1. Zulkifli bin Desa (AB45A - 6 - 11 - 2019)

ZULKIFLI BIN DESA (IC NO: 730919 – 08 – 5535)

MOHD TARMIZI BIN DESA (IC NO: 800604 – 08 – 5929) 2 JUDGMENT Background Facts [1] Both first accused Zulkifli Desa and second accused Tarmizi Desa are brothers who were charged for an offence of trafficking dangerous drugs, an offence punishable with death penalty under section 39B (2) of the Dangerous Drugs Act 1952 (DDA; Act 234). Their mode of participation in the crime is stated in the charge to be in furtherance of common intention of both of them, pursuant to section 34 of the Penal Code (PC; Act 574). In this judgment they are referred to as first and second accused or by name Zulkifli and Tarmizi, interchangeably. [2] There are two charges preferred against them. The first charge is for trafficking 87.9 grams of heroin and 24.4 grams of monoacetylmorphines adding up to 112.3 grams and the second charge for trafficking 14.2 grams’ heroin and 4.5 grams monoacetylmorphines adding up to 18.7 grams. Requirement of a prima facie case [3] Law applicable on procedure after conclusion of case for prosecution is stipulated in section 180 of the Criminal Procedure Code (CPC; Act 593). It renders, this court shall consider whether 3 the prosecution has made out a prima facie case against the accused. If the court finds prosecution has not made out a prima facie case against the accused persons, it shall record an order of acquittal. Conversely, if it finds that a prima facie case has been made out against them on the offences charged, they would be called upon to enter on their defence. [4] What then is a prima facie case? It is defined in section 180(4) CPC, which specifies a prima facie case is made out against the accused persons, only if, the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. [5] Pivotal to the present case, is there credible evidence adduced by the prosecution to prove each and every ingredient of offences charged, for trafficking dangerous drugs. [6] To fortify this court’s order at the end of prosecution case, a look-back at the evidence proffered is required so as to provide reasoning for the decision made. Vital in this case are discrepancies in the arrest of the accused persons and ensuing investigation. 4 Narrative unfolds [7] Firstly, narration by SP3, sergeant in the four men raiding team as what transpired on 11.5.2019 at around 1.00 am at wee hours of the morning at a house in Batu Kurau, Taiping, Perak. According to him, there was only one road leading to the house. As such, the raiding party’s vehicle was parked by the main road and they made their way on foot to the house. The area around the house was dark but veranda to the house was lighted. Observation on the house was made for only five to seven minutes before raid. The house too served as car workshop as there were three cars in the vicinity during raid. [8] The raiding officer SP2, related to the court that raid was done at the said house pursuant to information received that drugs were kept there. Information received at about 10 pm and raid was conducted at 1.00 am. The drugs in a black plastic bag, were found on a table at the veranda, outside the house. Beside the plastic bag there were other things on the table such as cigarette packets, biscuit tin etc. The first accused, Zulkifli was seated on a sofa about one metre away facing the said table. Drugs were found in seven transparent plastic packets inside the knotted black plastic bag. 5 [9] Also found was a green (celoreng) bag that contained a plastic packet containing heroin, two hand phones and a Levi wallet. On inspection of the wallet, an identification card (IC) belonging to Zulkifli was found. [10] The raid continued when SP2 entered the house through a closed but unlocked door. Once inside the house, there was a room to the left, its door was shut and locked. On knocking the door, it was opened by the second accused, Tarmizi, who was in fact sleeping inside. He was searched, as well as the room, but no incriminating items were found on him or inside the said room. Nonetheless, he was arrested. Trial [11] Defence counsel during cross-examination pointed to several issues which had raised doubt on the case of prosecution. Up first were unclear markings of the plastic packets containing drugs which were seized and sent for analysis by chemist. [12] The chemist, SP1 testified she received the exhibits from Inspector Kamarul Ariffin, the Investigating Officer (IO) of case on 29.5.2019. On analysis, it was concluded by her that the seven packets contained 87.9 grams of heroin and 24.4 grams of monoacetylmorphines. An envelope containing a separate plastic 6 packet was also analysed. It was also concluded by her to contain 14.2 grams heroin and 4.5 grams monoacetylmorphines. The exhibits were then returned by chemist to IO on 2.8.2019 together with a chemist report. [13] However, issues were raised on the date and signature markings on the plastic packets, which were pointed out to be unclear and illegible. The defence counsel with all tenacity, implored on this point and put forth that the exhibits seized and sent for analysis by chemist were not the same. To this SP1, replied she had analysed the drugs given to her and during analysis