Murugaya A/L Chellachamy v 1. ) Timbalan Menteri dalam Negeri Malaysia (WA-25-253-06/2024)

2.1 After considering all the cause papers and respective written submissions of the parties, I find that the Applicant has failed to prove his case, and I dismissed the Applicant’s Judicial Review 85 application with no order for cost.

2.2 Dissatisfied with the decision, the Applicant filed this appeal, and my reasons are as follows: S/N 1X626tvvSkyCLauYi/nqRA BRIEF FACTS 90 [3] The applicant:

Was arrested and remanded for 60 days under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316).

He was subsequently ordered to undergo a Detention Order under Section 6(1) of the Act 316/ (the Act) issued by the 95 Deputy Minister of Home Affairs (TMDN), which orders the Applicant to undergo detention at the Pusat Pemulihan Akhlak Batu Gajah, Perak, for two (2) years commencing from 15.12.2023.

The TMDN then issued a Suspension of Detention Order 100 under Section 7(1) of the Act dated 29.03.2024, which ordered the Applicant to undergo restraint/ (sekatan bersyarat) at Bandar Batu Arang, Gombak District, Selangor, with immediate effect from 29.03.2024.

The applicant filed this JR application to challenge his 105 detention for an Order of certiorari and a declaration to nullify the Suspension of Detention Order dated 29.03.2024 imposed on him. THE APPLICANT’S ARGUMENTS 110 [4]

The applicant raised four (4) main issues as follows (briefly): - 1 First issue: Failure to prove compliance with Article 149 of the Federal Constitution and the preamble to Act 316:

In the Applicant’s view: 115 S/N 1X626tvvSkyCLauYi/nqRA

Under Article 149 of the Federal Constitution, the primary purpose of Act 316 is to prevent and maintain public order taken or threatened by a substantial body of persons within and outside Malaysia rather than being used against individuals suspected of carrying out drug 120 activities.

The Act aims to curb syndicate crime like drug cartels.

The learned counsel referred to the Detention Order, and the reasons for the Order, which is attached as Exhibit "DSDSA- 125 1" in the affidavit of reply of the Deputy Minister Datuk Seri Dr Shamsul Anuar Bin Nasarah (TMDN) (L.10) affirmed on 20.08.2024, that stated: “BAHAWASANYA selepas menimbangkan laporan lengkap 130 penyiasatan dan laporan Pegawai Siasatan yang dikemukakan, saya adalah berpuashati bahawa orang yang namanya tersebut di bawah pernah ada kaitan dengan aktiviti yang berhubungan dengan atau yang melibatkan pengedaran dadah berbahaya sebagai sebahagian daripada sekumpulan besar orang dan adalah perlu bagi ketenteraman 135 awam supaya penama ditahan”

Therefore, the basis upon which the Order was made is as follows: “Bahawa kamu merupakan sebahagian dari sekumpulan besar orang 140 pernah ada kaitan dengan apa-apa aktiviti yang berhubungan dengan atau yang melibatkan dengan pengedaran dadah berbahaya seperti yang ditakrifkan di bawah Seksyen 2 Akta Dadah Berbahaya 1952 (Akta 234) iaitu mengedar dadah berbahaya jenis Heroin dan dadah jenis Syabu yang mengandungi dadah berbahaya jenis 145 Methamphetamine seperti yang tersenarai di bawah Jadual Pertama,

It was argued that:

At the time the Detention Order was issued against the Applicant, the Deputy Minister had never stated that he was satisfied that the Applicant's actions had been 155 S/N 1X626tvvSkyCLauYi/nqRA threatened by any large group of persons, which is one of the essential elements and must be proven and clearly stated when considering whether a Detention Order should be issued against the Applicant.

It impaired the impugned Detention Order issued against 160 the Applicant, rendering it ineffective and defective.

This defect cannot be remedied by filing an affidavit by the Respondents.

4.2 Second issue: 165 Failure to prove compliance with Section 3 of the Act as well as Article 5(3) of the Federal Constitution when the respondents failed to prove that the police had reasonable grounds to detain the applicant under this Act 316 and also failed to inform the reasons for the arrest of the applicant – malicious arrest (mala fide), as 170 follows:

It was argued:

That any arrest under Section 3(1) of the Act should be read with Article 5(3) of the Federal Constitution, which provides that a police officer who arrests any person shall 175 inform the detainee of the reasons for such arrest as soon as possible.

The Applicant, in his affidavit in support (L.3) in paragraphs 6.10 and 6.11, affirmed that he was not informed of the reason/s why he was detained and 180 arrested by the police.

Even though ASP Harinderan A/L Krishnan, the Arresting Officer, has filed an Affidavit of Reply (L.13) to prove the Applicant's arrest, it is argued that:

It is merely an empty allegation as no police report has been submitted to support the averment and submitted that there are two (2) conflicting versions.

In the case of SK. Tangakaliswaran A/L Krishnan v Timbalan Menteri Dalam Negeri & Ors [2009] 6 CLJ 190 S/N 1X626tvvSkyCLauYi/nqRA 705, FC, the Federal Court observed if there were any discrepancies between the affidavits filed, the Court reserves the right to choose the version in favour of the Applicant and determine that the Respondent failed to discharge its burden of proof.

The Applicant:

Was arrested on 01.11.2023 at 10.50 am.

