[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v SHEAGER A/L ADEKKAPACHI (WA-45A-6-01/2024)

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1 THE HIGH COURT OF MALAYA IN THE FEDERAL TERRITORY OF KUALA LUMPUR CRIMINAL TRIAL NO. WA – 45A – 6 – 01/2024 BETWEEN PUBLIC PROSECUTOR AND SHEAGER A/L ADEKKAPACHI (IC NO. 730626 – 01 – 5491) JUDGMENT Preface [1] The accused, identified as Sheager a/l Adekkapachi, 53 years old, faces two charges under section 39B (1) (a) and 12 (2) of the Dangerous Drugs Act 1952 (DDA/Act 234), punishable respectively under section 39B (2) and 39A (1) of the DDA. The charges allege that on 27.5.2023, he was involved in trafficking of heroin, weighing 191.7 grams and possession of 9.35 grams of methamphetamine (meth), at a parking lot in Anjali Utara Kiara. The prosecution had called five witnesses and presented evidence in support of the charges. Facts [2] On 27.5.2023, police officers, including ASP Muhammad Farish Amrik Abdullah, PW2, went to an apartment in Kuala Lumpur. The accused, opened the door, and search of his person and the apartment found no drugs. When questioned, the accused told PW2 about a Nissan Almera car parked in the condo’s allocated parking spot on Level 1 and handed over the car keys. A search of the car, unlocked with the keys from the accused, revealed two bags. A brown bag on the front passenger floor mat contained heroin wrapped in transparent plastic and yellow envelopes. A small, brown zipped bag near the gear lever contained methamphetamine (meth). The drugs were seized and later confirmed by the chemist to be 191.7 grams of heroin and 9.35 grams of meth. Prima Facie Case [3] The prosecution has adduced evidence to prove the essential ingredients of the crime as follows:

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(ii) The accused had possession of both heroin and meth based on the following telling evidence: • He handed the car keys to the police, and the keys were used to unlock the car where the drugs were found. • The drugs were in plain sight inside the car, which the accused was seen driving and parking in the allocated space. • The owner of the car lent the car to the accused because his own car was being repaired. The owner’s husband confirmed the car was clean when he lent it to the accused. • The presence of other people’s DNA in the car does not weaken the case since the car does not belong to the accused. • The accused was seen alone with the car on CCTV.

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(iii) As for heroin weighing 191.7 grams, the presumption of trafficking under section 37 (da) (i) of the DDA, to be invoked due to the large quantity and the manner in which it was packaged, in small packets, suggesting it was not for personal use but distribution. Defence of the Accused [4] It was argued by the defence that the prosecution failed to prove the essential ingredients of the crime, as follows:

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(ii) The accused had control, custody, possession and knowledge of the drugs; and

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(iii) The accused trafficked heroin. Several weaknesses were highlighted, particularly regarding the testimony of the raiding cum arresting officer SP2 and the investigating officer SP4. Issues on SP2’s Testimony [5] The defence claims SP2’s testimony is not credible, unreliable and self-contradictory. SP2 claimed that he alone held and managed the bag containing the drugs, but CCTV footage showed three officers holding the bag in turns. SP2 also agreed during cross-examination that the accused did not open the car door to show the drugs, instead, an officer did. Further, SP2 did not administer a caution to the accused upon arrest, as required under section 37B of the DDA. This failure renders any subsequent actions by the accused invalid and inadmissible as evidence. It was also argued that the police had prior knowledge of the location of the drugs before the accused was arrested and allegedly led them to the car. CCTV footage showed police officers loitering near the Nissan car for ten minutes before the accused was arrested at his residence. This suggests the accused did not lead to discovery of the drugs, thus undermining reliance by the prosecution on section 27 of the Evidence Act 1950 (EA/Act 56). It was also argued that the prosecution did not present any supporting witness to corroborate SP2’s claim that the accused confessed or led them to the drugs, despite other residents and officers being present during the search. The integrity of the chain of evidence for the seized drugs was questioned as SP2 and SP4 did not provide a reasonable explanation for the lack of markings on the brown bag containing the drug packets. Such defect by itself, warrants an acquittal, states the defence. Issues on SP4’s Testimony [6] The defence asserts that testimony of the investigating officer SP4 (IO), does not support case of the prosecution and creates a gap in the prosecution evidence. SP4 admitted no investigation was conducted at the workshop where the car was rented, which would have determined if other workers had access to the vehicle. The accused informed SP4 that the drugs belonged to a man known as Tangam, but the prosecution failed to call Tangam to testify, despite his arrest in an unrelated case. SP4 also acknowledged that the accused had named another suspect Manikam who allegedly owned the drugs, but no detailed investigation was conducted to verify this claim. To a question during cross-examination, SP4 had agreed that there could have been a possibility for the seized exhibits to have been tampered with because security personnel were at the said car before the accused was brought down from the house. However, it has to be noted that SP4 as IO of the case had positively identified the same exhibits which were seized and later produced in court. [7] The defence concludes that the prosecution has failed to prove and establish a prima facie case against the accused. The arguments revolve around the lack of a conclusive case, with credibility of key witnesses, SP2 and SP4, seriously undermined by contradictions and inconsistencies. The defence claims that the prosecution’s case relies solely on suspicion and lacks the necessary elements of control, possession and knowledge of the drugs by the accused. Therefore, the defence requests that the court acquit and discharge the accused. Findings [8] The case of prosecution, when viewed in its entirety, successfully demonstrates proof of ingredients of the offence committed by the accused. Issues raised by the defence, were merely conjectures, which are not strong enough to negate or rebut the evidence tendered by the prosecution in support of its case. [9] The chemist PW1, provided expert testimony confirming that the seized substances were heroin 191.7 grams and meth 9.35 grams, and it were dangerous drugs under the DDA. On possession of the drugs, case of the prosecution is anchored on what SP2 saw and seized, which were dangerous drugs from the car driven by the accused and parked at the parking lot at his place of stay. It is direct evidence by SP2 pursuant to section 60 (1) (a) of the Evidence Act, as it refers to a fact which was seen by SP2. The evidence adduced is also sufficiently strong and credible establishing a case of possession of dangerous drugs pursuant to section 180 (4) of the Criminal Procedure Code (CPC/Act 593) read with section 180 (1) of the CPC, which reads as follows:

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(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. …

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(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. (Emphasis is mine) [10] The accused had named Tangam and Manikam as owners of the drugs. In the absence of investigation into it, despite being notified so at the earliest instance, this court could conclude that while a case of trafficking heroin may not have been established, but there is available sufficient evidence of possession of the same dangerous drugs, including meth, thus providing justification in law for the accused to enter on his defence for a lesser offence of possession of heroin weighing 191.7 grams under section 12 (2) of the DDA, punishable under section 39A (2) of the DDA (charge P2) and also for possession of meth weighing 9.35 grams, as per charge P4. [11] Statement by the accused to SP4, naming Tangam and Manikam as owners of the drugs, only goes to prove admission on his part that he has knowledge of the existence of the said drugs inside the car. The admission made is definitely crucial in terms of the offence of possession, as it is clear proof of his mens rea. It directly acknowledges the fact that he knew of the contents of the bags inside the said car. Further, possession of the car keys and his positive assertion and direction to the police to the said vehicle where the drugs were found, also establishes proof of custody and control over the car in which the drugs were found. Although it is alleged by the accused, the drugs were owned by other individuals, but the fact remains he was in possession of it. [12] Existence of Tangam and Manikam in the unfolding narrative does not in any manner negate the fact that the accused was having possession of the dangerous drugs at point of arrest, search and seizure. In fact, the tangible evidence proffered by the prosecution, strengthens a case of joint possession, together with Tangam and Manikam. As decided by Taylor J in the oft quoted case of Leow Nghee Lim v Reg (1955) 1 LNS 33, possession need not be exclusive to the accused as two or more persons may be in joint possession of the contraband and the exclusive element of possession means the possessor have the power to exclude other persons from enjoyment of the property. Further, knowledge on his part of the dangerous drugs, squarely fits a case of possession. The existence of Tangam who was arrested in an unrelated case and Manikam, another suspect but not charged, only strengthens the possibility of a shared criminal enterprise, with the accused. Attempt by the accused to negative the proof of possession, by stating he was not in exclusive possession, is taken to mean in law as decided in the case of PP v Denish Madhavan [2009] 2 CLJ 209 FC, that the accused ought to show that he was not in possession of the drugs because he had no knowledge of their existence and the drugs could have been placed by some other person. But, that is not the case here, as it is apparent that the accused knew it was drugs, and it was found in the car which was driven by him before it was parked at the parking lot at his place of stay. [13] The large quantity of heroin would typically trigger the presumption of trafficking under section 37 (da) of the DDA, but the explanation and defence put forward by the accused during the case of prosecution consistently affords a reasonable explanation as to how the drugs came into his car, which fact tilts in his favour. His explanation also goes to show that he was not the one engaging in a sale transaction for the drugs but only a custodian, probably on behalf of Tangam and Manikam. That fact, which was raised by the accused unrebutted by the prosecution, weakens the case of trafficking, as postulated by the prosecution. However, on the same vein, the narrative proffered by the prosecution has strengthened its case for a lesser offence of possession against the accused, as for charge P2. For the charge P4, the position is status quo as per charge. Moreover, the accused own statement to the police is damning, as it provides a causal link between him, his knowledge of the drugs and possession of it. [14] By virtue of the above, the accused in order to gain an acquittal, in law has to raise a reasonable doubt either on his guilt or the proven case of possession of dangerous drugs by the prosecution against him. Finding by this court is as follows: For decision at end of the case of prosecution. Parties present as recorded. Brief grounds of judgment read out in open court.

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(ii) Both the accused and his witness SD2 admitted during cross-examination that the bag produced in court as P33 and P36 were not the one they saw Manikam carrying. This discrepancy undermines severely the credibility of their testimony regarding origin of the drugs. One hand stating the drugs in the bags belongs to Manikam and on the other hand stating the said bags are not the one carried by Manikam, which is plain contradiction in terms. That per se has an effect on probabilities of his defence. It goes to show falsity to avoid criminal liability.

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(iii) As the court is left without an alternative but to accept the explanation by the accused on the existence of Tangam and Manikam, as it was unrebutted by the prosecution, the accused has been consistent in maintaining that he had sole custody of the car keys, and was the only person who had control of the said vehicle before it was parked at the parking lot. It was also not denied that he was present near the car when the discovery and seizure of the drugs took place. As alluded to above, possession need not be exclusive and in the present case on the set of undenied fact, the accused was the sole custodian of the vehicle in which the drugs were found. The said drugs were not hidden but it was kept at plain sight and reach, since it was near the gear lever and footwell, which is conspicuous and would not go unnoticed. Findings [17] Ultimately, this court finds that the accused has failed to raise a reasonable doubt both on the proven case by the prosecution and his guilt. The Alcontara Notice defence alluded to by him, hinging on the involvement of Tangam and Manikam does not exculpate him from criminal liability, as immediate control of the car by him in which the drugs were found have not been displaced. Furthermore, probative value of his conduct, leading the police to the said vehicle and the contraband, is unquestionable as without assistance by the accused, and the note P27, the drugs would not have been found and seized. Thus, findings by this court at the conclusion of trial is as follows: For Decision at conclusion of trial PP v Sheager Brief grounds of judgment read out in open court.