Panirthasan A/L Muthy (BA-45-35-08/2024)

Panirthasan a/l Muthy, the accused, is charged with the following offences under the Dangerous Drugs Act 1952 (DDA) and a charge under the Firearms (Increased Penalties) Act 1971. The charges in the original text state as follows: BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 a. First charge - exhibit P2 Bahawa kamu pada 17/07/2023 pada jam lebih kurang 8.30 malam, bertempat di alamat No. A-08-19, Universal 360, Jalan Raya 2, Taman Serdang Raya, Seri Kembangan, dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya jenis Heroin [berat bersih 14,613.1 gram] 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. b. Second Charge - Exhibit P4 Bahawa kamu pada 17/07/2023 pada jam lebih kurang 8.30 malam, bertempat di alamat No. A-08-19, Universal 360, Jalan Raya 2, Taman Serdang Raya, Seri Kembangan, dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya jenis Methamphetamine [berat bersih 3,315.1 gram] 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. c. Third charge – exhibit P6 Bahawa kamu pada 17/07/2023 pada jam lebih kurang

8.30 malam, bertempat di alamat No. A-08-19, Universal 360, Jalan Raya 2, Taman Serdang Raya, Seri Kembangan, dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya jenis Monoacetylmorphines [berat bersih 753.1 gram] 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. d. Fourth charge – exhibit P8 Bahawa kamu pada 17/07/2023 pada jam lebih kurang 8.30 malam, bertempat di alamat No. A-08-19, Universal 360, Jalan Raya 2, Taman Serdang Raya, Seri Kembangan, dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah didapati mempunyai dalam milikan dadah berbahaya jenis Cannabis [berat bersih 97.99 gram] 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. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 2 e. Fifth charge – exhibit P10 Bahawa kamu pada 17/07/2023 pada jam lebih kurang 8.30 malam, bertempat di alamat No. A-08-19, Universal 360, Jalan Raya 2, Taman Serdang Raya, Seri Kembangan, dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah didapati memiliki senjatapi dengan menyalahi undang-undang iaitu ‘1 pucuk pistol jenis Revolver warna perak berhulu plastic hitam no. siri: 19582 Made in USA’. Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 8 Akta Senjata Api (Penalti Lebih Berat) 1971.

The accused pleaded not guilty, and the accused claimed trial on all the charges preferred against him. At the close of the prosecution's case, this Court, having considered the oral and written submissions of both parties and the evidence adduced, and after undertaking a maximum evaluation of the evidence of the witnesses and documents tendered, found that the prosecution had failed to prove a prima facie case against the accused. This Court acquitted and discharged the accused on all the charges against him without calling the accused to enter his defence.

The prosecution, being aggrieved by the Court's decision, filed notices of appeal against the whole decision of this Court.

Below is the Court's ground of judgment in addition to the broad BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 3 judgment read in Court on the date of the decision.

The following witnesses were called during the prosecution's case:- Witness Name Role PW 1 Roseny Augustina Chemist (Drugs) PW 2 ASP Devendran Raiding Officer PW 3 Sharifah Nur Hafiza Chemist (DNA) PW 4 Tung Yeong Jiann House Owner PW 5 Nur Diyana Management Staff of Universal 360 PW 6 Insp Ishak bin Abu Bakar Forensics Officer PW 7 Insp Khairul Aizat Serviceability Officer PW 8 ASP Rozairy Investigation Officer (Gun) PW 9 LK Nik Ahmad Izzudin Photographer PW 10 Insp Nur Fatin Adibah Substitute BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 4 Investigating Officer (Drugs) PW 11 ASP Mohd Azan Bin Radzali Investigating Officer (Drugs)

On 17.07.2023, at around 6 pm, the Accused was driving along Jalan Pandamaran, Pulau Indah Highway, 42000 Port Klang, Selangor Darul Ehsan.

The Accused was driving a Volkswagen Tiguan bearing the registration number JKH 39. Acting on information received by SP1, he and his team ambushed the accused, where one blocked his car from the front and another from the back.

