Pendakwa Raya v 1. ) Mohd Nazri Bin Mohd Norazmi Segar (Okt 1-meninggal Dunia) 2. ) Shahril Annuar Bin Shahudin

Case Significance

Illustrates the requirement that possession — custody, control and knowledge — be affirmatively proved before the trafficking presumption under section 37(da) of the Dangerous Drugs Act 1952 can operate, and the acquittal of a passenger where the prosecution cannot link him to drugs found in the vehicle.

This High Court decision at Shah Alam concerns a prosecution for trafficking in dangerous drugs under seksyen 39B Akta Dadah Berbahaya 1952 (section 39B of the Dangerous Drugs Act 1952) built on circumstantial evidence. The accused had originally been charged jointly with a co-accused who died while in remand; on the prosecution's application the deceased co-accused was discharged and acquitted, leaving the accused to face the charge alone. The accused had been a passenger in a car in which the drugs were found inside a backpack, and the case against him turned on whether the prosecution could prove that he had custody or control of, and knowledge of, those drugs.

The Court evaluated the circumstantial evidence at the close of the prosecution case. Possession — comprising custody or control together with knowledge — is an essential ingredient of a trafficking charge, and, as the Federal Court held in Ibrahim Mohamad v PP, unless there is direct evidence of trafficking the prosecution must first prove possession, on which the trial judge must make an affirmative finding, before the presumption of trafficking under seksyen 37(da) Akta Dadah Berbahaya 1952 (section 37(da) of the Dangerous Drugs Act 1952) can be invoked. The Court also noted an attempt to admit a statement under section 32(1)(i) of the Evidence Act 1950, to which the defence objected under section 113 of the Criminal Procedure Code, which the prosecution ultimately did not pursue.

On a maximum evaluation of the evidence, the Court found that the prosecution had failed to prove that the accused, as a mere passenger, had custody, control or knowledge of the drugs in the backpack, so it could not infer the possession that the charge required, and the presumption under section 37(da) could not be invoked. Having found no prima facie case made out, the Court did not call on the accused to enter his defence. The judgment is a useful illustration of the requirement that possession — custody, control and knowledge — be affirmatively proved before the trafficking presumption under section 37(da) can operate, and of the acquittal of a passenger where the prosecution cannot link him to drugs found in the vehicle.