Harishwaran A/L Khiso Kumar (JA-45A-80-04/2022)

These consolidated proceedings concern Case No. JA-45A-36- 03/2022 (First Charge) and JA-45A-80-04/2022 (Second Charge), heard together before this Court. Trial commenced on 22 May 2025.

The First Accused, Yuvanraj a/l Arumugam (OKT1), and the Second Accused, Harishwaran a/l Khiso Kumar (OKT2), are jointly charged with drug trafficking under section 39B(1)(a) of the Dangerous Drugs Act (DDA) 1952 read with section 34 of the Penal Code.

OKT2 additionally faces a separate charge of possession under section 6 of the DDA 1952 (punishable under section 39A(1) of the DDA 1952) for cannabis alleged to have been found on his person.

Both Accused were separately represented. Counsel for OKT1 filed written submissions on 25 May 2026 (Enclosure (Encl) 117); Counsel for OKT2 filed on 27 May 2026 (Encl 122), each praying for acquittal and discharge without the defence being called. The Prosecution filed submissions belatedly on 15 June 2026. Counsel for both Accused indicated they did not wish to reply.

The First Charge, preferred jointly against both Accused, reads: "Bahawa kamu bersama-sama pada 11 Jun 2021, jam lebih kurang 3.00 petang, bertempat di Hadapan Lif Tingkat 18, Perling Heights Apartment, Jalan Baiduri 1/2 Taman Baiduri 81200, di dalam daerah Johor Bahru di dalam Negeri Johor Darul Ta'zim, telah didapati memperedarkan dadah berbahaya, iaitu sejumlah bersih 8,805.90 gram jenis Cannabis, dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952, dan boleh dihukum dibawah Seksyen 39B(2) Akta yang sama dan dibaca dengan Seksyen 34 Kanun Keseksaan."

The Second Charge, preferred against OKT2 alone, reads: "Bahawa kamu pada 11 Jun 2021, jam lebih kurang 3.00 petang, bertempat di Hadapan Lif Tingkat 18, Perling Heights Apartment, Jalan Baiduri 1/2 Taman Baiduri 81200, di dalam daerah Johor Bahru di dalam Negeri Johor Darul Ta'zim, telah didapati dalam milikan kamu dadah berbahaya iaitu sejumlah berat bersih 49.30 gram jenis Cannabis dan dengan itu kamu telah melakukan satu kesalahan dibawah seksyen 6 Akta Dadah Berbahaya dan boleh dihukum dibawah seksyen 39A(1) Akta yang sama." C. The Prosecution's Case

The Prosecution called five witnesses and tendered 44 exhibits:

SP1: SM Hamidah binti Shamsuddin (Storekeeper)

SP2: Insp Sri Amutheyindran Chettiar (Arresting Officer, AO)

SP3: Norashidah binti Omar (Chemist, Jabatan Kimia Malaysia)

SP4: Sjn Guganathan a/l Maniam (Replacement Investigating Officer)

SP5: Insp Aizat Zulfadli bin Hassan Bakri (Original Investigating Officer).

SP2 led a team of approximately 10 plainclothes officers to Perling Heights Apartment on 11 June 2021, acting on information regarding drug activities. The team arrived between 1.30 p.m. and 2.00 p.m. and proceeded to Level 18 of the said building. Under cross-examination, SP2 confirmed all 10 officers were positioned "di ruangan hadapan akses pada lif tersebut, di hadapan ruangan lif tingkat 18": Notes of Evidence (NOE), Page 67 of Encl 115.

SP2 testified that from his position near the access door to the lift lobby, he observed both Accused persons emerge from Unit L1810, located approximately 20-30 metres away at the far end of the corridor. OKT1 was carrying a brown cardboard box (P7). SP2 testified that when the police identified themselves, both Accused persons attempted to flee and a struggle (pergelutan) ensued, during which the box fell. He further testified the box was closed but unsealed, and remained closed when it fell.

The box was found to contain 9 packages of plant material, confirmed by SP3 (Chemist Report P39: AZ1 to AZ9) to be 8,805.90 grams nett of cannabis. A body search of OKT2 yielded a tin foil-wrapped packet from his front right jeans pocket, suspected to contain an unlawful substance.

SP3 received three sealed boxes (AZHB-1, AZHB-2, AZHB-3) marked 'Polis DiRaja Malaysia 640' from SP5 on 11 August 2021, together with Borang Permohonan [Borang Polis 31]. She issued a receipt (Exhibit P38) and assigned Laboratory No. 21-FR-J 03850.

Upon analysis: AZHB-1 contained AZ1-AZ3 (2,928.2 grams of cannabis) and AZ10 (tin foil, 49.3 grams of cannabis) (Exhibit P39, Para 2); AZHB-2 contained AZ4-AZ6 (2,927.5 grams of cannabis); AZHB-3 contained AZ7-AZ9 (2,950.2 grams of cannabis). The substance marked B1 by SP2 was confirmed by SP3 to be AZ10: NOE Encl 115 pp 231-232.

The chain of custody was sought to be established through SP1, SP2, SP4 and SP5.

