Muhamad Firdaus Bin Berahim (DA-83D-494-02/2024)

On 29/09/2021 at approximately 05.00 pm, PW2 along with a raiding team consisting of another 10 members saw (1) man standing in front of the Kedai Kasut Bee Bee by the roadside of Bandar Satelit Pasir Tumboh Jalan Pasir Puteh, 16150 Kota Bharu Kelantan.

PW2 and members of his raiding team approached said man by promptly introducing himself as a police officer. In the fit of surprise, said man suddenly sprinted away but he was later successfully apprehended upon some scuffle with the police.

Suspicious of said man’s conduct, PW2 proceeded to inspect said man’s identification and found that the man was named MUHAMAD FIRDAUS BIN BERAHIM, bearing identification number 990904035405.

PW2 went on by searching said man’s person which resulted with the finding of a black patterned bag, carried by said man on his back. PW2 opened said bag and found within it a bright plastic package containing a yellow paper package which was securely taped with adhesive tape.

PW2 further inspected the yellow paper package and found that it contained (10) blue plastic packets, each (5) of which was tied with a rubber band. Again, PW2 further inspected one of the blue plastic 3 packets and found that it contained reddish and greenish pills suspected to be of dangerous drugs. Upon reasonable suspicion of a crime having been committed, said man was arrested and his belongings were seized by PW2.

On the same day, said man was later brought to Narcotics Criminal Investigation Department, Kelantan Police Contingent Headquarters, where at approximately 08.00 pm, PW2 conducted a more thorough inspection of such seized items which resulted with a total tabulation of