there was no mix-up of exhibits of other cases. [14] Defence contended it was difficult to ascertain the plastic packets were indeed those that were seized and taken during raid and handed over to IO because of unclear markings, as testified by both SP1 and SP2. It was asserted exhibits seized and later sent for chemical analysis were not the same, although SP2 had tried to maintain his position, there was no switch or cover up in the exhibits produced in court. [15] Moving on, defence pointed out the black plastic bag which was found on a table outside the house is accessible to anyone else other than the two accused persons. The house cum workshop was 7 open to anyone, including car owners who send their cars for repair. It was intimated any one of them could have placed the said plastic bag on the table, outside the house. Also hinting at incomplete investigation, defence had pointed out that identity of car owners who had left their cars for repair at the said house, was never probed. Thus, whether the impugned drugs were in possession of the first accused, remained open and unanswered. [16] Next, there is a tenuous and inconclusive link between the black plastic bag, green bag and first accused. The essence being no drugs were found on him. The only tenuous supposable association was his identity card (IC), allegedly found in a wallet inside the green bag, hence the drugs contained in the said bag must have been in his possession. [17] Another significant area of contention by defence, was arrest of the second accused, Tarmizi. He was found inside a room inside the house. Nothing incriminating was found on him or inside the said room. His arrest and subsequent detention stood on feeble grounds, simply because he was in the house at the material time of raid and that he is brother of the first accused. Aside that, no other cogent evidence was proffered by prosecution linking Tarmizi, the second accused to the dangerous drugs. 8 [18] The defence forcefully advanced that the IC and two hand phones were actually found on the first accused and not inside the green bag. It was contended further; the one packet of drugs was placed in the green bag together with his wallet and IC. To put it simply, the drugs and IC were deliberately put into the green bag. The defence also stood their ground firmly, the first accused did not know of the contents of the black plastic bag found on the table at the veranda to the house. [19] In a nutshell, is the defence version, that someone or somebody had left the drugs on the table, and the same person had informed the police of it, which had then triggered the raid and consequent arrest of both accused persons. [20] Another claim was made on monies worth RM4,000.00 found in the green bag, but the raiding officer SP2 had denied existence and knowledge of it and iterated no monies were found and seized from the said bag. [21] Defence had also raised several flaws in the investigation of case. Firstly, there was no probe on the owners of the cars found at the vicinity of the house. Next, the two hand phones found at the place were not subjected to forensic scrutiny, not even an examination was done on the incoming or outgoing calls or texts messages. 9 [22] Arrest of the second accused is iterated to be without basis, as he was arrested due to the mere fact that he was inside the house at the time of raid and he is brother of the first accused. There is no iota of evidence linking him with the existence of the impugned drugs, what more having knowledge it was dangerous drugs. He was merely sleeping inside a room at the said house, but the impugned drugs were found outside the house at the veranda. [23] It was firmly asserted, the exhibits seized during raid from the house and handed over to IO were different, since there were illegible and unclear markings on the plastic packets containing the impugned drugs. [24] The IC of the first accused, Zulkifli was also not marked and tendered as an exhibit forming evidence for the case of prosecution. Explanation was given to the court that, as it was found inside the wallet, it would be befitting for the wallet to be produced and marked. No pictorial evidence in the form of photograph was tendered by prosecution to show that the IC was taken in situ at time of raid. Strangely, the IC was held by SP4, the IO until hearing of the case. This raises doubt, if the IC was in fact found inside the wallet in the green bag. 10 [25] In sum total, there is no substantial link to tie up the first accused, Zulkifli with the black and green bag allegedly containing the impugned drugs. What more the second accused, Tarmizi? There is also no evidence to show the green bag belonged to the first accused. Moreover, during trial no clarification was forthcoming positively, if indeed the exhibits seized were the same as those surrendered to the IO and subsequently produced in court. Overall, investigation of the entire case was not robust, as there were loopholes raising reasonable doubt on the case of prosecution. The defence had stood on firm grounds, but prosecution floundered. Maximum evaluation [26] Pursuant to the above narration of events by key witnesses to the case of prosecution, this court is duty bound to embark on a positive evaluation of credibility and reliability of all evidence adduced which was subjected to cross-examination, so as to determine if a prima facie case has been made out against the accused persons on the offences charged. That would tantamount to be maximum evaluation of the evidence proffered. (See: Magendran Mohan v PP

