[Pendakwa Raya] v Mohd Rizuan Bin Mohd Zalil (DA-45A-43-12/2021)

The accused was charged before this Court in two separate criminal cases, namely DA-45A-43-12/2021 and DA-45-15 12/2021. Both cases were tried together before this Court.

In DA-45A-43-12/2021, the accused faced three charges. The first and second charges were preferred under section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under section 39B(2) of the same Act involving 30.3 gram heroin and 222.2 gram methamphetamine respectively.

The third charge was preferred under section 12(2) of the Dangerous Drugs Act 1952 punishable under section 12(3) of the same Act involving 4.2 gram methamphetamine. However, despite the weight of the drugs not exceeding 5 gram, the DPP made an oral application to amend the punishment section from section 12(3) to Section 39A(1) of Dangerous Drugs Act 1952. The defence did not object to the application, hence the third charge is amended accordingly.

In DA-45-15-12/2021, the accused was charged under section 12(2) of the Dangerous Drugs Act 1952 punishable under section 39A(1) of the same Act involving 5.3 gram methamphetamine. The accused claimed trial to all the charges.

The charges preferred against the accused are reproduced as follows: First Charge "Bahawa kamu pada 20/12/2020, jam lebih kurang 3.15 petang, bertempat di Lot 43A, Kampung Bukit Akar Selising, di dalam Jajahan Pasir Puteh, di dalam Negeri Kelantan, telah mengedar dadah berbahaya iaitu 30.3 gram HEROIN dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama" Second Charge "Bahawa kamu pada 20/12/2020, jam lebih kurang 3.15 petang, bertempat di Lot 43A, Kampung Bukit Akar Selising, di dalam Jajahan Pasir Puteh, di dalam Negeri Kelantan, telah mengedar dadah berbahaya iaitu 222.2 gram METHAMPHETAMINE dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama" Third Charge "Bahawa kamu pada 20/12/2020, jam lebih kurang 3.15 petang, bertempat di Lot 43A, Kampung Bukit Akar Selising, di dalam Jajahan Pasir Puteh, di dalam Negeri Kelantan, telah ada dalam milikan kamu dadah berbahaya iaitu 4.2 gram METHAMPHETAMINE dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(1) Akta yang sama." Case No: DA-45-15-12/2021 "Bahawa kamu pada 20/12/2020, jam lebih kurang 3.15 petang, bertempat di Lot 43A, Kampung Bukit Akar Selising, di dalam Jajahan Pasir Puteh, di dalam Negeri Kelantan, telah ada dalam milikan kamu dadah berbahaya iaitu 5.3 gram METHAMPHETAMINE dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(1) Akta yang sama"

The prosecution's case arises from a police raid conducted on 20.12.2020 at approximately 3.15 p.m at a house situated at Lot 43A, Kampung Bukit Akar Selising, Pasir Puteh, Kelantan.

According to the prosecution's witness (SP1), upon entering the premises, the raiding team detained the accused together with Rahimi bin Yusoff ("Rahimi"), Ahmad Khuswari bin Md Zain ("Khuswari") and Siti Faiznur binti Rahimi (SP3) inside the house. The accused was detained while he was sleeping in Rahimi's room, Rahimi was detained in the living room, while Khuswari and SP3 were detained in their room. The house belongs to Rahimi, and the said SP3 is Rahimi's daughter.

During the the raid, the raiding team led by SP1 discovered a bag next to the accused in Rahimi's bedroom. Inside the said bag were packets containing heroin and methamphetamine, several mobile phones, cash and other items including the accused's wallet and identity card. Based on this, the prosecution contends that the accused had possession, custody, control and knowledge over the drugs discovered inside the bag.

The defence disputes such contention. The defence maintains that the room belonged to Rahimi, was accessible to several persons and that the prosecution had failed to exclude the possibility of the drugs belonging to Rahimi and Khuswari. The defence further challenges the adequacy and completeness of the police investigation, particularly in relation to the four mobile phones discovered in the bag, absence of fingerprint evidence, contradictions in the prosecution evidence and the failure to investigate access by third parties.

Section 180 of the Criminal Procedure Code provides: "180(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.

If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence."