blue plastic packets with each packet containing (198) reddish pills and (2) greenish pills suspected of being dangerous drugs. [9] Said man along with all seized items and accompanying documentations was later brought to the attention of PW3 who was tasked as the investigating officer assigned to this case. [10] As part of his investigation, PW3 sent the seized items, namely the reddish and greenish pills, to the Malaysian Chemistry Department, Kelantan. [11] In relation to this, PW1 as a Government Chemist confirmed that he had examined said substance suspected of illegal drug and found that the total net weight of substance analyzed is 26.01 grams of Methamphetamine which is listed in the First Schedule of the Dangerous Drugs Act 1952. PRIMA FACIE CASE [12] It is imperative for this Court to assess whether a prima facie case has been successfully made against the Accused. To do so, an exercise of maximum evaluation has to be undertaken against the totality of evidence presented by the Prosecution through their witnesses and assessing these witness’s credibility and reliability, alongside examining whether elementary requirements for offences alleged against the Accused are met. (see Public Prosecutor v Mohd Radzi Abu Bakar [2005] 6 MLJ 401; [2006]1 CLJ 447, Looi Kow Chai v Public Prosecutor [2003] 2 MLJ 65; [2003] 1 CLJ 734, Balachandran v Public Prosecutor [2005] 2 MLJ 301; [2005] 1 CLJ 85). RUDIMENTARY CONSIDERATIONS IN THIS PROCEEDING [13] There is no need for a lengthy discussion on whether the seized item is listed as dangerous drug defined in DDA [14] This Court finds no reason to discredit the evidence given by PW1 regarding dangerous drugs analysis done. There was no defect in PW1’s analysis and no credible challenge was made on the identity of illicit drug. Thus, this Court is of the view that the nature and the weight of illicit drug forming the subject matter in this case has been successfully proved (see Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705). [15] In fact, both parties have stressed from the outset that they do not intend to dispute the identity of the seized item, but rather have chosen to focus more on resolving the issue of whether both the Accused had possession of the seized items as alleged by the Prosecution. [16] A careful examination must then be made of the question of who had control, custody and knowledge of said seized items in determining whether both the Accused were criminally liable for the charge levelled against them. [17] In determining what amounts to “possession”, several questions will have to be answered namely; whether the impugned drugs found with both the Accused were under their control, to what extent did both the Accused had access to the place where the impugned drugs were found and how physically close was the Accused with the impugned drugs. Answering these questions in totality might shed light into the Accused’s ability as the alleged possessor capable of exercising the power to deal with said impugned drugs to the exclusion of others alongside his knowledge of the same. (See Ibrahim Mohamad & Anor v Public Prosecutor [2018] supp MLJ 280, Leow Nghee Lim v Regina [1955] 1 LNS 53, Public Prosecutor v Hong Ah Huat [1970] 1 LNS 186). [18] Possession is only proven when both physical element and mental element are present (See Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237). [19] The law is trite that the onus is upon the Prosecution to adduce cogent evidence capable to rule out access by others to the impugned drugs. (See Abdullah Zawawi bin Yusoff v Public Prosecutor [1985] 2 MLJ 16; Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137; [1992] 1 CLJ (Rep) 265, Saludin bin Surif v Public Prosecutor [1997] 3 MLJ 317; [1997] 3 CLJ 529, Gooi Loo Seng v Public Prosecutor [1993] 2 MLJ 137). THE PROSECUTION HAD FAILED TO PRODUCE A COGENT AND HOLISTIC EVIDENTIARY NARRATIVE TO SATISFY BURDEN OF PROOF AT THE END OF PROSECUTION’S CASE DUE TO MATERIAL CONTRADICTION CONCERNING HOW ARREST WAS AFFECTED AGAINST THE ACCUSED. [20] Undeniably, the success of this action against the Accused is very much dependent on the Prosecution's ability to present a clear and holistic evidentiary narrative of the event leading up to the Accused’s arrest, with the effect of convincing this court that only the Accused, in exclusion of anyone else, who could be ascribed as the only person having control over the handling of impugned drugs found ( See Leow Nghee Lim v Regina [1956] 1 MLJ 28; [1955] 1 LNS 53, Public Prosecutor v Hong Ah Huat [1971] 1 MLJ 52; [1970] 1 LNS 186). [21] Upon close scrutiny of evidence as presented by the Prosecution, this Court opines that based on circumstances surrounding how the impugned drug was found, supported by the testimonies of witness, it is not safe to conclude that the Accused did have knowledge, custody, and control of such impugned drug. [22] This is apparent as one were to scrutinize evidentiary matrix as broached by the Prosecution which unraveled material contradiction in prosecution witnesses’ testimonies which in effect distort the Prosecution's narrative against the Accused concerning how the arrest was affected against the Accused. [23] In relation to this, PW2 who led the raid against the Accused stated that the crime scene, Kedai Kasut Bee Bee by the roadside of Bandar Satelit Pasir Tumboh Jalan Pasir Puteh, 16150 Kota Bharu Kelantan, was open for business and some of that store’s staffs were present to man the shop as the raid took place. [24] This was in stark contrast from the evidence brought forward by PW3 who was tasked to investigate this case given that per verbal testimony by this witness, it is understood