The police conducted a body search and a search of the car, but the police found nothing illegal. However, PW2 found 2 sets of keys, one to the Accused's company, Panirthas Recycle Trading and another to a condominium unit at no. A-08-19, Universal 360, Jalan Raya 2, Taman Serdang Raya, 43300 Seri Kembangan, Selangor Darul Ehsan ("the Unit").

After the arrest, around 7.15 pm on the same day, the Accused was brought to Panirthas Recycle Trading located at No. 29, Jalan Sungai Chandong 19, Kampung Perigi Nenas, Pulau Indah BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 5 42920 Pelabuhan Klang, Selangor Darul Ehsan. The police searched the business premises, but nothing illegal was found.

Around 8.30 pm, PW2 and his team, together with the accused, went to the Unit. PW2 had the assistance of the security guard to access the 8th floor since the police did not find an access card on the Accused. The said Unit was locked, and the Accused was instructed to unlock the main grill gate and the door using the keys from his pocket.

As soon as PW2 entered the Unit, he saw a man, later known as Ramesh a/l Chamadre ("Ramesh"), lying on the sofa located in the living room.

PW2 proceeded to arrest Ramesh. PW2 then raided the house and found drugs, paraphernalia and a gun ("contraband") on the floor in room 2.

The police further seized a tenancy agreement between PW4 and the Accused ("Tenancy Agreement") above the TV cabinet located in the hall, an access card, a set of keys and a Toyota remote car key belonging to Ramesh.

On 18.07.2023, around 12.01 am, an officer called Muhammad Zulhisham brought Ramesh to the car park of Universal 360. The police seized two (2) of Ramesh's cars. The details of which are as follows: - BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 6 No. Floor & Parking Lot Car Owner Exhibit 1. 3A, V558 Toyota Alphard (Registration Number: WVE 8395) Ramesh's father (Chamadre a/l Vengadasamy) D96 2. 3, 641 Toyota Corolla Altis (Registration Number: WVH 8489) Ramesh's father (Chamadre a/l Vengadasamy) D97

The prosecution contended that all the ingredients of the charges had been established based on the evidence of the prosecution's witnesses and documents tendered as follows.

The drugs found were analysed by PW11 as dangerous drugs under the DDA based on the Chemist Report prepared by PW11.

The prosecution relied on the evidence of PW2, who testified as follows: a) PW2 received information regarding the trafficking of dangerous drugs by an Indian man driving a Volkswagen BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 7 Tiguan with registration number JKH 39 in the Pulau Indah Highway area, 42000, Port Klang, Selangor. b) SP3 and the team moved to the specified location and, upon arrival, saw a Volkswagen Tiguan as described in the information, driven by an Indian man. c) SP3 acted to surround and detain the vehicle. SP2 confirmed the car was driven by the suspect at that time. Only the suspect was in the car. d) A physical search of the suspect's body found a key ring containing (4) keys in the front right pocket of the jeans he was wearing. As a result, the accused was arrested. e) After the arrest, PW2 and his team interrogated the accused, and the accused informed PW2 that the seized keys were for a condominium Unit in Seri Kembangan. SP3 then went to Universal 360Condominium in Seri Kembangan, together with the suspect and the entire raiding team. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 8 f) Upon arrival at the condominium unit, the door was locked. SP2 ordered the suspect to open the door, and the suspect successfully opened it using the keys seized from him. g) The suspect then brought SP1 and the raiding team to room 2 inside the condominium Unit, which was also locked at that time. The suspect opened the door to room 2 using the seized key. The case exhibits were found on the floor inside room 2. h) The firearm seized from room 2 was sent to the firearm unit for a serviceability test, and the result from the analyst's test on the firearm was that the firearm was in good condition. i) The accused was trafficking the dangerous drugs in accordance with section 2 of the Act, where the act of "keeping, concealing and storing" the dangerous drugs in room 2 was tantamount to trafficking. j) In the alternative, the prosecution also argued that the accused had actual possession of the dangerous drugs exhibited and the accused was trafficking the drugs pursuant to the presumptive provision of trafficking under section 37(da)(i), (ii) and (xvi) of DDA. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 9

The defence, on the other hand, strongly argued that -

Based on Exhibit P11 (opening statement), the prosecution relied on the presumption of trafficking. Therefore, the prosecution must prove actual possession.