The Prosecution submitted that SP3's evidence established the nature of the dangerous drugs. On possession and knowledge (mens rea), the Prosecution relied on SP2's account that OKT1 carried the box while OKT2 walked beside him, and that both attempted to flee upon seeing the police officers. The Prosecution relied on Parlan Dadeh v PP [2009] 1 CLJ 717 (para 38), submitting that the attempted flight and struggle raised the inference that both Accused persons knew the box contained drugs.

On the presumption of trafficking, the Prosecution submitted that the cannabis weight of 8,805.90 grams exceeds the 200g threshold under section 37(da) of the DDA 1952, giving rise to the trafficking presumption. The Prosecution also relied on section 2 of the DDA 1952 (transporting as an act preparatory to trafficking) and PP v Denish Madhavan [2009] 2 CLJ 209, for the proposition that possession does not require exclusive possession, and that once possession and knowledge are proven, the presumption under section 37(da) of the DDA 1952 may be invoked without direct evidence of sale or delivery. Note: At paragraph 34 of the Prosecution's submissions, an excerpt attributed to the Federal Court in Denish Madhavan is in fact a statement of the appellant's position appearing at paragraph 24 of that judgment, not a statement of law by the Court.

On the chain of custody, the Prosecution asserted that the drug exhibits remained unbroken from seizure through analysis. On the Defence suggestion that Muhaimin and/or Muhammad Rafi were the true owners, the Prosecution submitted this was irrelevant as physical custody and knowledge are all that is required, and that even innocent carriers who transport drugs satisfy the legal definition of trafficking. The Prosecution further noted neither Muhaimin nor Muhammad Rafi was arrested at the scene or seen carrying the drugs. D. Defence Submissions at Close of Case

Counsel for both Accused persons filed comprehensive written submissions. The material issues arising from those submissions and the evidence in the NOE are as follows:

First Charge

The admissibility and evidential weight of CCTV recordings IDD29, IDD33, and IDD37.

Material discrepancies between the charge, contemporaneous documents, and the oral testimony of SP2 and SP5 as to the location of the arrest.

The credibility and reliability of SP2 as the Prosecution's principal witness.

Whether an adverse inference under section 114(g) of the Evidence Act 1950 arises from the Prosecution's failure to call or offer crucial witnesses, including those arrested in connection with the case, who could have clarified ownership of the drugs.

Whether the non-production of the POL-31 Form and alleged deficiencies in the Search List (P14) broke the chain of custody.

Whether the Prosecution's failure to investigate a police report lodged by OKT1 (D31) undermines the prima facie case.

Whether the Prosecution established the essential elements of possession and trafficking.

Second Charge

CCTV footage tendered by the Defence contains a gap from 2.46 p.m. to 4.08 p.m., covering the period of arrest and alleged drug discovery. The Defence argues an adverse inference must be drawn.

CCTV footage from 4.08 p.m. shows SP2 punching OKT2 approximately 25 times while he was handcuffed. SP2's explanation that he was 'just playing around' is dismissed by the Defence as untenable, and is said to undermine the Prosecution's account of the arrest and subsequent drug discovery.

SP2's testimony as to the place of arrest (a corridor) conflicts with the charge sheet and sketch plan, which state the arrest occurred at the lift lobby.

CCTV footage shows a member of SP2's team removing a flat-screen television from the scene, which SP2 claimed no knowledge of.

The Defence contends that the actual traffickers were Muhaimin and/or Muhammad Rafi, arrested on the basis of information provided by the Accused 1.

The Defence contends the allegation that drugs were found in OKT2's pocket was fabricated: OKT2 was not a drug user, and no fingerprint or DNA evidence linked him to the packet.

Muhaimin admitted in separate proceedings to storing drugs at the relevant unit. SP4 admitted he never investigated Muhaimin's statement or the Defence Report lodged by OKT1 more than three years before trial.

SP5 conceded it was possible the Accused persons were innocent carriers who did not know the contents of the closed box, stating "Ada kemungkinan."

Both Accused

Whether both Accused persons were acting in concert under section 34 of the Penal Code. E. The Applicable Legal Framework E.1 Prima Facie Standard under Section 180 CPC

At the close of the Prosecution's case, this Court is required by section 180(1) of the Criminal Procedure Code (CPC) to determine whether a prima facie case has been established: that is, whether credible evidence has been adduced proving each ingredient of the charged offence which, if unrebutted or unexplained, would warrant a conviction. In Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, Gopal Sri Ram JCA explained the applicable test: "It therefore follows that there is only one exercise that a judge sitting alone under s 180 of the CPC has to undertake at the close of the prosecution case. He 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 is in the negative, then no prima facie case has been made out, and the accused would be entitled to an acquittal."

The standard of 'maximum evaluation' was affirmed in Public Prosecutor v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, where the Federal Court summarised the steps as follows: "(i) at the close of the prosecution's case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution's witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused; (ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is 'Yes', then a prima facie case has been made out and the defence should be called. If the answer is 'No' then, a prima facie case has not been made out and the accused should be acquitted; (iii) after the defence is called, the accused elects to remain silent, then convict; (iv) after defence is called, the accused elects to give evidence, then go through the steps set out in Mat v Public Prosecutor [1963] 1 LNS 82; [1963] MLJ 263."

