In Seyedalireza Seyedhedayatollah Ehteshamiardestastani v. PP [2014] 4 CLJ 406, Tengku Maimun JCA (as she then was) said: [22] In this regard we echo the views of Augustine Paul J (as His Lordship then was) in the case of PP v. Chia Leong Foo [2000] 4 CLJ 649: It must first be observed that reliance on the presumption provisions where there is available evidence of the facts to be presumed will be unfavourable to the accused. This is because where the court relies on a statutory provision relating to a presumption of law like the presumption provisions it is bound to take the fact as proved until evidence to the contrary is given, on a balance of probabilities, to disprove it(see PP v. Yuvaraj [1968] CLJU 116; [1968] 1 LNS 116; [1969] 2 MLJ 69; Nagappan Kuppusamy v. PP [1988] 1 CLJ Rep 229; [1988] 1 CLJ 283; [1988] 2 MLJ 53). This results in a legal burden being imposed on an accused person though it is not illegal. Failure to discharge the burden, even where a reasonable doubt as to guilt exists, will be followed by conviction (see State v. Mello & Anor [1999] 1 LRC 215). However, if the court had acted on the available evidence in proof of the relevant ingredients without resorting to presumptions there is only an evidential burden on an accused person to raise a reasonable doubt. This indiscriminate use of presumptions when there is evidence of the facts to be presumed will be unfavourable to the accused as it will place a heavier burden on him which could have been avoided. Fairness to the accused therefore demands that the presumption provisions are used only when there is no evidence of the facts to be presumed." (Emphasis added) [37] In Ugonna Philip Nwanko v. PP [2016] 2 CLJ 247, Tengku Maimun JCA (as she then was) said: "[25] We will consider the first and the second grounds of appeal together. It cannot be denied that reading the grounds of judgment as a whole, we were left in a state of doubt whether the prima facie case on the second charge was premised on presumed possession under s. 37(d) and trafficking under s. 2 of the Act or whether it was on actual possession and presumed trafficking under s. 37(da) of the Act. [26] This court had the occasion to consider similar issues in Seyedalireza (supra). The learned trial judge in Seyedalireza (supra) had committed the same error where Her Ladyship had invoked both presumptions under s. 37(d) and (da) of the Act in the alternative and had failed to make a finding at the end of the defence case as to whether the appellant had rebutted the presumption. [27] In Seyedalireza (supra), this court had unanimously ruled that the approach of the trial judge in merely relying on the alternative without electing or making a finding whether it was actual or presumed possession and whether it was presumed or actual trafficking based on the evidence before the trial judge, amounted to a misdirection by way of a non-direction. The order of conviction and sentence of the High Court was set aside and the appellant was acquitted and discharged. The order of this court in Seyedalireza (supra) was affirmed by the Federal Court vide Mahkamah Persekutuan Rayuan Jenayah 05-53-03-2014(B)" (Emphasis added) [38] In Masih Perviaz (W/Pakistan) v. PP [2022] 3 CLJ 230, the Court of Appeal through the judgment delivered by Kamaludin Md Said JCA (as he then was) held as follows: "[52] It was submitted that apparently, from his Lordship's grounds of judgment at para. 25, firstly the learned trial judge seemed to invoke s. 37(da) indirectly. But the learned trial judge did not direct his mind whether the element of trafficking was successfully proven by the respondent under which section, either s. 2or through the presumption under s. 37(da) before calling the appellant to enter defence. This is a serious non-direction that amounts to misdirection. In other words, at the end of the defence case, the appellant was convicted under s. 39B(2) of the same Act. However, the learned trial judge did not make a specific finding on the issue of trafficking. The trial judge while giving his decision only directed his mind on the issue of whether the appellant failed to raise a reasonable doubt and then convicted the appellant. [59] We read the whole decision of the trial judge and at para. 25 of the judgment, we agree that the trial judge merely decided that the prosecution had proved the element of custody and control over the drugs or actual possession (mens rea possession) against the appellant at the prima facie stage. At para. 26, on trafficking, he merely referred to the Federal Court of Isidro Leonardo Quito Cruz v. PP (supra). We agree with the appellant's submission that the trial judge seemed to invoke s. 37(da) indirectly. But the learned trial judge did not direct his mind whether the element of trafficking was successfully proven by the respondent under which section, either s. 2 or presumption under s. 37(da) before calling the appellant to enter defence. [60] This, in our considered view, has prejudiced the appellant in that the defence would probably have to call witnesses to meet that standard whilst in a case where the standard is that of a reasonable doubt the accused can generally take advantage of the infirmities in the case of the prosecution. Without the intimation, the appellant would not know what standards he was expected to meet. In other words, in trafficking charges under the DDA there are two different types of burden imposed on the accused depending whether it was a case of direct or presumed trafficking. If it was a case of direct trafficking the onus on the defence is to raise a reasonable doubt whilst if it was a case of presumed trafficking or if any of the presumptions are invoked then the defence has to rebut the presumption on a balance of probabilities. Had the High Court Judge undertaken a maximum evaluation, the court would have no difficulty to inform the appellant what was the nature of trafficking or whether any presumption had been invoked." (Emphasis added) [39] In Ahrjun Chandran v. PR [2022] CLJU 1883; [2022] 1 LNS 1883, the Court of Appeal through the judgment delivered by Nordin Hassan JCA (as he then was) held as follows: "[48] Jelas di sini, Hakim Bicara tidak membuat dapatan spesifik sama ada pihak pendakwaan telah membuktikan pemilikan dadah-dadah oleh perayu berdasarkan keterangan di Mahkamah atau dengan pemakaian anggapan di bawah seksyen 37(d) ADB 1952. Hakim Bicara juga gagal menyatakan dengan tepat sama ada, elemen pengedaran dibuktikan berdasarkan peruntukkan anggapan di bawah seksyen 37(da) atau pun berdasarkan keterangan yang memenuhi definisi pengedaran di bawah seksyen 2 ADB 1952. [49] Berkaitan perkara ini juga, tidak dapat ditentukan dengan pasti bahawa Hakim Bicara membuat keputusan berhubung pemilikan dadah-dadah tersebut berdasarkan keterangan di Mahkamah dan bukan dengan pemakaian anggapan di bawah seksyen 37(d) ADB 1952 kerana di akhir kes pembelaan, pernyataan ini disebut oleh Hakim Bicara dalam alasan penghakimannya: "20.10. Menggunapakai anggapan di bawah seksyen 37(d) Akta Dadah Berbahaya 1952, mahkamah ini juga berpandangan bahawa tertuduh dianggap memiliki dadah berbahaya berkenaan...