(18)), was found, forming subject matter of charge P6. • On inspection, SP3 discovered a green plastic container labelled "Power Style" (P26), which held one large plastic packet and eight small transparent plastic packets containing methamphetamine weighing 143.3 grams (P18A (1-9), subject matter of charge P4. • In the second room, SP3 found a plastic container with an orange cover labelled "TACTIX" (P27), kept on top of a dark brown wooden table. This container held four big plastic packets and three small transparent plastic packets containing methamphetamine weighing 129.90 grams (P17A (1)-(7)), forming subject matter of charge P2. • Two access cards to the premises (P29 and P30), along with a bunch of house keys (P30 and P34), were also discovered in the second room. • SP3 lodged police report P23 regarding the items seized during the raid. This is further confirmed by the seizure list (P24) and handover list (P25). [6] The offending drugs were sent to the chemist for analysis on their nature and identity by SP6, the IO, on 7.4.2021. The sending of the drugs is evidenced by documents P16 (Pol 31) and receipt P21. SP2 analysed the drugs and confirmed them to be dangerous drugs in his report P22. [7] The prosecution has demonstrated that there was no break in the chain of evidence from the time the offending drugs were collected by SP3 at the scene, handed over to the IO SP6, sent to the chemist SP2, returned to the IO, and finally produced in court as tangible proof that the said drugs, forming subject matter of the charges, were indeed found in situ at the premises. [8] To the contrary, the defence had raised several issues on the following matter: • The accessibility of the premises to guests and family members of the accused, citing items shown in photographs P14(20, 22, 27 and 28), such as a rack full of clothes, ladies' headbands, and a closet full of clothes, as indicating access by many. • The absence of any personal belongings of A1 found in the premises. • The lack of fingerprint and/or DNA profiling evidence on the offending drugs. • The probability of a mix-up of the offending drugs with those from a raid pursuant to report D33. • The absence of CCTV recordings of individuals using the elevator to the unit floor of the premises. • The lack of a listing of mobile phones found with other items, raising suspicion as to whether the offending drugs were, in fact, found at the said premises. [9] Upon careful consideration and maximum evaluation of the evidence presented by the prosecution, in terms of credibility of witnesses testifying for the prosecution and reliability of their evidence proffered, the following findings were arrived at: Against A1 and A2: • Both of them had negotiated the tenancy of the raided premises with SP5. • In fact, and law, pursuant to the tenancy agreement, A1 was the tenant of the said premises. • Following his initial arrest, he had led SP3 and the raiding team to the premises. • The key and access card to the raided premises were found in the car, from where he was arrested for another case. • A2 had opened the wooden door to the raided premises, indicating his presence and apparent residence there. His personal effects, including an ATM card and official receipts, were found in the second room, alongside other access cards and a house key. • Therefore, in law, both accused A1 and A2 had custody and control of the raided premises. • They ought to have known what was inside their premises, including the offending drugs seized from various locations on the floor of the first and second rooms. • The offending drugs were not concealed but were conspicuously found by SP3, scattered on the floor. • It can be inferred that the raided premises appeared to be a storage facility for an assortment of drugs. • The conduct of A1 leading SP3 to the raided premises, and A2 being present and had opened the wooden door, clearly denotes their occupancy of the raided premises. • While much has been raised regarding accessibility of the raided premises by others, the fact remains that only A2 and A3 were found inside during the raid, and to emphasise A1 led the raiding party to the premises. [10] The law is clear in this realm, fingerprint and/or DNA profiling only serves as confirmatory proof of possession. In its absence, other evidence is always admissible, and necessary inferences can be drawn from such evidence. What is more, in this case, the drugs found in situ on the floor and table at the raided premises are real evidence, forming tangible prima facie proof of the charges against A1 and A2. This evidence is admissible per se pursuant to section 60(3) of the Evidence Act 1950 (EA/Act 56). [11] The prosecution's narrative is that the raid commenced with A1 leading SP3 and his team to the premises occupied by him and A2. This denotes control and knowledge on the part of A1 as the tenant, hence the subsequent raid and seizure of the offending drugs. A2 and A3 were found inside the premises. On that score, the