The principles governing the Court's function at the close of the prosecution's case are trite. In Balachandran v Public Prosecutor [2005] 2 MLJ 301, the Federal Court held: "...Since the court, in ruling that a prima facie case has been made out, must be satisfied that the evidence adduced can be overthrown only by evidence in rebuttal it follows that if it is not rebutted it must prevail. Thus, if the accused elects to remain silent he must be convicted. The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case." (emphasis added)

Similarly, in Looi Kow Chai & Anor v Public Prosecutor [2003] 2 MLJ 65; [2003] 1 CLJ 734, Gopal Sri Ram JCA (as he then was) stated: "Therefore, a judge sitting alone under s 180 of the CPC must subject the prosecution evidence to maximum evaluation and to ask himself the question 'If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case?' If the answer was in the negative, then no prima facie case had been made out and the accused would be entitled to an acquittal ..." (emphasis added)

The law relating to possession is equally settled. In Chan Pean Leon v PP [1956] 1 MLJ 237, Thomson CJ explained: "To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case..." (emphasis added) Accordingly, the prosecution bears the burden of establishing custody, control and knowledge over the drugs. Findings of the Court Whether the prosecution had established the essential ingredients of the charges

Before this Court proceeds to consider the disputed issue of possession, custody, control and knowledge over the impugned drugs, it necessary to first address whether the prosecution had established the foundational ingredients relating to the nature and weight of the drugs.

In this regard, this Court finds that the prosecution had successfully established the first limb of the charges. SP4, the chemist from the Department of Chemistry Malaysia, testified regarding the analyses conducted on the impugned exhibits. According to SP4, the exhibits marked by the investigating officer were analysed and found to contain dangerous drugs, namely heroin and methamphetamine, in the respective weights stated in the charges.

The evidence of SP4 relating to the contents, nature and weight of the drugs was not challenged during cross-examination, and no contrary expert evidence was adduced by the defence. Further, no suggestion was put to SP4 that the analyses were inaccurate, unreliable or improperly conducted. The chain of custody relating to the drug exhibits and the chemist report itself were likewise not challenged by the defence.

Accordingly, this Court accepts the evidence of SP4 regarding the nature and weight of the drugs and find that the prosecution had successfully established the first element of the charges, namely that the impugned exhibits contained dangerous drugs as particularised in the respective charges.

The remaining and central issue before this Court is therefore whether the prosecution had established a prima facie case that the accused had possession, custody, control and knowledge over the said drugs and trafficking of the same. Whether the prosecution had established, custody, control and knowledge over the drugs

Having subjected the entirety of the prosecution evidence to maximum evaluation, this Court is unable to conclude that the prosecution had established, custody, control and knowledge over the drugs discovered inside the bag.

It is not in dispute that the drugs were discovered inside Rahimi's bedroom. It is also undisputed that the room belonged to Rahimi and that the accused did not reside in the house.

The prosecution nevertheless urged this Court to infer possession from the discovery of the accused's wallet and identity card in the bag containing the drugs. In this regard, whilst this Court accepts that such evidence may raise suspicion against the accused, suspicion alone cannot suffice. The prosecution must still establish conscious possession and knowledge.

In Public Prosecutor v Norhazwan bin Abd Wahab [2014] 4 MLJ 544, the Court of Appeal held: "SP7 testified that he recovered the respondent's wallet containing his identity card, driving licence and Maybank ATM card, from the bag whereas the respondent said that it was recovered from his rear trouser pocket. The learned trial judge held that it was more probable for the wallet to be recovered from the respondent's trouser pocket as 'no sane or reasonable man would place his wallet containing his identity card in the bag P14 knowing that the said bag contained proscribed drugs which attract the death penalty'. While the learned trial judge may have been a little too dramatic when he said that the recovery of the wallet in the bag was 'too good to be true', but what it really pares down to is that it is highly improbable for the respondent to place his wallet in the bag containing the drugs unless of course he was unaware that the bag did in fact contain the drugs, in which case then it cannot be said that the respondent had knowledge of the drugs being in the bag." (emphasis added)