that Kedai Kasut Bee Bee by the roadside of Bandar Satelit Pasir Tumboh Jalan Pasir Puteh, 16150 Kota Bharu Kelantan was in fact closed for renovation and as such no one was present at the premise at the material time when the raid was affected against the Accused. [25] In the face of such starkly different account of how the arrest took place, no explanation was proffered by the Prosecution to shed a light into what seemed to be a puzzling quandary created by two conflicting testimonies given by witnesses who purportedly represented the same side of argument against the Accused. [26] Faced with this seemingly unending dilemma, it is the considered view of this Court that neither evidence proffered by PW2 nor the evidence proffered by PW3 concerning situation surrounding the Accused’s arrest could form the basis for convicting the Accused against charge levelled against him in this case. [27] Given such clear contradiction in term of evidence proffered by PW2 and PW3 on such a vital point forming the cornerstone of the Prosecution’s case against the Accused, this in turn led to emergence of two contradicting versions of evidentiary narrative. [28] Fundamentally, in the absence of contradiction, and in the absence of any element of inherent improbability, testimony of a police officer, much like testimony of any public witness, must be accepted and considered credible until proven otherwise. Nonetheless if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of this Court to decide whether or not it should be accepted. (See Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257; [1962] 1 LNS 129) [29] Nevertheless, as a rule of thumb in assessing credibility of any witness who testifies in a courtroom, a judge or a presiding officer has to always bear in mind that when a witness gives or makes two statements which differ in material particulars there must necessarily be ground for believing that he is not a truthful witness. (Mohamed bin Kasdi v Public Prosecutor [1969] 1 MLJ 135; [1968] 1 LNS 78) [30] Despite minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence, but discrepancies in the statements of witnesses on material points should not be lightly passed over, as they seriously affect the value of their testimony. The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. (See Kesavan Krishnan v Public Prosecutor & Another Appeal 15 [2015] 6 CLJ 163) [31] In light of this development concerning credibility of PW2 and PW3, it appeared that either one of them gave true testimony, or all of them gave false testimony. If neither PW2 or PW3 could be counted on their words to tell the whole truth concerning the Accused’s arrest, what would be the guarantee that either one of the them was telling the truth regarding the other evidence presented by the Prosecution in this case? [32] Thus, the entirety of both witnesses account on the crime alleged against the Accused must be disregarded as both witnesses’ evidence on such a crucial, material and obvious matter forming the cornerstone of the case against the Accused was so irreconcilable, ambivalent or negational. (See Pie bin Chin v Public Prosecutor [1985] 1 MLJ 234) [33] As reasonable doubt persisted throughout this proceeding concerning the real circumstance leading up to the alleged finding of the Accused along with some sizable amount of impugned drug purportedly under his control and care, it would not be safe to conclude that the Accused did have knowledge, custody, and control of such impugned drug alleged against him. [34] This conundrum was not helped by the fact that throughout this proceeding, no reasonable explanation was given in order to reconcile apparent contradictory statements between that of PW2 from the one broached by PW3. In fact, subsequent attempt by PW3 to offer some sort of explanation in order to bridge the already apparent gap in prosecution’s narrative was widen due to PW3’s failure to elucidate clear and concise narrative of prosecution’s case against the Accused upon cross-examination by the defence counsel. [35] This could be seen from PW3’s response upon being questioned by the defence on whether the Bee Bee Shoe store was open or closed at the material time of the arrest. [36] As earlier noted, PW3 had stressed that Kedai Kasut Bee Bee was open for business, contrary to PW2’s assertion that the said premise was closed due to renovation at the material time when arrest was affected against the Accused. In relation to this, PW3 explained that he had met an employee of said shop who purportedly gave him access to the shop’s CCTV recording. Per PW3’s testimony on this point, it is understood that no recording existed of the raid conducted against the Accused as the CCTV did not point towards where the raid took place. [37] Nonetheless, as PW3 was challenged by the defence as to the veracity of his investigation into this raid, that the shop was in fact not open for business due to renovation, as exhibited through crime scene photo supplied by the prosecution and thus PW3’s account of him meeting an employee of said shop who purportedly gave him access to the shop’s CCTV recording was in actuality a fabrication, PW3 in jest merely responded that actually he did not visit Kedai Kasut Bee Bee which by then had been sealed off due to renovation for the purposes of inspecting the CCTV, instead this was done by visiting a neighbouring shop which was open for business. [38] This went to the core of charge framed against the Accused as by answering in such a way, it could be inferred that even PW3 did not know the whole truth of incident as alleged against the Accused as he was not able to ascertain the truth surrounding the raid conducted