The defence contended that the accused had no knowledge, custody and control of the drug exhibits and firearm found in room 2 of the condominium Unit. In other words, the prosecution failed to prove that the accused had actual possession of the drug exhibits. Therefore, the presumption of section 37(da) of the DDA is inapplicable to the facts of the present case.

The prosecution failed to rule out Ramesh's access to the condominium Unit.

Ramesh is a material witness, and the prosecution had failed to call Ramesh as a material witness.

Why is Ramesh crucial to the prosecution's case? The defence contended that Ramesh had access to the condominium Unit because - • Ramesh was arrested in the condominium unit (P20), and he was the only person in the Unit at the point of arrest. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 10 • Ramesh was arrested with an access card, a Toyota remote car key and 3 keys (P43). • The police seized two (2) of Ramesh's cars from the condominium Unit carpark (D54, D96, D97). • On 26.06.2023, Ramesh was seen in the condominium management office (D52, Event No. 1 – 1B). • Ramesh was caught on the CCTV cameras located in the lifts of the condominium (D52, Event No. 2 – 10). • Ramesh made a payment to Universal 360 for the level 3A/4 carpark (D70) using his company account (D71).

There was suppression of evidence by the prosecution in light of the failure by the prosecution to call Ramesh to testify in Court, and the defence urged this Court to invoke an adverse inference against the prosecution under section 114(g) of the Evidence Act.

The police did not find any personal belongings of the accused in room 2.

No DNA evidence of the accused was found in room 2.

The accused was not arrested with the access card. It goes to show that the accused did not live in the condominium Unit on a full-time basis as a tenant.

PW2 agreed that Ramesh is living in the condominium Unit on a full-time basis. However, the accused was the tenant BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 11 based on the Tenancy Agreement, as the accused possessed the necessary credibility to secure tenancy.

The accused denied that he had informed PW2 of the drug exhibits and the firearm. The accused did not have knowledge of the drug exhibits and the firearm on the basis that the accused gave full cooperation to the police.

PW2 is not a credible witness as there was suppression of material evidence, failure to administer caution and reliance on hearsay evidence.

Ramesh is the real trafficker on the ground that Ramesh lives in the condominium Unit. Ramesh attempted to evade the due process of the law and the failure of the prosecution to secure Ramesh's attendance in Court. DUTY OF THE COURT AT THE END OF THE PROSECUTION CASE

Section 180(1) of the Criminal Procedure Code provides the Court's duty at the end of the prosecution case to decide whether the prosecution has succeeded in proving a prima facie case.

The cases of PP v Dato' Seri Anwar Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 AMR 2017; [1999] 2 MLJ 1, Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203 respectively laid down clear principles of law that at the end of the prosecution case, the BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 12 evidence must be subject to a maximum evaluation for the Court to determine whether the prosecution succeeded to establish a prima facie case. THE FINDINGS OF THE COURT AT THE CLOSE OF THE

IDENTITY OF THE DRUGS

The Court found that there was no challenge on the first element of the charge. The drugs exhibited were analysed by the Government's chemist (SP1), and his analysis is reflected in the Chemist Report marked as exhibit P18. Therefore, this Court is satisfied that the prosecution had proven the first ingredient of the offence. THE ACCUSED HAD NO ACTUAL POSSESSION OF THE DANGEROUS DRUG AND THE PRESUMPTION OF

The critical issue in the present case is whether the prosecution had proven the element of trafficking under section 39B(1)(a) DDA and possession of a firearm under the Firearm Act.

