Kathiravan A/L Purushothaman (JA-45A-150-12/2022)

The accused, Kathiravan a/l Purushothaman, stood trial before this court on two charges arising out of a single incident on 26.5.2022 at about 5.45 p.m., at the roadside in front of Kafe House, Jalan Austin 3/2, Taman Mount Austin, 81100 Johor Bahru, in the District of Johor Bahru, in the State of Johor Darul Ta’zim.

The first charge, in Case No. JA-45A-150-12/2022, was framed under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“the DDA”), punishable under section 39B(2) of the same Act, and read as follows: “Bahawa kamu pada 26.5.2022, jam lebih kurang 5.45 petang, bertempat di tepi jalan hadapan Kafe House, Jalan Austin 3/2, Taman Mount Austin, 81100 Johor Bahru, di 2 dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim telah didapati mengedar dadah berbahaya, iaitu sejumlah berat bersih 712.80 gram Methamphetamine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

The second charge, in Case No. JA-45A-151-12/2022, was framed under section 12(2) of the DDA, punishable under section 12(3) of the same Act, and read as follows: “Bahawa kamu pada 26.5.2022, jam lebih kurang 5.45 petang, bertempat di tepi jalan hadapan Kafe House, Jalan Austin 3/2, Taman Mount Austin, 81100 Johor Bahru, di dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim telah didapati memiliki dadah berbahaya, iaitu sejumlah berat bersih 1.06 gram Ketamine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 12(3) Akta yang sama.”

Both quantities of dangerous drugs were alleged to have been found concealed in two separate compartments in a motorcar, a Honda Odyssey bearing registration number PJU 7475 (“the said car”). The trafficking charge, if made out, carries a severe custodial or capital sentence. Consent to prosecute was granted by the Deputy Public Prosecutor under section 39B(3) of the DDA on 20.8.2025, and a requisition under section 41A(1) of the DDA directed that the trial be conducted in this court.

Both charges were read and explained to the accused in a language he understood, and he claimed trial to each. The two cases were tried together, as they arose from the same facts and the same body of evidence.

At the close of the case for the prosecution, learned counsel for the accused submitted that no prima facie case had been made out on either charge. The Prosecution submitted to the contrary that a prima facie case had been established and that the accused ought to be called upon to enter his defence. Having heard both parties and having subjected the whole of the prosecution’s evidence to a maximum evaluation, I found that the prosecution had failed to establish a prima facie case on either charge, and I record below my full grounds for that finding.

The prosecution called eight witnesses, whose names, roles and designations are set out below: Witness Name Role SP1 Puan Liew Chyi Government Chemist SP2 Sarjan Suhanizar bin Sapih Police Photographer SP3 Inspektor Abdul Usairi bin Saini @ Asan Raiding Officer SP4 Puan Vinsvari a/p Tebakumaran Registered Owner of the said car SP5 Koperal Jasri bin Jaafar Exhibit Storeman SP6 Inspektor Mat Kimon Forensic Officer, IPK 4 bin Mulin Johor SP7 Nur Hafiza binti Md Yusop Government Chemist (DNA) SP8 Inspektor Muhammad Muzzamer bin Mohd Rasid Investigating Officer

The prosecution’s case, in outline, was as follows. On 26.5.2022, acting on information relating to a vehicle, a raiding team led by SP3 intercepted the said car, a Honda Odyssey bearing a Penang registration number, while it was stationary at the roadside in front of Kafe House, Jalan Austin 3/2, Taman Mount Austin. The accused was found in the driver’s seat. According to SP3, a caution under section 37B of the DDA was administered, following which the accused nodded and pressed a button that caused the rear seat and backrest of the said car to release, exposing concealed compartments in which the impugned drugs were found.

The exhibits recovered were, upon the evidence, kept in the custody of the raiding officer, SP3, from the scene until they were handed over to the investigating officer, SP8, at the Narcotics Division, IPD Johor Bahru Selatan, together with the requisite handover and search forms and police report Setia Indah/8319/22, exhibit P12. The drugs were subsequently sent for chemical analysis.

SP1, the Government Chemist, analysed the exhibits and confirmed that the contents of the recovered packet weighed 712.80 grammes net and were positive for Methamphetamine, and that the contents of the recovered bottles weighed 1.06 grammes net and were positive for Ketamine. It was on this analysis that the amended charges, reflecting net rather than gross weight, came to be preferred.

SP4, the registered owner of the said car, testified that she had sold the vehicle to a person known to her as Kartik in or about 2015. SP7, a Government Chemist attached to the DNA unit, testified to the results of forensic swabs taken from various points within the said car. SP8, the investigating officer, gave evidence of the investigation carried out following the arrest, including the recovery of the said car to police custody, its subsequent inspection, and the steps (and omissions) in the investigation that are addressed later in these grounds.

The prosecution’s case was that the accused’s conduct in nodding and pressing the button, said to be corroborated by SP3’s account and by the record of SP3’s evidence, was sufficient to establish knowledge and custody of the drugs, and that, the weight of the Methamphetamine being far in excess of the statutory threshold, the presumption of trafficking under section 37(da)(xvi) of the DDA was thereby triggered.

The prosecution accepted that its method of proof was to establish possession with the requisite mens rea, and thereafter to invoke the statutory presumption of trafficking. It did not allege direct evidence of trafficking.

In its written submission dated 8.3.2026, and in oral reply on 5.5.2026, the prosecution submitted, in substance, that the test to be applied at the close of its case required only that the evidence, taken at its highest and on a maximum evaluation, be sufficient to justify a conviction should the accused elect to remain silent. It further contended that the accused's alleged conduct in nodding and pressing the button following a caution was admissible and amounted to information that led to the discovery of the drugs. The prosecution also argued that the non-calling of the previous possessor of the said car was not fatal to its case, and that the presence, within the said car, of DNA belonging to persons other than the accused did not exclude, and was not inconsistent with, the accused's own guilt. These submissions, together with the authorities relied upon by the prosecution in support of each, are set out and evaluated in detail in the sections that follow.

The defence, in its written submission filed 2.3.2026 and its reply filed 27.4.2026, contended that the prosecution's narrative of custody, control and knowledge was internally contradictory, uncorroborated and, in material respects, physically untenable, and that the chain of custody of the exhibits, the admissibility of the alleged conduct, and the 7 adequacy of the investigation were each fatally deficient. These submissions, and the authorities relied upon by the defence in support of them, are likewise set out and evaluated in detail in the sections that follow.

I turn now to the applicable law, before setting out my analysis of the evidence and my reasons for finding that no prima facie case has been made out. C. DUTY OF THE COURT AT THE CLOSE OF THE PROSECUTION’S CASE

Section 180(1) of the Criminal Procedure Code requires this court, at the close of the case for the prosecution, to consider whether the prosecution has made out a prima facie case against the accused. Section 180(2) provides that if the court finds that the prosecution has not made out a prima facie case against the accused, the court shall record an order of acquittal. Section 180(4) provides that for the purposes of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.

The test to be applied was authoritatively stated by Gopal Sri Ram JCA in Looi Kow Chai & Anor v Public Prosecutor [2003] 1 CLJ 734 (Court of Appeal, Gopal Sri Ram, Alauddin Mohd Sheriff and Richard Malanjum JJCA): “... it is the duty of a judge sitting alone to determine at the close of the prosecution’s case, as a trier of fact, whether the prosecution has made out a prima facie case. ... It therefore follows that there is only one exercise that a judge sitting alone under s. 180 of the Code has to undertake at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and 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.”

This principle was adopted by the Federal Court in Public Prosecutor v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, where the court held that at the close of the prosecution’s case the court must subject the evidence led by the prosecution in its totality to a maximum evaluation, carefully scrutinise the credibility of each witness, take into account all reasonable inferences that may be drawn from the evidence, and, where the evidence admits of two or more inferences, draw the inference most favourable to the accused. The same approach was reinforced by the Federal Court in Magendran Mohan v Public Prosecutor [2011] 1 CLJ 805, where the court, notwithstanding the gravity of the offence, held that the benefit of any unresolved doubt must be given to the accused.