In Balachandran v PP [2005] 1 CLJ 85, the Court added: "...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."

This Court applies the Looi Kow Chai test as affirmed in Mohd Radzi Abu Bakar and Balachandran.

To sustain the First Charge under section 39B(1)(a) of the DDA 1952 read with section 34 of the Penal Code, the Prosecution must establish that:

the substance is a dangerous drug listed in the First Schedule of the DDA 1952;

the Accused was in possession of that drug;

possession was with the intention to traffic; and

the criminal act was done in furtherance of the common intention of both Accused persons, requiring evidence beyond mere presence at the scene.

Section 2 of the DDA 1952 defines 'trafficking' to include: "trafficking' includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;..."

The Federal Court in Chan Wei Loon v Public Prosecutor [2021] 4 MLJ 660 (Zaleha Yusof FCJ), relying on Public Prosecutor v Abdul Manaf bin Muhammad Hassan [2006] 3 MLJ 193, confirmed that one of the essential elements to be proven is actual possession: "[66] ... In order to sustain a conviction for an offence under s 39B of the Act, there has to exist a positive finding of possession by the trial judge independent of the statutory presumption under s 37(d) of the Act and such a finding has to be unequivocal. [67] His Lordship had further stated that the mere act of carrying is not sufficient to constitute the offence of trafficking."

In Low Thiam Teck v Public Prosecutor [2015] 3 MLJ 134, the Court held that knowledge and proximity are both required: "Without knowledge, the prosecution had failed to establish the ingredient of possession (Public Prosecutor v Salleh bin Zakaria & Anor [2010] 4 MLJ 25; [2010] 4 CLJ 671). On the issue of proximity to the drugs, we agreed with learned counsel that physical proximity to the drugs per se is insufficient to prove possession without proof of knowledge."

Where drugs are concealed inside a closed, sealed, nontransparent container, the Prosecution bears a particularly onerous burden to establish knowledge.

In Public Prosecutor v Mohd Radzi Abu Bakar [2006] 1 CLJ 457, the Federal Court set out the law on possession in the context of section 37(da) of the DDA 1952 in terms that merit reproduction: [19] The principle is simply this. The presumed possession under s. 37(d) of the Act is not the 'possession' referred to in s. 37(da) of the Act. The phrase 'found in possession' in s. 37(da) refers to actual possession. Hence, where the prosecution intends to rely on the presumption under s. 37(da), it is necessary for it to prove by positive evidence - and not by the presumption under s. 37(d) - all the ingredients of possession in law. [20] ... Possession, in order to incriminate a person, must have the following characteristics. The possessor must know the nature of the thing possessed, must have in him a power of disposal over the thing, and lastly must be conscious of his possession of the thing. If these factors are absent, his possession can raise no presumption of mens rea, without which (except by statute) possession cannot be criminal. [23] We accept these authorities as correctly stating the law. It follows that where the prosecution seek to prove trafficking by relying on s. 37(da), it must prove at the trial, all the ingredients of possession set out in the cases of Toh Ah Loh and Mak Thim and Saad Ibrahim."

SP3 confirmed the recovered substances were cannabis: 8,805.90 grams (First Charge) and 49.30 grams (Second Charge). Cannabis is listed in the First Schedule of the DDA 1952. The nature and weight of the substances are not in dispute. This element is established in respect of both charges.

At paragraph 38 of its submissions, the Prosecution stated: "Maka, pihak pendakwaan telah membuktikan bahawa OKT memiliki dadah tersebut melalui tindakan dan kawalan mereka (diaktifkan melalui Seksyen 37(d)) dan oleh sebab berat dadah yang besar, dianggap mengedar (melalui 37(da))."

This Court finds it is clear from this submission that the Prosecution seeks to invoke a presumption of trafficking under section 37(da) of the DDA 1952 on the basis of a presumption of possession under section 37(d) of the DDA 1952. This is a fatal error.

The Federal Court in Muhammad bin Hassan v Public Prosecutor [1998] 2 MLJ 273 at pages 287-289 and 291 unequivocally held that presumption may not be stacked upon presumption in this manner: "In our view, there is a clear undeniable distinction between the word deemed' used in s 37(d) and the word 'found' employed in s 37(da) of the Act. The 'deemed' state of affairs in s 37(d) (i.e. deemed possession and deemed knowledge) is by operation of law ... On the other hand, the word found' in the opening phrase of s 37(da) connotes a finding after a trial by the court. Furthermore, the basic or primary facts needed to raise 'deemed' possession and 'deemed' knowledge under s 37(d) of the Act and those required to raise 'presumed trafficking' under s 37(da) are different ... it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption ... to constitute 'possession' under s 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder thereby giving rise to the presumption of trafficking, there must be an express affirmative finding (as opposed to legal presumption) of possession as understood in criminal law, based on evidence."

