[Pendakwa Raya] v Che Hashim Bin Mohd Zulkifli (DA-83D-517-03/2023)

It should be emphasized that in its inception and throughout an earlier stage of this proceeding, this case was first heard by previous magistrate and was later continued by me. Upon assuming this role, I had examined the Notes of Proceeding in its entirety, alongside minutes and exhibits as tendered in court and I resumed to hear this proceeding as if it was heard from the very beginning by me.

This Grounds of Judgment is written to explain the rationale behind this court's decision dated 20th of August 2025. THE PROSECUTION CASE [6] On 06/04/2020 at approximately 11.30 pm, PW5 together with 6 other members of his team raided a house at PT 608, Jalan Guchil Bayam Desa Rahmat 15200 Kota Bharu Kelantan. Upon arriving at said house, PW5 found that the gate of the house was unlocked. PW5 proceeded with checking the sliding door it found that it was closed and locked. PW5 then instructed L/Cpl Suhaimi to cut the lock.

PW5 and members of the raiding team then entered the 1st floor of the house and found that no one was on the 1st floor of the house. Subsequent inspection was carried out on the top floor of the house where, during said inspection, 3 men and 1 woman were found in the room.

PW5 introduced himself as a senior police officer and suddenly the Accused escaped through a window but was successfully detained on the roof by Cpl Norafendi. PW5 then conducted a body search of the Accused and found a key with a VW logo remote control in the right pocket of the knee-length shorts worn by the Accused, where the Accused admitted that the key belonged to him.

The Accused then took PW5 and other members of the raid to the yard where the Accused parked the car. The Accused then opened the car using a remote control which was seized by PW5 from the Accused. As a result of the inspection done by PW5 against said car, PW5 found a black plastic package in the back pocket of the front passenger seat hence PW5 instructed the Accused to take the package and hand it over to PW5.

PW5 conducted a further inspection of the package and found that there was 1 bright plastic inside containing a package wrapped in brown sellotape and inside it was 1 cream-colored paper package wrapped in sellotape and as this was opened, the following were found: i. 5 blue plastic packets tied with 2 rubber bands, each plastic packet containing 198 reddish pills and 2 greenish pills suspected of being Methamphetamine; ii. 2 blue plastic packets tied with 1 rubber band, each plastic packet containing 198 reddish pills and 2 greenish pills suspected of being Methamphetamine.

Those items were subsequently seized by PW5. All seized items were then put into record by PW5 through a Search List which was signed by all the arrestees as per exhibit P20. PW5 had also lodged a police report Kubang Kerian /1657/2020 which was marked as P4.

The same seized items as listed in P20 were then handed over to SP9 who was the investigating officer on 07/04/2020 through Handing Over List signed by PW5 and PW9.

PW5 then sent the seized items, namely the reddish and greenish pills, to the Malaysian Chemistry Department, Kelantan on 02/06/2020 and was acknowledged receipt by Government Chemist, Zulkefli Mohd Edin (PW6). As a proof of receipt, PW6 handed over one (1) copy of the receipt which was was tendered in this Court as exhibit P22.

PW6 in his oral testimony and based on the Chemist Report numbered: 20-FR-D-02511 confirmed that he had examined 1 envelope marked “TG” and found that it contained 7 plastic packets each containing 198 red tablets and 2 green tablets. As stated in PW2's testimony as well as P20, the analysis results are as the following: i. The total net weight of the 1386 red tablets is 131.73 grams containing 20.28 grams of methamphetamine; ii. The total net weight of the 14 green tablets is 1.35 grams containing 0.20 grams of methamphetamine.

PW6 also confirmed that Methamphetamine is listed in the First Schedule of the Dangerous Drugs Act 1952. PRIMA FACIE CASE [16] It is imperative for this Court to assess whether a prima facie case has been successfully made against the Accused. To do so, an exercise of maximum evaluation has to be undertaken against the totality of evidence presented by the Prosecution through their witnesses and in doing so assess these witness’s credibility and reliability, alongside examining whether elementary requirements for offences alleged against the Accused are met by the prosecution. (see Public Prosecutor v Mohd Radzi Abu Bakar [2006]1 CLJ 447, Looi Kow Chai v Public Prosecutor [2003] 1 CLJ 734 and Balachandran v Public Prosecutor [2005] 1 CLJ 85) THE ANALYSIS [17] Therefore, it is time for this Court to find answer to the issue raised in this appeal, namely whether the Accused should have been found guilty of the charge alleged against him on the basis that the Accused allegedly had possession of impugned drugs found during the raid.

This question, if answered in the negative, is a strong justification for this Court’s decision to acquit and discharge the Accused from charges laid against him.

To answer this question, it is of utmost importance for this Court to assess whether evidence presented is capable of proving the Accused possession of such dangerous drugs.

This requires a careful examination on the existence of the element of possession of dangerous drugs which in turn cannot be divorced from further discussion on who has control, custody and knowledge of such seized items to determine whether the Accused ought to be held criminally liable for charges brought against him.

In relation to Section 12(2)/Section 39A(1) of the Dangerous Drugs Act 1952, the ingredients required to be proved relating to possession of illicit drug are as the following – i. The Accused has possession of dangerous drugs (control or custody); ii. The Accused has knowledge of said dangerous drugs; iii. The impugned drugs are listed under the First Schedule of the Dangerous Drugs Act 1952; iv. The Accused was not a person authorized or deemed as such under the Dangerous Drugs Act 1952, or Regulations made under that Act. [22] There is no need for a lengthy discussion on whether the impugned drugs are listed as dangerous drugs as defined in the Dangerous Drugs Act 1952.

This is because the parties have from the outset asserted that they do not intend to dispute the identity of seized items, rather the parties have chosen to focus more on efforts to unravel the question of whether the Accused in fact had possession of the dangerous drug as alleged by the Prosecution.

