1.09 gram) ditandakan – N1”, followed by signature of SP1 as the person handing over the exhibit to SP3, whom had also signed P6, as IO of the case at 1355 hrs on 21.10. 2018. The 6 time of seizure was at 1145 hrs. If marking “N1” was made at 13.55 hrs on 21.10.2018, how could it be also marked the same on P6 at 11.45 hrs on 21.10.2018. In the absence of an explanation from SP1, in all probability, SP1 would have written “N1” on P6 after preparing P7. This per se dilutes the contemporaneity of P6, that it was made soon after arrest of accused and seizure by SP1. [7] As P6, according to SP1, is alleged to have been made contemporaneous with the seizure, its contents have to sync with what was found on the accused, to wit, the dangerous drug, which is subject matter of the charge against the accused. Sworn testimony of SP1 states that the drugs were found “dalam genggaman tangan kiri tertuduh” but what is stated in P6 “diserahkan sendiri dengan menggunakan tangan kiri”. There is of course a vast difference between “genggaman” and “diserahkan sendiri”. As such, there is doubt as to the manner in which the offending exhibit was seized from the accused, which fortifies case of the defence, that the drugs were never found on the accused. It too implies that, it may have been planted as alleged by the defence. Indeed, P6 lends credence to the defence of accused which has 7 also the effect of reasonably dislodging the case of prosecution. (See case of PP v Ling Tee Huah (1982) 2 MLJ 324). [8] Diametrically opposite to P6, is a police report, P1, lodged by SP1 on 21.10.2018 at 12.16 pm. In that report, he had stated that the said drug was found after a body search on the accused. He had then handed it over to SP1, using his left hand. It reads – “… Saya bersama saksi polis dengan disaksikan penama telah buat pemeriksaan keatas tubuh badan penama dan telah menjumpai (1) paket plastik lutsinar didalamnya mengandungi dadah disyaki jenis methamphetamine (Anggaran Berat: 1.09 gram) yang diserahkan sendiri dengan menggunakan tangan kiri kepada saya …” (original in capital letters) With that, there are three versions in the narrative of prosecution - oral testimony of SP1; exhibits P6 and P1. In order of time, P6 comes first, followed by P1 and then oral testimony of SP1 in court. The prosecution ought to have offered explanation on the inconsistency or discrepancy vide explanation from SP1. It is not done. The material contradiction is left as it is. Thus, case of the prosecution contains unreliable evidence. In law, it does not constitute credible evidence, as envisaged by section 173(h)(iii) CPC, in order for the trial court to have ordered the accused to enter on his defence pursuant to section 173(h)(i) CPC. (See the case of 8 PP v Lee Eng Kooi (1993) 2 MLJ 322). The prosecution case is riddled with infirmities. [9] During submission, I had questioned the deputy public prosecutor (DPP) conducting the appeal, as to why no explanation was given by SP1 on contents of P6. He replied tersely, that oral testimony of SP1 prevails, as that is best evidence available on record. This retort by DPP does not sync with the law. Best evidence rule means that if there are two ways of proving a matter and one method is more cogent than the other the more cogent method must be adopted. In the present case, the prosecution had called SP1 to testify on the arrest of accused and seizure. The same witness had produced P6 and testified on it, which opposes his oral testimony as it does not state what was found on the accused. When there is no instance of raid on premises, P6 alludes to that. The prosecution cannot expect the court to inquire and come to an answer what N1 is, as stated in P6, especially so at point of arrest. It is duty of SP1 to have recorded what he found on the accused. Since the dangerous drug is subject matter of charge against accused, it must be stated in P6, absence of which does not support SP1’s oral testimony, especially so when he had testified that it was made contemporaneous with the arrest and seizure. P6, which was purportedly tendered in court to 9 corroborate evidence of SP1 pursuant to section 157 EA, turned out instead as contradiction. Hence, weight of P6 as evidence in court is doubtful. [10] As SP1 had resorted to preparing P6, the requirements of section 64 CPC have to be strictly followed (see the case of Chin Hock Aun v PP (1989) 1 MLJ 509), by which it is possible to ensure that the offending drug obtained as a result of the search was recovered as alleged and leaves no room for doubt and to exclude possibility of concoction or malpractice of any kind. In the case of San Soo Ha v PP (1968) 1 MLJ 34, His Lordship Raja Azlan Shah J (as His Royal Highness was then) was of the view that the most that can be said about failure to comply with provision relating to search list is that it may cast doubt upon bona fides of the parties conducting the search and accordingly afford ground for scrutiny. If after close scrutiny the court arrives at conclusion that the offending articles or exhibits were recovered from possession of the accused person, it is obviously no defence to say that evidence was obtained in an irregular manner. In the instant case, this court had scrutinised and explored the evidence and decides that the offending drug was not recovered from the appellant, as there were doubts cast on the bona fide of SP1 conducting the arrest and seizure. The said doubt in terms of 10 PP v Saimin (1971) 2 MLJ 16, is a reasonable doubt which makes me hesitate as to correctness of the conclusion arrived at by the trial magistrate on possession of the dangerous drug by the accused. The doubt settles in my judgment and finds a resting place here. [11] This leads to the material issue, has the prosecution established a prima facie case at the end of case of prosecution. Obviously not, as possession of the said drug which is a primary ingredient of the charge is not proven. With that, there is non-compliance with section 173(h)(iii) and 173 (f) (i) CPC, leading to an invocation of section 173(f)(ii) CPC and the court should have acquitted the accused at that stage. [12] Back to issue at hand, the trial magistrate thus had erred when he did not arrive at a finding of fact on the veracity of P6 produced by SP1. He had completely ignored significance of P6 in his finding and over relied on oral testimony of SP1 which goes against P6. This in law amounts to non-direction resulting in misdirection, justifying appellate intervention pursuant to section 316(b)(i) CPC. Other Flaws [13] The above point is decisive of this appeal. Additionally, there are also other flaws demonstrated to this court which is detrimental to the conviction had against the accused. It is discussed below. 