The Federal Court in Balachandran v Public Prosecutor [2005] 1 CLJ 85 further explained that a prima facie case exists only where the prosecution's evidence, if left unrebutted, is sufficiently credible and reliable that it would justify calling upon the accused to answer the charge. The 9 evidence must be capable of being displaced only by evidence in rebuttal and must be of such weight that it would induce the court to believe, or at least regard as sufficiently probable, the existence of the facts constituting the offence. Conversely, where the prosecution has failed to adduce material evidence of that quality, no prima facie case is made out. The court must therefore undertake a positive evaluation of the credibility and reliability of the prosecution's evidence at the close of its case to determine whether every essential element of the offence has been established.

The evidence must be scrutinised properly and not perfunctorily, cursorily or superficially: Public Prosecutor v Lee Hock Lai [2004] 1 CLJ 57 (HC). Having conducted the maximum evaluation required by these authorities, and having made a positive evaluation of the credibility and reliability of the evidence of each of the eight prosecution witnesses, this court is satisfied that the evidence, taken at its highest, does not warrant a conviction on either charge, for the reasons set out below. D. INGREDIENTS OF THE OFFENCE

For the first charge, under section 39B(1)(a) of the DDA, the prosecution was required to prove: (i) that the substance recovered was Methamphetamine, a dangerous drug within the meaning of the DDA; (ii) that the accused was in custody and control of that drug, with knowledge of its 10 existence and nature; and (iii) that the accused trafficked in that drug, whether by direct evidence or, upon proof of possession of a quantity exceeding the statutory threshold, by resort to the presumption of trafficking under section 37(da)(xvi) of the DDA.

For the second charge, under section 12(2) of the DDA, the prosecution was required to prove: (i) that the substance recovered was Ketamine, a dangerous drug within the meaning of the DDA; and (ii) that the accused was in possession of that drug, in the sense of custody and control coupled with knowledge.

Possession, whether for the purposes of the first or the second charge, requires proof of two distinct elements: the physical element of custody or control, and the mental element of knowledge of the existence and nature of the thing possessed. Mere physical proximity to a dangerous drug, without more, does not amount to possession. I deal with each ingredient in turn. E. ANALYSIS AND FINDINGS OF THE COURT

Identity and Nature of the Drugs [25] SP1, Puan Liew Chyi, the Government Chemist attached to the Jabatan Kimia Malaysia, Negeri Johor, gave evidence that she received the exhibits from SP8 in a sealed box marked “MM”, which she was able to identify at trial by that marking, by a laboratory number sticker, and by her own signature on the accompanying security label. The box was initially marked ID6 following an objection from the defence, despite SP1 confirming that she herself was the maker of the seal affixed to it, and was later converted to exhibit P6. SP1 further identified the official receipt she issued upon receiving the exhibits, bearing laboratory number 22-FR-J- 03011 and her own signature, which was marked as exhibit P4, and the chemical report she subsequently prepared and signed under the same laboratory number, marked as exhibit P5. [26] SP1’s evidence was that the exhibits, upon examination, comprised three distinct items in three separate packages of differing physical form: a crystalline substance marked MA2, a quantity of tablets marked MC1, and a quantity of powder marked MC2. In cross-examination, it was put to SP1 that, according to paragraph 11 of her own witness statement, the three substances had been combined and homogenised together into a single homogeneous powder prior to analysis. [27] This clarification is of some importance, since it confirms that the net weight of 712.80 grammes of Methamphetamine attributed to exhibit MA2 was derived from that exhibit alone, and was not the product of any admixture with the tablets (MC1) or powder (MC2) recovered separately, which on the evidence were not the subject of either charge. [28] SP1 further explained the process by which the net weight of 712.80 grammes was arrived at. The net weight of the crystalline substance in MA2, after the packaging was deducted, was 999.73 grammes; a quantitative analysis was then carried out using a gas chromatography flame ionisation detector (“GCFID”) to determine the net weight of Methamphetamine specifically contained within that net weight, with a confirmatory analysis carried out separately using a gas chromatography mass spectrometer (“GCMS”). It was, however, elicited in cross-examination that SP1 was not herself the operator of the GCFID machine used for the quantitative determination; that role was performed by another officer of the department, identified by SP1 as “Tajuddin bin Ahmad”, whose function she described, on re-examination, as being “bertanggungjawab untuk memastikan peralatan GCFID berfungsi dengan baik sebelum digunakan.” Encik Tajuddin bin Ahmad was not called as a witness. [29] This court has considered whether the fact that the quantitative instrument was operated by an uncalled officer detracts from the reliability of SP1’s evidence on net weight. Where the opinion of a chemist is confined to the elementary nature and identity of a substance, the court is entitled to accept that opinion at face value unless it is inherently incredible or contradicted by rebuttal expert evidence, and there is ordinarily no necessity for the chemist to descend into the granular detail of every step taken in the laboratory: Looi Kow Chai & Anor v Public Prosecutor, at p 745 (“So long as some credible evidence is given by the chemist to support his opinion, there is no necessity for him to go into details of what he did in the laboratory, step by step”). No rebuttal expert was called by the defence in this case, and SP1’s evidence that she personally conducted the confirmatory GCMS analysis, and personally verified and reported the result, was not shaken in cross-examination. On this narrow point, this court does not find that the involvement of another officer in operating one instrument, without more, renders SP1’s ultimate finding on net weight unreliable. [30] The Court of Appeal in Looi Kow Chai further observed, in addressing a complaint that the chemist had failed to state the precise weight of representative samples analysed, that such a complaint has force only where the chemist has not analysed the whole of the substance handed to him or her, citing Loo Kia Meng v Public Prosecutor [2000] 3 CLJ 653 (CA); where, however, the chemist analyses the entirety, or substantially the entirety, of the substance rather than a mere representative sample, no such difficulty arises. On SP1’s account, the whole of the net quantity presented to her as MA2, being 999.73 grammes after deduction of packaging, was subjected to quantitative analysis to isolate the Methamphetamine content, rather than a fractional sample extrapolated to the whole; the risk identified in Loo Kia Meng, and considered in Balachandran v PP at [16]- [18], of an unrepresentative sample being unsafely extrapolated to a life-or-death quantum, does not arise on SP1’s evidence. Similarly, the 1.06 grammes of Ketamine attributed to exhibits MB1 and MB2 was not seriously challenged in cross-examination. [31] On the narrow question of the elementary nature and identity of the substances analysed, therefore, this court would, on SP1’s evidence considered in isolation, have been prepared to find that the first ingredient of each charge, the identity of the drugs as Methamphetamine and Ketamine respectively, had been established. That finding must, however, be read subject to the separate and, in this court’s assessment, more serious difficulty addressed in section F(ii) below, namely whether what was received and analysed by SP1 can safely be said to be the very substance recovered from the said car, given the unexplained break in the chain of custody at the point of seizure and the substantial, unexplained delay before the exhibits reached the investigating officer.