Upon close scrutiny, this Court finds no reason to discredit the evidence given by PW6 regarding dangerous drugs analysis done as indicated in Exhibit P23. There was no defect in PW6’s analysis and no credible challenge was made on the identity of illicit drug. PW6 confirmed that said illicit drug was listed as dangerous drug in the First Schedule of the Dangerous Drugs Act 1952, to wit: Methamphetamine weighing 20.48 grams. (see Public Prosecutor v Chia Leong Foo [2004] 4 CLJ 649). Thus, this Court is of the view that the nature and the weight of illicit drug forming the subject matter in this case has been successfully proved.

Looking at the totality of evidence adduced throughout this proceeding, it is safe to conclude that the Accused did not have permission to have in his control and custody said dangerous drug as no evidence had been tendered to prove that license was granted to enable the Accused to have in his control and custody said dangerous drug.

Meanwhile, the task of proving “possession” has to be seen in light of the particular facts of each case. Not only is it vital to show that the Accused had custody or control over the impugned drug (actus reus), but it is also equally if not more important to show that he had the intention of dealing with it (mens rea) as if it belonged to him (See Ibrahim Mohamad & Anor v. Public Prosecutor [2011] 4 CLJ 113). In other words, possession is not made out merely because the Accused was situated so near to the impugned drug (See Romi Amora Amir v Public Prosecutor [2011] 1 CLJ 870). Possession is only proven when both physical element and mental element are present (See Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237)

In gist, possession is only is only said to be present whereby a presiding judge is safely assured that there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. (See Leow Nghee Lim v Regina [1955] 1 LNS 53 & Public Prosecutor v Hong Ah Huat [1970] 1 LNS 186).

Nonetheless, shedding light into what constitutes mental element in an offence of illicit drug possession is by no means an easy feat as this can only be done, more often than not, by way inference from the surrounding circumstances due to the fact that, by nature, intention cannot be proved through direct evidence. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. (see Pendakwa Raya lawan Lim Chsung Meng Dan

As alluded above, whether “possession” exist in a particular case could vary depending on factual peculiarity of that given case. Thus, in determining what amounts to “possession”, several questions will have to be answered namely; whether the impugned drugs found with the Accused were under his control, to what extent did the Accused had access to the place where the impugned drugs were found and how physically close was the Accused with the impugned drugs. Answering these questions in totality might shed light into the Accused’s ability as the alleged possessor capable of exercising the power to deal with said impugned drugs to the exclusion of others alongside his knowledge of the same.

On this front, the law is trite that the onus is upon the prosecution to adduce cogent evidence capable to rule out access by others to the impugned drugs. (See Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 4 CLJ 1, Pang Chee Meng v Public Prosecutor [1992] 1 CLJ (Rep) 265, Saludin bin Surif v Public Prosecutor [1997] 3 CLJ 529 dan Gooi Loo Seng v Public Prosecutor [1993] 3 CLJ.)

Upon close scrutiny of evidence as presented by the Prosecution, this Court opines that based on how the impugned drug was found, supported by the testimonies of witnesses PW5 who was at the crime scene, it is safe to conclude that the Accused had knowledge, custody, and control of such impugned drug

The veracity of Prosecution’s account of the raid, discovery and seizure has been verified by PW6 who confirmed how the arrest was made by the police against the Accused.

Therefore, it is safe for this Court to conclude that the Accused was the sole individual who could be said to have had effective possession, control and custody of said dangerous drug at the material time by being the owner of said car.

Control and custody of the car was bolstered by the finding of car keys which was used by the Accused upon instigation by PW5 to open the car using a remote control which was seized from him. As a result of the inspection done by PW5 against said car, PW5 found a black plastic package in the back pocket of the front passenger seat.

Although the impugned drug was found in the car whilst the Accused was in the house, nonetheless, evidence from the prosecution witnesses confirmed that the car belonged to the Accused. This came in the form of PW3’s testimony who confirmed that in the afternoon he had seen the Accused returning home using said car.

This affirmative link is further bolstered by the result of investigation done concerning the state of said car where the impugned drug was found. PW9’s investigation had successfully established the Accused’s control over said car as no one but for the Accused had habitually use and occupy said car prior to the raid conducted by PW4. (See Aaron Chong Chernlin v Public Prosecutor [2022] 1 LNS 2750).

This Court observes that no visible gap exist in prosecution’s case in this regard as the question of access has been dealt with sufficiently through evidence of PW9 who investigated the case.

Through PW9’s investigation, it is understood that the car whereby the impugned drug was not and open space, in fact it was enclosed by four walls and was only accessible through four access doors, all of which were locked at the material time when the raid took place. The car was merely accessed resulting with finding of said impugned drug as the Accused opened the car using a remote control which was seized from the Accused.

PW9’s investigation also showed that said car was not habitually occupied by anyone save for the Accused. In fact, no credible challenge was put to show that access to the car was made open to anyone who resided in the same house as the Accused at the material time. No indication was put up to show that at least on one instance, the same car was boarded by someone else, nor was the car tended by someone else save for the Accused.

The link between the Accused and the crime scene has been well established not only through PW5's testimony and PW9's investigation. Testimonies from other prosecution witnesses in effect named the Accused as the effective driver and user of said car in exclusion of others. Based on the testimony of PW4, the car was purchased by the Accused prior to imposition of Movement Control Order. PW4 also testified that the car was transferred to the Accused merely 3 days before his arrest. According to SP4, during that span of time, no one used the car as he was waiting for the Accused to pay the full price of the car. For this purpose, the car was entrusted to the safekeeping of PW7 who would in turn deliver the car to the Accused.

PW7 in turn confirmed that he had left the control and custody of said car to the care of the Accused as the new owner of said car upon purchase of the same was made by the Accused. PW7 added that he was merely a middle man and acted as a transporter who delivered the car to the Accused. In so doing, according to PW7, he had made sure that the car in question was free from any contraband or illegal item before the car was delivered to the Accused. This fact serves as an incontrovertible proof of the Accused’s control over the car and drug found within it.

The circumstances of this case as revealed through the testimony of PW5 and later corroborated by PW9, stating that from the Accused’s reaction, he was anxious and shocked and he had tried to escape the house by climbing over the window as the raid happened.

His conduct during the raid as explained above justified this Court in drawing an inference against the Accused in accordance to Section 8(2) of the Evidence Act 1952.