11 [14] The trial magistrate chose to rely on the statement made by accused upon arrest in order to infer mens rea, to wit, that he knew he was in possession of dangerous drug. In context, he decided – “[14] Dalam kes semasa ini, keterangan SP1 dengan jelas menyebut bahawa semasa pemeriksaan fizikal dijalankan keatas OKT, OKT dengan sendirinya telah menyerahkan satu bungkusan plastik lutsinar dengan tangan kiri OKT sambil memberitahu SP1 bahawa ianya adalah “ais”. Tindakan OKT ini pada hemat Mahkamah, memberikan inferens yang jelas bahawa dadah tersebut adalah dalam milikan dan kawalan secara terus (“direct possession”) oleh OKT. Pengetahuan OKT tentang kandungan bungkusan plastik lutsinar tersebut juga boleh digarap berdasarkan keterangan OKT sendiri yang terus menyerahkan bungkusan plastik lutsinar tersebut kepada SP1 sambil menyebut “ais”. Maka, mahkamah berpendapat bahawa tindakan OKT ini adalah relevan di bawah Seksyen 8 Akta Keterangan 1950 …” The magistrate had erred in law, when he admitted that piece of evidence against the accused. That evidence is a statement made under section 112(1) CPC to a police officer. It is per se inadmissible as evidence pursuant to section 113(1) CPC. It is not excepted by any of the exceptions contained in section 113(2) to (5) CPC, to render it admissible. Thus, it is patently wrong to allow the statement admitted as evidence against the accused in order to infer knowledge, which is also a material ingredient of the charge against the accused which has to be proved by the prosecution. Bereft of 12 that, there is absence of evidence showing the accused knew it was dangerous drug, allegedly in his possession. What more when evidence as to possession is by itself doubtful. [15] Section 12(2) DDA, provides for three different type of actus reus, i.e. possession, custody or control; culminating into an offence punishable under section 12(3) DDA. Hence, it is bounden duty of prosecution to prove one of the actus reus with the requisite knowledge in order to bring home a charge against the accused. The charge against accused is for possession and not custody or control of dangerous drug. Premised on evidence available at the end of the case of prosecution, the magistrate has to decide if prosecution has established a prima facie case on the charge preferred, pursuant to section 173(f)(i) CPC. Unfortunately, that is not so in this case. The magistrate had instead found both possession and control of dangerous drug by the accused. This is patently wrong. Moreover, there has been no amendment to the charge by the court pursuant to section 173(h)(ii) CPC read together with section 158(1) CPC to sustain its finding. Even so, the magistrate ought to have made up his mind on actus reus of the offence allegedly committed by accused, i.e. if it is possession or control and not both. The finding made by the magistrate renders 13 that the accused had committed both offences of possession and control of dangerous drug, when he was only charged for possession of dangerous drug. This smacks on illegality. It has prejudiced the accused, since he was unable to adequately defend himself. He is deemed to be in a state of muddle, to defend himself either to a charge of possession or control of dangerous drug, when the charge he had faced is only for possession of dangerous drug from inception of prosecution case. The finding made is thus a nullity in law. The prejudice has occasioned a failure of justice, which is incurable under section 422 CPC. [16] Additionally, the trial magistrate had also not complied with section 173(ha) CPC. It is salutary that the court after having ordered the accused to enter on his defence, shall read and explain the three options available under the law to the accused in person. This would include, his right to give sworn evidence in the witness box; give unsworn statement from the dock but he may call other witness to support his defence, if any; and remain silent but to call other witness to support his defence, if any. This was not done in this case. The DPP arguing this appeal, had submitted that the non-compliance does not matter a jot, as the accused was represented by counsel at the material time. The DPP ought to be mindful that it 14 is the accused who is facing the charge and not counsel. His counsel merely represents him to advance defence available under the law for him to earn an acquittal of the charge. It is expected of the court to have ensured that the three options contained in section 173(ha) CPC is read and explained to the accused personally. His counsel is under no duty to make an election of the options available on behalf of the accused. He only advises accused to do so in accord with facts, evidence and circumstance of the case. In fact, the chapeau to section 173 CPC mandates court to comply with procedure laid down for summary trials, which would include section 173(ha) CPC. In that regard, non-compliance with section 173(ha) is incurable rendering the trial a nullity. [17] Another patent flaw detected is the manner in which defence of accused was considered by the trial magistrate. It is his bounden duty to strictly follow the dictates found in section 173(m) CPC amplified by Mat v PP (1963) MLJ 263 and its sequel Mohamad Radhi bin Yaakob (1991) 3 MLJ 169. He has to consider the explanation by accused and if he rejects the said explanation, he has to determine on totality of evidence available in the case, whether there has been a reasonable doubt raised by him. If yes, an acquittal is justified, otherwise conviction shall follow. This is not 15 enforced in this case. This is yet another infirmity which has materially prejudiced the accused. [18] In sum total, all infirmities found warrants appellate interference by this court. The accused has been seriously prejudiced occasioning a failure of justice. Pursuant to section 316(b)(i) CPC, the finding of guilt and order of conviction made against the accused is thus reversed and he is acquitted and discharged. Finding of guilt and order of conviction reversed. Accused acquitted and discharged. Dated 22 March 2021 Sgd Muniandy Kannyappan Judicial Commissoner High Court Taiping Mr. P. Ravee, of Messrs P. Ravee & Co, counsel for appellant. DPP Azrul Faidz bin Abdul Razak, for respondent.