A similar situation was discussed by the Court of Appeal in Tay Cher Boon v Public Prosecutor [2025] CLJU 1821 in paragraphs 34 to 46 and 49. The issue considered was whether the trial judge in that case erred in invoking the section 37(d) presumption against the appellant.

In the present case, the Learned DPP has founded his submission on the details set out in paragraph 32 above. This premise was similar to one decided by the Court of Appeal, which held that it was unsafe to convict.

It is therefore clear that the Prosecution's reliance on a presumption of possession to invoke a presumption of trafficking is impermissible and cannot sustain a prima facie case under section 37(da). F.2 Admissibility and Significance of CCTV Recordings (IDD29, IDD33, IDD37)

The Prosecution initially objected to the CCTV recordings being played during cross-examination, on the ground that SP2 was not their maker. This Court accepts the submission of Counsel for OKT1 that the recordings are admissible on the basis of SP2's positive admissions as to their contents. SP2 confirmed his own identity, the identities of team members, the dates and locations of events depicted, and his own conduct as shown in the footage. SP5 also confirmed having viewed the CCTV system at Perling Heights Apartment and having extracted still images (D28) for investigative purposes. Authenticity is established beyond question.

The applicable principle is that of Pendakwa Raya v Thenes a/l Muniandy dan lain-lain [2009] MLJU 1193, wherein positive confirmation by a witness of the contents of a recording constitutes an admission of fact. This Court's ruling allowing the recordings to be marked and played is reflected in NOE: pp 158- 159 of Encl 115.

IDD29, IDD33 and IDD37 are accordingly admitted into evidence and marked as P29, P33 and P37.

This Court notes with grave concern that the CCTV recording of 11 June 2021 contains a critical gap from 2.46 p.m. to 4.08 p.m., covering the precise period of the arrest, body searches, and alleged drug discovery. During cross-examination, SP2 confirmed the relevant timings when put to him by Datuk Sivananthan: "Dan kamu keluar lif, 2:46 pm, betul?" to which SP2 replied "Setuju, Yang Arif." Counsel then stated: "Ini adalah CCTV 4.08 pm, ya? Dari 2.46 pm sampai 4.08 pm is the missing clip": NOE: Page 165 of Encl 115. The Prosecution offered no explanation in re-examination for this gap.

This Court draws an adverse inference under section 114(g) of the Evidence Act 1950, finding that the missing footage would, if produced, have contradicted the Prosecution's account of the arrest.

The location of the arrest is directly material to the Prosecution's credibility and to the alleged flight narrative. Three conflicting versions emerge from the evidence:

Version 1: Contemporaneous Documents. The charge sheet (P3 and P4), Arrest Report (P15), Search List (P14), and original Sketch Plan (P11) all record the arrest location as "Hadapan Lif Tingkat 18" (in front of the lift, Level 18).

Version 2: SP2's Oral Testimony. During crossexamination by Datuk Sivananthan, SP2 departed from all contemporaneous records and stated the arrest occurred in the corridor, before the access door. He also attempted to re-mark the Sketch Plan to relocate the arrest from the lift lobby to the corridor, testifying: "Sebelum pintu, Yang Arif. Dia belum masuk. He was heading towards the lift": NOE: Page 33 of Encl 115.

Version 3: SP5's Oral Testimony. SP5 offered a third version during cross-examination, placing the arrest somewhere between the corridor and the lift area.

The significance of this discrepancy is compounded by SP2's own admission in during cross-examination that the corridor is a dead end on both sides ("Dua side dead end"): NOE: Page 71 of Encl 115. There was therefore no physical possibility of flight. When pressed on where the Accused persons could have fled, SP2 could only offer: "Yang itu saya tak pasti. Tapi atas psychological factor, mereka cuba melarikan diri." The absence of any possible escape route fundamentally undermines the Prosecution's flight narrative, compounded further by the absence of CCTV recording for this period.

Where oral testimony materially conflicts with contemporaneous documents prepared shortly after the relevant events, without credible explanation, the contemporaneous documents are to be preferred: Rosli bin Yusof v Public Prosecutor [1998] 4 MLJ 479. This discrepancy is material and fatal to the Prosecution's narrative.

SP2's evidence is the foundation of the Prosecution's case. Having subjected it to rigorous maximum evaluation, this Court finds SP2 to be a fundamentally unreliable witness for the following cumulative reasons:

The Assault on OKT2

When first asked in cross-examination by Datuk Sivananthan whether he had struck any of the Accused, SP2 answered: "Tiada, Yang Arif." When asked specifically about OKT1 and OKT2, he replied: "Tidak, saya tidak ingat": NOE: Page 125 of Encl 115.

(ii) When CCTV recording P33 was played before the Court at the resumed cross-examination on 01 October 2025, SP2 was compelled to admit his conduct, agreeing under cross-examination by Puan Grace Nathan: "Setuju, Yang Arif", that he had punched OKT2 in the lift. In re-examination, SP2 offered the following explanation: "Sebenarnya itu tak de saya tumbukan-tumbukan, kalau tumbukan saya rasa dia dah betul-betul cedera, Yang Arif. Itu hanya gurauan kerana dia cuba melarikan diri pada ketika itu ... kalau pukul mungkin di luar. Memang tiada niat untuk cederakan atau pukul dia": NOE: Page 206 of Encl 115.

