[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v KALAISELVAM MUTHALIAR A/L ANBAKARASAN (WA-45A-18-03/2023)

High Court of Malaysia7 May 2025

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1 THE HIGH COURT OF MALAYA IN THE FEDERAL TERRITORY OF KUALA LUMPUR (CRIMINAL DIVISION) CRIMINAL TRIAL NO. WA-45A-18-03/2023 BETWEEEN PUBLIC PROSECUTOR AND KALAISELVAM MUTHALIAR A/L ANBAKARASAN (KP NO. 930610-10-5549) JUDGMENT Preface [1] It is this court's decision to acquit the accused charged with an offence of drug trafficking pursuant to section 39B (1) (a) of the Dangerous Drugs Act (DDA) and punishable under Section 39B (2) of the DDA, at end of the case of prosecution. [2] It is hinged on a maximum evaluation of the prosecution's evidence, finding it riddled with inconsistencies and contradictions, thus failing to establish a prima facie case. [3] At the close of the prosecution's case, pursuant to section180 (1) and (4) of the Criminal Procedure Code (CPC/Act 593) the court must determine if the prosecution has adduced credible evidence, free from reasonable doubt proving each ingredient of the offence. This requires a maximum and rigorous evaluation of the evidence. This principle, established in cases like PP v. Mohd Radzi Abu Bakar (2006) 1 CLJ 457, mandates that the court conducts a thorough assessment of the prosecution's evidence. It involves evaluating the credibility and reliability of prosecution witnesses, considering their demeanour and the consistency of their testimony. The goal is to ascertain if the prosecution's case remains intact with only one version. If conflicting versions emerge, leading to reasonable doubt, the benefit of doubt must be given to the accused. Hence, the pivotal issue, is the case of the prosecution intact with only one version. In the present case three of the prosecution witnesses (PWs) were vehemently cross-examined and version of the accused was put to them at the earliest opportunity. Case of the prosecution [4] The accused in this case was arrested across the road at a night market area. He was then brought back to the area where he had dropped a blue plastic bag, allegedly containing one slab of cannabis, P10, the impugned drug cannabis weighing 1006.4 gram. The place of arrest was at Jalan Adil, Bandar Tun Razak, Cheras, Kuala Lumpur. [5] The raiding officer SP1 had simply testified on the following: • He acted on information received. • He proceeded to conduct surveillance for about ten minutes at the place of arrest. • He and his team saw the accused standing on the side of the road carrying a blue plastic bag P10. • When he approached the accused and identified as a police officer, the accused had dropped P10 and fled the scene. • He was then arrested and brought back to the place where P10 was dropped. [6] Premised on SP1’s testimony, the prosecution has taken a route that the accused was in fact caught red-handed with P10, and as he attempted to flee the scene, knowledge is sought to be inferred by this court, that he fled because he was in possession of a contraband item, i.e. dangerous drug. [7] But glaringly, there is another version of the events which was not disclosed to the court by SP1, but unearthed when he was cross-examined at length. The version is: • The accused was asked by his friend Ruben to make a delivery to another individual Mior at the place of arrest. • The delivery was to be made in a white car which was rented by Ruben using the SOCAR application. • The SOCAR application is managed and operated vide handphone. • It was at that point when he was waiting to deliver, he was accosted by SP1 and his team. • He ran to flee the scene, as he was wanted for a crime involving a fight where a police officer was assaulted, which took place on 18.9.2022 leading to his arrest on 29.9.2022. • The version of the accused is put to PW1 and the rest, orally but also supported by various police reports, including D16 which was lodged way before the trial of this case on 10.8.2023; D19 which was an arrest report of Mior who was arrested just thirty minutes before the accused and D17 on the fight the accused was involved with. • The arrest of Mior was also by SP1. Intriguing is the fact that the said reports were not investigated into by the investigation officer (IO) of the case, SP3. The existence of Ruben and Mior is not fictitious but real individuals. In fact, SP3 has testified he did not properly embark on their role in this case of the accused, as Ruben could not be tracked down by him and as to the involvement of Mior, it was not made known to him by the raiding officer (RO), SP1. The other startling fact is, that the handphone of the accused was seized but not accounted for in the seizure list, nor was it handed over to SP3 for purpose of forensic investigation, but only told that it was damaged during the course of arrest and raid. That handphone was a material link to show the communication between the accused and Mior, whose number he had in order to make the delivery to him. [8] Regardless of SP3 not knowing of what had really happened in the case, SP1 had admitted that Mior had informed him there was an Indian man waiting for him to collect money. That piece of evidence is not in isolation, but in tandem with the version of the accused advanced to SP1 at the earliest opportunity when he was cross-examined. In sum SP1 comes across as a shifty witness, who had refused to tell the truth as to the surrounding events entailing the arrest of the accused, until he was confronted via vehement cross-examination by the defence counsel for and on behalf of the accused. He had given the impression to this court that there was a disconnect between the arrest of the accused and Mior, when in fact it was not. The pivotal nexus being the handphone of the accused was deliberately suppressed from the seizure list as well as production as real evidence in court to prove a prima facie case against the accused person. So, was the presence of the white car used at the time of arrest. These material links were not told to SP3, IO of the case. [9] As for the accused, he had rendered full identification details of Ruben to SP3, for him to investigate, but it was not investigated to its fruition. It was admitted so by him during cross-examination. The accused was unable to provide identification details on Mior, as his contact and nexus was only with Ruben. He was only in possession of Mior’s handphone number which was stored in his handphone for use by him and that was suppressed from the IO and production in court as evidence. [10] This court meticulously applied the maximum evaluation principle. While SP1, the raiding officer, initially presented a simple narrative of the accused being caught red-handed, cross-examination revealed a significantly different and more complex sequence of events. This divergence immediately raised doubts about the prosecution's one version of events. The court emphasized the importance of assessing the credibility and reliability of prosecution witnesses. [11] As alluded to earlier, the narrative of the prosecution to be intact establishing a prima facie case against the accused, has to credible, believable, reliable and free from reasonable doubt. But by virtue of the version advanced by the accused, which is not new but made known by him in the various police reports, was not properly investigated by SP3 on its truth, if version of the accused prevails. Moreover, SP1 did not reveal it at once to the court during examination in chief, but was cross-examined to have it revealed. Thus, his credibility as a witness is dubious. [12] To that extent, the case of the prosecution is riddled with inconsistency and contradiction in its narrative, rendering a reasonable doubt on its case. This is also a case where the IO is left in a helpless state, as he was not informed of some material aspects of the case, like the seizure of the handphone of the accused; the arrest of Mior which has a direct connection with the arrest of the accused. He was helpless, as he could not investigate the case of the accused thoroughly in order to sustain the serious charge of drug trafficking against him. [13] Moreover, with non-production of the handphone as well as the character Ruben and Mior renders the case of the prosecution weak and falling short of full proof of a prima facie case. If the handphone was produced and the said individuals were called, the case of the prosecution would have definitely taken a different turn. Thus, the suppression of material evidence from this court enables this court to favour invocation of the adverse inference pursuant to section 114