In this circumstance, explanation for his reaction must therefore be offered by the Accused himself as required by section 9 of the Act. However, as the appellant did not offer any explanation for his reaction upon being approached by the police, it could be validly used as evidence against him. In the circumstances, the inference to be drawn from the evidence was that he knew what he was controling. (See Parlan Bin Dadeh v Public Prosecutor [2009] 1 CLJ 717 , Amathevelli a/p Ramasamy v Public Prosecutor [2009] 2 MLJ 367)

Coming back to the present case, it is vital to note that no reasonable explanation was given in order to justify the Accused’s agitation and anxiety upon him being raided by the police which drove him to jump out from window whilst having in his control a car which was later found to have contained drug.

On this point, the Accused merely retorted by alleging that his conduct of jumping over the window at the sight of the police was merely due to the fact that he had experience of having been arrested by police in a separate incident, which had resulted with no criminal case being brought against him.

Nonetheless, this Court is of the view that such allegation has no merit as no evidence was offered in support of such iteration. Moreover, as a person who had experienced arrest made by police which had resulted with him having been cleared from any criminal conviction, why should the Accused be afraid of the police if he had not done something wrong in this instance?

Circumstances of this raid made it imperative for the Accused to offer some sort of explanation regarding his conduct in order to successfully deny the inference of knowledge of the existence of the impuned drug in his car. This failure in turn gives rise to an inference that the Accused did have knowledge of the possession and existence of the impugned drug at the material time.

Given that the element of control or custody of the drug found is successfully proved against the Accused, presumption under section 37(d) of the Dangerous Drugs Act 1952 was invoked against him, whereby whenever the Accused was found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.

Upon examination of evidence as presented by the Prosecution, this Court finds that based on the facts of how the drug was found and who effectively ecxercised care and custody of said car , it is safe to conclude that Accused had knowledge, custody, and control over the drug as alleged against him. SECTION 114 (g) OF THE EVIDENCE ACT 1950 [42] Furthermore, this Court finds it apt to discuss the propriety of invoking “adverse inference” under section 114 (g) of the Evidence Act 1950 due to alleged failure to properly investigate the veracity of the purported raid against the Accused which was argued, resulting with serious gap in prosecution’s case against him.

Given that the Accused had challenged the veracity of PW5’s account of the incident, it was argued that the Prosecution should have brought forward Maryam who might be present together with PW4 during the raid to corroborate PW5’s testimony. As such, the prosecution's failure to summon Maryam gave rise to adverse inference under Section 114 (g) of the Evidence Act 1950, against the prosecution.

It is essential to appreciate the scope of s 114(g) of the Evidence Act 1950 lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but a material document by a party in his possession nor for non-production of just any witness but only an important and material witness to the case. (See Munusamy v Public Prosecutor [1987] 1 MLJ 492)

In this regard, this Court reiterates the trite law that it is the discretionary right of prosecutors to call any witnesses he or she deems fit to call. (See Public Prosecutor v Norashikin Bt Yusof & Anor [2019] 7 MLJ 277)

Consequently, it is understood that the operation of adverse inference under Section 114 (g) of the Evidence Act 1952 is only activated when the prosecution failed to ensure attendance of essential witness who could be helpful in unfolding the prosecution’s narrative. The law does not intend for adverse inference under Section 114 (g) of the Evidence Act 1950 to operate merely because the prosecution declines to call any Tom, Dick and Harry to testify when prosecutors are of the view that their present set of witnesses as presented in court is sufficient to prove their case.

In relation to the present case, upon perusing through Notes of Proceeding, this Court is of the view that the mere failure to bring forward Maryam who was present at the material time when the raid happened is not a sufficient ground for this Court to invoke the operation of adverse inference under Section 114(g) of the Evidence Act 1950 against the Prosecution.

As patently clear throughout this proceeding, the chain of evidence presented by the Prosecution through its existing witnesses is intact without the need to produce additional witnesses to prove the case against the Accused.

This is such so as the law places importance not in the quantity of witnesses but the quality of the evidence presented in justifying any verdict to be meted out in a given proceeding. Reference can be made to Section 134 of the Evidence Act 1950.

This same principle is further reiterated in the case of Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No.3) [1999] 2 MLJ 1, whereby as a general rule, a court can and may act on the testimony of a single witness though uncorroborated and one credible witness outweighs the testimony of a number of other witnesses of indifferent character

This Court notes that the Prosecution has succeeded in proving the case against the Accused on prima facie basis based on the testimony of prosecution witnesses either in oral or documentary form, that the accusation levelled against the Accused is not baseless but is supported by credible evidence.

Upon assessing the evidence presented at the end of prosecution's case, this Court finds that PW1 to PW9 are credible witnesses and their testimonies formed coherent evidentiary narrative without posing any material contradiction to each other’s’ testimonies.

This Court also finds no reason to disbelieve PW1 and PW5’s account of the incident given that no credible allegation was presented to discredit both police officers credibility in testifying against the Accused. No malice or ulterior motive tainted these witnesses’ credibility and to the best of this Court’s recollection of the proceeding, nothing that of credible worthiness was presented by the defence to convince this Court that the raid conducted at the material time was nothing more but a ploy to frame the Accused for a crime which he had relation with. (see Public Prosecutor v Shaaban bin Abdul Rahman [1989] 2 MLJ 313).

This is such so as, normally, this Court must accept the testimony provided by police witnesses unless the testimony given is so unreasonable that it raises doubt in the prosecution's case. (See Public Prosecutor v Mohamed Ali [1962] 28 MLJ 257)

Given that there is nothing inherently improbable about the witness’s story and his evidence was neither contradicted by other evidence nor shaken by cross-examination. In the circumstances it is the duty of this Court to have called on the defence. (see Public Prosecutor v Basar [1965] MLJ 75)

At all material times, all prosecution witnesses maintained their testimony which accurately showed that the Accused was indeed having full knowledge and in control and custody of dangerous drug as charged against him.

In fact, the absence of Maryam who was at the crime scene when the raid took place from being called as witnesses at the prosecution stage does not give rise to adverse inference under Section 114(g) of the Evidence Act 1950, as the Accused's right to being fairly heard in a criminal proceeding was not prejudiced as Maryam was offered to the defence and the defence had called both witnesses to testify. Further refence to this principle can be traced back to principle as laid out in Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No.3) (supra).