It is incumbent upon the Court to refer to the most celebrated case of Chan Pean Leon v PP [1956] MLJ 237, regarding possession, where Thompson J said: BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 13 "Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition, page 304):- "A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need." To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. OKT2 must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 14 inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shows such an intention. Or it must be clear that the circumstances in which it is found show such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. It is true that in prosecutions under the Dangerous Drugs Ordinance a lack of evidence in this connection may be made good by the statutory presumptions contained in that Ordinance. But there are no such presumptions in the Common Gaming Houses Ordinance nor are there any such presumptions in relation to possession of stolen property. Once possession is proved then before OKT2 person can be convicted it is necessary in addition to prove mens rea. And for this purpose as was pointed out by Gordon-Smith Ag. C.J. in the case of Toh Ah Loh and Mak Thim v. Rex [1948] 1 LNS 72; [1949] MLJ 54, supra, it is necessary to prove that the person in possession knows the nature of the thing possessed. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 15 If the thing, as in Toh's case, is in a box which itself is in the possession of OKT2 it must be proved that he knew what was in the box. If, as in Lee's case, it was a lottery document it must be proved that he knew it was a lottery document. Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in OKT2's behaviour that shows knowledge, or the nature of the thing may be so obvious that it is possible to say "he must have known what it was" or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence."

Further, the Federal Court in Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113 applying Chan Pean Leon (supra) held as follows: "The law is well settled that having only custody or control over the said drugs is insufficient to establish "possession". The physical act of custody or control must be accompanied with evidence that the accused had knowledge of the said drugs. In the absence of any statutory presumption, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either physical BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 16 custody or control or both is insufficient in law to constitute possession, let alone trafficking. (See the case of Chan Pean Leon v. PP [1956] 1 LNS 17)."

Bearing in mind the trite judicial propositions on the issue of possession, the prosecution bears the burden of proving actual possession, and the prosecution must demonstrate that OKT had physical control of the dangerous drugs. Not only that, but the prosecution must also prove that OKT knows the contents of what was in his custody.

In the context of the case, based on Exhibit P11, the opening statement of the prosecution under section 179 of the Criminal Procedure Code (CPC), the defence contended that the prosecution must prove actual possession of the dangerous drug exhibits so as to apply the presumption of drug trafficking under section 37(da) of DDA.

Nonetheless, as can be seen from the prosecution's written submission, the learned deputy public prosecutor had adopted an alternative argument that the accused had the presumptive knowledge of the possession of the drugs under section 37(d) DDA. Therefore, the accused was trafficking, vis-à-vis, section 2 of the DDA, in which the accused was trafficking the dangerous drugs by "keeping, concealing or storing".

Alternatively, the prosecution contended that the accused had actual possession and presumptive trafficking under section 37(da) BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 17 of the DDA applies because of the weight of the dangerous drugs under the DDA.

Having carefully analysed the notes of proceeding with great scrutiny and bearing in mind the judicial proposition that the opening statement is only to satisfy the Court that the charge against the accused was not frivolous and that there is some evidence for proceeding against the accused. Based on the evidence before the Court that the drug exhibits were found lying on the floor in room 2, this Court agree with the defence that the prosecution must prove that the accused had actual possession of the drugs and the presumption of trafficking under the DDA applies.

It was the prosecution's case that the accused had actual possession of the dangerous drugs, based on the testimonies of PW4 and PW11, who confirmed that the condominium Unit was rented out to the accused according to the Tenancy Agreement exhibit P30. The accused was having the keys to the Unit and room 2, where the police found the exhibits.

Further, based on the prosecution's narratives, PW2 acted on the information on drug trafficking activity, leading a party of police personnel to the area of Pulau Indah Highway, Port Klang, Selangor.

As the team reached the area, PW3 and his team observed a Volkswagen Tiguan, which was driven by a male Indian as described in the information received. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 18

PW3 blocked the car and stopped it, and PW3 confirmed that the car was driven by the accused. The police conducted a body search on the accused, where a set of 4 keys was found in the front pocket of the jeans worn by the accused.