of the Evidence Act 1950 (EA/Act 56). Shifty Testimony of SP1 [14] The court found SP1 to be a shifty witness who refused to tell the truth as to the surrounding events entailing the arrest of the accused, until he was confronted via vehement cross-examination. This directly impacts SP1's credibility. The fact that crucial information, such as the accused's interaction with Ruben and Mior and the purpose of his presence at the scene, was only unearthed during cross-examination, suggests an attempt to suppress material facts. Inconsistencies and Contradictions [15] The prosecution's narrative was riddled with inconsistency and contradiction. SP1 initially presented a straightforward arrest, but the cross-examination revealed that the accused was waiting to make a delivery, was involved in a prior incident with police, and that Mior (who was arrested by SP1 earlier) was expecting an Indian man to collect money. That Indian man could have been Ruben, who is the actual trafficker and not the accused person, who was only to deliver the package to Mior on Ruben’s instruction. Without being candid, the raiding officer had obliterated this material part of the case to the case IO. After obliteration, and relying on the alleged conduct of the accused who attempted to flee away from the locus in quo does not augment the case of prosecution at all but only renders conflicting accounts severely undermining the coherence and believability of the prosecution's case. Adverse Inference [16] A significant factor in the court's decision was the suppression of material evidence. The accused's handphone, a crucial piece of evidence that could have corroborated his version of events (showing communication with Mior and Ruben), was seized but not accounted for in the seizure list, not handed over to the Investigating Officer (IO), SP3, for forensic investigation, and was allegedly damaged. The court highlighted that this suppression was deliberate. The white car and involvement of Ruben and Mior, the existence of a white car (rented via SOCAR) and the roles of Ruben and Mior were central to the accused's defense. The IO, SP3, admitted that he did not properly investigate their roles, with SP1 failing to disclose Mior's involvement to SP3. Section 114(g) of the EA, allows the court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The court explicitly invoked this principle, stating that the suppression of material evidence from this court enables this court to favour invocation of the adverse inference pursuant to section 114 (g) of the EA. The non-production of the handphone, and the lack of proper investigation into Ruben and Mior, strongly suggested that this evidence, if produced, would not support the prosecution's case. [17] The application of Section 114(g) of the EA is well-established. For instance, in Munusamy v PP (1987) 1 MLJ 492, the court held that the failure to call a material witness may lead to an adverse inference if that witness's evidence would have been crucial and not merely cumulative. Similarly, the suppression of crucial physical evidence, like the handphone in this case, can also attract an adverse inference. Flaws in investigation [18] The court noted the helpless state of the IO, SP3, who was not informed of crucial aspects of the case by SP1, such as the seizure of the handphone and the arrest of Mior. This lack of crucial information prevented SP3 from conducting a thorough investigation, which is vital for building a robust prosecution case, especially for a serious charge like drug trafficking. The failure to investigate the accused's detailed identification of Ruben also contributed to the weaknesses in the prosecution's case. Reasonable Doubt [19] The ultimate consequence of the prosecution's flawed case was the failure to prove mens rea (guilty mind) possession of the impugned drug. For a charge of trafficking under Section 39B DDA, proving possession and knowledge of the dangerous drug is a fundamental ingredient. While physical possession might be apparent (the accused dropping the bag), the crucial element is whether the accused had knowledge of the contents of the bag and the intention to traffic, when at all material times his intent was to deliver the said bag to Mior on the explicit instruction of Ruben. Further, to reiterate, as far as Mior is concerned, he was only expecting an Indian man to come forward to see him with a bag. [20] The contradictory narratives, the unreliable testimony of SP1, and the suppressed evidence collectively raised a reasonable doubt about the accused's knowledge and intention. The accused's explanation for fleeing (being wanted for a different crime) provided an alternative, plausible reason for his actions, thereby undermining the prosecution's inference that he fled because he was in possession of contraband. [21] The principle of reasonable doubt is paramount in criminal law. In Woolmington v. DPP (1935) AC 462, the golden thread of English criminal law was established which is much adopted in our criminal jurisprudence, that the prosecution must prove guilt beyond reasonable doubt. (See also cases decided by the Federal Court in PP v Gan Boon Aun (2017) 4 CLJ 41; Jazlie Jaafar v PP & another appeal (2019) 6 MLRA 575). If a reasonable doubt exists, the accused must be acquitted. Here, the court found that the prosecution's case was not intact with only one version, leading to a reasonable doubt that tilted in favour of the accused. Conclusion [22] The court's decision to acquit and discharge the accused was sound, based on a rigorous application of established legal principles. The maximum evaluation of the evidence revealed significant inconsistencies in the prosecution's narrative, stemming largely from the raiding officer's unreliable testimony and the deliberate suppression of material evidence. This suppression, in turn, justified the invocation of an adverse inference under section 114(g) of the EA. Ultimately, the prosecution failed to prove the essential ingredient of mens rea possession beyond a reasonable doubt, leaving the court with no alternative but to acquit the accused without him to enter on his defence. In the absence of such proof, this court is also unable to invoke the presumption of trafficking pursuant to section 37 (da) of the DDA. As I have always iterated, the DPP having conduct of the prosecution, is not to be blamed as she could only produce in court evidence as per collection and marshalled by the IO, SP3 and nothing more or less. Accused acquitted and discharged. Dated 20 July 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur Parties DPP Izalina binti Haji Abdullah of the Attorney General’s Chambers (AGC) for and on behalf of the prosecution. DC Datuk N Sivananthan together with Grace S Nathan of Messrs. Grace S. Nathan, Advocates and Solicitors for and on behalf of the accused.