against the Accused. It is quite apparent that a crucial question left to be answered concerning whether the account of the arrest as vouched by PW2 was in fact true given contradictory account of the incident by PW2 and PW3 concerning whether Kedai Kasut Bee Bee was open or closed at the material time of the arrest. [39] In other words, PW3 had failed to proffer a proper answer to solve the dilemma of whether Kedai Kasut Bee Bee was open for business at the material time when raid against the Accused took place, as alleged by PW2 or in fact the opposite was true as alleged by the defence, whereby in actuality Kedai Kasut Bee Bee was closed for renovation hence the account of the event as laid out by PW2 could not be true but a mere fabrication designed to purposely implicate the Accused. [40] The failure to properly investigate circumstances surrounding the arrest made against the Accused gave rise to adverse inference in favour of the Accused under Section 114(g) of the Evidence Act which led to the conclusion that the charge brought against the Accused was based on an incomplete investigation and evidentiary narrative, thus failing to achieve complete justice in the case (See Rahmani Ali Mohamad v Public Prosecutor [2014] 6 MLJ 525; [2014] 7 CLJ 405) [41] It is noteworthy to point out that there was no attempt to refresh PW3's memory regarding the true narrative of the incident. In fact, there was no explanation provided by the prosecution in order to reconcile a seemingly contradictory account given by PW2 and PW3 concerning the raid nor was there any evidence proffered to the effect of convincing this Court that PW3 might have been confused in understanding the defense counsel's suggestion. [42] In light of this seemingly contradictory account given by PW2 and PW3 concerning the raid, such gap in Prosecution's case was further exacerbated when no other members of the raiding team were called to shed light into regarding the true narrative of the incident. [43] Given the present set of facts as testified by prosecution witnesses called in this proceeding, the fact that some members of the raiding team were offered to the defence at the end of prosecution case would not be of help to the Prosecution justify its case against the Accused. [44] Such is because although the practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114(g) of the Evidence Act. But where the prosecution evidence falls short of proving a prima facie case at the end of its case, the right not to call such witness/witnesses and to make him/them available to the defence will be of no avail. If the doubt consists of the gap arising out of the matters adumbrated earlier, the prosecution must close this gap. It is not for the defence to call the offered witness/witnesses to supplement the prosecution case. (See Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16) [45] It is a trite law that a large number of witnesses is not a consideration in convicting a case, but rather the quality of the evidence presented by the Prosecution which must be considered for that purpose. Along the same tangent, such evidence as elicited from witnesses must be of good quality, not flawed and not giving rise to inferences having the effect of contradicting Prosecution's evidentiary narrative. (See Shahril Hasni Basharudin v Public Prosecutor [2021] MLJU 885; [2021] MLRHU 644) [46] Where there is a clash of evidence in the Prosecution's case itself, and in this case a very material clash, the benefit of the doubt must be given to the Accused since the Accused bears no duty to prove anything. Conversely, it is for the Prosecution prove the case as alleged against the Accused beyond reasonable doubt (See Public Prosecutor v Mansur Bin Yahya & Anor (2004) 2 MLJ 512; (2004) 1 LNS 31). [47] Given this circumstance, where there is more than one inference which can reasonably be drawn from a set of facts in a criminal case, the inference most favourable to the Accused should be adopted. (See Tai Chai Keh v Public Prosecutor [1948-1949] Supp MLJ 105b) [48] At this juncture, it is incumbent upon this Court to ask itself the penultimate question: 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. (See Balachandran v Public Prosecutor [2005] 2 MLJ 301) Upon close scrutiny of factual matrix as presented throughout the proceeding, the aforesaid question has to be answered in negative. CONCLUSION [49] Looking at the totality of evidence presented, no clear and conclusive indication had been shown to discharge the burden of proof to exclude the possibility of access to the drug by anyone other than the Accused. As of present, no sufficient evidence was proffered to convince this Court that per allegation levelled against him, the Accused had handled the impugned drug or had knowledge of it. [50] Bearing in mind that the requirement of strict proof in a criminal case cannot be relaxed to bridge any material gap in the Prosecution evidence, irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. (See Sia Soon Suan v Public Prosecutor [1965] 1 LNS 165; [1966] 1 MLJ 116) [51] In lieu of doubt raised and inadequacy found per aforementioned discussion, it would unsafe for this Court to convict the Accused on the charge brought against him. Accordingly, the Accused must be discharged and acquitted of the charge levelled against him. Prepared by, ………………………………… (RAIS IMRAN BIN HAMID) Magistrate Magistrate Court Kota Bharu Kelantan Dated: 31st of December 2025 For the Prosecution: Muhammad Syamsul Ikhmal bin Ramli (Deputy Public Prosecutor,Kelantan State Legal Advisor’s Office) For the Accused: Muhammad Hasif bin Hassan & Nur Hashikin binti Mohd Hanapi (Hasif Kumar & Co.)