(iii) This Court categorically rejects the characterisation of a sustained physical assault on a restrained, handcuffed prisoner as "hanya gurauan" (merely a joke). SP2's earlier categorical denial under oath, before being confronted with the CCTV footage, constitutes a deliberate falsehood told to this Court.

Undocumented Removal of Property from Unit L18-10.

SP2 testified that no items were taken from Unit L18-10 and that the Search List (P14) accurately reflected all items seized: "Tidak ada, Yang Arif": NOE: Page 76 of Encl 115.

(ii) However, CCTV screenshots in P29 (Gambar 28 and Gambar 29) show members of the raiding team carrying a large electrical item resembling a flat-screen television inside the lift after the arrest. This item does not appear in P14. When confronted with the footage, SP2 stated only "Saya tak pasti, Yang Arif," "Saya tidak benarkan dia, Yang Arif," and "Saya tidak perasan." When the Court itself asked "You tahu tak apa itu?", SP2 replied: "Saya kurang pasti, Yang Arif": NOE: Pages 124-126 of Encl 115.

(iii) The removal of unrecorded property from searched premises by a member of SP2's raiding team reflects deeply upon the integrity of the entire police operation.

The Location Discrepancy and Attempt to Alter Exhibit P11.

As detailed at section F.3 above, SP2's oral testimony as to the arrest location fundamentally contradicts all contemporaneous documentation. His attempt in crossexamination to alter the markings on the original Sketch Plan (P11), a Court Exhibit, to relocate the arrest from the lift lobby to the corridor is viewed by this Court with the utmost seriousness.

(ii) The cumulative effect of these findings is that SP2 is unreliable on all aspects material to this case. A witness who categorically denies assault under oath only to admit it when confronted with video evidence; who fails to account for property removed from searched premises by officers under his command; and who departs materially from contemporaneous records on the critical question of arrest location, is not a witness upon whom a conviction can safely be founded. F.5 Failure to Call Material Witnesses: Muhaimin and Muhammad Rafi

The NOEs establish that Muhaimin (Muhaimin a/l Najibul Husen) and Muhammad Rafi are real, identifiable persons. The following exhibits were placed before this Court: D22 (Muhaimin's Arrest Report TAMPOI/6617/21); D25 (Muhaimin's LLPK Detention Order); D26 (Muhaimin's section 112 recorded statement in LLPK proceedings), in which he admitted to storing cannabis at Unit L18-10 and using runners for distribution during the relevant period); D32 (Muhammad Rafi's Arrest Report LARKIN/4902/21); D43 (Muhammad Rafi's LLPK Detention Order).

Under cross-examination by Datuk Sivananthan, SP5 conceded that without Muhaimin and Muhammad Rafi, it was impossible to determine whether the Accused persons knew of the contents of the drugs or whether the items belonged to them: SP5 further agreed that Muhaimin was linked to drug distribution at the relevant unit and that Muhaimin and Muhammad Rafi, if called, could confirm or deny the actual role of both Accused: "Ya betul": NOE: Page 379 of Encl 115.

Most significantly, when Datuk Sivananthan put to SP5 that "nampaknya milik dadah tersebut adalah Muhaimin", SP5 replied: "Ya. Ya": NOE: Page 384 of Encl 115. The Original Investigating Officer thus agreed, on the documentary evidence before this Court, that the drugs appeared to belong to Muhaimin. Despite this, neither Muhaimin nor Muhammad Rafi were called or offered to the Defence.

This Court invokes section 114(g) of the Evidence Act 1950 and draws an adverse inference against the Prosecution. Both individuals were identifiable, in detention, and available. No explanation was tendered for their non-production. The adverse inference drawn is that their evidence would have been unfavourable to the Prosecution, consistent with the documentary evidence showing Muhaimin as the actual owner of the cannabis with the Accused acting as runners and whether they had knowledge of the contents of the box.

Exhibit D31 (TAMAN PERLING/59/22) is a police report lodged by OKT1 on 5 January 2022, naming Muhaimin and Muhammad Rafi as the actual owners and traffickers of the drugs. On 17 January 2022, Exhibits D40(a) and D40(b) were formally transmitted to SP4 together with a covering letter.

Under cross-examination by Datuk Sivananthan, SP4 admitted in the following exchange (NOE: Page 257 of Encl 115) that the Report was received and then entirely ignored: Q: "Soalan saya, adakah Sarjan, selepas menerima laporan ini, menyiasat kandungan laporan polis ini?" SP4: "Tidak." Q: "Adakah laporan polis ini dirujuk kepada mana-mana pegawai atasan, Sarjan? Ataupun Timbalan Pendakwa Raya?" SP4: "Saya tak pasti." Q: "Oleh kamu. Saya tanya tentang kamu, Sarjan. Adakah kamu merujuk kepada mana-mana pegawai atasan, ataupun Timbalan Pendakwa Raya?" SP4: "Tidak." Q: "Soalan terakhir saya, apabila Sarjan berhenti menjadi Pegawai Penyiasat Warisan pada bulan Oktober 2024, adakah pada bila-bila masa laporan polis ini, Sarjan rujuk kepada pegawai atasan ataupun Timbalan Pendakwa Raya?" SP4: "Tidak." Q: "Adakah laporan polis ini dalam kertas siasatan?" SP4: "Saya tak pasti."