On top of that, this Court is of the view that the Accused’s attempt to invoke the application of adverse inference against the Prosecution under Section 114(g) of the Evidence Act 1952 in the form of Alcontara Notice must fail as no indication was put in record and in evidence to convince this Court that the Accused had taken necessary steps in order to help the police to locate other witnesses, most particularly an individual by the name of Bulat who might be of help to the Accused’s defence by giving sufficiently detailed information that could lead up to successfully locating these witnesses’ whereabout. This failure only gives rise to inference any new witnesses who might be brought to help the Accused’s defence is a mere recent invention by the Accused in the later part of this proceeding in order to save himself. (See Public Prosecutor v Badrulsham Baharom [1988] 2 MLJ 585, Alcontara Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705, Teng Howe Sing v Public Prosecutor [2009] 3 MLJ 46, Raman a/l Kunjiraman v Public Prosecutor [2018] Supp MLJ 86)

In the case of Alcontara Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705 above, the Federal Court elaborated that the most reasonable opportunity for the Accused to clear his name from the beginning by revealing if there are witnesses that could help in investigation is by divulging the same in detailed while the Accused’s cautioned statement is being recorded by the investigating officer.

The Federal Court further concluded that if the Accused remained silent by not challenging the evidentiary narrative put forward by the investigating officer by way of tendering the Accused’s cautioned statement as proof that the Accused had informed the investigating officer that there were witnesses who could be investigated by the investigating officer to prove that the incident did not happen as alleged by the raiding officer, then this will give the right to trial judge to reduce the value of the testimony of the defense witness that was newly raised during the trial by employing adverse inference against the defense that to the effect of perceiving defense witness as a new fabrication during the trial and did not exist during the incident or the investigation.

Reverting to the case beforehand, this Court opines that The failure to call Bulat does not lead to an adverse inference per Section 114(g) of the Evidence Act 1950.

Such is because per evidence, PW5 nd PW9 clearly denied that the Accused had disclosed, at the earliest possible instance his narrative regarding the car was lent to a friend named "Bulat".

In fact, no evidence was led to convince the Court that the Accused had taken necessary steps in order to help the police i.e. the investigating officer, PW9 to locate Bulat, prior to this proceeding .

Nor was any evidence led to suggest that Bulat’s real name and exact whereabout was divulged at the earliest possible opportunity to the investigating officer in the Accused’s Section 112 of the Criminal Procedure Code statement, so that Bulat could be investigated or called to testify for the Accused’s innocence or to disprove evidentiary narrative laid by PW5 concerning such raid made against the Accused .

Hence this Court is of the view that there is no evidence of the Accused seriously challenging any of the prosecution’s witnesses at the stage of the cross-examination let alone testing his defence at the earliest opportunity i.e at the prosecution’s stage. Without such a challenge the credibility of the prosecution’s witnesses must remain intact. (See Shamim Reza bin Abdul Samad v Public Prosecutor [2009] 2 MLJ 506)

Along the same juncture, this Court could not bring itself to agree with the assertion that a favorable inference should be drawn against the Accused just because the Accused alleged that the true fact surrounding his arrest differed from PW5’s account of the incident.

Per trite law, it is understood that any allegation or suggestion made to the prosecution witnesses at the prosecution stage by the defence could not be said to have been a sufficiently constituted evidence but at best a mere allegation which is incapable of creating doubt against oral evidence which is based on observations made by the PW5 himself who was at the scene of the crime on the day of the arrest. (See Mirza Murtala v Public Prosecutor [2010] 4 CLJ 150 , Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No. 3) [1999] 2 MLJ 121, Emperor v Karimuddi Sheikh AIR [1932] Cal 373)

This is due to the fact that double presumption could only arise in instances whereby contradictory testimonies were presented by prosecution witnesses (which did not occur in this case) whereas in the present case, throughout proceeding, the prosecution had succeeded in presenting an unbroken and credible a narrative of how the incident took place. CHAIN OF EVIDENCE [68] Pertaining to the movement of the exhibits from the time it was discovered by PW5 until the time it was produced to PW6 by PW9, this Court finds that there was no break in the chain of evidence. This Court is satisfied that impugned drug as tendered in this Court was the same impugned drug seized by PW5.

I am also of the view that the failure to tender to the court search list issued at the crime scene did not lead to a break in the chain of evidence in the prosecution case as the absence of the search list prepared by PW5 and the absence of the handing over list were not fatal to the identification of impugned drug and neither did it cause a break in the chain of evidence. The search list and handing over list were merely two documents in support of the prosecution’s case. In the event they were not tendered in court, it could not disqualify PW5 from giving oral evidence in regard to the movement of the incriminating drug. As long as the oral evidence given was coherent with the available evidence before this Court, the oral evidence would suffice to refute the claim of any break in the chain of evidence, despite the absence of documentary evidence in support of the oral evidence. (See Samuel Ikechukwu Umegolu (W/Nigeria) v Public Prosecutor [2019] MLJU 1313, Mohd Rosni bin Safie v Public Prosecutor and another appeal [2016] MLJU 802)

At the end of the prosecution’s case, upon analysing the evidence given by prosecution’s witnesses and the documents tendered into this Court together with the submissions submitted by both counsels, on a maximum evaluation as guided in Mohd Radzi Abu Bakar [2006]1 CLJ 447, the Prosecution has succeeded in proving prima facie case against the Accused. Thus, the Accused is called to enter his defence.

The options required under section 173(ha) of the Criminal Procedure Code have been explained in a language conversant to the Accused. THE DEFENCE CASE [72] The Accused decided to give his sworn testimony from the witness box.

The Accused claimed that contrary to testimonies by PW5 and PW9, he was never arrested per First Instance Report.

It was further alleged that the car key was not found on his person as he was wearing a pocketless trunk short, rather said car key was fetched by the police from a trouser which was hanged on the wall, where only then was he made to wear the trousers before being escorted out to his house yard for inspection of the car using confiscated key.