(ii) Possession: The Prosecution’s Narrative of Custody [32] The prosecution’s case on custody and control rests substantially on the evidence of SP3, the raiding officer, supplemented by SP2, the police photographer who documented the exhibits, the vehicle and the scene. SP3’s account was that the raiding operation was triggered by information relating specifically to the said car, a Honda Odyssey bearing a Penang registration number containing the digits “77”, and not by any prior information identifying the accused personally as a trafficker. [33] SP3 further conceded, in cross-examination, that the said car had darkly tinted windows, that officers could observe no more than a shadow, or “bayang”, within it before the arrest, and that the vehicle was, at the material time, simply parked; parking itself not being conduct capable of arousing suspicion. SP2 confirmed his own limited role, namely that he was instructed by SP8 to photograph the exhibits at the Narcotics Division office at IPD JBS, thereafter the vehicle, and thereafter the scene of arrest at Jalan Austin, and that he had no personal knowledge of the circumstances of the arrest itself, his photographs of the exhibits being marked P7 and of the vehicle marked P8, and of the scene marked P9(1) to P9(5). [34] Upon arrest, the accused complied with police instructions, switched off the engine, alighted from the vehicle, did not resist and did not attempt to flee. No incriminating item was found on his person. Such conduct is not, without more, consistent with a person knowingly in possession of a substantial quantity of dangerous drugs concealed in the vehicle he occupies. At its highest, this evidence establishes presence, and presence is not possession. [35] It is of some significance that exhibit P7, SP2’s photograph of the seized items taken at the Narcotics Division office shortly after the exhibits were laid out by the investigating officer for photographing, was itself the subject of a telling concession. In cross-examination, SP2 agreed that the two suspected drug bottles visible in P7 bore no marking whatsoever placed by either the investigating officer or the raiding officer: “S: Dalam gambar ini, dua botol plastik ini setuju dengan saya tidak mempunyai, tidak kelihatan apa-apa tandaan oleh IO ataupun RO kes? Saya mengambil gambar berdasarkan pada arahan daripada IO yang mengarahkan saya. Baik, dan soalan saya, daripada gambar yang Sarjan ambil ni tidak kelihatan apa-apa tandaan pada dua botol plastik yang disyaki berisi cecair dadah? Betul.” [36] This photographic evidence, taken by the prosecution’s own witness at the prosecution’s own instance, corroborates the chain-of-custody difficulty addressed more fully in section F(ii) below. [37] The prosecution’s narrative of custody therefore depends, in its entirety, on what is said to have occurred after the arrest: namely, that following a caution under section 37B of the DDA, the accused nodded and pressed a button, said in SP2’s photograph P8 to be located on the console of the rear headrest entertainment monitor, which caused the rear seat and backrest of the said car to release hidden compartments containing the drugs. It is to this narrative that the court now turns, for it is on this narrative that the whole of the prosecution’s case on custody and knowledge stands or falls.

(iii) The Collapse of the “Secret Button” Narrative [38] On 8.10.2025, the court conducted a physical inspection of the said car, in the presence of both parties. During that inspection, SP3 was unable to demonstrate the existence or operation of any button capable of releasing the rear seat and backrest as he had described. SP3 agreed, when it was put to him, that no such button could be used to open the seat during the inspection: “S: Semalam kita ada pergi melihat kereta ini, lihat headrest ini secara physical? Betul. Setuju dengan saya, tiada apa apa butang yang boleh ditekan semasa kita melihat untuk membuka seat belakang? Betul.” [39] When asked to explain the discrepancy between his account of events on 26.5.2022 and the failure of the demonstration on 8.10.2025, SP3’s evidence in re-examination was that the car was old, and that there might have been “a technical problem” or a flat battery: “S: Seterusnya soalan berhubung dengan dakwaan Inspektor berkaitan butang rahsia dan ruangan rahsia tak dapat dibuktikan pada hari semalam sebab butang rahsia tak berfungsi dan Inspektor jawab bersetuju. Boleh jelaskan tak kenapa tak sama hari semalam dengan hari kejadian? Saya tak pasti Yang Arif, sebab seperti saya kata tadi semalam tu kemungkinan mungkin ada masalah teknikal ataupun sudah lama ataupun bateri. Yang pastinya waktu kejadian OKT tekan baru buka. Jadi perbuatan tu menunjukkan benda tu berfungsilah. Kenapa perlu tekan dulu sebelum sebelum buka? [40] No expert evidence, whether from Honda or from any qualified automotive or electrical technician, was called to support this explanation, and no mechanical or technical report was produced. SP3’s explanation therefore remains speculation from the witness box, unsupported by any independent evidence, and it does not, in this court’s assessment, satisfactorily account for the failure of the very mechanism upon which the prosecution’s case on custody critically depends. [41] The difficulty is compounded by SP3’s own evidence that he had removed the ignition key from the said car before the button was said to have been pressed. No evidence, expert or otherwise, was led to explain how an electrically operated compartment-release mechanism could function once the vehicle’s ignition key had already been removed. This inconsistency was also specifically raised by the court during oral submissions. In response, the prosecution accepted that neither SP3 nor SP8 possessed any expertise regarding the vehicle’s mechanism and was unable to provide any technical explanation beyond SP3’s earlier suggestion, elicited in re-examination, that the compartment might still have operated because of the vehicle’s battery. Ultimately, the prosecution maintained that the court should simply accept SP3’s direct evidence, corroborated by SP8, that the button had in fact been successfully pressed after the vehicle had been switched off and the key removed, notwithstanding the absence of any expert evidence explaining how such a mechanism could have functioned in those circumstances. [42] On the prosecution’s own confirmation, therefore, its case on the mechanism rests solely on SP3’s uncorroborated account of what he says he observed during the raid, an account that neither he nor SP8, on the prosecution’s own concession, was qualified to explain from a technical standpoint, and that could not be reproduced on the court’s own inspection. [43] More fundamentally, SP8 further conceded that the rear seat and backrest could, in fact, be opened manually, by anyone with access to the said car. This concession is fatal to the prosecution’s narrative in a further respect: even if it were accepted that the accused had, at some point, caused the compartment to open, the manner in which it could be opened was not exclusive to him, or dependent on any special knowledge. When it was put to SP3 that anyone with access to the vehicle could open the compartment manually, his only answer was a subjective belief that a person unfamiliar with the vehicle would not know of the special compartment, an answer that does not gainsay the objective fact, which SP8 had already conceded, that the compartment was in fact capable of manual operation: “S: Seterusnya peguam ada cadangkan bahawa ruangan di mana barang kes dijumpai di bahagian kerusi belakang pemandu boleh dibuka oleh sesiapa saja yang ada akses ke dalam kereta tersebut dan kamu jawab tak setuju. Boleh jelaskan, Inspektor, kenapa kamu tak bersetuju? Sebagai orang yang tak ada pengetahuan yang guna kenderaan tersebut, saya rasa dia takkan tahu special compartment tersebut, hanya yang ada akses je yang akan tahu walaupun kenderaan tu diguna oleh orang lain.” [44] SP3 also confirmed that even when the said car was locked from the driver’s side, the rear doors remained capable of being opened, a further indication that access to the rear of the vehicle, and to whatever lay concealed within it, was not restricted to the accused. [45] Nor is the narrative supported by any contemporaneous record. SP3 accepted, in cross-examination, that neither the police report nor the arrest report, exhibit P12, contains any note of the caution said to have been administered, the question said to have been asked, the accused’s alleged nod, or the alleged act of pressing the button and leading the police to the compartment. SP3 agreed with the proposition put to him regarding the absence of these details in the report: “S: Dalam report tersebut kamu tidak ada menyatakan apa-apa kata amaran yang kamu berikan kepada saspek semasa tangkapan? Betul. Dalam P12 juga kamu tidak ada membuat laporan bahawa kamu minta KPL Kumar untuk menerangkan kata-kata amaran kepada saspek dalam bahasa yang dia faham? Betul.” [46] The absence of any such record is not, in this court’s assessment, a minor or peripheral omission. It goes to the heart of the only evidence capable of connecting the accused to knowledge of, and control over, the concealed compartment. Where the single most important fact said to establish an accused’s guilt is entirely unrecorded in any contemporaneous document prepared by the very officer who now testifies to it, that evidence must be approached with the greatest caution. [47] Taking the evidence of SP3 as a whole, on this issue, the court finds that the prosecution’s narrative of a “secret button” pressed by the accused following a caution is not merely weak but, on the prosecution’s own evidence, internally contradictory and, in a material respect, unexplained on the mechanics on which it depends. A narrative advanced by the prosecution as the central plank of its case, which its own witness cannot demonstrate to work, which the prosecution itself, when pressed by the court, could attribute only to unsubstantiated speculation of technical failure, which post-dates the removal of the ignition key, which is capable of manual operation by any person with access to the vehicle, and which finds no support whatsoever in any contemporaneous record, cannot in this court’s view be accepted as credible evidence capable of grounding a finding of custody or control. [48] It follows that, once this narrative is set aside as unreliable, there remains no credible evidence that the accused exercised custody or control, still less exclusive custody or control, over the compartments in which the drugs were found.