Similarly, in Pendakwa Raya Iwn Hakimi Aiman bin Hussin [2024] MLJU 570, the High Court held: “[23] Saya juga enggan untuk membuat inferen yang memihak kepada pihak pendakwaan berkenaan pasport tertuduh yang dikatakan bercampur dengan dadah berbahaya dan bahan racun di dalam beg coklat tersebut untuk membuktikan elemen pengetahuan. Sekali lagi saya harus berhati hati dengan keterangan seperti ini memandangkan jika dilihat kepada beg coklat tersebut, ia adalah satu beg guni kitar semula untuk diisi barangan manakala pasport adalah dokumen peribadi tertuduh. Sukar untuk saya mempercayai tertuduh telah dengan selesanya meletakkan pasportnya di dalam beg tersebut bercampur dengan bahan-bahan terlarang..." (emphasis added)

These principles apply squarely to the facts of the present case. An identity card merely establishes ownership of the card itself. It does not automatically establish that the accused had knowledge of the contents of the bag or exercised conscious dominion over everything found inside it. I also agree with the observation of the courts in the above cases that that it is highly improbable for the accused to place his wallet in the bag containing the drugs unless he was unaware that the bag did in fact contain the drugs.

In an attempt to link the accused with the bag, SP2 testified that he was informed by the other individuals arrested together with accused that the bag belongs to the accused. The prosecution therefore seeks to rely on the alleged information conveyed by Rahimi, Khuswari and SP3 to connect the accused to the bag. SP2 testified as follows: "S: Soalan saya, yang mana satu yang cakap sedemikian? Adakah Rahimi yang cakap? J: Semua yang ditangkap bersama tertuduh menyatakan bahawa beg tersebut hanya di kontrol oleh OKT. S: Semua yang ditangkap? J: Ya. S: ASP ada beritahu tadi kepada Mahkamah, saksi-saksi dalam statement dia mengatakan beg itu di bawa oleh OKT. Tadi statement dalam soalan daripada TPR, bermaksud saksi-saksi yang ASP ambil statement itu mengatakan beg itu di bawa oleh OKT macam tu? J: Di bawa oleh OKT."

However, despite such assertion, the section 112 statements recorded from Rahimi and Khuswari during the investigation were never tendered before this Court.

This Court accepts that both Rahimi and Khuswari had since passed away. However, their deaths do not automatically cure the evidential gap arising from the non-production of their statements. On the contrary, once the prosecution elects to rely on alleged statements made by deceased persons during police investigation to implicate the accused, the section 112 statements become even more crucial and indispensable.

The prosecution cannot merely rely on SP2's bare assertion that Rahimi and Ahmad Khuswari informed him that the bag belonged to the accused whilst at the same time withholding the recorded statements from scrutiny by the Court. Without the statements, the Court is unable to determine whether the alleged statements were in fact made by the deceased. In the absence of the section 112 statements, this Court is left only with SP2's bare assertion as to what Rahimi and Khuswari allegedly informed him.

In Public Prosecutor v Jitweer Singh a/l Ojagar Singh [2014] 6 MLJ 222, the Federal Court referred to Subramaniam v Public Prosecutor [1956] 1 WLR 965 and said as follows: "... it was held by the Privy Council per Lord Wilberforce that 'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made'." (emphasis added)

Applying the principle above, I find that the evidence of SP2 with regard to the statements allegedly made by Rahimi and Khuswari to him is to establish the truth of what is contained in the statement, i.e. the purported ownership of the bag which is hearsay and inadmissible. Whilst I accept that both Rahimi and Khuswari had passed away and cannot be called as witnesses, no weight should be given to such statement in absence of the section 112 statements.

In a case carrying severe punishment and depending substantially on inference of possession, this Court is unable to treat such omission lightly. The failure to produce the section 112 statements of Rahimi and Ahmad Khuswari therefore materially weakens the prosecution's case and leaves a serious gap in the evidential chain concerning ownership and possession of the bag.

With the passing of Rahimi and Khuswari, the only living person arrested together with the accused is SP3. According to SP2, all the persons arrested together with the accused, including SP3 informed him that the bag belonged to the accused. However, at the trial, SP3 testified that the accused first came to the house in the early morning of 20.12.2020 after being contacted by Rahimi to send him to the clinic. After returning from the clinic, both the accused and Rahimi entered the house, and SP3 was the person who opened the door for them.