His statement was only recorded on 07.11.2023 at 9.00 am-5.00 pm (paragraph (7), Affidavit Insp Mohammad 200 Zamri Bin Tan affirmed on 02.09.2024 (L.12).

In the same Affidavit, the deponent met the witnesses to record the statements of the witnesses on:

(i)

10.11.2023 from 10:00 am to 12:00 noon.

(ii)

15.11.2023 from 10:00 am to 12:00 noon, and 205

(iii) 19.11.2023 from 10:00 am to 12:00 noon.

The learned counsel argued that, collectively, taking the events above, one could see that the Applicant's case was only constructed after the arrest.

It was further submitted that there was no evidence to justify the arrest and detention of the Applicant for investigation at the material time.

The learned counsel went on further to suggest that there was no evidence or any reasons to believe that there were 215 grounds justifying the Applicant's detention under Section 6(1) of the Act.

It was further argued that the Respondents failed to show that the express requirements of Section 3 of the Act have been complied with.

The burden lies with the Respondents, citing Re Tan Sri Raja Khalid Bin Raja Harun [1988] 1 MLJ 182, FC where it was observed: “… Where a person who has been deprived of his liberty challenges the detention, it is for the authority to show that the person has been 225 detained in the exercise of a valid legal power.”

Therefore, it was argued that:

The Respondents have failed to prove compliance with the mandatory procedures at the time of the Applicant's arrest under Section 3 of the Act by failing to produce an arrest report to prove that the police had reasonable grounds to justify the Applicant's detention.

They also failed to prove that the Applicant had been promptly informed of the reasons for his arrest under Section 28A of the Criminal Procedure Code and Article 5(3) of the Federal Constitution. 240 4.3 Third Issue: The length of time taken to complete an investigation is not included in the definition of practical urgency (kesegeraan praktik) and has no merit:

There was an unreasonable delay of sixteen (16) days in 245 commencing the investigation.

Police Inspector Muhammad Zamri bin Tan failed to submit the Applicant's written report to the Deputy Minister of Home Affairs and the Ministry of Home Affairs' Inquiry Officer, which amounts to non-compliance with Section 3(3) of the Act:

The Applicant was arrested on 01.11.2023.

His statement was recorded on 07.11.2023, a delay of seven (7) days from the date of arrest.

A copy of the complete investigation report under Section 3(3) of the Act was submitted to the Minister of Home 255 Affairs and the Investigating Officer of the Ministry of Home Affairs Investigation Officer on 21.11.2023, which resulted in a total delay of 16 days from the date of the Applicant's arrest. 260

Failure to prove compliance with Sec.5(4) of Act 316 when there was a delay of (17) days by Nor Fairoz Bin Abd Mutalib S/N 1X626tvvSkyCLauYi/nqRA (Inquiry Officer) to meet the applicant and conduct an investigation under Sec. 5(2) and Sec.5(3) of the Act, and submitting a written report under section 5(4):

Nor Fairoz Bin Abd Mutalib (IO) affirmed that he received a complete investigation report under Section 3(3) from Insp Muhammad Zamri Bin Tan on 21.11.2023.

He only investigated the Applicant on 28.11.2023, a seven-day (7) delay.

On 13.12.2023, the IO submitted a written report to the Minister of Home Affairs under section 5(4) of the Act, bringing the total delay to 17 days.

Although the deponent has explained the delay in investigating the applicant, the learned counsel submitted 275 that the reason is merely a routine and administrative excuse with no merit.

The learned counsel, however, admitted that the said Act does not provide for a period for the IO to submit the complete report to the Minister, the Investigating Officer of 280 the Ministry of Home Affairs, and the investigating officer investigating the applicant. However, action must be taken with practical urgency/ (kesegeraan praktik).

There was an unreasonable delay of (24) days and (17) days:

In the Deputy Minister of Home Affairs issuing the Detention Order and the Order of Suspension of Detention Order.

These are non-compliance with the procedures of Section 6(1) as well as Section 10 (1) and (2) read together with 290 Section 7 (1) of this Act:

The Detention Order was issued under Section 6(1) of the Act on 15.12.2023 when he had received a complete investigation report under Section 3(3) from Insp Mohammad Zamri bin Tan on 21.11.2023 and received a written report from the Inquiry 295 Officer under Section 5(4) on 13.12.2023 which makes the unexplained 24-day period. The impugned order was not made in urgency.

(ii) On 29.03.2024, the Detention Order and the Suspension Order under Section 7(1) of the Act were issued. In contrast, 300 the Yang di-Pertuan Agong approved the Advisory Board's recommendation for the Applicant's case on 12.03.2024.

(iii) Consequently, it is submitted that the Detention Order and Suspension Order were invalid. 305 4.4 Fourth issue: Failure to bring a detention witness named Puvanan A/L Kumaran to give evidence at the hearing of the Applicant's representation. It fails to comply with Section 12 and Section 16 of this Act.

The Applicant filed two applications for a subpoena against the 310 witness named Puvanan A/L Kumaran, who was remanded in Penang Prison to attend the hearing of the Applicant's representation.

He alleges that the police refused to bring this witness without clear and reasonable reasons.