1 CLJ 805 FC). Resulting from that evaluation, the following are apparent: 11 i. Acting on information received, SP2 and his team had gone to a house at Batu Kurau, the scene of crime on 11.5.2019 at around 1.00 am and both accused persons were arrested. ii. SP2 and his team had only made observation for about 5 – 10 minutes before raiding the house. iii. The first accused was seated on a sofa. Next to him was a table on which SP2 found P15, a black plastic bag which was knotted on the top. On opening it, SP2 found 7 plastic packets containing dangerous drugs, tendered in court as P5 (A – G). Nothing incriminating was found on him. iv. Another bag P16 was also found, inside which there was a wallet P19. Inside the wallet, IC of the first accused, P25 was allegedly found, together with P17 and P18 which were hand phones. Inside P16 there were also found dangerous drugs, P7A. No photograph was taken immediately during raid of the bag P16 with the IC of the first accused inside it. v. The second accused was nowhere near the first accused or the table or P15, P5 (A – G), P16, P17, P18, P19 at the time of raid, as he was sleeping in a room inside the house before his arrest. Search on him revealed nothing incriminating. But the prosecution chose to advance charges against both of 12 them as participators in trafficking dangerous drugs. They were alleged to have acted in furtherance of common intention when committing the crime. Ex facie, it is bizarre, as the first accused was awake, whilst the second accused was asleep during the raid. Hence, where is evidence of the second accused participating in the crime allegedly committed by both of them? Where is the evidence of his involvement in the crime? Where is the evidence of them acting in furtherance of their common intention to traffic dangerous drugs? vi. SP2 testified the second accused was arrested as he was staying in the same house with first accused and at time of raid, both of them were found at the said premises. vii. SP2 had picked up the dangerous drugs P5 (A – G) as well as P7A and had done markings on it before handing it over to the IO of the case, SP4. viii. Of course, as required, SP4 had sent the drugs picked up by SP2 to the chemist SP1 who had analyzed it and concluded it to be dangerous drugs within confines of DDA. ix. But what is glaring and apparent, SP2 is unable to confirm positively without any doubt that the plastic packets containing the drugs he had picked up on which markings were done were the same drugs eventually produced in court as 13 incriminating exhibits against the accused persons. This is because in his own words, those markings had faded and for many of the plastic packets containing the impugned drugs, he could not surely and clearly, without any doubt, testify on the said markings, including the date he had written on the said plastic packets. It was not only his testimony but the enigma is corroborated by the chemist SP1, who testified when cross-examined by defence counsel that “penandaan pada KK1 – KK7 tidak jelas pada eksibit.” KKI – KK7 is in fact exhibits P5 (A – G), referred to above. x. The markings which were illegible did not stop at SP1. It was also testimony of SP4, IO of the case who is supposed to have marshalled all evidence before producing it in court as exhibits. During re-examination, there was explanation offered by SP2 with the aim of clarification, but it fell flat as his testimony during cross-examination was riddled with utter contradictions and inconsistencies. Hence, what is left is reasonable doubt in the case of prosecution, on identity of the exhibits, which were the impugned drugs, which had settled in my mind as trial judge. (See: PP v Saimin (1971) 2 MLJ 16). xi. Thus, there has been a break in chain of evidence. If the raiding officer, SP2 could not without doubt remember 14 markings made on the exhibits seized, then he could not offer credible evidence proving the fact in issue, that the impugned drugs which were subject matter of charges against both accused persons, were in fact seized from the scene of crime, then handed over to the IO, who had then sent to the chemist for analysis, returned and kept in custody, control and supervision of the IO and finally produced in court as incriminating exhibits as proof against the accused persons. With that, there is no prima facie case made out pursuant to section 180(4) CPC, constituting credible evidence proving the primary ingredient of the offences of trafficking of dangerous drugs, that identity of the impugned drugs were the same as seized and later produced in court as exhibits. As such, I am satisfied there has been break in the chain of evidence regarding the markings and movement of exhibits until they reached this court. xii. SP2’s testimony is also not credible, as it is riddled with too many contradictions and inconsistencies, which was well unearthed by the