SP3 testified that she did not see either the accused or Rahimi carrying the bag when they entered the house and that she only saw the bag for the first time after the arrest at the police station. The relevant part of SP3's evidence is reproduced below: "S: Puan pernah tengok beg ini? J: Tak pernah tengok. Tapi selepas tangkapan tu saya tengok beg ni semasa di balai Pasir Puteh. S: Siapa yang tunjuk beg ni pada puan? J: Polis tunjuk. S: Polis tunjuk tu cakap apa? J: Dia cakap beg ni mengandungi dadah. S: Sebelum tangkapan, puan pernah tengok beg ni di rumah puan? J: Tak pernah. S: Ada ayah puan memilik beg macam ni? J: Tak ada. S: Suami puan? J: Tak ada. S: Puan ada pernah nampak sesiapa pakai beg ini di rumah puan? J: Tak pernah. S: Semasa ayah balik dari klinik dengan Rizuan, puan ada nampak beg ni? J: Saya tak perasan."

At this juncture, it is crucial to note that SP3 is the prosecution's witness. Although SP2 testified that SP3 informed him that the bag belonged to the Accused, SP3's own testimony under oath differs significantly and contradicts the evidence of SP2 on the statement purportedly given by SP3 during investigation. There was no attempt to impeach SP3 made by the prosecution. Therefore, the evidence of SP3 remains intact, and this court accepts her evidence that she did not see the accused carrying the bag into the house.

The contradiction of evidence of SP2 and SP3 cannot be taken lightly. The prosecution relies heavily on the evidence of SP2 to establish exclusive possession, of the bag containing the drugs. This court finds that the contradiction in testimonies of SP2 and SP3 as material contradiction and it is unsafe to rely on SP2's evidence with regard to the ownership of the bag.

In the circumstances, this Court therefore finds that the prosecution had failed to establish possession of bag and the drugs. Whether the prosecution had excluded access by third parties to the room and the bag

This Court further finds that the prosecution had failed to exclude access by third parties to the room and the bag. The evidence reveals that there was a considerable lapse of time between the time the accused arrived at the premises and the time the raid was conducted at approximately 3.15 p.m. No surveillance whatsoever was conducted during this intervening period.

There was no evidence excluding the possibility that another person entered the room or placed the drugs there during the intervening period.

In Tan Chun Cheng v Public Prosecutor and another appeal [2020] MLJU 782, the Court of Appeal emphasised that the law is trite that the onus is on the prosecution to rule out access by others. The importance of excluding access by third parties is particularly crucial in the present case because the evidence itself demonstrates that the room was accessible to multiple persons.

Further, the accused was arrested together with Rahimi, Khuswari and SP3 in the house. The prosecution nevertheless failed to adduce cogent evidence excluding access by those individuals to the room and the impugned exhibit.

SP2 had failed to meaningfully investigate Rahimi and Khuswari despite evidence linking both individuals to drug related activities. Police reports tendered during cross-examination suggest involvement by both individuals in drug related matters. Yet, no attempt was made by the SP2 to investigate whether the drugs discovered in Rahimi's room belonged to either one of them.

This Court also finds considerable force in the defence contention concerning the failure of SP2 to investigate the four mobile phones discovered in the bag together with the drugs. SP2 admitted during cross-examination that no investigation whatsoever was conducted to ascertain ownership of those phones.

Such investigation could potentially identify the actual owner or user of the bag and the drugs found therein. Yet, the investigation stopped short without any satisfactory explanation. This omission makes the investigation incomplete and materially weakens the prosecution's case.

This Court further finds the handling of the forensic investigation in the present case to be unsatisfactory. SP2 failed to properly carry out fingerprint analysis on the impugned exhibits, particularly the bag, the packaging of the drugs found in the bag and the mobile phones in the bag.

Although SP2 testified that he attempted to carry out fingerprint lifting from the seized items, SP2 took a simplistic approach by stating that the finger print lifting could not be carried out due to the surface of the exhibits. In this regard this regard, this court notes that whilst the surface of the bag may not be suitable for fingerprint lifting, I find it hard to believe that fingerprint lifting could not be carried out on multiple plastic packaging containing the drugs and the mobile phones.