This refusal to bring this witness to the hearing of the Applicant's representation has prejudiced the Applicant and rendered this Order invalid. In light of the foregoing, the Applicant submitted that the Suspension of 320 Detention Order under Section 7 (1) of the Act is invalid because it does not comply with the mandatory statutory procedures of the Act and the Federal Constitution. THE RESPONDENTS’ ARGUMENTS 325 [5] The Respondents argued as follows (briefly):

5.1 First Issue:

Alleged incompliance With Article 149 Of the Federal Constitution and the preamble of the Act 316. S/N 1X626tvvSkyCLauYi/nqRA 330

The Respondent's submitted that the allegations are untrue because all the elements set out in the decision rendered by the Federal Court, namely the case of Selva Vinayagam Sures v Deputy Minister of Home Affairs & Ors [2021] 2 CLJ 29, FC:

The legal requirements set by the Federal Court in that case were fully fulfilled before the Detention Order under Section 6(1) of the Act was issued.

In the case of Selva Vinayagam, the Federal Court has outlined three (3) elements or circumstances under which 340 the power under Section 6(1) of the Act can only be exercised: “[47] For the foregoing reasons, we think that the respondent's argument that the long title and preamble is not relevant for the purposes of interpreting sub-s. 6(1) is incongruous. It is 345 clear that the power under sub-s. 6(1) may only be exercised if the following three key ingredients are set out on the grounds of the detention order and allegations of fact. One is that the activity which has been taken or is being threatened by a substantial body of persons relates to or involves the 350 trafficking of dangerous drugs. Two, the detenu is a member of a substantial body of persons. Three, the Minister is satisfied that it is necessary in the interest of public order that the detenu be subject to preventive detention. 355 [50] We are, therefore, constrained to hold that the fact of the appellant acting alone cannot be deemed to fall within the ambit and scope of scrutiny under Act 316, which scope is explicitly confined to a substantial body of persons. The omission in setting out all three vital ingredients indicates that 360 the mind of the Deputy Minister was not applied to the question of the preventive detention of the appellant in this case. There was a failure to comply strictly with the letter of the rule of law. Consequently, the exercise of power by the Deputy Minister in the circumstances of this case is bad in 365 law.”

The Respondents reiterate that compliance with the three required elements had been satisfied before TMDN issued the Detention Order. 370 S/N 1X626tvvSkyCLauYi/nqRA

The Respondents alluded to the facts that:

The first element: TMDN was satisfied that the activities involving the Applicant are drug trafficking activities which have been taken or threatened by a large group of 375 persons involved in the drug trafficking activities seen from his averment in the Affidavit in reply (L.10) in paragraph 8. The activities which have been taken or are being threatened by a large group of people are related to or involved the Applicant carrying out the distribution of 380 dangerous drugs. In the circumstances, the first requirement is fulfilled.

The second element: The evidence in support of this element can be seen from the Detention Order and the 385 Reasons and Facts to the Applicant's Detention Order in Exhibit "DSDSA-1 of the Affidavit by TMDN in response (L.10). The phrase a large group of people has been mentioned in the Detention Order and the Reasons and Facts to the Applicant's Detention Order. This is 390 consistent with TMDN's averment in paragraph 8 that when he issued the Detention Order, he was satisfied that the Applicant, along with a large group of people, were involved in dangerous drug trafficking activities. In support, the Respondents cited the Federal Court in Peter 395 Chang Nyuk Ming v. Timbalan Menteri Dalam Negeri & Ors [2023] 7 CLJ 521, FC, held: “[28] Generally, the proper consequential order would be to remit the application to the High Court for consideration on the 400 merits of the application. However, learned SFC has conceded that the present detention order suffers from a serious deficit, which renders the detention unlawful, null and void as determined in Selva Vinayagam [supra] and Asmira binti Misman v. Timbalan Menteri Dalam Negeri, Malaysia & 2 405 Lagi [05HC-169-09/2022(B)]. [29] There are no specifications of the presence of a substantial body of persons, be it in the detention order or the grounds of detention, as is required under the terms of Article 149 of the Federal Constitution under which Act 316 was enacted. The 410 S/N 1X626tvvSkyCLauYi/nqRA stark absence of this requisite renders the detention of the appellant invalid. [30] We record our appreciation to the learned SFC for that concession. [31] In such circumstances, it would serve no useful purpose to 415 then remit the case for hearing on the merits. In order to do substantial justice, we accept the concession of learned SFC, and we order that a writ of habeas corpus be issued forthwith.”

The Respondents argue that it is not difficult to 420 understand that the Applicant is involved with more than one other criminal accomplice who forms part of a large group of people in the thriving drug trafficking activities by facilitating drug trafficking activities in the distribution area. The facts in this case clearly show that the Applicant 425 did not carry out activities alone but was involved in dangerous drug trafficking activities. The Applicant also played the role of hiring runners to assist in delivering dangerous drugs to the customers. 430

(ii) In the circumstances, the facts as established and taken into account the exhibit, the Applicant, the drug supplier, and the purchaser of the drug, collectively forming a chain of a large group of persons involved in drug trafficking activities. In other words, the Applicant's 435 drug trafficking activities involve a large group of people in the meaning, nature and philosophy of the Preamble and Long Title of the impugned Act. Therefore, the second element in Selva Vinayagam is satisfied. 440

The third element: before issuing a Detention Order made under Section 6(1) of the Act, TMDN was satisfied that it was necessary in the public interest for the Applicant to be subjected to preventive detention, seen through the description of the Affidavit in Reply by TMDN 445 in paragraph 8 (L.10). TMDN was satisfied that the Applicant's involvement in the drug trafficking activities was prejudicial to public order and thus decided to issue a Detention Order under Section 6(1) of the Act. The S/N 1X626tvvSkyCLauYi/nqRA same has been translated in the Applicant's Detention 450 Order and Fact-Finding as in the Facts to the Applicant's Detention Order in Exhibit "DSDSA-1, Affidavit in Reply by TMDN (L.10). Therefore, in light of the above, all three legal 455 requirements have been met, showing that TMDN's mindset has been directed and appropriately applied to the Applicant's detention under the Act. There was no alleged failure to comply with the provisions of the law to legally impair the Detention Order against the Applicant, 460 rendering it unlawful or irregular within the meaning of the Act.