SP5, having transferred out of the case in September 2021 confirmed he had never seen D31. He nonetheless conceded: "Yang dinyatakan oleh OKT Pertama dalam laporan polis beliau harus disiasat": the matters raised by OKT1 ought properly to have been investigated: NOE: Page 378 of Encl 115.

The total failure to investigate a formal Defence Report received more than three years before trial, one which named the alleged actual traffickers, constitutes a grave dereliction of the duty to conduct a fair and balanced investigation. The Report was received, acknowledged, and consigned to oblivion. This Court draws the strongest possible adverse inference from this conduct. It further reinforces the finding that Muhaimin is the actual owner of the drugs and that the Accused were innocent carriers.

SP5 confirmed under cross-examination that he prepared a POL- 31 Form when submitting the drug exhibits to Jabatan Kimia Malaysia and that without it, the Chemist would not have accepted the exhibits. He further confirmed that the POL-31 was never shown to him for identification in these proceedings: NOE: Page 384 of Encl 115. Learned Counsel for OKT1 placed on record: "POL-31 not only not tendered but not given to the defence": NOE: Page 384 of Encl 115. No response was forthcoming from the Prosecution.

Under cross-examination by Datuk Sivananthan, SP3 confirmed the following (NOE: Pages 238-239 of Encl 115): that the POL- 31 must accompany the Exhibits; that without it she cannot accept the items; that its contents must correspond to the exhibits submitted; and that she was not shown the POL-31 in this case for identification. When Counsel put to SP3 that the POL-31, had it been produced, would have contained contents different from the exhibits received, SP3 answered: "Saya tidak pasti."

A Government Chemist unable to confirm whether the exhibits she analysed correspond to those seized constitutes a material and fatal break in the chain of custody. This gap was not remedied by the Prosecution.

The chain of custody deficiency is further compounded by SP2's admission that the Search List (P14) was prepared at the police station rather than at the scene, and that it does not record the time of seizure, only the date: "Berlaku kekhilafan, Yang Arif. Masa itu ... berlaku kekhilafan masa tidak dicatatkan". NOE: Page 206 of Encl 115. Section 64 CPC.

The cannabis forming the First Charge was inside a closed, nontransparent brown cardboard box (P7). There is no direct evidence establishing that either Accused persons had knowledge of the nature of its contents.

SP2 agreed under cross-examination by Puan Grace Nathan that the box was "so tightly closed bahawa tak ada barang yang tercicir masa kotak itu jatuh" and remained closed when it fell: NOE: Page 182 of Encl 115. CCTV footage from 7 June 2021 (four days before the arrest) also showed the box appearing sealed, which SP2 did not dispute: "Setuju, Yang Arif": NOE: Page 178 of Encl 115.

The sole witness to the circumstances of the arrest is SP2, whose credibility this Court has thoroughly evaluated and rejected (see section F.4 above). There is no independent or corroborating evidence; no forensic link; no fingerprint or DNA evidence establishing that either Accused person had knowledge of the contents of the box.

The Radhi Direction (Mohamad Radhi v Public Prosecutor [1994] 3 MLJ 169) is engaged on the facts of this case. SP5 expressly agreed, on the basis of the documentary evidence before this Court, that "milik dadah tersebut adalah Muhaimin": NOE: Page 384 of Encl 115. Muhaimin's recorded statement (D26) confirms he admitted to storing cannabis at Unit L18-10 and using runners for distribution during the same period as the arrest. Muhaimin is an identified, documented person detained under the LLPK with a proven documentary connection to the very premises and drugs that form the subject of this trial.

These persons and others were arrested together and remanded during the same period under the LLPK provisions. No reasonable explanation was forthcoming as to why they were not called as witnesses. NOE: Page 409 to 410 Encl 115.

The Prosecution failed to rebut the Radhi Direction. It called neither Muhaimin nor Muhammad Rafi, and adduced no evidence demonstrating either Accused person was anything other than an innocent carrier. The Radhi Direction applies and entitles both Accused persons to acquittal on the trafficking charge, independent of the question of physical custody. G.3 Common Intention under Section 34 Penal Code

SP2 confirmed under cross-examination that OKT2 was not carrying the box at any material time, and under re-examination that "Kotak tersebut berada bawah kawalan B1. B1 memegang kotak tersebut": NOE: Page 207 of Encl 115. No evidence of a pre-arranged plan between the two Accused persons was adduced. No communications, forensic links, or independent evidence of a shared criminal intention was placed before this Court. Mere presence at the scene is insufficient to establish common intention.