It was also alleged that it was not him who led the police to said car for inspection. Instead it was the police who led him to the car and conducted inspection against said car in his presence.

The Accused alleged that it the impugned drug was not of his belonging rather it was that of a person named Bulat where was alleged to have borrowed the car from the Accused prior to said raid.

It was claimed that Bulat had been a friend who resided near to the Accused and they came to know each other since their schooling days.

This allegation was purportedly supportted by DW2 who could vouch that the Accused came home with a motocycle as a result of having parted with said car that was lent to Bulat.

It was also averred by the Accused that as the result of him lending Bulat his car, there was a verbal shouting match between him and DW2 who was at that time, his wife as DW2 did not agree with the Accused’s decision to lend the car without her approval.

The Accused claimed that no search list was issued against him at the crime scene.

It was further alleged that the arrest made against the Accused was nothing more but a plot to frame him for possession of illegal drug of which the Accused claimed that he had no knowledge of. BURDEN OF PROOF AT THE END OF THE DEFENCE CASE [82] This Court must consider all the evidence adduced in court and to decide whether the prosecution has proven his case beyond reasonable doubt as enshrined under section 173 (m) (i) of the Criminal Procedure Code. (See Romi Amora Amir v Public Prosecutor [2011] 1 CLJ 870).

If the prosecution has successfully proven his case beyond reasonable doubt, this Court has to find the accused guilty and consequentially be convicted for the offences charged under section 173