learned defence counsel, during cross-examination. His demeanor in court as a witness, is also much to be desired as he was lackadaisical and carefree when testifying on the markings which is not legible. He was trying 15 hard to make out the markings made and insisting it to be legible and visible when it is not. Although his demeanor as witness is not touchstone of his credibility, but his testimony in court is not credible but doubtful. xiii. The contradictions and inconsistencies stretched on when SP2 had prepared search list P12. P12 which is a contemporaneous piece of evidence made forthwith after raid, contained many mistakes which SP2 was again trying to justify, under cross-examination. Once again, SP2 was carefree and far from meticulous on the entire raid and investigation of the case. In P12, the wallet containing IC is stated to have been found on the table and not inside the green bag. xiv. Follow on to P12, is P13 which is an acknowledgement of receipt of exhibits between SP2 and SP4. What is alarming, the wallet in which the IC of the first accused was found, and that it was handed over to IO was not mentioned. It is the case of prosecution, IC is supposed to have connected the first accused with the impugned drugs, amounting to real evidence pursuant to section 60(3) of the Evidence Act 1950 (EA). Thus, it has to be produced as seized, without any change or alteration. There is no reason for it to be removed 16 and tendered apart as an exhibit when it was allegedly found together with wallet of the first accused. But so is not mentioned in P13. Bereft of doing so, the explanation and denial advanced by defence is fortified, that the IC was in fact not found at the time of raid in the green bag but taken from him independently. Both P12 and P13 which are contemporaneous pieces of documentary evidence which are prepared after the raid states something else on the recovery of the wallet with IC and the green bag, whereas the oral testimony of SP2 says otherwise, that it was found inside the bag. This contradiction does not augur well for the case of prosecution but fortifies the defence version that the IC was placed inside the green bag in order to connect the first accused with the impugned drugs. The contradiction unearthed during cross-examination of SP2 is fatal to the prosecution case, but it is entirely consistent with the defence version (See: Gooi Loo Seng v PP (1993) 3 CLJ 1 SC). xv. Aside, there has also been incomplete investigation of this case before it emerged for trial before this court. The incomplete investigation extends to crucial areas like who is the owner or tenant of the raided premises; no iota of forensic evidence made available on the hand phones P17 and P18, 17 in the absence of which its production bears no significance to the case of prosecution. Additionally, there is also no evidence forthcoming on the presence of about four cars at the vicinity of the house, scene of the crime. The myriad of issues raised on the incomplete investigation by SP2 and SP4 is not to imply that investigation methodology has to be perfect. It is raised to demonstrate, that if procured and tendered in court as evidence, this court would have the benefit of more cogent and credible evidence sustaining a prima facie case, as required under the law, pursuant to section 180(4) CPC. xvi. The charges faced by both accused persons carries a death penalty if convicted, yet SP2 and SP4 has shown lackadaisical attitude when investigating the case. The deputy public prosecutor (DPP) prosecuting the case could not be faulted as he could only produce evidence in court within confines of the law which was unearthed during investigation phase of the case. [27] Taking cue from the case of PP v Poh Chee Huong (2016) 10 CLJ 123 at page 133, it was decided by His Lordship Idrus Harun JCA (as he then was), that it would be a salutary reminder that, once the identity of the drug exhibit was challenged by the defence, it would 18 be incumbent on the prosecution to ensure that there were no gaps in the chain of evidence and to adduce evidence that the drug exhibits which was recovered form the accused were the same drug he was charged with (Sia Piang Liong v PP (2011) 6 CLJ 759). Thus, even though it was confirmed that the drugs analyzed by the chemist were dangerous drug as listed in the First Schedule DDA, but doubt as to identity of the exhibits sent to the chemist has inevitably led to a finding that there was also a doubt as to whether the drugs sent for analysis were in fact the same drugs which were seized. [28] The law as explained by the Court of Appeal in Looi Kow Chai & Anor v. PP (2003) 1 CLJ 734, requires me, in determining whether a prima facie case has been established, to subject the prosecution’s evidence to a maximum evaluation and ask myself if I am prepared to convict the accused persons on the totality of the evidence contained in the prosecution’s case if I were to decide to call upon the accused persons to enter their defence and they elect to remain silent. If the answer to that question is in the negative, then no prima facie case would have been made out and the accused persons would be entitled to an acquittal. This is the threshold of proof required