the original 39B Charge during the pendency of the 39A (2) Trial. The Applicants submit that the decision to reopen the 39B Charge is an abuse of process intended to keep Cheng Ruey Hoe in custody even if he is acquitted in the 39A (2) trial, a practice they term "chain prosecution". This practice is argued to violate his constitutional right to personal liberty and his right to a speedy trial by causing prolonged and unnecessary detention. The Applicants argue the court has the power to order a DAA, even before a trial commences, based on section 254 of the Criminal Procedure Code (CPC). Section 254(3) CPC states that a discharge shall not amount to an acquittal unless the Court so directs. Reliance is on the Federal Court case of Vigny Alfred Raj Vicetor Amaratha Raja v PP which decided that: the court does have the power to order a DAA before the commencement of trial. DAA is different from a DNAA because it removes the charge hanging indefinitely over the accused, and the resulting acquittal invokes the plea of autrefois acquit (formerly acquitted). The Applicants argue the DNAA should be converted to a DAA by applying a balancing test between public interest and the potential unfairness to the accused. The initial withdrawal due to a lack of the Public Prosecutor's consent, which acts as a filtering process to ensure sufficient evidence, implies that the prosecution decided not to pursue the charge. The subsequent intention to reopen the charge after a year, and while another trial is pending, is a form of prosecution by instalments that subjects the accused to unnecessary and prolonged detention. Findings This delay and continual prosecution violate Cheng Ruey Hoe's fundamental right to personal liberty (Article 5 of the Federal Constitution) and his right to a speedy trial. Converting the DNAA to a DAA is necessary to prevent the continued prejudice and miscarriage of justice caused by the delayed and potentially vexatious continued prosecution. This court agrees that the current situation constitutes an abuse of process by the prosecution, which subjects Cheng Ruey Hoe to prolonged and unnecessary detention. On account of public interest, the accused is subject to potential unfairness, which prejudices the accused. The prosecution's intention to re-open the original s.39B charge after ordering a DNAA and during the pendency of the s.39A (2) trial, after a long period of time is an abuse of process, as if Cheng Ruey Hoe is acquitted in the s.39A (2) trial, the prosecution can revive the s.39B Charge, leading to his re-arrest and further detention awaiting trial for the 39B charge. Such instance violates Cheng Ruey Hoe’s fundamental right to personal liberty (Article 5 of the Federal Constitution) and his implicit right to a speedy trial pursuant to section 172B (4) of the CPC. The charges could have been brought together and the inordinate delay subjects the accused to arbitrary, and unnecessarily long detention, specially so the charges he faced are for an unbailable offence. The fact that no prosecution was reinstated for over a year (August 2024 to August 2025) suggests the case was discontinued, and there is no bona fide reason to reopen the s.39B charge now. Cheng Ruey Hoe has been in custody since September 2023. Continuing the DNAA means he faces the uncertainty of a charge hanging over his head indefinitely, which is an abuse of process, causing injustice to him. Thus, ordering a DAA removes this hanging charge and provides closure. The court has the legal basis to order a DAA under section 254(3) of the CPC, which provides that the discharge shall not amount to an acquittal unless the Court so directs. Reliance is also on the Federal Court decision in Vigny Alfred Raj, which clarifies that a DAA can be ordered before commencement of trial. That decision too implies that the category in which an order of DAA could be made is not closed. Further, the decision of our apex Court in Sundrarajoo fortifies the order of DAA as the court is in a position to check on abuse of process, in appropriate circumstances, like in the present case. On that premise, the application is allowed, and the 2nd applicant is favoured with an order of DAA. Conclusion [13] Justice requires parity. The prosecution cannot proceed on possession while keeping more serious trafficking charges in reserve as a Sword of Damocles. This court will not tolerate dormant charges that lead to an unjustifiable delay, as such inaction causes irretrievable loss of fundamental liberty and a clear constitutional breach. To allow these charges to remain stagnant without definitive resolution is to sully the administration of criminal justice. [14] Consequently, the court finds that the accused has been severely prejudiced. This dormant prosecution cannot be allowed to continue, and the accused is hereby protected from further stagnation of these charges.