(iv) Section 27 of the Evidence Act 1950 and Section 37B of the Dangerous Drugs Act 1952 [49] The prosecution sought, in the alternative, to rely on the accused’s alleged nod and conduct as information or a statement admissible under section 27 of the Evidence Act 1950 and section 37B of the DDA, contending that it established the accused’s knowledge of the drugs and led to their discovery. During oral reply, the prosecution submitted that, contrary to the defence’s contention that section 27 had no application on the facts of the present case, the statutory requirements for the operation of section 27 were satisfied and that the provision was therefore applicable. [50] This court has considered that submission with care, and, for the reasons that follow, is unable to accept it. [51] Section 27 of the Evidence Act 1950 permits proof of so much of any information received from a person in police custody as relates distinctly to a fact thereby discovered. It is trite that the discovery must be made by virtue of, and exclusively as a result of, information given by the accused, and that where the police already have prior knowledge of the location of the article recovered, the section has no application, because the discovery cannot then be said to be the result of the accused’s information: Md Desa bin Hashim v Public Prosecutor [1995] 4 CLJ 677 (CA), per Gopal Sri Ram JCA (as he then was) (“If an investigating agency has prior knowledge of the whereabouts of the article that is recovered, then the section does not apply”). [52] The same principle was applied in Public Prosecutor v Liew Sam Seong [1982] 1 MLJ 223, where Mohamed Azmi J (as he then was) held that the police, having prior knowledge of the existence of the incriminating exhibits before the alleged discovery, could not invoke section 27, the discovery not being attributable to the information said to have been given; His Lordship further quoted Sarkar on Evidence, 12th Edition, in terms directly applicable here, that section 27 “has frequently been misused by the police... it has become a normal device of the investigating agency to turn an ordinary recovery into a discovery in order to utilise the provisions of section 27”. That caution applies with full force to the present case, where the raiding party proceeded directly, and without any preliminary search, to the specific area of the rear seat and backrest said to conceal the drugs, a manner of proceeding that is, if anything, more consistent with prior knowledge of the location of the drugs than with a discovery occasioned by information freshly supplied by the accused. [53] In any event, on the facts as found above, there is no admissible “information” capable of engaging section 27 at all. SP3 accepted that there was no oral statement from the accused. An unrecorded nod, even if it occurred and even if accepted at face value, conveys no location, no identifying detail and no content capable of being tested or verified. It is not, in this court’s assessment, information that “relates distinctly to the fact thereby discovered” within the meaning of section 27. The Federal Court’s agreement in Ariff Arhannan bin Che Udin v Public Prosecutor [2022] 3 MLJ 157 (Abdul Rahman Sebli FCJ) with Nik Hashim J (as he then was) in Public Prosecutor v Kanapathy a/l Kupusamy & Anor Public [2001] 1 CLJ 61 (HC), that to treat mere conduct as amounting to a statement “would be to overstretch the language beyond its common usage,” while made in the context of section 37B of the DDA rather than section 27 of the Evidence Act 1950, reinforces the same underlying principle: an unexplained physical act, without accompanying words, cannot readily be elevated into a communication of information or a statement. [54] The prosecution sought to overcome this difficulty by relying on Shohel v Pendakwa Raya (Rayuan Jenayah No: B- 05(M)-520-11/2019), submitting that information leading to discovery under section 27 need not be confined to recorded oral statements and may include non-verbal conduct such as a nod. In response, the defence argued that the prosecution had misconstrued the decision. Counsel submitted that, properly understood, Shohel did not dilute the threshold for admissibility under section 27 but instead reaffirmed that there must be clear, distinct, and reliable information given by the accused which directly and exclusively leads to the discovery of the relevant fact. It was pointed out that, in Shohel, the accused had provided a specific statement identifying the location of the weapon, enabling the police to discover it solely by reason of that information. According to the defence, the present case bore no resemblance to Shohel, as no comparable information had been given by the accused that could be said to have led directly and exclusively to the alleged discovery. [55] This court accepts the defence’s characterisation of Shohel as correct, and finds the prosecution’s reliance on it to be misplaced rather than supportive. In Shohel, the accused gave specific, identifiable and recorded information, of the kind that led the police directly and exclusively to the location of the item in question. In the present case, by contrast, there was no oral statement of any kind, the alleged nod was neither recorded nor described with any specificity, and, critically, SP8’s own evidence that the compartment could be opened manually by anyone with access to the said car destroys the very exclusivity that section 27 requires. Shohel, properly applied, reinforces the strict requirements of section 27 rather than assists the prosecution’s position, for it confirms that what the section demands is clear, distinct and verifiable information that exclusively occasions the discovery, a standard which, on the evidence in this case, has plainly not been met. [56] Nor can section 37B of the DDA assist the prosecution on the facts here. That section renders admissible statements made by an accused to a police officer of or above the rank of inspector, but it presupposes the existence of a statement, oral or written. For the reasons already given, the accused’s conduct in this case, even accepting SP3’s account at its highest, does not amount to a statement capable of being assessed for compliance with section 37B. In any event, the absence of any contemporaneous record of the caution said to have been administered, the question said to have been asked, and the response said to have been given, leaves the court with no reliable basis on which to find that the procedural safeguards attending such a statement were in fact observed. [57] For these reasons, section 27 of the Evidence Act 1950 and section 37B of the DDA afford the prosecution no assistance. There is no credible evidence of any statement or information from the accused capable of grounding either an inference of knowledge or a “discovery” within the meaning of section 27, and, even on the prosecution’s own version, the manner in which the raiding party approached the compartments is more consistent with prior knowledge on the part of the police than with information freshly supplied by the accused. [58] It follows that the alleged nod and act of pressing the button, even if it occurred, cannot in law be treated as either an admissible discovery under section 27 or an admissible statement under section 37B, and, more fundamentally, has already been found on the evidence to be unreliable for the reasons set out in section E(iii) above.

Ownership, Exclusivity and Duration of Custody [59] Custody and control cannot be inferred from momentary presence in a vehicle accessible to others. The Federal Court in Public Prosecutor v Abdul Rahman Akif [2007] 4 CLJ 337 considered it an “important factor of relevance” that the accused was shown to have been in possession of the vehicle in question for a period of seven months prior to his arrest, established through the evidence of the car rental operator. No comparable evidence of prior possession or use, whether by surveillance, by the evidence of other witnesses or otherwise, was adduced in the present case; the prosecution’s evidence establishes, at most, that the accused was found seated in the said car on a single occasion. [60] To the contrary, the evidence establishes that the accused was not the registered owner of the said car. SP4, Vinsvari a/p Tebakumaran, the registered owner, testified that she had surrendered the said car to a person known to her as Kartik to be returned to the bank in or about 2015, some seven years before the arrest. Kartik was never traced, never investigated and never called to give evidence. SP8 accepted that no investigation was undertaken to determine whether Kartik retained keys to the said car, whether the vehicle had since been modified, or whether he had used it at any time proximate to the arrest. The question of how, and from when, the said car came to be in the accused’s custody on 26.5.2022, a gap of some seven years since its last established owner, remains entirely unanswered on the evidence. [61] It is well established that custody and control must be positively proved before possession can be found; a fact cannot be established by presumption alone, and there must first be proved facts, or inferences properly drawn from proved facts, before any presumption can arise: Ibrahim Mohamad & Anor v Public Prosecutor [2011] 4 CLJ 113 (FC). The same principle informed the decision in Phrueksa Taemchim (Thailand) v Public Prosecutor [2013] MLJU 732, where the Court of Appeal summarised the holding of the Federal Court in Ibrahim Mohamad as follows: “(1) Possession is an important ingredient in a charge of trafficking. Unless direct evidence of trafficking is adduced, the prosecution must prove the ingredient of ‘possession’ and the trial judge must make an affirmative finding of ‘poession’ before the presumption of trafficking under s 37(d) of the DDA can be invoked;