of the prosecution to the satisfaction of this court, as trier of fact, at the end of case of the prosecution. On 19 careful and critical analysis of the evidence available in its entirety, the case for the prosecution falls due to the evidence of the raiding officer, SP2 who could not identify the exhibits which he seized and subsequently sent to chemist PW1 for analysis and tendered before this court. This failure has consequently left serious gaps in the continuous chain of evidence relating to the exhibits which in turn had created serious doubt on the identity of the exhibits sent for analysis and raised an inference that the same could have been tampered with. Justification under the law [29] In a serious case such as this, the exhibits should have been packed and sealed by each of those who handled the exhibits. In the light of the patent and unexplained fading in the marking by the raiding officer, SP2 and his inability to pin point surely the markings made; the cavalier manner in which the exhibits were marked which has become so significant; later demonstrated by his sworn testimony in court, where he had admitted it to be ineligible, in sum total of all the circumstances amount to missing links in the chain of evidence, thus leaving behind a material gap in the prosecution’s case. (See: Pavone v PP (No. 2) (1986) 1 MLJ 423). 20 [30] The law is clear that it is unnecessary to call evidence to ensure that there is no break in the chain of evidence but where a doubt as to the identity of an exhibit arises, a failure to adduce evidence to provide the necessary link in the chain of evidence would be fatal to the prosecution’s case. In this case there was such a failure. The break was so serious that there could not be any cure. (See: Teoh Hoe Chye v PP (1987) 1 MLJ 220 SC). [31] It is unnecessary to call evidence to ensure that there is no break in the chain of evidence. If the officer who picked up the object at the scene produced it and identified it as that very object that is enough and there is no need to call every other officer who handled it, unless there is doubt as to the identity. (See: Su Ah Ping v PP (1980) 1 MLJ 75). But in the present case, although there is evidence from the raiding officer, chemist as well as investigation officer but they are unable to account for the ineligible markings made on the exhibits seized at the scene of crime. During their testimony, upon confrontation by the defence counsel, all of them could only afford a guess on the markings, which tantamount to a mere surmise, when the law expects cogent and credible evidence. With that quality of evidence, is the identity of impugned drugs made out vide proof by the prosecution? The answer is a resounding No. 21 [32] At this juncture, it would be appropriate to refer to the latest decision by our apex Court in the case of Mohammad Lokman Mohamad v PP (2021) 7 CLJ 524 at page 540, where His Lordship Mohd. Zawawi Salleh FCJ decided: [31] …, in all prosecutions for drug trafficking, the corpus delicti is the dangerous drug itself, the existence of which is essential to a judgment of conviction. Because of the seriousness of the penalty, the certainty of the amount or quantity of the impugned drug is very important and formed as essential part of the charge, Further, dangerous drugs are not readily identifiable … [32] …, it is a fundamental principle of our criminal law that an accused should know with certainty the case advanced against him by the prosecution, especially the amount or quantity of the impugned drugs in a trafficking charge … [33] … We hasten to add that where the stakes are high (death penalty), some precision is called for … Feeble attempt to prove possession [33] One vital element which the prosecution is required under the law to prove for the offence of trafficking in the impugned drugs under section 39B DDA is both accused persons had possession of the said drugs at the material time. This court can make a finding of possession if from the surrounding circumstances of the case it can be inferred that both the accused persons had knowledge of the drugs found inside a black plastic bag and green bag on a table at the veranda to the house they were arrested. (See: Gunalan 22 Ramachandran & Ors v PP (2004) 4 CLJ 551; PP v Abdul Rahman Akif (2007) 4 CLJ 337; PP v Lim Hock Boon (2009) 3 CLJ 430). [34] Prosecution has attempted to offer proof of possession of the impugned drugs by both the accused persons, by an attempt to link the first accused to the impugned drugs found on the table at the veranda, on the basis that he was seated close to it. That was in relation to the seven plastic packets found inside a black plastic bag which was knotted and placed on the table. As for the green bag, it was alleged that his IC was found inside it in a wallet. But till the end of the case of prosecution, it was not demonstrated to the court that the said IC was in fact found inside the wallet inside the green bag. The IC was allegedly taken out to be separated from the impugned drugs. This aspect of the case was disputed by the defence, stating that the wallet with IC was in fact found not inside the green bag but on the first accused, thus taken away from him and placed inside