absence of CCTV recordings or the accounting of mobile phones, if any, is not inimical to the investigation trail, as it throws no light on the case in its entirety. That would be so, in the absence of evidence to the contrary by the accused persons. [12] As against A3 the following is apparent from the testimony of prosecution witnesses: • She had only just arrived at the raided premises. • She is not a tenant at the said premises. • At the time of the raid, she merely happened to be present. • None of her personal effects were found within the premises. • The available evidence indicates that she was unable to enter the premises without the assistance of A1, who was the tenant, and A2 who resided there. Thus, she had no independent access to the raided premises. • Without access, this court is unable to find as a fact that she had mens rea possession of the unconcealed drugs found in the first room, despite her proximity to them. [13] This court’s conclusion, upon maximum evaluation of the evidence tendered by the prosecution, which was vehemently cross-examined by each defence counsel representing A1, A2 and A3 is the following: • The evidence tendered is credible, reliable, and thus admissible as prima facie proof of the offences charged against A1 and A2. With that, A1 and A2 are found to be in mens rea possession of the offending drugs seized from the raided premises. • Flowing from that, the presumption of trafficking pursuant to Section 37(da) of the DDA applies and it is now for A1 and A2 to rebut the presumption invoked on a balance of probabilities for charges P2 and P4. • As for charges P6, P8, and P10, A1 and A2 are required under the law to raise a reasonable doubt on the prima facie case proven by the prosecution. [14] As for A3, the evidence tendered by the prosecution does not support proof of a prima facie case against her. [15] Ensuing from that, A1 and A2 were ordered to enter their defence on the charges preferred against them. [16] As for the third accused A3, in the absence of a proven prima facie case against her, this court acquits and discharges her of all the charges preferred against her. No appeal was lodged by the prosecution against the said order of acquittal and discharge, hence the decision stays. [17] Following on, the three (3) options available under the law was read and explained to A1 and A2. Both of them chose to testify as a witness from the witness box. Defence case [18] For a charge of drug possession or trafficking, the prosecution bears the bounden duty in law to prove that the accused had mens rea possession (possession with knowledge) of the impugned drugs. On that score, to reiterate, as for: A1 - • With the evidence adduced during the case of prosecution that his signature on the tenancy agreement (P32) links him to the condominium unit, that alone does not equate to possession over the drugs found within. • It merely establishes a residential link. • Moreover, under oath he has testified he does not live there, and the fact remains he was brought to the Unit by the raiding team after his arrest when he was in a car, which was the subject matter of an earlier trial in which he was found guilty, convicted and sentenced according to law. • Crucially, he was arrested elsewhere, inside a car and no drugs were found on his person. • It is also explicit that no other incriminating evidence was found on him to link him with the impugned drugs in the present case. • Furthermore, with absence of any of his personal belongings or effects in the raided unit where the drugs were found significantly weakens the argument for his possession and knowledge of the drugs. • This has to be contrasted with the presence of personal effects belonging to female occupants, one Wani and others had a stronger presence in the unit. A2 - • The only evidence against him is that he was found in the unit clad in a towel, when the police arrived. This circumstantially supports his defence that he was merely dropping by to freshen up for a "kenduri." • Similarly, like the case of A1, his personal belongings or effects were not found in the unit, diminishing any inference of prolonged residence or control over the premises and its contents. • It is also clear apart from being present and clad in a towel, no other incriminating evidence was found on him to link him directly with the drugs. • His presence alone, especially with a plausible explanation, does not prove possession, as his stay at the premises at point of raid and arrest was only transient. [19] With emergence of defence of both A1 and A2, the peculiar absence of DNA testing on items collected from the unit is a significant deficiency in the case of the prosecution, especially so on the face of their plausible explanation on their presence at the said premises. While the confirmatory forensic evidence, not strictly mandatory for conviction, such evidence could have provided strong corroboration to link A1 and A2 directly to the impugned drugs. The failure