From the interrogation with the accused before PW2 and his team went to the accused's business premises, the police alleged that the accused informed PW2 that the key seized by the police is a key to the condominium Unit, which is the material evidence to the prosecution to establish possession of the contraband.

The prosecution contended that the accused led PW2 and his team to room 2, which was locked. The accused used the key to unlock the room, and the team found the drugs, paraphernalia and a gun on the floor (exhibits).

Thus, the prosecution submitted that the above narratives formed the basis of the prosecution's contention that the accused had possession of the impugned drugs. The prosecution relied on the Federal Court decision in Parlan Dadeh v PP [2009] 1 CLJ 717 in support of its contention.

The prosecution also supported its contention by referring to section 8 of the Evidence Act and submitted that the acts and conduct of the accused to unlock Room 2 are construed as subsequent conduct under the said provision. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 19

Whilst on the element of knowledge, the prosecution argued that the accused had knowledge of the drugs simply because the police team saw the accused shivering in fear when he was arrested, and also while the police team conducted the search.

Further, the prosecution in its additional submission also argued that the Federal Court decision in Siew Yoke Keong v PP [2013] 4 CLJ 149 is similar to the facts of the present case. The prosecution urged the Court to adopt a similar approach as decided in Siew Yoke Keong (supra).

Now, the critical question to this Court is whether, based on the prosecution's narratives and contentions, the prosecution had successfully established actual possession and the accused was trafficking in the dangerous drugs exhibited.

The defence, on the other hand, strongly disagreed with the prosecution's contention. First and foremost, the defence argued that 2 sets of keys were found with the accused. One key directed the team and the accused to the accused's company, known as Panirthas Recycle trading and the raiding team did not find anything illegal in that premise. As testified by PW2 when cross-examined by the defence, PW2 testified following from the standard procedure (SOP), the PW2 and his team proceeded to the condominium Unit.

Upon reaching the condominium Unit, PW2 had to get the assistance of the security guard of the condominium to access BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 20 the condominium Unit, as the police did not find any access card with the accused during the raid.

This Court found that this is a crucial fact to show that the accused was not staying on a full-time basis at the condominium. Otherwise, the accused would have had the access card.

This Court also found that Ramesh was in the house and lying on a sofa when PW2 and his team entered the condominium Unit. Ramesh had in his possession an access card. Therefore, it is not wrong for this Court to infer that more than one occupant was staying in the same condominium Unit.

Other than Ramesh's access card, the following evidence shows that Ramesh had access to the same condominium Unit. • Ramesh was arrested in the condominium unit (P20), and he was the only person in the Unit at the point of arrest. • Ramesh was arrested with an access card, a Toyota remote car key and 3 keys (P43). • The police seized two (2) of Ramesh's cars from the condominium Unit carpark (D54, D96, D97). • On 26.06.2023, Ramesh was seen in the condominium management office (D52, Event No. 1 – 1B). • Ramesh was caught on the CCTV cameras located in the lifts of the condominium (D52, Event No. 2 – 10). • Ramesh made a payment to Universal 360 for the level 3A/4 carpark (D70) using his company account (D71). BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 21

This Court agree with the defence that the prosecution had failed to prove possession of the exhibits because the prosecution had failed to exclude Ramesh's access to the condominium Unit.

This Court refers to PP v Salleh bin Zakaria & Anor [2010] 4 MLJ 25, where Suriyadi JCA (at the material time) held: "[12] With the rule against double presumption militating against the prosecution, much depends on direct evidence to establish the ingredient of possession, an ingredient that requires the successful establishment of the physical and mental elements. So where is the evidence that could prove beyond reasonable doubt that ingredient? Lord Wilberforce in Warner v Metropolitan Police Commissioner [1968] 2 All ER 356 on the issue of possession had opined that 'the starting point will be that the accused had physical control of something — a package, a bottle, a container — found to contain the substance'. Can the Court arrive at a finding of fact that the prosecution had established that physical control factor? [13] Let us scrutinise the evidence first as regards this 'physical' element ie whether the respondent at anytime had custody and control of the drugs found in the engine section and under the rear passenger seat. For clarification purposes, the term 'physical' does not mean that he must physically clasp the package or container that holds the drugs, but suffice that BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 22 he knows where they are and can dispose of them whenever the need arises." (penekanan diberikan) RAMESH OUGHT TO BE THE MATERIAL WITNESS FOR THE

Based on the facts of the present case, Ramesh was initially on remand and subsequently released. Only the accused was charged with the offence.