Arguments on the Preamble of the Act: It is trite law that if the operative provision of an Act of 465 Parliament is clear or explicit in its meaning, the Court must give the natural and ordinary meaning of the provision without adding any meaning that leads to an effect other than the natural effect of the provision. Reference to the Hansard will only be helpful as a tool to that interpretation if a disputed 470 provision has a divergent meaning:

It is also trite law in statutory construction that parties can’t simply argued on deeming provisions into a statute of parliament when there is none. The Federal Court in the Selva Vinayagam case never explicitly limited the 475 application of the impugned Act exclusively to dangerous drug syndicates or cartels.

The Federal Court in Tebin Mostapa v. Hulba-Danyal Balia & Anor [2020] 7 CLJ 561, FC held that the applicable principle in a nutshell as follows: 480

In construing a statute, effect must be given to the object and intent of the Legislature in enacting the statute.

(ii) The court's duty is limited to interpreting the words used by the Legislature and giving effect to the words used by it.

(iii) The court will not read words into a statute unless an apparent reason for it is to be found in the statute itself.

(iv) If the words are unclear, the court may adopt the purposive approach to construe the meaning.

Section 17A of the Interpretation Acts 1948 and 1967 490 provides a purposive approach to interpreting statutes.

(vi) The statute should be construed as a whole, and the words used in a Section must be given their plain grammatical meaning.

(vii) The court will not add or subtract any word; its duty is limited 495 to interpreting the words used by the legislature, and it has no power to fill in the gaps disclosed.

(viii) Even if the words in a statute may be ambiguous, the power and duty of the court 'to travel outside them on a voyage of discovery are strictly limited'.

(ix) The relevant provisions of an enactment must be read following the legislative purpose, especially where the literal meaning is clear.

An interpretation that would advance the object and purpose of the enactment must be the prime consideration of the 505 court to give its whole meaning and effect in achieving the declared objective.

The Federal Court in Samat Yamin v. PP [2023] 6 CLJ, FC, in a nutshell, observed:

The preamble of an enacted law is only to be taken as an aid to interpret its provision when its meaning is unclear or doubtful.

(ii) Citing with approval and following the ruling by Eusoffe Abdoolcader J in Re Application of Tan Boon Liat; Tan 515 Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 1 LNS 126; [1976] 2 MLJ 83 at p. 85 that:

Although the preamble is a part of a statute, it is not an operating part.

The aid of the preamble can be taken only when there is some doubt about the meaning of the operative part of the statute.

The preamble undoubtedly throws light on the intent and design of the enacting authority. It indicates the scope 525 and purpose of the legislation itself, but it should not be read as a part of a particular section of that written law.

Where the enacting part is explicit and unambiguous, the preamble cannot be resorted to control, qualify or restrict it.

The enacting words of the statute are not always to be limited by the words of the preamble and must, in many instances, go beyond it, and where they do so, they cannot be cut down by reference to it. 535 The Act intends to address, through preventive measures, persons involved in dangerous drug trafficking activities. The actions and threats described in the preamble to the Act refer to dangerous drug trafficking activities and any activities related to the trafficking of dangerous drugs. It is indeed misconceived on 540 the Applicant's part to argue a need to add or expand the intent of Parliament. The Applicant cannot suggest an interpretation to add or expand the elements not prescribed by the Federal Court in the Selva Vinayagam case. Similarly, the Federal Court in Mariam Binti Mohd Samat v. Minister of Home Affairs, Malaysia and 2 545 others [Federal Court of Criminal Appeal No.05(HC)-58- 03/2024(B)] (Decision on 12.08.2024) and in Jeddahlyn Lopez Lingat v. Minister of Home Affairs, Malaysia and 2 Others [Federal Court of Criminal Appeal No.05(HC)-82-06/2024(B)] (Decision on 23.09.2024), the same route was taken on almost 550 similar issues where they were rejected by affirming the decision of the High Court. It is evident that the argument by the Applicant in an attempt to secure his release from his lawful detention, is untenable. 555

5.2 Second Issue: Alleged failure to prove compliance with Section 3 of the Act 316 and Article 5(3) of the Federal Constitution in failing to establish that the police have reasonable grounds to detain the Applicant 560 under the Act and also fail to inform the reasons for his arrest, under Section 28A of the CPC.

It was pointed out by the Respondents that there is no such legal requirement that the Applicant's arrest report be submitted to him to prove that the Police have reasonable 565 grounds to justify his detention under the Act and to prove that he was promptly informed and explained the reasons for the arrest, both under Section 28A of the CPC and Article 5(3) of the Federal Constitution. In Kesavan Krishnan v. PP & Another Appeal [2015] 6 CLJ 163, CA, the Court of Appeal 570 ruled that the failure of the prosecution to produce the arrest report did not warrant an adverse inference under section 114(g) of the Evidence Act 1950 to be made against the prosecution in such circumstances. It held that it is trite under section 51A CPC, and only the First Information Report (FIR) 575 should be produced: Dato' Seri Anwar Ibrahim v. PP [2010] 4 CLJ 265.