(Where) Neither one of the accused were the registered owner of the vehicle (and) the registered owner of the vehicle was never called as prosecution witness... (and) there was nothing to suggest as to what happened to the vehicle in between the period he was summoned... until the date of his arrest, a fact cannot be proved by presumption. A finding must be made based on proved facts or inferences drawn from proved facts...” [62] That reasoning applies with equal force to the present case, given the unexplained seven-year gap between SP4’s sale of the said car to Kartik and the accused’s arrest while occupying it, the reliance of the raiding operation on information relating to the vehicle rather than the accused personally, and the absence of any evidence excluding the possibility that the drugs were introduced into the vehicle by a person other than the accused. [63] Momentary presence in, or custody of, a vehicle or item, without more, does not amount to possession. In Law Kian Ming v Public Prosecutor [2023] 4 MLJ 97 (CA), the Court of Appeal held that momentary custody of an item, without knowledge or exclusivity, is insufficient to establish the custody and control necessary for possession, observing, by reference to Lord Morris in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 290, that “if there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains then, ordinarily, I would suppose that there would not be possession.” On the prosecution’s own evidence in the present case, stripped of the unreliable “secret button” narrative addressed above, all that remains is that the accused was found seated in the said car, a vehicle to which, on the unchallenged evidence of SP4 and SP8, at least one other identified person had a historical connection that was never investigated or excluded, and to which, on SP3’s own evidence, access to the rear compartment was in any event not restricted to any one person. [64] The prosecution relied on Lee Gnan Hoe v Public Prosecutor [2024] MLJU 1319 (CA) for the proposition that the failure to call the previous possessor or owner of a vehicle is not necessarily fatal to the prosecution’s case. During oral submissions, the prosecution argued that, just as the Court of Appeal in Lee Gnan Hoe held that the non-calling of the vehicle owner was irrelevant, the prosecution’s failure to call Kartik in the present case was likewise immaterial. That reliance is, however, misplaced. As the defence pointed out, Lee Gnan Hoe involved materially different facts. There, surveillance evidence established that the appellant had driven and exercised control over the vehicle for approximately one week before his arrest, and the appellant himself furnished specific oral information that exclusively led to the discovery of the concealed drugs. By contrast, none of those features exists in the present case. There is no surveillance evidence demonstrating the accused’s use of the said car over any period, no admissible information exclusively leading to the discovery of the drugs for the reasons already explained in section E(iv) above, and the registered owner’s evidence was that she had parted with possession of the said car seven years before the arrest by handing it to an untraced third party. Those factual differences render Lee Gnan Hoe of no assistance to the prosecution. [65] The distinguishing features that permitted the court in Lee Gnan Hoe to find the non-calling of the vehicle’s prior possessor immaterial are simply absent on the facts of this case, and this court respectfully declines to apply that case to the facts before it. This court accordingly finds that the prosecution has failed to establish that the accused was the owner of, or exercised exclusive custody or control over, the said car or the compartment within it, and that this failure is not remedied by any of the authorities upon which the prosecution relies.

(vi) The DNA Evidence [66] SP7, Nur Hafiza binti Md Yusop, a Government Chemist attached to the DNA unit, gave evidence of forensic swabs taken from various points within the said car, itself collected by SP6, the forensic officer, and marked and catalogued as follows: item “1”, exhibit P16A(1), a swab taken from the steering wheel; item “2”, exhibit P16B(1), a swab taken from the gear knob; item “3”, exhibit P16C(1), a plastic mineral water bottle recovered from the floor of the vehicle; item “4”, exhibit P16D(1), a head covering recovered from the rear right passenger seat; item “5”, exhibit P16E(1) (also referred to in the record as P1E(1)), a grey face mask recovered from the rear floor of the vehicle; and item “6”, exhibit P16F(1), a red T-shirt recovered from the rear left passenger seat. [67] SP7’s evidence on the two exhibits most directly connected to a driver’s exercise of control, the steering wheel and gear knob swabs, was unequivocal: “S: Okey, daripada swab stick bertanda satu ini, iaitu Ekshibit P16A(1), iaitu swab pada stereng motorcar PJU7475, apakah hasil analisis DNA yang puan dapat? Adakah ia berpadanan dengan sampel darah? Yang Arif, bagi swab stick bertanda satu, saya tidak menjumpai sebarang DNA pada putik kapas tersebut, Yang Arif. Baik. Bagi ekshibit bertanda dua, iaitu cap swab stick (dalam kurungan dinyatakan sebagai swab pada tombol gear motorcar PJU7475), yang telah ditandakan sebelum ini sebagai Ekshibit P16B(1), apakah hasil analisis DNA yang puan lakukan? Adakah ia berpadanan dengan sampel darah berlabel Kathiravan a/l Purushothaman? Yang Arif, bagi putik kapas bertanda dua, saya juga tidak menjumpai sebarang DNA pada putik kapas tersebut, Yang Arif.” [68] No DNA profile matching the accused was recovered from either of the two surfaces a driver exercising control over the said car would ordinarily be expected to touch. [69] As for the plastic bottle, exhibit P16C(1), SP7’s evidence, corroborated by the chemical report itself, exhibit P23, was that a mixed profile from multiple unidentified individuals was found, incapable of positive attribution to anyone: Baik. Kemudian bagi exhibit bertanda tiga, ditandakan tiga “a plastic bottle on which no detectable stain indicative of blood was found. The blood was swab for DNA analysis”. Exhibit tiga ini, satu botol plastik telah ditandakan sebagai P16C(1). Apakah hasil analisa oleh puan? Yang Arif, bagi botol plastik bertanda tiga, iaitu P16C(1), saya telah menjumpai satu profil DNA campuran daripada sekurang-kurangnya tiga orang individu, tetapi saya tidak dapat mengenal pasti ketiga-tiga individu tersebut secara positif. Jadi, adakah profil DNA yang dikesan pada ekshibit ini, iaitu botol plastik tersebut, tidak berpadanan dengan sampel darah Kathiravan a/l Purushothaman? Yang Arif, saya tidak dapat memastikannya secara positif. Jadi saya tidak tahu siapakah tiga individu tersebut, Yang Arif.” [70] The chemical report itself, at P23, records: “A mixed DNA profile from at least three individuals was derived from swab taken from bottle number three which cannot be positively distinguished.” As for the face covering, exhibit P16E(1), SP7 confirmed a mixed profile from two individuals, of whom the accused was one and the second could not be positively identified: Okey. Exibit bertanda lima, “a face mask on which no detectable stain indicative of blood was found. The face mask was swabbed for contact DNA analisis” exhibit 5, satu penutup muka telah ditandakan sebagai exhibit P16E(1). Apakah hasil analisa puan terhadap exhibit ini? Yang Arif, bagi pelitup muka bertanda 5 atau P16E(1), saya telah menemui satu profil DNA campuran daripada dua orang individu pada pelitup muka tersebut di mana penyumbang kepada spesimen darah bertanda ‘MM’ berlabel Kathiravan a/l Purushothaman adalah merupakan salah seorang penyumbang kepada profil DNA campuran tersebut. Walau bagaimanapun, seorang lagi penyumbang profilnya adalah terlalu lemah untuk dikenal pasti secara positif.” [71] No DNA matching the accused, or any other individual, was found on the red T-shirt, exhibit P16F(1). [72] SP7 accepted, when the proposition was put to her directly, that the presence of mixed DNA on the bottle and the face covering was consistent with those items having been used by more than one person, and, critically, that the absence of the accused’s DNA on the steering wheel and gear knob was itself consistent with the possibility that he had never handled those surfaces at all: “S: Okey. Bagi swab bertanda satu dan swab bertanda dua, iaitu Ekshibit P16A(1) dan P16B(1), masing-masing merupakan swab pada stereng dan swab pada tombol gear. Apabila tiada sebarang DNA yang berpadanan dengan sampel darah dapat dikesan, wujud kemungkinan bahawa pemilik sampel darah tersebut mungkin tidak pernah memegang stereng atau tombol gear kereta dari mana swab itu diambil. Wujud kemungkinan sedemikian, cadangan saya? Berkemungkinan, Yang Arif.” [73] This evidence was corroborated by SP6, the forensic officer, who confirmed that fingerprint dusting was also carried out throughout the interior of the said car, in addition to the DNA swabbing, and that no fingerprint impression of any kind could be developed or raised from the vehicle: “S: Dan bagi penimbulan cap jari, tiada apa-apa kesan cap jari yang dapat ditimbulkan dalam kenderaan PJU7475? Betul, Yang Arif. Betul? Betul, Yang Arif.” [74] SP6 further confirmed that, on his own experience, it is not unusual to find DNA of more than one individual in a vehicle, and that such a finding would ordinarily be understood as indicating that persons other than the accused had also been present in, or made use of, the vehicle before his arrest. [75] SP8, the investigating officer, accepted, in cross-examination, that no attempt was made to identify or exclude the contributors of the unmatched DNA material, and that no DNA specimen was ever obtained from Kartik for comparison purposes, notwithstanding that he had been identified, from SP4’s own evidence, as a person with a historical connection to the said car. SP8 further agreed that the presence of DNA from unidentified persons indicated that others had accessed the vehicle. [76] The presence or absence of DNA evidence linking an accused to the alleged offence is a factor of real significance in assessing guilt or innocence: Jitweer Singh Ojagar Singh v Public Prosecutor [2017] 2 CLJ 561 (CA), where the Court of Appeal observed, at [62]: “The presence or absence of DNA evidence to link an accused person with the alleged crime committed is certainly an important factor in determining the guilt or innocence of an accused.” The absence of the accused’s DNA from the principal control surfaces of the said car, combined with the total absence of any recoverable fingerprint evidence and the presence of multiple unidentified DNA profiles that were never investigated, is, in this court’s assessment, directly corrosive of any inference that the accused exercised exclusive control over the vehicle or its contents. [77] The prosecution relied on Denish Madhavan v Public Prosecutor [2009] 2 CLJ 209 (FC) and Public Prosecutor v Dwi Supriyatno Mei & Ors [2013] 1 LNS 1188 (HC) to contend that knowledge may be established through conduct even in the absence of corroborating forensic evidence, and that the presence of third-party DNA does not, without more, exonerate an accused. During oral submissions, the court specifically questioned how the prosecution could establish the accused’s custody, control and knowledge of the drugs when he was not the registered owner of the said car and the forensic evidence disclosed the presence of DNA profiles from multiple individuals. In response, the prosecution submitted that the presence of the accused’s DNA in the vehicle did not exclude his involvement merely because other DNA profiles were also detected, and relied on Dwi Supriyatno Mei for the proposition that the existence of third-party DNA does not negate an accused’s criminal responsibility. [78] This court has weighed that submission carefully but is unable to accept it as answering the difficulty. The proposition that third-party DNA “does not exclude” the accused’s involvement inverts the burden the prosecution must discharge; it is not for the accused to be excluded by the defence, but for the prosecution to establish, affirmatively and to the requisite standard, that the accused, rather than any of the other persons whose DNA is present, exercised custody, control and knowledge. As for Denish Madhavan, that case does not assist the prosecution on the facts here. In Denish Madhavan, the accused’s conduct was direct, deliberate and conclusive: he did not merely point or gesture, but personally produced the drugs, conduct which the Federal Court described as complete and direct proof of knowledge. The present case falls far short of that standard: the conduct here consists, at its highest, of a single, unrecorded nod, followed by the operation of a mechanism that could not be demonstrated to work, that is unexplained on its mechanics, and that in any event could be operated manually by any person with access to the vehicle. Properly understood, Denish Madhavan illustrates what cogent evidence of knowledge looks like, a clear statement, a clear and unambiguous act, and a direct link to the discovery, and, by contrast, exposes the deficiencies in the prosecution’s case rather than curing them. [79] For these reasons, the DNA evidence in this case, read together with the absence of any fingerprint evidence, does not support, and on a fair reading positively undermines, the prosecution’s theory of exclusive custody, control and knowledge on the part of the accused.