to collect and test such items means the prosecution has missed an opportunity to prove its case beyond reasonable doubt to link them with the impugned drugs. This absence works in favour of the defence, as the deficiency has supported their defence. [20] Likewise, is also the presence of Wani at the premises, which is corroborated by the presence of female clothing and paraphernalia at the said premises. If her presence at the premises is inquired into and she is subsequently called as witness for the prosecution, it would have the effect of negating the issue of her accessibility to the said premises, in the wake of the plausible explanation by A1 who was brought into the premises by the raiding team and A2 who was there merely to meet a friend (could be Wani) and freshen up in order to go for a kenduri later on. Furthermore, A2 was not found in any of the rooms, but at the living room before he had opened the door for the raiding team to enter the premises together with A1 who appeared from outside. The law in this realm has evolved that for possession to be established, accessibility by others to the raided premises where the offending drugs are found should be excluded by evidence led by the prosecution. It has to be proven beyond reasonable doubt that both A1 and A2 had possession of the drugs. (See PP v Ong Cheng Heong (1998) 6 MLJ 678; Choo Yoke Choy v PP (1992) 2 MLJ 632 SC). [21] What comes to my mind, is also the case of Mohan Singh a/l Lachman Singh v PP (2002) 3 AMR 3063, where the issue before the Court of Appeal was whether the accused had exclusive use of the room where the drugs were found. The accused in that case disputed possession. Gopal Sri Ram JCA (later FCJ) found that several aspects of the evidence led by the prosecution which spoke in favour of the defence were not considered by the trial court, which if taken collectively, amounted to gaps in the prosecution’s case. These factors included: there was evidence that someone else had access to the said room as certain items from the room had been removed when the police made a subsequent visit to the said room; and the evidence of the landlady to the effect that apart from the padlock, there was another automatic lock that was fastened to the door. The prosecution provided no explanation for these doubts as to accessibility. The same is the circumstance of the present case, as there was also no evidence forthcoming from the prosecution on the existence of two access cards to the premises (P29 and P30), along with a bunch of house keys (P30 and P34), which were discovered in the second room, thus leaving a material gap in the case of prosecution. Hence, it is for this court to analyse the defence’s case, considering all aspects to ensure fairness in its assessment in the interest of justice and fair trial to the accused persons A1 and A2. [22] For a charge involving common intention under section 34 of the Penal Code (PC/Act 574) the prosecution must prove that both accused acted in concert towards the commission of the offences. Alas! the available evidence provides no such basis for the following reasons: • There is no evidence of communication, planning, or joint activity between A1 and A2 concerning the drugs. • Their respective defences, A1 arrested elsewhere and brought by the raiding team to the premises; A2 merely visiting to freshen up, do not suggest a shared criminal objective regarding the offending drugs. • The fact that A1 was arrested elsewhere, and A2 was merely found at the unit with a plausible explanation, weakens any inference of a common criminal enterprise related to the offending drugs. On the law, the principle enunciated in the case of R v Abbot (1955) 2 AER 899 resonates. It was applied consistently by our courts in many cases, like PP v Muhammad Nasir bin Shaharudin (1994) 2 MLJ 576; PP v Mohd Bandar bin Nordin (2005) 2 MLJ 349. It is that if two people, like A1 and A2 in the present case, are jointly indicted for the commission of crime, and the evidence does not point to one rather than the other and there is no evidence that they were acting in concert, and they ought to be acquitted. [23] In light of the above, the prosecution has failed to eliminate reasonable doubt regarding the culpability of both A1 and A2. The evidence proffered by the prosecution, only serves to link them to the condominium unit, not directly to the impugned drugs. The absence of personal effects, the lack of incriminating evidence found on them, and the plausible explanations offered by the defence for their presence or association with the unit, specially in the case of A2, create significant doubt as to their knowledge and control of the drugs. The failure to conduct DNA testing further compounds this doubt by leaving a crucial piece of potentially corroborative evidence unaddressed. It is trite when administering criminal justice, even if the court does not believe the explanation by A1 and A2, but nevertheless it raises a reasonable doubt as to their