The Federal Court in Lee Kew Sang v. Deputy Minister of Home Affairs, Malaysia & Ors [2005] 3 CLJ 914, FC observed that if it had not been specified in any provision of 580 law, then it was not a requirement. It is not the function of the Court to create a mandatory procedure where there is none.

The Police had reasonable grounds to justify the Applicant's detention under the Act. They also informed and explained the reasons for the arrest as soon as possible following Section 585 28A of the Criminal Procedure Code and Article 5(3) of the Federal Constitution.

This has been clearly stated in the Affidavit of Reply by ASP Harinderan a/l Krishnan (L. 13 in paragraph 4), the Arresting Officer in this case. 590 S/N 1X626tvvSkyCLauYi/nqRA The Respondents assert that all procedures under Section 3 of the Act 316 and Article 5(3) of the Federal Constitution have been fully complied with. The Applicant's attempt to cloud the issue by raising an untenable mala fide issue cannot impact the Respondents’ 595 procedural compliance. The Federal Court has rejected mala fide arguments numerous times, as seen in Lee Kew Sang v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914, FC that observed:

Mala fide appeared to be the most crucial ground to challenge 600 the detention in that case.

However, under the amended legislation, the grounds for challenge are limited to one: procedural incompliance.

The Court must first determine if the ground argued by the Applicant falls within the meaning of procedural non- 605 compliance.

It's not for the Court to create procedural requirements. If there is none, then there can be no procedural incompliance. Therefore, the unfounded adverse suggestion to impair the process 610 must be dismissed in the present case.

5.3 Third Issue: The duration taken to complete an investigation is not in accord with the definition of practical urgency.

The Applicant argued the delay amounts to a non-compliance with the Act 316.

The Respondents refuted the suggestion by arguing that the Police Investigating Officer and the Inquiry Officer prepared and submitted the Complete Investigation Report and Written 620 Report within a period of practical urgency and without undue delay: S/N 1X626tvvSkyCLauYi/nqRA

A literal reading of the impugned sections 3(3) and 5(4) of the Act does not impose a period for submitting statutory reports.

Section 54(2) of the Interpretation Act 1948 & 1967 impresses it that the calculation of time when not provided for by an Act of Parliament refers to a practical and frequent urgency as the matter complained of arises (with all convenient speed and as often as the prescribed 630 occasion arises).

Convenient speed underlines that such statutory actions must be carried out without extraordinary delay and that the Statutory Officer cannot show a lackadaisical attitude or indifference in the discharge of the responsibilities 635 outlined by the Act.

The Respondents relied on and cited (among the cases):

The Federal Court’s observation in Deputy Minister of Home Affairs, Malaysia & Anor v. Awang Sari Bin 640 Lasikan [05(HC)- 69-04/2021(B)], FC that ruled:

A reading of the Act clearly envisages that the Minister must make regulations detailing time limits. Where he has failed to do so, the Interpretation Acts come into play.

(ii) Expeditiously as possible must be defined with an objective 645 test to be determined by the Court when considering all circumstances that vary from case to case.

(iii) If excessive time is taken over the production of the requisite reports, the duration of the detention time will be affected. 650

The Federal Court’s observation in Minister of Home Affairs & Ors v. Gopal R Subramaniam [2017] 6 CLJ 593, FC in interpreting the term forthwith in Section 10(2) of the Prevention of Crime Act:

The word "forthwith" in s. 10(2) of POCA is to be construed as 655 “as soon as reasonably practicable”, having considered all the facts of the case and not “then and there” or “immediate”.

(ii) If the facts of the case show that there was a delay in the officer having custody of the applicant in serving a copy of the finding of the inquiry officer on that person, the court must then 660 S/N 1X626tvvSkyCLauYi/nqRA look at the affidavit of the respondent to ascertain whether the respondent has explained the delay sufficiently.

(iii) The court then must consider in the circumstances of the case and the explanation for the delay, whether the officer acted without unreasonable delay and as soon as practicable.

In light of the above principles of law, the Respondents argued that this issue should be assessed objectively in the light of the circumstances and facts surrounding a case. 670

In the present case, the Affidavit in Reply by Inspector Muhammad Zamri bin Tan (IO), specifically in paragraph 14(g)(i) -(xix), displayed the use of time concerning the Applicant's arrest on 01.11.2023 to the date which the Complete Investigation Report is completed and submitted to 675 TMDN and the Inquiry Officer on 21.11.2023. The IO never once left the Applicant's case file without any update, as can be seen in the said affidavit. There is no issue of delay or indifference in the investigation on the Applicant. In light of these disclosures, the unfounded allegation by the Applicant 680 that the IO only recorded the Applicant's statement seven (7) days after the Applicant's arrest is untenable. Under the provisions under Section 3(1) of the Act, arrests and detentions are made for the purpose of investigation. In other words, investigations can only be completed after the arrest 685 and detention of the Applicant. It stated the following:

The IO recorded the statements of three (3) witnesses to assist the investigation of the Applicant's case, namely on 10.11.2023 at 10:00 a.m. and 15.11.2023 at 10:00 a.m.

The last witness recorded his statement on 19.11.2023 at 690 10:00 a.m., three (3) days before the Complete S/N 1X626tvvSkyCLauYi/nqRA Investigation Report was submitted to TMDN and the Ministry of Home Affairs Inquiry Officer on 21.11.2023.