(vii) Knowledge [80] Knowledge of the existence and nature of a dangerous drug is an essential and distinct ingredient of possession. It cannot be presumed, and it must be inferred, if at all, from proved facts and surrounding circumstances. [81] The accused’s conduct upon arrest, calm, compliant, without flight or resistance, is not itself indicative of guilty knowledge. Nervousness or its absence must be assessed in its full factual context, and conduct consistent with innocence cannot properly ground an inference of guilt. The only evidence capable of supporting an inference of knowledge is, once again, the account of the caution, the nod and the pressing of the button, which this court has already found, for the reasons given in section E(iii) above, to be unreliable, unrecorded and, in a material respect, mechanically unexplained even when the point was pressed by the court directly on the prosecution. [82] Absent that unreliable narrative, there is no evidence that the drugs were in plain view, no evidence that the accused made any admission, and no reliable evidence of any act by the accused directing the police to the compartment. The mixed and unexplained DNA evidence, and the complete absence of any recoverable fingerprint evidence, addressed in section E(vi) above, further undermine rather than support any inference that the accused had personal knowledge of, or familiarity with, the concealed compartment or its contents. [83] This court accordingly finds that the prosecution has failed to adduce credible evidence, direct or circumstantial, capable of establishing that the accused had knowledge of the existence of the Methamphetamine or the Ketamine concealed within the said car.

(viii) Trafficking and the Statutory Presumptions [84] The prosecution’s case on trafficking depended entirely on the presumption under section 37(da)(xvi) of the DDA, which arises only once possession, including the requisite custody, control and knowledge, has first been affirmatively established. As set out above, the prosecution has failed to establish any of those foundational facts. It follows, applying the principle that a fact cannot be proved by presumption and that a finding must rest on proved facts or inferences properly drawn from them (Ibrahim Mohamad & Anor v Public Prosecutor; Phrueksa Taemchim (Thailand) v Public Prosecutor, that the presumption of trafficking under section 37(da)(xvi) never arose, and cannot be relied upon to supply the element of trafficking that the prosecution has otherwise failed to prove. [85] The prosecution’s difficulty is not confined to section 37(da)(xvi). The presumption of custody or control under section 37(d) of the DDA likewise requires proof of foundational facts that are absent here for the reasons already given; moreover, the said car cannot be treated as “anything whatsoever” for the purposes of that presumption: Syed Ali bin Syed Abdul Hamid & Anor v Public Prosecutor [1982] 1 MLJ 132 (FC). As for section 37(h) of the DDA, which concerns the existence of a specially constructed or adapted compartment, no automotive or technical expert, whether from Honda or otherwise, was called to establish that the space in question was in fact a specially constructed compartment within the meaning of that section, as opposed to an ordinary void beneath a seat that could, on SP8’s own evidence, be accessed manually. Nor, in any event, could section 37(h) assist the prosecution independently of proof that the accused was the owner or person in charge of the vehicle, proof which, for the reasons set out in section E(v) above, is itself lacking. [86] It is also well established that the double invocation of presumptions is impermissible; where one presumption cannot be sustained on the facts, it cannot be replaced or reinforced by resort to another presumption to make good the same deficiency: Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1 (FC), where the Federal Court, considering the legislative history of section 37A of the DDA and the decision it was enacted to address, held that presumptions may only be applied in addition to or in conjunction with one another where such an intention on the part of Parliament is clear on the wording of the relevant provisions, and that possession, in particular, requires proof of custody and control and is not to be established merely by knowledge or presence. None of the statutory presumptions under section 37 of the DDA is, in the circumstances of this case, capable of being invoked, whether singly or in combination, to supply the elements of possession or trafficking that the prosecution has failed to establish by direct evidence. [87] It is a further and independent difficulty for the prosecution’s case that, on the same day and during the same operation, one Balakrishnan a/l Gandhi Tata was arrested and subsequently detained under the Special Preventive Measures under the Dangerous Drugs Act (LLPK), in the same general vicinity, for activity connected with the trafficking of methamphetamine. SP8 accepted that no investigation was carried out into any connection between Balakrishnan a/l Gandhi Tata and the drugs the subject of these charges. The defence does not bear any burden of proving that Balakrishnan a/l Gandhi Tata was responsible for the drugs found in the said car. It is sufficient that this unexplored circumstance raises a reasonable and unresolved possibility inconsistent with the accused’s exclusive involvement, a possibility the prosecution’s own evidence discloses but does nothing to exclude. [88] For the combined reasons set out in this section, the court finds that the prosecution has failed to establish, whether by direct evidence or by resort to any statutory presumption, that the accused trafficked in the Methamphetamine the subject of the first charge. F. MATERIAL GAPS IN THE PROSECUTION’S CASE