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Case metadata

Court: High Court of Malaysia
Decision date: 7 May 2025
Case number: WA-45A-18-03/2023
Coram: YA Tuan Muniandy a/l Kannyappan
Practice area: Criminal Justice - offence of drug trafficking - accused acquitted and discharged at the end of prosecution case - case of prosecution disclose more than one version - failure to investigate version of the accused disclosed in police reports made - raiding officer did not make full and frank disclosure to investigation officer of case - adverse inference drawn
Version: Alasan Penghakiman 1
Published: 19 Jul 2025
Source ID: 7ac01401-c142-4f3b-a719-c48599c52303

Catchwords

Criminal Justice - offence of drug trafficking - accused acquitted and discharged at the end of prosecution case - case of prosecution disclose more than one version - failure to investigate version of the accused disclosed in police reports made - raiding officer did not make full and frank disclosure to investigation officer of case - adverse inference drawn

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[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] - pendakwa-raya - ejudgment_parties
KALAISELVAM MUTHALIAR A/L ANBAKARASAN - accused - ejudgment_parties

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[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v KALAISELVAM MUTHALIAR A/L ANBAKARASAN (WA-45A-18-03/2023)

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[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v KALAISELVAM MUTHALIAR A/L ANBAKARASAN (WA-45A-18-03/2023)

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