The search for these witnesses is not easy. They are difficult to trace since they are not fixed at any particular 695 location.

The IO also has to prepare before each conversation recording is made. At the same time, the IO carried out actions to obtain records and related reports on the Applicant from other agencies and documentation that 700 would lead to a complete investigation report on the Applicant under Section 3(3) of the Act.

The IO went to the locations of drug trafficking activities in the Applicant's case to ascertain the existence of the drug trafficking areas, taking relevant photographs and 705 conducting further investigations on the Applicant's case to be included in the case file.

Apart from conducting investigations into the Applicant's case, the IO is also involved in other police duties within the scope of the essential responsibilities of an 710 Investigating Officer. In the circumstances, there was no undue delay in the period taken by the IO, as alleged by the Applicant. The investigation process covers all aspects of the Applicant's involvement in 715 dangerous drug trafficking activities, including obtaining evidence, records, and other relevant documents to obtain complete investigation results.

Concerning the Inquiry Officer, in the Affidavit in Reply by Nor 720 Fairoz Bin Abd Mutalib in paragraph 11(f)(i)-(xvii) showed that he worked diligently to conduct a physical inquiry investigation on the Applicant and also on witnesses who can assist in the investigation of the Applicant's case. At the same time, the S/N 1X626tvvSkyCLauYi/nqRA Inquiry Officer also has to handle other case files for different 725 subjects:

It would be unfair to make unfounded claims that the Inquiry Officer only conducts an inquiry after the first seven (7) days of receiving the Complete Investigation Report from the IO.

After receiving the Applicant's case file, the Inquiry Officer needs to make preparations by reading and examining the Applicant's case file.

The Inquiry Officer must also make arrangements with PDRM before being able to conduct a physical inquiry 735 investigation on the Applicant.

The Inquiry Officer must also plan his travel since the Applicant is in the Bayan Baru Police Station Lock-up, Penang.

During that period there were also three (3) rest days and 740 two (2) weekend holidays during which the Inquiry Officer was not working and did not have access to the Applicant's case file.

The last witness whose statement was recorded was on 11.12.2023 at 11.15 am, i.e. two (2) days before the 745 Written Report was submitted to TMDN on 13.12.2023.

The Inquiry Officer also physically inquired into three (3) witnesses in the Applicant's case with the assistance of the PDRM to trace relevant witnesses to assist in the investigation of the Applicant's case.

The Inquiry Officer must also make arrangements with the PDRM before being able to conduct a physical inquiry of the witnesses in the Applicant's case.

The witnesses are in different locations, and it is time-consuming to locate them. 755 The Respondents cited Muhammad Redzuan Omar v Timbalan Menteri Dalam Negeri Malaysia & Another [2022], FC, and explained through the affidavits that the S/N 1X626tvvSkyCLauYi/nqRA procedures as prescribed had been complied with and that 760 there was no delay. The total period of 35 days taken to conduct the investigation, inquiry, and submission of the report to the Minister is within the prescribed 60 days. The Respondent gave credible reasons for the period taken to investigate and inquire. In Vignasevaran A/L John Joseph 765 v. Deputy Minister of Home Affairs, Malaysia & Ors [2021] 1 LNS 918, FC, it was held where the Statutory Officers used thirty-six (36) days and twenty (21) days period to complete their investigation. It was observed that:

To arrive at a correct finding of fact as to whether there is 770 a delay on the part of the police investigating officer to complete the report of the investigation and submit it to the Inquiry Officer and the Minister, this Court had to look into the affidavit by ASP Noraznim binti Khaironniam.

Paragraph 12 of the affidavit by ASP Noraznim binti 775 Khaironniam gives a clear explanation and reasons for the 36 days taken by the police investigating officer to complete the investigation and to submit a copy of the complete report to the Inquiry Officer and the Minister.

The Court referred to the affidavit in which she had given 780 a day-by-day account of her schedule commencing from 10.12.2019 until 14.1.2020 as stated in paragraph 12 and particularly in subparagraph (h) (1.1 until 1.29) of her affidavit.

She was required to investigate this case and perform 785 other duties as a senior police officer.

This Court believes that the reasons and justification afforded by the police investigating officer were reasonable and satisfactory.

Therefore, the period of 36 days taken from the date of 790 arrest until the submission of the complete report of investigation to the Inquiry Officer and the Minister is reasonable, credible and without inordinate delay. S/N 1X626tvvSkyCLauYi/nqRA The Respondents cited the Federal Court’s observation in N 795 Ramakrishnan P Nagasamy v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors [2008] 7 CLJ 480, FC where it was said that there is no requirement that the Minister set out or specify the date when he was 'satisfied' because it is the date of the detention order. The minister is 800 not required to decide whether or not to exercise his discretion immediately upon receiving the relevant reports. That would attract criticism for failing to give any adequate consideration to the reports, which is a crucial part of the basis for his decision. Consequently, the complaint on this issue by the 805 Applicant is devoid of merit and must be dismissed.

5.4 Fourth Issue: Alleged failure to produce a detainee named Puvanan A/L Kumaran as a witness to give evidence at the Applicant's 810 representation hearing. It is an alleged default under Section 12 and Section 16 of the Act:

The Respondents referred to the Affidavit in Reply of the Secretary to the Advisory Board (Azrul Hafriz bin Azman) (L. 19, paragraph 22) on the requested witness:

The Applicant's lawyer must complete the submission of the subpoena and deal with the prison authorities themselves for the submission of the witness. Any failure to comply that causes the requested witness to be absent is beyond the responsibility of the Advisory Board.