Failure to Call Material Witnesses and the Adverse Inference under Section 114(g) [89] The prosecution’s duty is not merely to refrain from suppressing evidence, but affirmatively to call all witnesses material and necessary to the unfolding of its own narrative, notwithstanding its discretion as to the choice of witnesses generally. Where a witness capable of speaking to a matter central to the prosecution’s own case is not called, and no satisfactory explanation for the omission is given, an adverse inference may properly be drawn against the party who failed to call that witness. In this case, three categories of material witness were neither called nor satisfactorily accounted for. [90] First, Kartik, the person to whom SP4 testified she had surrendered the said car to be returned to the bank in or about 2015, was never traced, investigated or called. Second, no automotive or technical expert was called to verify, one way or the other, the existence and mechanical operation of the “secret button” mechanism upon which the entirety of the prosecution’s narrative on custody and knowledge depends, notwithstanding that this mechanism could not be demonstrated to function at the court’s own inspection and that the point was directly raised by the court with the prosecution during oral submissions, as set out in section E(iii) above. Third, Encik Tajuddin bin Ahmad, the officer who operated the GCFID instrument used to determine the net weight of the Methamphetamine, was not called, although this omission is, for the reasons given in section E(i) above, of lesser consequence given that SP1’s own evidence on the elementary identity of the substance was not otherwise shaken. [91] No satisfactory explanation was offered by the prosecution for either of the first two omissions. Given that both bear directly on the central and disputed issues of custody, control, knowledge and the true identity of the person responsible for the drugs, this court draws an adverse inference against the prosecution under section 114(g) of the Evidence Act 1950 in respect of both the non-calling of Kartik and the non-calling of a qualified technical witness capable of verifying the alleged mechanism. [92] The same adverse inference is drawn in respect of the prosecution’s failure to investigate or exclude Balakrishnan a/l Gandhi Tata’s connection to the drugs in this case, notwithstanding that he was arrested during the same operation, in the same vicinity, on the same day, for a connected offence. It is not a satisfactory answer to this omission for the prosecution to point, as it did, to its wide discretion in the selection of witnesses; that discretion does not extend to omitting a witness or a line of investigation that goes to the very heart of the identity of the person in possession of the drugs, particularly where, as here, the alternative candidate surfaced directly from the prosecution’s own evidence and investigation and was not a speculative construct of the defence.

(ii) Breaks in the Chain of Custody [93] The integrity of the exhibits is a matter the prosecution must establish to the court’s satisfaction, and any material and unexplained break in that chain casts doubt on whether the substance ultimately analysed by the chemist is the same substance said to have been recovered from the accused. Two distinct and independent difficulties arise on the evidence in this case. [94] The first is the marking of the exhibits at the point of seizure. SP3 accepted, in cross-examination, that neither he nor SP8 placed any marking, identification or signature on the transparent plastic packaging labelled ID6C(1) at the point of seizure, and, when pressed further, was unable even to confirm that ID6C(1) had in fact come from the said car at all: “S: Dan jika saya cadangkan ID6C1 ni plastik ini tidak dirampas daripada bawah ruang penumpang seat belakang pemandu Honda Odyssey, kamu apa jawapan? Tak pasti Yang Arif, sebab kebiasaan kalau macam pengadu kita akan, denda yang kita akan buka saya akan tanda dan bila benda tu kita boleh nampak apa benda dalam kita akan tanda last plastik. Tapi kalau apa lagi dalam kita tak pastilah. Jadi ID6C1 ni kamu tak pasti? Tak pasti Sama ada dirampas dalam Honda Odyssey ataupun tidak? Betul Yang Arif.” [95] This is not a peripheral or clerical omission; ID6C(1) forms part of the very exhibit that was ultimately sent for analysis and upon which SP1’s finding of 712.80 grammes of Methamphetamine is founded. The absence of any contemporaneous marking or identification by either of the two officers principally responsible for the exhibit at the point of seizure, combined with the raiding officer’s own inability to confirm its provenance, gives rise to a serious and unresolved doubt as to the identity and integrity of the exhibit by the time it reached SP1 for analysis. This difficulty is further corroborated by SP2’s photograph, exhibit P7, discussed in section E(ii) above, which shows the seized bottles bearing no visible marking at all at the time they were photographed at the Narcotics Division office. [96] The second, and in this court’s assessment equally serious, difficulty is an unexplained gap of some twelve hours between the seizure of the exhibits and their handover to the investigating officer. SP3’s own evidence establishes that the seizure took place on 26.5.2022 at about 5.45 p.m., yet the exhibits were only handed over to SP8 the following morning, 27.5.2022, at about 6.00 a.m.: “S: …Okey. Kalau mengikut kepada borang serah menyerah dalam kes ini, kamu menyerahkan semua barang-barang kes dadah berbahaya kepada Inspektor Muzzamer, iaitu IO kes, hanya pada keesokan harinya, 27 Mei 2022? Betul, Yang Arif. ... Jadi dalam kes ini, barang kes yang dirampas dalam Honda Odyssey adalah pada 26 Mei 2022 jam 5.45 petang, tetapi serahan kepada IO kes, Inspektor Muzzamer, pada 27 haribulan 5 tahun 2022 jam 6.00 pagi, betul? Betul, Yang Arif.” [97] SP3 further admitted that, during this period, further raids and inspections connected with the accused were carried out before the exhibits were finally handed over: “S: Dan setuju dengan saya sebelum barang kes diserahkan kepada IO, terdapat beberapa lagi serbuan dan pemeriksaan berkaitan dengan tertuduh ini dijalankan? Betul, Yang Arif.” [98] Although SP3 testified that the exhibits were kept in a safe in his room at IPK Johor before he proceeded to the subsequent raid, no explanation was given for why the handover, and the accompanying documentation, could not be completed sooner. SP8 himself, when asked directly, could offer no explanation: Jadi apakah alasan mengapa daripada 26 Mei jam 5.45 mereka hanya serahkan kepada kamu barang-barang kes dadah dan juga tangkapan ini pada keesokan harinya jam 6.00 pagi? Apakah sebab dan alasan? Adakah kamu tahu? Tidak tahu, tuan.” [99] The record discloses no answer to that question from SP8 that accounts for the delay. [100] While the subsequent handling of the exhibits was, on the documentary evidence, supported by the relevant forms, namely the search list exhibit P11, the police report exhibit P12, and the handover acknowledgment exhibit P13 between SP3 and SP8, and thereafter the receipt exhibit P4 and chemical report exhibit P5 issued by SP1, and while SP6, the forensic officer, likewise produced his own handover form exhibit P20 and forensic reports exhibits P21 and P22 in respect of his separate examination of the exhibits and the vehicle, the adequacy of these later links in the chain does not cure a defect at its very first link. A twelve-hour, unexplained and undocumented interval, during which further police activity concerning the accused was admittedly carried out, between seizure and handover, is not a minor administrative delay; it is a gap of sufficient duration and consequence that this court cannot be satisfied, on the evidence as it stands, that the exhibits handed to SP8 on the morning of 27.5.2022 were, without more, the same exhibits seized at the roadside the previous evening, still less that they had been secured in a manner excluding the possibility of tampering, substitution or admixture. [101] Applying the principle in Sia Soon Suan v Public Prosecutor [1966] 1 MLJ 116 (FC), that the requirements of strict proof in a criminal case cannot be relaxed so as to bridge a material gap in the prosecution’s evidence, this court finds that both the absence of contemporaneous marking, coupled with the raiding officer’s own admitted uncertainty as to the exhibit’s provenance, and the unexplained twelve-hour delay before handover, are material and unresolved defects in the chain of custody that this court is not entitled to overlook or to fill by inference in the prosecution’s favour.