The Court is of the considered view that Ramesh's presence in Court is essentially material and crucial as there are many material questions left unanswered by the prosecution due to the failure to call Ramesh to testify for the prosecution. See Ganapathy v PP [1988] 2 MLJ 577.

The police arrested Ramesh with an access card, a Toyota remote car keys and 3 keys, to which the prosecution failed to address in the submission.

Based on the search list/Borang Bongkar exhibit P43, PW2 agreed with the question posed by the defence that only Ramesh could confirm whether the 3 keys seized from Ramesh could have access to Room 2.

Therefore, without the evidence from Ramesh, the Court is unable to agree with paragraph 11(c) of the prosecution's submission in reply when the prosecution made a sweeping statement that the set of keys found on Ramesh did not include BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 23 the key to Room 2 because there is no evidence to support the prosecution's contention. First and foremost, no evidence was presented by the prosecution to prove that the police had tested Ramesh's fingerprints against the keys of the accused.

The absence of Ramesh to deny or confirm the defence's allegation also explains the material differences between the Federal Court case in Siew Yoke Keong (supra) advanced by the prosecution, which the Court opined is significantly different from the facts of the present case.

In fact, based on Exhibit D52, Ramesh was seen in the Universal 360 condominium management office on 26.6.2023, further strengthening the Court's finding that Ramesh's testimony in Court is critical to close the gap in the prosecution's case.

Furthermore, Ramesh's image was also caught on the CCTV cameras located in the lifts of Universal 360 – refer to exhibit

The fact that Ramesh made a payment to Universal 360 for the level 3A/4 carpark using his company account cannot dismiss the fact that Ramesh also occupied Unit A-08-19 Universal 360.

Thus, by applying the same approach taken by the higher Court in Chan Wei Loon v PP and another appeal [2021] 4 MLJ 660, this Court conclude that the prosecution had failed to prove that the accused had exclusive control and custody of the drug exhibits found in the room 2 of Unit A-08-19. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 24

Whatmore, the defence had given notice to the prosecution about Ramesh on 30.10.2023, about 2 years and 3 months before the trial began (exhibit D53), and no investigation was done by the investigating officer on the Alcontara notice.

The notice given by the defence to the prosecution clearly was an advance notice to the prosecution on the accused's defence that Ramesh had access to the condominium Unit and Ramesh is the real trafficker.

Ramesh had also attempted to evade the due process of the law. On 27.3.2023, Ramesh was released on a bond of appearance pursuant to section 49 of the CPC (exhibit P94), but Ramesh failed to attend the Court despite the said bond.

Furthermore, there were Ramesh's items seized under the Dangerous Drugs (Forfeiture of Property) Act 1988, as seen in exhibit D49, but not with the accused.

Certainly, this has created more doubt about the prosecution's case as Ramesh could rebut his involvement in the charge in dispute if he were in Court as a prosecution witness.

Ramesh's urine tested positive for THC (Exhibit D48), and this was consistent with the finding that cannabis was found in room 2. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 25

The failure to call Ramesh as the prosecution's witness certainly had an adverse effect on the prosecution's case, especially since this Court noted that Ramesh left the country on 12.2.2026.

It is therefore logical for this Court to make a finding that Ramesh is attempting to evade appearing in Court for the reasons best known to him.

The prosecution attempted to introduce the statement under section 112 (ID95) but failed to satisfy the strict requirement of section 32(1)(i) of the Evidence Act. Therefore, this Court ruled that ID95 remains as ID95.