(ii) of the Criminal Procedure Code. (See Balachandran v Public Prosecutor [2005] 1 CLJ 85) [84] “Reasonable doubt” has been explained in the case of Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16 as follows: It has again been said that ‘reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there." Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence. [Emphasis added] [85] From the plethora of legal authorities as stated above, it is understood that the defence has the burden, upon maximum evaluation, to show reasonable doubt in prosecution’s case to procure an order of discharge and acquittal. [86] At this stage, this Court's role is merely to assess whether the Accused has raised reasonable doubt, or in cases involving presumptions, whether the Accused has rebutted that presumption on the balance of probabilities. [87] In so doing, this Court is barred from revisitting the case which has been made at the prosecution stage. This Court is therefore only confined to considering whether the defence has succeeded in raising a reasonable doubt in the prosecution’s case (See Sha’ari A Samat v Public Prosecutor [2017] 8 MLJ 553, [2017] 6 CLJ 424, [2017] 1 AMR 600, [2017] 1 MLRH 283) THE ACCUSED’S DEFENCE IS MERELY THAT OF A BARE DENIAL [88] The law is trite that when the Accused's defence is merely that of a bare denial, it does not amount to a defence hence fails to raise any reasonable doubt against a prima facie case that has been successfully proved against him. (See Muhamad Radhi Bin Yaakob v Public Prosecutor [1991] 3 MLJ 169). [89] After a rigorous perusal of evidence presented in this proceeding, this Court finds that the narrative presented by the Accused concerning events leading up to his arrest by PW5 is nothing but a bare denial, designed specifically for the sole reason of finding ways to exculpate the Accused from charge laid against him. [90] Thus, when the Accused's defence is merely that of a bare denial, it does not amount to a defence hence fails to raise any reasonable doubt against a prima facie case that has been successfully proved by the Prosecution against him. (See D.A. Duncan v Public Prosecutor [1980] 2 MLJ 195). [91] The Accused stated during the defence stage that said dangerous drug did not belong to him the arrest made against the Accused was nothing more but a plot to frame him for possession of dangerous drug of which the Accused claimed that he had no knowledge of. [92] This does not explain anything, most particularly why the impugned drug was found in the car which was at all material time under the control and custody of the Accused as earlier established during prosecution’s case. The failure to adduce any evidence to explain this predicament surely means that the Accused has failed to cast doubt over Prosecution’s narrative of how the case unfolded against the Accused. [93] This Court also finds no reason to disbelieve members of the raiding team and the investigating officer’s account of the incident given that no credible allegation has been presented to discredit police officers credibility in testifying against the Accused. No malice or ulterior motive has been successfully proven against these witnesses and to the best of this Court’s recollection of the proceeding, nothing that of credible worthiness was presented by the Accused to convince this Court that the raid conducted at the material time was nothing more but a ploy to frame the Accused for a crime which he had relation with. [94] In this regard, this Court fails to see any reason as to why prosecution witnesses should go all out conspire to commit perjury merely to get the Accused convicted. What would they gain by getting the Accused convicted? What could be the motive? They had no axe to grind against him. For lack of proof in support of the Accused’s assertion, this Court is compelled to follow guidance as enunciated in Public Prosecutor v David Ackowuah Bonsu [1999] 2 CLJ 677 to reject the Accused’s claim of being victimized in the sinister game contrived against him. [95] This court also acknowledges that the Accused, through his lawyer, has suggested that the impugned drug was not of his belonging rather it was that of a person named Bulat where was alleged to have borrowed the car from the Accused prior to said raid. [96] However, during the defence cace, once again the Accused failed to present any evidence to support his allegation that it the impugned drug was not of his belonging rather it was that of a person named Bulat where was alleged to have borrowed the car from the Accused prior to said raid. [97] This Court found no evidence of the Accused seriously challenging any of the prosecution’s witnesses at the stage of the cross-examination let alone testing his defence at the earliest opportunity i.e at the prosecution’s stage. Without such a challenge the credibility of the prosecution’s witnesses especially PW5 and PW9 must remain intact. [98] On this point this court opines that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. (See Shamim Reza bin Abdul Samad v Public Prosecutor [2009] 2 MLJ 506, Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212) [99] In the face of this development, there is no reason why this Court should not believe the prosecution's version that the Accused was the sole individual who could have had exercise control and custody over the car and impugned drug found within it. [100] After all, the Accused had admitted under oath that the trousers which was alleged to have contained car keys was in fact his trousers.In fact, the Accused had never denied his connection to the car as its owner. Nor was any evidence proffered to show that prior to the raid, said car was free from even the slightest possible chance of having contained anything illegal item. [101] This is such so as in the absence of any evidence presented to support the Accused’s allegation, it cannot be safely said that he has successfully casted reasonable doubt against the prosecution's case. [102] This Court is ever cognisant that a reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence. (See Public Prosecutor v Saimin & Ors 1971] 2 MLJ 16) THE ACCUSED’S DEFENCE IS MERELY AN AFTERTHOUGHT [103] This Court also notes that even at this stage, the Accused merely reiterated and regurgitated that same, debunked afterthought narrative of this incident as his defence. [104] The Accused also tried, despite in vain, by trying to craft a new narrative contrary to the one already established by the prosecution, of how the incident unfolded, by stressing that contrary to testimonies by PW5 and PW9, he was never arrested per First Instance Report. It was further alleged that the car key was not found on his person as he was wearing a pocketless trunk short, rather said car key was fetched by the police from a trouser which was hanged on the wall, where only then was he made to wear the trousers before being escorted out to his house yard for inspection of the car using confiscated key. It was also alleged that it was not him who led the police to said car for inspection. Instead it was the police who led him to the car and conducted inspection against said car in his presence. The Accused also tried, despite in vain, by trying to put the blame on his purported friend, known as, Bulat, who was alleged the real owner of those impugned drug It was alleged to have borrowed the car from the Accused prior to said raid. In doing so the Accused brought DW2 to testify on his behalf. It was claimed that Bulat had been a friend who resided near to the Accused and they came to know each other since their schooling days.This allegation was purportedly supported by DW2 who could vouch that the Accused came home with a motocycle as a result of having parted with said car that was lent to Bulat.It was also averred by the Accused that as the result of him lending Bulat his car, there was a verbal shouting match between him and DW2 who was at that time, his wife as DW2 did not agree with the Accused’s decision to lend the car without her approval.The Accused claimed that no search list was issued against him at the crime scene. [105] Nonetheless, throughout the investigation by PW9 as well as throughout the prosecution case, this narrative was never mentioned directly by any party, let alone by the Accused himself when his testimony was taken by the investigating officer. In fact, there was no police report lodged by the Accused to set the record straight nor was the Accused forthcoming in divulging the exact circumstances of how his arrest unfolded despite the defence having had more than sufficient time to help the police in uncovering this alleged truth. [106] Thus, this court finds that the allegation made by the Accused is in fact a recent invention or in other words fabricated evidence that falls squarely as an afterthought as said allegation was never brought up during the investigation by PW9. [107] In this situation, once again the Accused's denial does not clarify anything, especially why said impugned drug was found inside of the car which was under the control and custody of the Accused. [108] A more holistic look onto testimonies of witnesses presented up to the final stage of the defense case, it was patently clear that the Accused was the only individual who was capable of exercising effective control over the car and consequently the impugned frug found within it. Given this turn of event, there is no doubt that in exclusion of the police raiding team, only the Accused and no other individual can be linked to the impugned drug besides the Accused himself who definitely had knowledge of the existence of the illegal items in his direct possession. [109] It is a trite law that an afterthought defence cannot give rise to reasonable doubt to rebut the prima facie case that has been successfully proved by the prosecution as the Accused ought to state his defence against the prosecution at the earliest possible stage during the prosecution case. Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention (See Megat Halim Megat Omar v PP [2009] 1 CLJ 154). DEFENCE WITNESS DW2 AS AN INTERESTED WITNESS [110] This Court also finds that defence witness DW2 as an interested witnesses and her testimony in court should be taken with caution. [111] This witness was closely related to the Accused whereby DW2 was the Accused's wife at the material time when the raid took place. [112] This Court finds that her testimony could not in any way help the Acussed’s case against the Prosecutor given that her testimony was riddled with inconsistencies and were clearly designed to exculpate the Accused from being held liable for possession of said impugned drug, despite overwhelming evidence to the contrary. [113] It is noted that DW2 had stated that said impugned drug was that of Bulat but curiously enough she did agree that she had no prove of such allegation as she did not see Bulat riding the car, in fact her assertion of such was merely based on hearsay that was relayed to her by the Accused. [114] Besides, testimony by DW2 must also be taken with great degree of caution as DW2 also admitted that she was merely present inside of room as a team of policemen barged in prior to the Accused being apprehended. Nevertheless, she could not confirm of an incident which would have been happening under her nose during the raid inside of the house as she was situated within sight from the Accused when it was alleged that the police had lied about the whereabout of said car key. [115] Despite DW2 agreeing with the Accused that the Accused was wearing a pocketless trunk short prior to him jumping out from the window during police’s raid, nevertheless DW2 could not confirmed that car key was not found on the Accused’s person as per allegation made by the Accused that said car key was fetched by the police from a trouser which was hanged on the wall of the room, where only then was the Accused made to wear the trousers before being escorted out to his house yard for inspection of the car using confiscated key. [116] This is utterly illogical as the whole sequence of incident would have been happening right in front of DW2 who admitted that she was present along with the Acccused when the police barged into the room. [117] Another glaring instance of inconsistency in DW2’s testimony could been seen through DW2’s admission that she was not present and consequently was not privy to what had transpired during police’s raid onto the Accused’s car. Nonetheless, she saw it fit to testify that the contrary to police’s testimony that the impugned drug was found in the back pocket of the front passenger seat of said, the impugned drug was found in an openly accessible place, somewhere near said car’s tire. DW2 based her testimony on an alleged hearsay that was relayed to her by an indian police officer who was present during such raid. [118] Based on Notes of Proceeding, no Indian police officer was present at the crime scene as the raid took place except for PW5. In his recollection of how the raid took place, PW5 presented a different narrative than that of what was testified by DW2. In the face of apparent inconsistency between the two testimonies, this Court is of the view that the one version given by PW5 ought to be favoured in lieu of DW2’s version for the fact that PW5’s version is seemingly consistent with another sworn testimony broached by PW1. [119] To my mind this version of evidentiary narrative forms a more reliable recollection of what had transpired at the material time as this version was the version reduced into writing and corroborated in the form of First Information Report Kubang Kerian /1657/2020 which was marked as exhibit P4. In comparison to both testimonies by the Accused and DW2 which was never put into test through cross examination of prosecution witnesses during prosecution stage and as such that only came to light during defence stage, this police report was a document lodged at the earliest possible instance right after the raid took place, almost contemporaneously documenting what had transpired on that fateful date when the arrest was made against the Accused. [120] Though First Information Report is not substantive evidence for proving its facts but per Section 157 of Evidence Act 1950, it certainly can be used to corroborate testimony assert by the maker, in this instance PW5 as the officer in charge of the raid conducted against the Accused (see Tan Cheng Kooi & Anor v Public Prosecutor [1972] 2 MLJ 115, Lim Guan Eng v Public Prosecutor [2000] 2 MLJ 577, Balachandran v Public Prosecutor [2005] 2 MLJ 301). [121] DW2’s testimony is also proven unhelpful in shifting the blame for possession of impugned drug to the Accused’s purported friend, known as, Bulat, who was alleged the real owner of those impugned drug. This is such so as no evidence was led to show that Bulat had indeed borrowed the car from the Accused prior to said raid. In fact DW2 candidly admitted that her knowledge of said assertion was entirely based on hearsay relayed to her by the Accused. By her admission it is understood that DW2 was in nowhere present or involved with it and by all definition DW2 was not privy to such occurence, if that were to happen at all. [122] DW2 had also claimed that Bulat was a friend of the Accused who resided near to the Accused and they came to know each other since their schooling days. Despite Bulat having resided near to the Accused, without any justification, DW2 had failed to show that she had at the earliest possible instance, cooperated in tracing and searching for Bulat despite seemingly capable of doing so. This affirmation by DW2 that she knew where Bulat was residing is also vital in exposing inconsistencies in the Accused’s narrative of the event as the Accused had claimed that Bulat whereabout was unknown, that being the reason why Bulat’s exact whereabout was not disclosed by the Accused to help the investigation. This shows that testimonies by all defence witnesses could not be given any proper merit to justify the Accused’s acquittal from charge laid against him. [123] Testimony by DW2 must also be taken with great degree of caution as her recollection of events preceeding the arrest made against the Accused, which only came to light during the defence stage was seemingly at odds with the version broached by PW3 who was also present at said home and subsequently called to testify during prosecution stage. [124] DW2 had testified that the Accused coming home with a motocycle as a result of having parted with said car that was lent to Bulat and this being the reason why there was a verbal shouting match between the Accused and her who was at that time, the Accused wife as DW2 did not agree with the Accused’s decision to lend the car without her approval. [125] Nonetheless, this account of event was heavily at odds with the version broached by PW3, the Accused former brother in-law and DW2’s brother a who was also present at said home and subsequently called to testify during prosecution stage as PW3 had earlier confirmed that in the afternoon he had seen the Accused returning home using said car and there was no verbal shouting match between the Accused and DW2 who was at that time, the Accused wife due to purported disagreement concerning the Accused’s decision to lend the car without DW2’s approval. This seemingly suggests that DW2’s recollection was a mere recent concoction designed belatedly in order to save the Accused from a possible successful conviction. [126] It is patently clear that up until now, no independent evidence was brought in to support testimonies ventured by both interested witnesses. In that circumstances and in the face of abject inconsistencies in testimonies given by all defence witnesses, their testimonies must be rejected. [127] In light of this development, this Court is of the view that it is safe to reject a defence witness’s testimony which was assessed as a witness of interest in the event that there was an attempt to change certain parts of said defence witness’s testimony during the trial. (See Kumaran A/L Sappani v Public Prosecutor [2011] 3 CLJ 251, [2012] 6 MLJ 153, [2011] MLJU 1269, [2011] 2 AMR 486, Pendakwa Raya v Ong Eng Koe [2018] 1 LNS) NO EVIDENCE IN REBUTTAL WAS PRESENTED ON ALLEGATION OF FRAMING UP THE ACCUSED [128] In any event, there is no evidence that the Accused was framed up by the police or any other persons. On the contrary, the evidence has clearly shown that the Accused was in possession of the drug that would exclude others from enjoyment of the same. (See Wan Amirul Mubin Wan Kamaruddin v Public Prosecutor [2017] 1 LNS 1478) [129] This Court also finds that that there is no evidence adduced before this Court to show that prosecution witnesses knew the Accused and that there was an evil motive on the part of their part to persecute the Accused. The testimony of prosecution witnesses is also not something strange and unusual but normal practice in any given raid. Therefore, testimonies of prosecution witnesses is seen as more credible than the defence adduced the Accused as stated above. Thus this Court has to give more credit to testimonies of prosecution ( See Public Prosecutor v Ahmad Kamil Anuar [2020] MLJU 2236; [2020] 1 LNS 2109,Yusri Pialmi v Public Prosecutor [2010] 6 CLJ 878) [130] To my mind these public officers merely testified based on what they actually saw on the particular day. They could certainly have improved on the evidence if they wanted to frame-up the Accused. It is my finding that they are credible witnesses and are telling the truth after also watching their demeanor in the witness box, the manner in which they had testified and after anxiously scrutinizing their answers in examination-in-chief, cross-examination as well in re-examination (See Public Prosecutor v Abd. Latif bin Sakimin [2005] 1 LNS 265)