Neither the Applicant's lawyer nor the Applicant himself applied for any postponement of the representation hearing for any reason whatsoever due to the absence of the witness. 825

The Superintendent of Prisons in the Affidavit in Reply of Mohammad Safwan Bin Sizali (L.27, paragraph 5) disclosed that:

The Applicant's counsel, through the WhatsApp chat, was informed of the cost of attendance, which includes the 830 cost of travel, accommodation and food for the requested witness, Puvanan a/l Kumaran, who is remanded under Section 39B (1) of the Dangerous Drugs Act 1952 in Penang Prison was declined by the said lawyer.

The Prison Authority could not produce the requested 835 witnesses as the cost of witness attendance must be borne entirely by the lawyer, as instructed by the Security and Public Order Division, Ministry of Home Affairs, Putrajaya, which the lawyer declined. 840

The Applicant was misguided into thinking that Section 16 of the Act applies to the attendance of witnesses for the Applicant in his representation hearing. In the circumstances, the learned Federal Counsel submitted that all procedural requirements have been met in the present case. The 845 Applicant has failed to discharge his burden to prove his assertions that justify this JR application, and it should be dismissed. THE LAW [6] Preventive detention 850 6.1 In a nutshell:

Article 149 of the Federal Constitution (FC) has been amplified by the Constitutional Amendment Act 1978 to deal with not only subversion but any social problem, notably drug trafficking by use of special powers transgressing the 855 fundamental rights provisions of the FC. S/N 1X626tvvSkyCLauYi/nqRA

In this regard, Article 149 FC enables Parliament, once any one or more of the six categories of action enumerated under paras (a) to (f) of cl (1) had occurred, to make law providing not only for its suppression but also for preventing its 860 recurrence.

Where it confers on the Executive power to act in a manner inconsistent with Articles 5, 9, 10 or 13 of the FC, the action must be taken bona fide for stopping or preventing the action of the kind envisaged under the Act.

Article 149 of the FC affirmed the validity of legislation enacted against subversion, action prejudicial to public order, etc notwithstanding that such legislation might be at variance with the fundamental liberties contained in Articles 5, 9, 10 or 13 of the FC.

6.2 The Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) is one of the statutes legislated by the Parliament that makes provisions for preventive detention under which the fundamental liberties prescribed under Article 5 of the FC (liberty 875 of the person), Article 9 (prohibition of banishment and freedom of movement), Article 10 (freedom of speech, assembly and associations) and Article 13 (right to property) might be circumscribed:

The singular feature of preventive detention was that the 880 detenu was subject to detention without trial on the assumption that his release would not be in the best interest of society.

The detenu was detained at the executive's instance (Executive detention) not for what he had done but for what he might do if he remained free at large. 885 S/N 1X626tvvSkyCLauYi/nqRA

6.3 The power under subsection 6(1) of Act 316 might only be exercised if the following three key ingredients were set out in the grounds of the detention order and allegations of fact:

The activity which had been taken or was being threatened by 890 a substantial body of persons related to or involved in the trafficking of dangerous drugs.

The detenu was a member of a substantial body of persons.

The Minister was satisfied that it was necessary in the interest of public order that the detenu be subject to preventive 895 detention. See Selva Vinayagam Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] MLRA 83, FC FINDINGS 900 [7] In determining the Applicant’s JR application:

7.1

I have examined all-cause papers, affidavits, and evidential materials adduced and duly considered the parties’ respective arguments in paragraphs [4], and [5] above.

In doing so, I took guidance from the Federal Court in Selva 905 Vinayagam Sures’s and several other Federal Court decisions on their determination of Act 316 and the three key ingredients required in determining the present JR application.

In challenging the legitimacy of his detention under Act 316, the Applicant had grounded his JR application on four issues 910 as stated at para 4, above. I find the applicant's allegation on the first issue unsustainable in light of the facts before the Court. Examining the evidence of the Respondents, the three S/N 1X626tvvSkyCLauYi/nqRA legal requirements of Selva Vinayagam Sures have been met:

The Affidavit in Reply, at paragraph 8 (L.10) by TMDM, addresses the activities that have been taken or are being threatened by a large group of people related to or involving the Applicant distributing dangerous drugs.

Examining Exhibit DSDA-1, similar issues were noted in the 920 Detention Order and the Reasons and Facts for the Applicant's Detention Order., consistent with his statement in paragraph 8 that when he issued the Detention Order, he was satisfied that the Applicant, along with a large group of people, were involved in dangerous drug trafficking activities.

Similarly, in paragraph 8, TMDN was satisfied that it was necessary in the public interest for the Applicant to be subjected to preventive detention. He had duly addressed his mind to the issue. He was satisfied that the Applicant's involvement in the drug trafficking activities was prejudicial to 930 public order and thus decided to issue a Detention Order under Section 6(1) of the Act. The same has been translated in the Applicant's Detention Order and Fact-Finding as in the Facts to the Applicant's Detention Order in the foregoing Exhibit "DSDSA-1.