Can this Court rule that the accused had the actual possession merely based on the ground that the condominium Unit was rented out to the accused, as contended by the prosecution?

There is a plethora of higher Court decisions that a tenancy agreement does not establish possession. Although the accused was the tenant of the Unit, that does not mean that the accused inevitably had exclusive possession of the exhibits as contended by the prosecution. See Tan Thong Jin v PP [2002] 3 MLJ 695. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 26

Another critical point which the prosecution failed to establish is the forensic evidence of room 2. It was quite strange for the investigation not to request an analysis by a forensic expert, despite having done a forensic analysis on the Unit, which did not carry out a DNA analysis of room 2 to link the accused with the offence. Also, the fact that Ramesh was living in the same condominium unit makes it even more reason for the DNA analysis.

Indeed, when the Court asked the learned deputy public prosecutor during the hearing for clarification as to the reason for not having done any DNA analysis of Room 2, the learned prosecutor responded that she was perplexed as to why forensic evidence was not done in Room 2.

This Court is aware of the judicial proposition that DNA analysis is not critical to every drug trafficking case. Still, for the present case, this Court is of the considered view that it is peculiar and crucial, considering that Ramesh was also staying in the same Unit with the accused on a full-time basis, Ramesh had the access card to the Unit, Ramesh's cars were parked at the Unit, and the 3 keys seized from Ramesh, as confirmed by PW2.

PW2 also affirmatively testified that Ramesh resided in the Unit on a full-time basis, and the accused was named as the tenant BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 27 merely because he possessed the necessary credibility to secure the tenancy.

This Court also find that the accused had no knowledge of the exhibits found in the second room. The fact that the accused was shivering in fear at the time the police arrested him is not suggestive of the accused's knowledge of the exhibits. This Court made such a conclusion based on the surrounding circumstances of the case.

This is especially so because there was no overt act by the accused to show that the accused tried to escape or acted aggressively towards the police when he was arrested. But instead, the accused had given full cooperation to the police. See also Aksliansyah v PP [2014] 3 MLJ 392.

Regarding the defence's contention that PW2 was not a credible witness and there was a suppression of evidence in light of the failure by PW2 to comply with section 27 of the Evidence Act regarding exhibit P21, which the defence argued was tantamount to a confession by the accused, which prejudiced the accused.

The prosecution indeed did not rely on section 27 of the Evidence Act. Therefore, section 27 of the Evidence Act is irrelevant to the present case. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 28 SECTION 37B DDA – CAUTION

It is not disputed by the prosecution that PW2 had also failed to exercise caution in accordance with section 37B of the Act. See Tan Chun Cheng v PP [2020] MLJU 782, to which this Court agrees with the defence submission on this point.

Therefore, this Court is of the considered opinion that the failure to administer the caution resulted in the admissibility of the accused's alleged confession in exhibit P22 being questionable. As such, this Court rejected any statement which is prejudicial to the accused.

Based on the above, this Court concludes that the prosecution had failed to prove possession by way of control, custody and knowledge of the accused on the drug exhibits and the firearm found in room 2. As such, this Court found that the prosecution had failed to prove trafficking under section 37(da) DDA.

This Court, after having undertaken a maximum evaluation of the case, found that the prosecution had failed to establish a prima facie case against the accused. Therefore, this Court orders an acquittal and discharge on all the charges preferred against the accused without calling the accused to enter his defence. BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 29 Dated: 11th June 2026 Sgd. (Y.A. DR HAZLINA BINTI HUSSAIN) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR DARUL EHSAN Deputy Public Prosecutor: Puan Tengku Najihah bt. Tingku Zahari Counsel for the Accused: Datuk N. Sivananthan dan Puan Aiswarya Devi BA-45A-97-08/2024, BA- 45A-96-08/2024, BA-45-35-08/2024, BA-45-36-08/2024 & BA-45D-1-08/2024 30