At the very least, and even if the contention of SP2 is true that the fingerprint lifting could not be carried out, no evidence of such exercise was adduced by the prosecution. SP2 also conveniently stated the exercise was carried out by a corporal, whose name he could not remember. His evidence are as follows: "S: Laporan bertulis ada buat tak? Penimbulan cap jari tu bila negatif ada buat laporan? J: Saya tak ingat. Saya kena rujuk Koperal yang buat. S: ASP tak ingat nama Koperal tu? J: Tak ingat. Tapi dia di IPD Pasir Puteh. S: Selain daripada penimbulan cap jari, ada tak ASP buat siasatan berkenaan dengan pewujudan DNA pada barang-barang kes? J: Tak ada."

I am unable to accept the simplistic and evasive evidence by SP2. In this regard, As the investigating officer, he is expected to carry out his investigation thoroughly and record all the tests carried out and also the name of the person carrying out the test. In absence of any evidence of the fingerprint dusting exercise, I am more inclined to conclude that the test was not carried out.

Whilst I am in complete agreement with the Federal Court's observation in Muhd Zulkifli bin Abd Ghani v Public Prosecutor [2012] 2 MLJ 1 that there is no statutory provision requiring the prosecution to produce any fingerprint report especially when there is enough evidence to connect the accused with the drugs, the prosecution's case substantially depends on the inference that the accused exercised custody, control and power over the bag and its contents. Moreover, it is clear from the evidence that other persons had access to the room and the bag. As stated above, there is no credible evidence to connect the accused with the bag in this present case.

In such circumstances, fingerprint evidence becomes highly relevant as it constitutes objective forensic evidence capable of either connecting or excluding an accused person from the impugned exhibits.

The importance of fingerprint evidence was emphasised by the Federal Court in Chan King Yu v Public Prosecutor [2009] 1 MLJ 457 where the Court observed: "The plastic bag with its contents that was recovered from the dustbin where the appellant had allegedly thrown it was not sent to the fingerprint department for analysis at all. Despite this the trial judge and the judges of the Court of Appeal never once considered the failure of the police to send this vital piece of evidence for fingerprint analysis. In addition, there appeared no reason why the appellant should choose to dispose the plastic bag and its contents into a dustbin outside the hotel when there were dustbins in his room and outside the room along the corridor of the hotel. Moreover, the plastic bag with its contents was discovered in a public dustbin which was accessible to any member of the public." (emphasis added)

Similarly, in Tan Chun Cheng v Public Prosecutor and another appeal [2020] MLJU 782, the Court of Appeal observed: "Fingerprint analysis and/or DNA matching are vital investigative tools that the police could have utilised to establish control, custody and knowledge of the drugs by accused persons and to also rule out possession by others." (emphasis added)

The importance of such forensic evidence is amplified in the present case because the prosecution failed to establish exclusive access by the accused to the room and the bag. The evidence reveals that the room belonged to Rahimi, was not locked and was accessible to several individuals. Further SP3 also testified that she did not remember seeing the accused carrying the bag and she saw the bag for the first time at the police station after being arrested.

Despite the importance of the issue of possession, no proper fingerprint analysis was conducted on the impugned exhibits to positively connect the accused to the drugs.

This is not merely a case of the prosecution failing to tender forensic reports. Rather, the evidence reveals that the investigating officer failed to carry out such crucial forensic investigations altogether. In a case depending substantially on circumstantial evidence and inference of possession, such omission assumes considerable significance.

It is important for the investigating officers to fully understand their duties clearly. The duty of an investigating officer is not merely to gather evidence favourable to the prosecution but to conduct a fair, thorough and impartial investigation directed at discovering the truth. In Ghasem Gharezadehsharbiani Hassan v Pendakwa Raya [2014] 5 MLJ 433, the Court of Appeal held: [18] In spite of the importance of the telephone number, PW6 never investigated on Masoud. PW6 did not even make a call to the number given by the appellant on the excuse that 'saya terlepas pandang'. In our view, the conduct of PW6 is most unsatisfactory and unacceptable. As an investigating officer, PW6 has an onerous responsibility to investigate all aspects and fairly, including feature of the case which not only favours the prosecution but also the appellant The duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth (see Jamuna Chaudhary & Ors v State of Bihar [1974] 3 Supreme Court Cases 774). The appellant cannot be penalised for lack of ingenuity in investigation by PW6 depriving him of the time honoured benefit of doubt (see Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137). This was never considered by the learned trial judge. Consequently, the appellant's right to a fair trial has been compromised, which has the effect of rendering the conviction very unsafe. The appellant may thereby have lost a chance which was fairly opened to him of being acquitted and that there had been occasioned a failure or a miscarriage of justice (see Mraz v The Queen (1955) 93 CLR 493 quoted with approval in Lim Hock Boon v Public Prosecutor [2007] 1 MLJ 46).”