the green bag to create an inference that it was found together with the impugned drugs. In the absence of tangible evidence, i.e. in the form of real evidence at the time of raid like photograph as well as seizure list, there is no credible evidence to show that the prosecution’s version is the truth. As such, there is in fact a doubt on the truth of the prosecution story. In terms of the law, if there are 23 two diametrically opposed versions in the prosecution’s case, and the prosecution’s evidence admits of two or more inferences, one of which is in the accused’s favor, it is the duty of this court to draw the inference that is favorable to the accused. (See: PP v Mohd Radzi Abu Bakar (2006) 1 CLJ 457 at page 466). [35] As for the second accused, who was sleeping inside a room inside the house at the time of raid, there is no semblance of proof to show that he has connection with the impugned drugs, what more knowledge that he knew it were dangerous drugs. Linkage in the form of blood relationship with the first accused, as both are brothers and the fact that he was at the same house during the raid is starkly insufficient as proof of possession with the mental element of knowledge. The mental element is significantly absent as the second accused was sleeping at the material time of raid. Proof is also absent as to whether there was communication between them on the crime to be hatched or perpetrated before the second accused went to sleep. [36] Physical proximity of the impugned drugs with the first accused without mental element of knowledge is damning against prosecution as the law expects proof of conscious possession with knowledge that the first accused knew it was dangerous drug. Thus, 24 what remains on record is merely a feeble attempt by the prosecution to prove that both the accused persons were in conscious possession of the impugned drugs at the material time of raid. In the absence of evidence of confession by the accused persons that they had the necessary knowledge which is an element of their state of mind such element must be judged from their outward acts or omissions. There is also absent, evidence of any of such acts or omissions or other surrounding circumstances. (See: PP v Badrulsham bin Baharom (1988) 2 MLJ 585 at page 590). The only available evidence is that the first accused was seated nearby the table at the veranda and the other was sleeping inside a room inside the house, afar from the table at the veranda. As time taken by the raiding team including SP2, to observe conduct of the first accused was fleeting, there was no such evidence forthcoming from the prosecution. In the absence of evidence, including any explanations and denials made by the accused persons and their conduct on the occasion in question, this court will not be justified in finding that the accused persons were conscious of possession of the impugned drugs. (See: Chiah Tian v Rex (1937) MLJ 105; The Queen v Woodrow 16 LJMC 122; Leow Ngee Lim v Regina (1956) MLJ 28). Attention is drawn to the case of Saad bin Ibrahim v PP

(1968) 1 MLJ 158, where Yong J was quite emphatic as to 25 the requirement of the element of knowledge on the part of the possessor before he could be criminally incriminated with possession of a prohibited article, like the impugned dangerous drug in the present case. His Lordship said at page 159: In my opinion mere possession is one thing and possession with mens rea is another. Possession which incriminates must have certain characteristics. The possessor must be aware of his possession, must know the nature of the thing possessed and must have the power of disposal over it. Without these characteristics’ possession raises no presumption of mens rea. Without mens rea possession cannot be criminal except in certain cases created by statute, which is not applicable in this case. [37] In the absence of positive proof on the identity of the impugned drugs and its conscious possession, presumption of trafficking pursuant to section 37(da) DDA could not be invoked as there is lack of proof of primary facts in order to trigger the said presumption, which takes place henceforward by sheer weight of the impugned dangerous drug. (See: Muhammad Hassan v PP (1998) 2 CLJ 70; Alma Nudo Atenza v PP & Another Appeal (2019) 5 CLJ 780). Benefit of doubt [38] If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. (See: M.G. Agarwal v State of Maharashtra AIR 1963 SC 200, (1963) 2 SCR 405). The accused is 26 entitled to benefit of every reasonable doubt. Where, on the evidence, two possibilities are available or open,

One which goes in favor of the prosecution, and

(ii) The other which benefits an accused, the accused is entitled to the benefit of doubt. The cumulative effect of the circumstances must be such as to negative the innocence of the accused, and the offence must be brought home beyond reasonable doubt. In other words, the chain of circumstances must be so complete as to leave no room for doubt about the guilt of the accused. Law cannot afford any favorite other than the truth. To constitute reasonable doubt, it must be actual and substantial doubts as to the guilt of the accused person arising from:

The evidence or