guilt, they should be acquitted. Moreover, the burden of proof is bestowed on the prosecution and never the accused. (See Mohamad Radhi Yaakob v PP (1991) 1 MLRA 158 SC; Rosli bin Yusof v PP (2021) 5 MLRA 150). [24] Flowing from the bedrock principle of law as propounded in the case of PP v Lee Eng Kooi (1993) 2 MLJ 322, the function of the court in a criminal trial is to find whether the person arraigned before it as the accused, in this case A1 and A2, are guilty of the offence with which they are charged. For this purpose, the court would scan the evidence on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to find them guilty of the offences with which they are charged and convict them accordingly. Considering all the evidence adduced in its entirety, including both the prosecution and defence case as mandated by section 182A (1) of the Criminal Procedure Code (CPC/Act 593), the prosecution has not discharged its burden of proving beyond reasonable doubt that the first and second accused were trafficking drugs as for charges P2 and P4 and in possession of the impugned drugs for charges P6, P8 and P10 and also at the same time acted with a common intention to commit the alleged offences. Upon hearing and evaluating the testimony of both the accused persons, juxtaposed with the evidence led by prosecution, it became evident that while their accounts might not have been entirely truthful, but their combined version under oath in court nonetheless introduced a reasonable doubt regarding the case of prosecution on the material ingredient of possession and knowledge of the offending drugs, which is necessarily a precursor to the offence of drug trafficking. [25] To reiterate, the deficiency in the investigation of the case, with the absence of DNA evidence to link the accused persons with the impugned drugs, the defence has successfully discharged the presumption of trafficking on a balance of probabilities, as well as raised a reasonable doubt on the case of prosecution, which was made possible by the accused persons’ uncontradicted testimony that they had no connection whatsoever to the impugned drugs found at the condominium unit. Recap [26] The prosecution's case against the accused persons was built primarily on the assumption that because they were legal tenants of the raided premises, they must have had mens rea possession of the drugs found inside. The investigators limited their evidence gathering to the residential link of the accused with the premises, failing to pursue other lines of inquiry or secure corroborating forensic evidence. The third accused (A3) was similarly charged based on her proximity to the drugs, as she was found sleeping in the room where the drugs were located. The investigators disregarded the possibility that she was merely a maid, hired by some other individual. As suggested by the second accused (A2), on the existence of one Wani at the said premises supports the presence of a significant amount of female clothing and paraphernalia belonging to a female, which could be the individual Wani. The court found no link between A3 and the drugs and acquitted her, concluding that her presence in a sleeping state negated any notion of a common intention to possess or traffic drugs. As for the first and second accused (A1 and A2), they were initially ordered to enter their defence based solely on their residential link to the premises. However, their subsequent defence successfully cast a reasonable doubt on the prosecution's case. They presented a plausible explanation that rendered their connection to the premises and the drugs tenuous and weak. The legitimacy of their explanation was strengthened by the absence of any other tangible evidence, such as forensic proof, that could positively link them to the drugs. The court found a material gap in the prosecution's case due to the investigators' failure to procure such corroborative evidence. While such evidence would typically be confirmatory, in this case, its absence created a fundamental weakness in the prosecution's argument. Without this crucial evidence, the plausible explanations of A1 and A2 were not merely bare denials but sufficient to create a reasonable doubt. Consequently, their explanations dislodged the prosecution's case, leading to their acquittal and discharge. [27] In the upshot, both the first and second accused (A1 and A2) were acquitted and discharged of the charges preferred against them. Accused persons acquitted and discharged of the charges. 3 September 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties DPP Nur Aqilah bte Ishak and Izalina Hj Abdullah appearing for and on behalf of the Public Prosecutor, of the Attorney General’s Chambers (AGC). DC Haris Salleh of Messrs. Haris Saleh & Co. for and on behalf of the First Accused. DC Mohd Taufik bin Mohd Tahir of Messrs. Rizal Hashim for and on behalf of the Second Accused. DC S Selvi together with Lim Wei Qi of Messrs. Gooi & Azura for and on behalf of the Third Accused.