Having conducted a maximum evaluation of the totality of the Prosecution's evidence, this Court is satisfied that the Prosecution has failed to establish a prima facie case against OKT1, Yuvanraj a/l Arumugam, and OKT2, Harishwaran a/l Khiso Kumar, on the charge of trafficking 8,805.90 grams of cannabis under section 39B(1)(a) of the DDA 1952 read with section 34 of the Penal Code.

The Second Charge rests entirely on SP2's testimony that he recovered a foil-wrapped packet containing 49.30 grams of JA-45A-36-03/2022 27 JA-45A-80-04/2022 cannabis from the front right jeans pocket of OKT2 during a body search at the scene. SP2 has been found to be fundamentally unreliable. The evidence specific to this charge is addressed below. H.1 The Black Object in Accused 2's jeans: CCTV Contradiction

During cross-examination by Puan Grace Nathan, CCTV recording P33 was played, and SP2 was directed to OKT2's right front jeans pocket prior to arrest. SP2 admitted: "Nampak seperti objek hitam, Yang Arif, tapi tak pasti apa objek tersebut": NOE: Page 192 of Encl 115. Still images were marked IDD37(1-4) (now P37). Puan Grace Nathan put to SP2 that the dark rectangular object visible in OKT2's front right pocket was his mobile phone. SP2 denied this but offered no explanation for what it was or what became of it. SP2 had earlier testified that no personal items, including no phone and no wallet, were seized from OKT2. There is a direct and irreconcilable contradiction between the CCTV evidence and SP2's claim that cannabis was discovered in that same pocket, which is not satisfactorily resolved by the Prosecution's evidence. The missing portion of the CCTV recording would have resolved this.

The assault on OKT2, admitted by SP2 only after being confronted with CCTV footage, indicates targeted personal hostility directed specifically at OKT2 (OKT1 was not assaulted). Puan Grace Nathan put to SP2 that he punched OKT2 because "kamu tak puas hati sebab dia tak cakap dadah itu kepunyaan dia", to which SP2 said "Tidak setuju": NOE: Page 191 of Encl 115.

In light of SP2's demonstrated dishonesty, this Court takes this targeted conduct into account in assessing whether the alleged drug discovery from OKT2's person was genuine.

This is compounded by the fact that the still photograph adduced by the Prosecution showed that there was a square object in the pocket where the drugs were allegedly found. Although SP5 was unsure of what it was, this Court is minded to accept the version in favour of OKT2, especially when considered against the missing CCTV recording from 2-46 pm to 4-08 pm which, if available, would have shed light on this issue.

SP2 admitted under cross-examination by Puan Grace Nathan that the Search List (P14) was prepared at the police station, not at the scene, and records only the date of seizure, not the time it was made: NOE: Page 191 -192 of Encl 115.

Section 64 CPC mandates that a Search List be prepared and signed by the officer or person making it.

By failing to prepare the list "in the course of the search" there is a breach of section 64 of the CPC. In any event, no reasonable explanation was forthcoming as to why the Search List could not be prepared at the material time.

This leads to a failure of a contemporaneous record and affects the credibility of the Search List. This again leaves this Court with a lurking doubt as to the veracity of the Search List. H.4 Absence of Forensic Corroboration.

No DNA analysis was conducted on the foil-wrapped packet. SP5 claimed fingerprint analysis was performed with negative results, but no official fingerprint report was tendered. This Court draws an adverse inference under section 114(g) of the Evidence Act 1950 regarding the non-production of this forensic report. There is no document to provide that the allegation made by SP5 that the fingerprint analysis 'tidak timbul apa-apa" and no explanation was forthcoming why there was no such report prepared or adduced. At the very least, even if there was no fingerprint on the said item, such a document or report clearly acted in favour of Accused 2. It is this Court's opinion that such a statement and report ought to have been disclosed in examination in chief and not elicited during cross examination.

SP 5 also agreed that there was no DNA or fingerprints found on the box or the drugs in the box. Again, there is no report adduced. The above opinion is adopted here. NOE: Pages 407-409 Encl 115.

On a maximum evaluation of all evidence in the Second Charge, this Court finds that the Prosecution has failed to establish a prima facie case against OKT2. The objective CCTV evidence directly contradicts the Prosecution's account. The chain of custody is compromised. Documentation is deficient. The principal witness is unreliable. This Court is left in grave and unresolvable doubt as to whether any drugs were in fact recovered from OKT2's person.

In this regard, it is pertinent to consider the evidence of SP5 at page 354 of Encl 115.

SP5 said he inspected the CCTV, but on the day he went, the person in charge was not available. He was able to obtain still photos from the CCTV, but he did not follow up to obtain the CCTV recording.

Even the Replacement IO (SP4) did not investigate and obtain the CCTV recording at the material time.

The missing part of the recording from 2.46 p.m. to 4.08 p.m. is material evidence that could have shown the true picture of what transpired at the lift lobby on the day of arrest.

What is interesting is that the Defence was able to obtain and produce the CCTV recording, albeit without the missing part.