[131] After considering all evidence presented throughout this proceeding, this Court finds that the prosecution has successfully proven their case against the accused on both charges beyond reasonable doubt. By relying to the principle as set out in Mat v Public Prosecutor [1963] MLJ 263, this Court is satisfied beyond reasonable doubt as to the Accused’s guilt and thus the Accused must be convicted. [132] Hence, the Accused is ordered to put his mitigating factors before this Court pass any sentence. MITIGATING FACTORS [133] The Accused is of 32 years of age. He is married with a wife who works at a saloon with a minimal pay. His mother is also under his care. He sustains his family through his work as a labourer who earns a minimum income of RM 1400 per month. [134] The Accused further pleaded for mercy due as his conviction would adversely affect livelihood of his family. [135] The Accused asserted his repentance for his mistakes and promises not to repeat such mistakes in the future. The Accused further explained that some level of consideration ought to be placed before sentencing him for his conviction in this case as he has been cooperative throughout this proceeding. [136] The Accused also prayed for stay of execution of sentence that will be meted out against the Accused on the basis that the defence will lodge an appeal to the High Court. AGGRAVATING FACTORS [137] In responding to arguments by the Accused, the Prosecution pleaded for severe sentence against the Accused. [138] In passing sentence against the Accused, the Prosecution asked this Court to take into consideration that this case has been prolonged for far too long since its inception in 2020. It was argued that a too lenient sentence would not befit the time and cost it took for all parties to this proceeding. [139] The learned Deputy Public Prosecutor pointed out that a severe sentence must be warranted against the offenders to show the element of denunciation. [140] The learned Deputy Public Prosecutor further submitted that this Court must also take into consideration the public interest and the amount of the seized items involved. [141] Furthermore, the learned Deputy Public Prosecutor further ventilated that harsher punishment is warranted due to rampancy of cases involving misuse of substances. [142] The Prosecution pleaded that leniency should not be granted to the Accused as this is not a case where the Accused has pleaded guilty to charges laid against him, instead in passing sentence against the Accused, this Court should not be overly sympathetic to the Accused’s personal plight. In relation to this, reference is made to the case of Public Prosecutor v Ravindran & Others [1993] 1 MLJ 45. [143] In addition, the Prosecution further averred that a stay of execution against the Accused should not be allowed as there no special circumstances has been proved in order to convince this Court that granting a stay of execution would suit justice of this case. [144] The learned Deputy Public Prosecutor further ventilated that should a stay of execution is granted against the Accused in this case and if the Accused runs away upon a stay of execution being granted, this court's decision will be reduced to nothing but a paper judgment. [145] The Prosecution also averred that in instance whereby the Accused has been found guilty of crime as charged, presumption of innocence has ceased to exist and as such no cogent reason exist for not carrying out the sentence as has been passed by this Court. [146] The Prosecution also pointed out that an appeal to a higher court shall not operate as a reason for a lower court to grant a stay of execution. In relation to this, reference was made to the case of Sharma Kumari Om Prakash v Public Prosecutor [2000] 6 MLJ 847. SENTENCING [147] Given the mitigating and the aggravating factors put forward by both parties, the Accused was sentenced to an imprisonment term for a period of three (3) years from the date of conviction i.e., 20th of August 2025 and whippping of four (4) strokes of rattan. The reasons for such sentence is as herein below. THE SENTENCING PRINCIPLES [148] It is trite that once a person is found guilty and convicted, the court shall pass sentence according to law. As it was observed in Public Prosecutor v Jafa Bin Daud [1981] 1 MLJ 315, a ‘sentence according to law’ means that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles. [149] This Court bears in mind that the utmost consideration is of public interest. Reference is made to Public Prosecutor v Idzham Bin Shafiee [2006] 4 MLJ 236. [150] In this case, this Court views that no misdirection has been made in terms of sentencing as sentence as meted out falls well within the ambit of prescribed punishment under section 39A(1) of the Dangerous Drugs Act 1952. (See Public Prosecutor v Sim Joo Liong [2014] 1 LNS 402). [151] Hence, this Court must make an exercise to balance between the public interest and the interest of the Accused. [152] It is the considered view of this Court that the ambit of prescribed punishment under section 39A(1) of the Dangerous Drugs Act 1952 is crystal clear to show the intention and the seriousness of the Parliament so that the offence committed must be judged seriously for the public interest. Therefore, such intention must be reflected through the sentences imposed by our courts in accordance with law. (See Tia Ah Leng v Public Prosecutor [2004] 4 MLJ 249) [153] It is well established that sentencing in drug offences must reflect the public interest to be served as it is an on-going national problem. (See Public Prosecutor v Ooi Teng Chian [2006] 1 MLJ 213) [154] This court also holds the view that effort of the legislature to curb and deter drug related offences must be upheld and supported and that the courts should also help to curb these activities by imposing stringent punishments provided by the law. (See also Loh Hock Seng & Anor v Public Prosecutor [1980] 2 MLJ 13 and Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256.) [155] Having said that, this Court opines that such sentence is appropriately given the facts and the circumstances of this case. In respect of the mitigating factors put forth by the Accused, this Court views that such factors carry less weight against the public interest on the scale of justice. [156] Moreover, consideration must also be given to the weight of drug found in the possession of the Accused which in this Court’s considered view is by no means a negligible amount of drug as this amount of drug will surely have deleterious effect on members of the public at large. (See Public Prosecutor v Ooi Teng Chian [2006] 1 MLJ 213) [157] This Court is of the opinion that this duration of imprisonment is most appropriate to be imposed on the Accused due to the fact that this case was resolved through a full trial and the Accused was convicted after defence called. The whole trial has taken time and cost of the parties involved. It is the view of this court that a person who is found guilty after a lengthy trial should be given a heftier sentence subject to the facts and the mitigating factors when compared to a person who has pleaded guilty which of course will be subject to the facts and the mitigating factors. (See PP v Yee Tham Soon [2000] 7 CLJ 519) [158] This Court also notes that punishment in the form of sentence passed against the Accused should and would serve as a lesson for the Accused and the society at-large in ensuring that this would not be repeated ever again. (See Pendakwa Raya v Abdul Halim Bin Ishak & Anor [2013] MLJU 821) This sentence would also serve as a testimony of the judicial system’s seriousness and vigilance against drug-related offence. [159] In a word, sentence as meted out are justified by considering the facts and circumstances of this case and thus, passed in accordance with law. CONCLUSION [160] Based on the facts and circumstances as has been discussed above , this Court finds the Accused guilty and be convicted for the charge levelled against him. This Court so orders. Prepared by, ………………………………… (RAIS IMRAN BIN HAMID) Magistrate Magistrate Court Kota Bharu Kelantan Dated: 25th of August 2025 For the Prosecution: Nursyafiqah binti Mohamad, Muhammad Syamsul Ikhmal bin Ramli, Ahmad Naabil bin Mohamed Asri (Deputy Public Prosecutors,Kelantan State Legal Advisor’s Office) For the Accused: Tara Singh A/L Delip Singh (Tara Singh & Company)