(iii) Inadequate Investigation [102] The cumulative effect of the omissions identified above is that several obvious and material lines of inquiry were left unpursued by the investigating officer. No attempt was made to trace Kartik, notwithstanding that he was identified by name by the registered owner of the vehicle herself. No attempt was made to obtain a DNA specimen from Kartik for comparison against the unidentified profiles recovered from the said car. No investigation was undertaken into the connection, if any, between Balakrishnan a/l Gandhi Tata and the drugs in this case, notwithstanding his arrest in the same operation. No technical or expert examination was undertaken, at any stage, to verify the mechanical claims upon which the entirety of the prosecution’s narrative of discovery depends, notwithstanding that the point was squarely put to the prosecution by the court itself. No explanation, contemporaneous or otherwise, was ever obtained or offered for the twelve-hour gap between seizure and handover of the exhibits. [103] A deficient investigation does not, of itself, automatically result in an acquittal. However, where, as here, the omissions bear directly upon the essential ingredients the prosecution must prove, namely custody, control and knowledge, and upon the integrity of the very exhibits said to constitute those ingredients, this court is not entitled to speculate in the prosecution’s favour so as to fill the gaps that a more thorough investigation might have closed. [104] Taking the material gaps identified in this section together with the unreliability of the “secret button” narrative and the absence of proof of exclusive custody, control and knowledge addressed in section E above, this court is satisfied that the deficiencies in the prosecution’s case are not isolated or peripheral, but go cumulatively and directly to every essential ingredient of both charges. G. THE PROSECUTION’S SUBMISSIONS FURTHER CONSIDERED [105] For completeness, and so that it is clear that the whole of the prosecution’s case has been weighed and not merely the case as structured by the defence, this court addresses directly the principal submissions advanced by the prosecution that do not otherwise fall for consideration under the headings above. [106] The prosecution submitted that the accused was found within the said car, that his DNA was recovered from one item within it, namely the face covering exhibit P16E(1), and that SP3’s account, as recorded in his witness statement (PSSP3), establishes both knowledge and custody. This court has considered that submission with care. As to the accused’s presence in the said car, that fact is not disputed, but, for the reasons given in section E(ii) above, presence alone does not establish possession. As to the DNA recovered from the face covering, the prosecution did not explain why the presence of the accused’s DNA on a single face covering of ambiguous provenance, one on which a second, unidentified contributor’s profile was also detected, should outweigh the significant and unexplained absence of his DNA from the principal control surfaces of the vehicle, the steering wheel and gear knob, considered together with the presence of multiple other unidentified profiles and the total absence of any fingerprint evidence addressed in section E(vi) above. As to SP3’s witness statement, this court has already found, for the detailed reasons given in section E(iii) above, that SP3’s account of the caution, the nod and the pressing of the button cannot be accepted as reliable, being unrecorded contemporaneously, unsupported by any expert evidence, and, on the prosecution’s own evidence concerning the removed ignition key, difficult to reconcile with elementary mechanical principles even when the point was pressed directly by the court. [107] The prosecution’s reliance on Shohel v Pendakwa Raya has been addressed and distinguished in section E(iv) above. It suffices to note here that the prosecution’s own articulation of the ratio in Shohel, that the discovery there arose from a specific, identifiable and recorded statement, itself supplies the very standard against which the present case, characterised by an unrecorded nod and a manually-operable compartment, must be measured, and against which it falls short. [108] The prosecution’s reliance on Denish Madhavan and Dwi Supriyatno Mei has been addressed and distinguished in section E(vi) above. This court has given particular weight to the prosecution’s own submission, made directly to the court, that the existence of third-party DNA profiles “does not exclude” the accused’s involvement. That formulation, respectfully, does not meet the standard the prosecution must satisfy at this stage of the trial. The question at the close of the prosecution’s case is not whether the accused’s involvement has been excluded by other evidence, but whether the prosecution has adduced credible evidence which, if unrebutted, would justify a conviction. Where, as here, the prosecution’s own scientific evidence establishes the presence of multiple other individuals’ DNA on items in the vehicle, an absence of the accused’s DNA on the vehicle’s principal control surfaces, and a complete absence of fingerprint evidence, and where the prosecution has taken no step to identify or exclude any of those other individuals, the submission that this evidence merely fails to exclude the accused inverts, rather than discharges, the burden resting on the prosecution. [109] The prosecution’s submission that the non-calling of Kartik is immaterial, by analogy with the non-calling of the vehicle’s previous owner in Lee Gnan Hoe v Public Prosecutor, has likewise been considered and rejected in section E(v) above, the material features distinguishing that case, namely the proven week-long surveillance of the appellant’s use of the vehicle in that case, and the specific oral information exclusively leading to discovery, none of which is replicated here, having been set out there. [110] Having considered the whole of the prosecution’s case, including the submissions addressed in this section and the exchanges between the court and learned Deputy Public Prosecutor during oral submissions set out in sections E(iii), E(vi) and E(iv) above, this court remains satisfied that the deficiencies identified in sections E and F above are not answered by the prosecution’s submissions, and that, applying the maximum evaluation required by Looi Kow Chai & Anor v Public Prosecutor and Public Prosecutor v Mohd Radzi bin Abu Bakar, this court is not, on the whole of the evidence, prepared to convict the accused on either charge should he elect to remain silent. H. CONCLUSION AND FINAL ORDER [111] Drawing together the findings set out above, the prosecution's central narrative of custody and knowledge, resting on the accused's alleged nod and act of pressing a concealed button, is unreliable, unrecorded contemporaneously, and mechanically unexplained even when the point was pressed directly by the court upon the prosecution. [112] Section 27 of the Evidence Act 1950 and section 37B of the DDA afford the prosecution no assistance. There is no admissible information or statement capable of grounding either a discovery or an admission. The prosecution's own authority of Shohel, properly applied, reinforces rather than assists its case. [113] The prosecution has also failed to establish that the accused was the owner of, or exercised exclusive custody or control over, the said car or the compartment within it, given the unexplained seven-year gap in possession following its sale to an untraced third party. The DNA evidence, read together with the total absence of fingerprint evidence, positively undermines rather than supports any inference of exclusive control. No credible evidence of knowledge survives once the unreliable button narrative is set aside. [114] None of the statutory presumptions under section 37 of the DDA is capable of being invoked in the absence of the foundational facts they require. [115] The chain of custody of the drug exhibits was materially and unexplainedly broken, both by the absence of any contemporaneous marking at the point of seizure, a difficulty the raiding officer himself could not resolve, and by an unexplained twelve-hour gap before handover to the investigating officer, during which further police activity concerning the accused took place. [116] Finally, the investigation left unpursued several obvious and material lines of inquiry bearing directly on custody, control, knowledge, the identity of the person truly responsible for the drugs, and the integrity of the exhibits themselves. [117] The same findings apply with equal force to the second charge. The Ketamine the subject of that charge was found within the same compartment in the same vehicle, and the prosecution’s failure to establish custody, control and knowledge applies to it with the same force as it applies to the Methamphetamine, while the same breaks in the chain of custody equally compromise the integrity of that exhibit. [118] Applying the principle in Sia Soon Suan v Public Prosecutor, that the requirements of strict proof in a criminal case cannot be relaxed to bridge a material gap in the prosecution’s evidence, and having found that the prosecution has failed to prove, credibly and to the requisite standard, every essential ingredient of each charge, this court finds that no prima facie case has been made out. [119] Accordingly, pursuant to section 180(2) of the Criminal Procedure Code, the accused, Kathiravan a/l Purushothaman, is acquitted and discharged on both Case No. JA-45A-150-12/2022 and Case No. JA-45A-151- 12/2022, without being called upon to enter his defence. 20 July 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge High Court of Malaya Johor Bahru Counsel: For the Prosecution: TPR Puan Lydia binti Salleh, TPR Puan Juanita binti Mohd Said, TPR Puan Nur Natasya binti Saharuddin Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar, 79100 Nusajaya, Johor. For the Defence: Encik Mohd Daud bin Ismail, Encik Jackson a/l Daniel, Puan Hang Lee Ying, Daud & Co. No. 2-27, Jalan Kolam Air 2, Nong Chik Riverside, 80100 Johor Bahru.