The lack of it. A reasonable doubt must grow out of the evidence in the case. (See: State of U.P v Krishna Gopal AIR 1988 SC 2154). [39] However great the suspicion against the accused persons, unless the offences committed by them is established on the basis of credible evidence and material on the record, they are not required under the law to defend themselves. There is an initial presumption 27 of innocence of the accused and the prosecution has to bring the offence home to the accused by credible and reliable evidence. In absence of that, the accused is entitled to the benefit of every reasonable doubt. The prosecution story may be true, but between “may be true” and “must be true” there is a long distance to travel and the whole of the distance must be covered by the prosecution by the legal, reliable and unimpeachable evidence before the accused persons are ordered to enter defence. (See: Joginder Singh v State of Haryana (1974) 1 Cr LJ (P & H) 117 (SJ). Common intention [40] Section 34 PC, creates only a vicarious liability. It applies when a criminal act is done by several persons in furtherance of the common intention of all. In such a case, the other offenders are liable for that act in the same manner as the principal offender, as if the act were done by such offenders also. Section 34 deals with doing of separate acts similar or diverse, by several persons. If all are done in furtherance of a common intention, such person is liable for the result of their all as if he had done them himself. For “that act” and “the act” in the latter part of the section must include the whole action covered by “a criminal act” in the first part because they refer to it. In crimes, as in other things, “they also serve who only 28 stand and wait”. (See: Barendra Kumar Ghose v Emperor, AIR 1925 PC 1). The common intention may be inferred from the surrounding circumstances and the conduct of the parties. (See: Rishideo Pande v State of Uttar Pradesh, AIR 1955 SC 331). The only conduct unearthed of the second accused, Tarmizi who is alleged to have participated in the crime, is that “he was sleeping”. [41] In this case, the DPP prosecuting the case has totally ignored section 34 PC in respect of common intention, which was inserted in the charge against the accused persons. It is essential that there should be evidence of a common intention, or evidence from which such common intention can properly be inferred, to commit trafficking of dangerous drugs. (See: Shamsuddin bin Hasasn & Anor v PP (1991) 3 MLJ 314 at page 316). Hence, the mere fact of the second accused, Tarmizi found inside the room where he was sleeping at the time of raid and that he is brother of the first accused is not evidence of common intention or evidence from which common intention can properly be inferred. [42] Sadly the prosecution did not employ the avenue available under section 254(1) CPC when it ought to have done so, by not further prosecuting the second accused as there is no iota of evidence connecting the second accused with the charges against him. But 29 yet, the prosecution has chosen to wait until the end of prosecution case for the court to decide accordingly. Conclusion [43] Before I conclude, I should also mention that I have reason to question the credibility or veracity of the prosecution witnesses who testified. In scrutinizing their evidence, I took into consideration not only their demeanor but also consistency of their evidence, especially so on the marking and labelling of the plastic packets containing the impugned drugs seized in situ at the time of raid. In the final analysis I am satisfied that in sum total, they were not speaking the truth, but had created an impression that they are all out to get the accused persons convicted for the offences they have allegedly committed. [44] In view of the foregoing reasons and reasoning and after taking into consideration the cumulative effect of the evidence available in this case, it is so apparent that the prosecution has failed to make out a prima facie case against both the accused persons, warranting for this court to order both of them to enter their defence. The ingredients for offences of trafficking against the accused persons are not made out by the prosecution vide credible evidence, namely identity of the dangerous drugs itself, its possession with knowledge 30 and trafficking of the same, and also emphatically common intention of both the accused persons to traffic. The evaluation of evidence has resulted in doubts in the case of prosecution. There has been a serious doubt on the identity of the dangerous drug entitling the accused persons to be acquitted without having to defend themselves. [45] In conclusion, upon subjecting the prosecution’s evidence to maximum evaluation, I find that the prosecution failed to make out a prima facie case against both accused persons in accordance with section 180 (1) CPC, thus they are acquitted and discharged of the charges against them pursuant to section 180(2) CPC. Both accused persons acquitted and discharged. Dated 9 March 2022 Sgd. Muniandy Kannyappan Judicial Commissioner High Court, Taiping. 31 DPP Azrul Faidz Abdul Razak for prosecution. Defence Counsel Dato’ Naran Singh of Messrs. Naran Singh & Co. for both accused.