This purported inability by the IO and the replacement IO to obtain the CCTV recording must be considered against the Prosecution. The punching incident by SP2 was revealed by the CCTV recording, which SP2 admitted to after being confronted with this evidence in Court, but he attempted to give the incident short shrift to conceal the assault and battery he committed on a man who was handcuffed.

The missing part, had it been obtained by the IO or the replacement IO at the material time, could have corroborated SP 2's version of events that transpired from the time both Accused were arrested until the time they were handcuffed and led into the lift. The alleged scuffle, whether the box containing the drugs was opened, closed or sealed, would have been known, and the subsequent alleged discovery of drugs in Accused 2's pocket could have been proven.

The IO's statement that the person in charge was not available on the day he went is unreasonable in all the circumstances. He could have gone the next day or on another day. He did not, and no reason is given for this.

The replacement IO's failure to obtain the CCTV recording is also not reasonably explained.

The Prosecution's argument that what was produced is questionable is nullified by SP 2's own admission that he was the person in the lift punching Accused 2, which, according to the JA-45A-36-03/2022 32 JA-45A-80-04/2022 submissions by Puan Grace Nathan, Accused 2 was punched 25 times! I. Conclusion and Orders

Having conducted a maximum evaluation of all evidence adduced over nine days of trial, this Court finds that the Prosecution has failed to establish a prima facie case on all charges. The factors below, individually and cumulatively, are fatal to the Prosecution's case:

The Prosecution sought to invoke a presumption of trafficking under section 37(da) of the DDA 1952 founded upon a presumption of possession under section 37(d), contrary to the Federal Court's holding in Muhammad bin Hassan.

Material and unresolved discrepancies between the charge, contemporaneous documents, and the oral evidence of SP2 and SP5 as to the location of the arrest, compounded by the physical impossibility of flight from a dead-end corridor.

The fundamentally compromised credibility of SP2, the indispensable principal witness, arising from: (i) a sustained assault on a handcuffed prisoner denied under oath and admitted only on confrontation with CCTV evidence; (ii) undocumented removal of property from Unit L18-10 by officers under his command; and (iii) material departure from all contemporaneous records as to the arrest location.

The Prosecution's unjustified failure to call Muhaimin and Muhammad Rafi, notwithstanding SP5's concession that the drugs appeared to belong to Muhaimin, drawing an adverse inference under section 114(g) of the Evidence Act 1950 and engaging the Radhi Direction.

The total and inexplicable failure by SP4 to investigate OKT1's Defence Report (D31), received on 17 January 2022 and ignored for over three years.

A material break in the chain of custody arising from: the non-production of the mandatory POL-31 Form; the Government Chemist's inability to confirm whether the exhibits she analysed corresponded to those seized; and the deficient Search List (P14) prepared without a recorded time of seizure.

As to the Second Charge specifically: the direct and irreconcilable contradiction between CCTV footage (P33/P37) showing an object in OKT2's right front pocket prior to arrest, and SP2's claim that cannabis was found in that same pocket.

The suppression of CCTV footage covering 2.46 p.m. to 4.08 p.m. on 11 June 2021, the precise window of arrest and alleged drug discovery, without explanation, warranting a further adverse inference under section 114(g) of the Evidence Act 1950.

This Court accordingly orders as follows:

Against the First Accused: The First Accused, Yuvanraj a/l Arumugam, is hereby ACQUITTED AND DISCHARGED pursuant to section 180(1) of the Criminal Procedure Code without being called to enter his defence on the First Charge of trafficking 8,805.90 grams of cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952 read together with section 34 of the Penal Code.

Against the Second Accused: The Second Accused, Harishwaran a/l Khiso Kumar, is hereby ACQUITTED AND DISCHARGED pursuant to section 180(1) of the Criminal Procedure Code without being called to enter his defence on both the First Charge (trafficking under section 39B(1)(a) of the DDA 1952 read with section 34 of the Penal Code) and the Second Charge (possession of 49.30 grams of cannabis under section 6 of the DDA 1952 punishable under section 39A(1) of the DDA 1952).

Both Accused persons are to be released from custody forthwith unless there are other lawful grounds for their continued detention. All exhibits are to be dealt with in accordance with law. Dated: 19th June 2026 (AVINDER SINGH GILL A/L RANJIT SINGH) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA, JOHOR BAHRU Counsel:- For the Prosecution-on-Tuan Umar Faiz bin Abdul Kohar Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato' Ja'afar Muhammad, Kota Iskandar, Nusajaya Johor. For the 1 $ ^{st} $ Accused - Dato' N. Sivananthan dan Encik Wan Mohamad Yusuf Messrs. Sivananthan Advocates & Solicitors Suite No. 1, L17-01, PJX Tower No. 16A, Persiaran Barat 46050 Petaling Jaya Selangor. For the $ 2^{\mathrm{n d}} $ Accused-Puan Grace S. Nathan Messrs Grace S. Nathan Advocates & Solicitors A1-01-02 NEO Damansara Jalan PJU 8/1, Damansara Perdana 47820 Petaling Jaya Selangor.