The Federal Court in Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1 delivered a stern admonition regarding inadequate investigations: [61] Before parting with the case, it is necessary to state that from the facts and circumstances of this appeal it would appear to us that the investigation had been somewhat shoddy. Undoubtedly, heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the life and personal liberty of a citizen is a precious one guaranteed by art 5 of the Federal Constitution and its deprivation shall be only in accordance with law. [62] Thus, before accusing an innocent person of the commission of a grave crime like the one punishable under s 302 of the PC, an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Therefore, greater care and circumspection are needed by the investigating agency in this regard."

These pronouncements make clear that investigative deficiencies are not merely procedural lapses but may directly undermine the prosecution's case by leaving material questions unanswered. In cases involving drugs found in premises, the prosecution must exclude the possibility that others had access to the premises. See Chan Wei Loon v Public Prosecutor and another appeal [2021] 4 MLJ 660. Whether the prosecution had established a prima facie case against the accused

When the evidence is considered in its totality, I find that the prosecution had failed to exclude access of other persons or prove exclusive control over the bag containing the drugs by the accused. In Chan Wei Loon (supra) the Federal Court placed the onus to exclude excess of other persons to the scene on the prosecution. The excerpt of the Federal Court's judgment is reproduced below: [93] The evidence laid down above pinpoints the access possibility by the third party to the ground floor. It is trite that the burden is on the prosecution to exclude access of the said ground floor by others to prove that the appellants were exclusively in custody and control of the dangerous drugs and the machines found on the ground floor. The prosecution had failed to establish such evidence when the onus is not on the defence to prove possibility of access by others, but on the prosecution to exclude such possibility. The burden of proving its case at every stage lies on the prosecution. The only task of the accused is to raise a reasonable doubt as to the truth of the prosecution's case. See: Mohan Singh a/l Lachman Singh v Public Prosecutor [2002] 3 MLJ 291" (emphasis added)

Upon maximum evaluation of the evidence adduced at the trial, I find that the prosecution had failed to discharge its obligation to prove the accused's exclusive possession of the bag containing the drugs. As exclusive possession, being the cornerstone of a trafficking charge under section 39B not proven by the prosecution, the statutory presumption of trafficking cannot be safely invoked.

The same applies to the charges under section 12(2) which require, custody, control and power to be proven. In this regard, I reiterate the findings above that the prosecution has failed to positively link the bag containing the drugs to the accused and therefore did not satisfy the element of possession for the purposes of the charges under section 12(2).

Accordingly, this Court finds that the prosecution has failed to establish a prima facie case against the accused in respect of all the charges in both cases number DA-45A-43-12/2021 and DA- 45-15-12/2021. The accused is therefore acquitted and discharged of all the charges. This Grounds of Judgment is dated 15.6.2026 SHAMSUL BAHRIN BIN ABDUL MANAF Mahkamah Tinggi (3) Kota Bharu Kelantan PIHAK-PIHAK: Bagi Pihak TPR Ahmad Faiz Fitri bin Mohamad Pendakwa Raya: Timbalan Pendakwa Raya Negeri Kelantan Jabatan Peguam Negara, Cawangan Pendakwaan Kelantan, AG-3-03-03 Al Waqf @ Tunjung, Tingkat 3, Bangunan H Elite Design, Jalan Kuala Krai, 16010 Kota Bharu, Kelantan. Bagi Pihak Tertuduh: En. Ahmad Nizam bin Mohamed Tetuan Alias Ibrahim & Co. Courts of 99, PT 1556, KM 4.5, Jalan Tunjong - Pasir Mas, 15100 Kota Bharu, Kelantan.