I agree with the observation that a party cannot argue about the statute's preamble to attempt to read deeming provisions that are not there. The Selva Vinayagam case is never explicitly limited to the application of the impugned Act exclusively to dangerous drug syndicates or cartels. The effect 940 must be given to the object and intent of the legislature in S/N 1X626tvvSkyCLauYi/nqRA enacting Act 316: Tebin Mostapa v. Hulba-Danyal Balia & Anor [2020] 7 CLJ 561, FC; Samat Yamin v. PP [2023] 6 CLJ, FC that observed that although the preamble is a part of a statute, it is not an operating part.

7.2 On the second issue by the Applicant, I agree with the arguments of the Federal Counsel for Respondents that:

There is no legal requirement that the Applicant's arrest report be submitted to him to prove that the Police have reasonable 950 grounds to justify his detention under the Act and to prove that he was promptly informed and explained the reasons for the arrest, both under Section 28A of the CPC and Article 5(3) of the Federal Constitution: Kesavan Krishnan v. PP & Another Appeal [2015] 6 CLJ 163, CA; Dato' Seri Anwar Ibrahim v. 955 PP [2010] 4 CLJ 265; Lee Kew Sang v. Deputy Minister of Home Affairs, Malaysia & Ors [2005] 3 CLJ 914, FC.

There is cogent evidence that the Applicant was informed of the reasons for the arrest as soon as possible following Section 28A of the Criminal Procedure Code and Article 5(3) 960 of the FC: Affidavit of Reply by ASP Harinderan a/l Krishnan (L.13 in paragraph 4), the Arresting Officer in this case.

The Applicant's attempt to cloud the issue by raising an untenable mala fide issue cannot impact the Respondents’ procedural compliance: Lee Kew Sang v Timbalan Menteri 965 Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914, FC.

7.3 The third issue of undue delay in the investigation is untenable. I find the explanation offered by the Respondents that the Police Investigating Officer and the Inquiry Officer prepared and submitted 970 S/N 1X626tvvSkyCLauYi/nqRA the Complete Investigation Report and Written Report within a period of practical urgency and without undue delay:

The facts establish that the impugned sections 3(3) and 5(4) of the Act do not impose a period for submitting statutory reports. The immediacy of practice underlines that such 975 statutory actions must be carried out without extraordinary delay and that the Statutory Officer cannot show a lackadaisical attitude or indifference in the discharge of the responsibilities outlined by the Act: Deputy Minister of Home Affairs, Malaysia & Anor v. Awang Sari Bin Lasikan 980 [05(HC)- 69-04/2021(B)], FC: Expeditiously as possible must be defined with an objective test to be determined by the Court when considering all circumstances that vary from case to case.

It is trite law that if at all the facts of the case show that there 985 was a delay in the officer having custody of the applicant in serving a copy of the finding of the inquiry officer on that person, the court must then look at the affidavit of the respondent to ascertain whether the respondent has explained the delay sufficiently. The court then must consider 990 the circumstances of the case and the explanation for the delay, whether the officer acted without unreasonable delay and as soon as practicable: Minister of Home Affairs & Ors v. Gopal R Subramaniam [2017] 6 CLJ 593, FC.

In light of the foregoing, I find no undue delay on the part of 995 the Respondents as alleged. In any event, I am satisfied with the Affidavit in Reply by the IO, Inspector Muhammad Zamri S/N 1X626tvvSkyCLauYi/nqRA bin Tan, specifically in paragraph 14(g)(i) -(xix), and the Affidavit in Reply by Inquiring Officer, Nor Fairoz Bin Abd Mutalib in paragraph 11(f)(i)-(xvii) that both clearly explained 1000 what had transpired during the period complained of.

7.4 On the fourth issue, from the evidence of the Respondents:

The Respondents cannot be faulted for failing to produce the witness since the Applicant and his lawyer declined to bear the cost. 1005

I observed that neither the Applicant nor his lawyer sought a postponement of the representation proceedings in light of the absence of the witness.

I have examined and accepted the Affidavits of the Secretary to the Advisory Board (Azrul Hafriz bin Azman) (L.19, 1010 Paragraph 22) and the Superintendent of Prisons in the Affidavit in Reply of Mohammad Safwan Bin Sizali (L.27, Paragraph 5), that both had duly clarified the issue on the witness. [8] In the circumstances, I find no failure by the Respondents in 1015 complying with the three legal requirements as held by the Federal Court in Selva Vinayagam Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] MLRA 83, FC:

The Applicant’s attempt at stating the facts of the case to suit his version of acting alone and not acting in concert with or 1020 involved in a substantial body of persons in the criminal act of trafficking in dangerous drugs in the hope that does not fall within the ambit and scope of Act 316 is untenable in light of the evidence from the Respondents. S/N 1X626tvvSkyCLauYi/nqRA

There is no procedural irregularity to impair the impugned 1025 detention as alleged.

The TMDM had acted appropriately within the letter of the law and had applied his mind to the facts and circumstances before making his determination on the detention order of the Applicant. 1030 CONCLUSION [9] All things considered, I find that there are no procedural non-compliance, illegality or irrationality that would justify allowing this application. The Applicant’s JR application in dismissed with no 1035 order for costs. Dated 11.04.2025. 1040 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA 1045 KUALA LUMPUR Parties: Naizatul Zamrina Karizaman together with Meera a/p Mathivanan 1050 Messrs. K.L Chee & Co Counsels for the Applicant Mohamad Firdaus bin Sadina Ali Federal Counsel for the Respondents 1055 S/N 1X626tvvSkyCLauYi/nqRA