Pendakwa Raya v GOPALAKRISHNAN A/L NADARAJA

Case Significance

Reinforces that a section 39B trafficking case requires proof of possession with knowledge and a power of disposal, not mere proximity, and that failing to call a key witness such as the tenant of the premises invites an adverse inference under section 114(g) of the Evidence Act 1950 that can defeat the prima facie case.

This High Court decision at Shah Alam concerns three charges of drug trafficking that failed at the close of the prosecution case for want of proof of possession with the necessary knowledge. With the consent required under section 39B(3) of the Dangerous Drugs Act 1952, the accused was tried on three charges under section 39B(1)(a): trafficking 754.8 grams of methamphetamine found in a backpack he was said to be holding at a car park, and trafficking a heroin and monoacetylmorphines mixture of 319.9 grams and methamphetamine of 2,302.5 grams found in a house at a condominium in Kajang. The accused pleaded not guilty and the prosecution called eleven witnesses. The court, on a maximum evaluation of the evidence, held that the prosecution had failed to establish possession with mens rea. Mere physical proximity of the accused to the drugs was insufficient to prove possession without evidence of knowledge, particularly as the drugs were wrapped in opaque green plastic, and there was no evidence that the accused had any power of disposal over the drugs so as to be a trafficker. The court gave weight to the accused's account that the item had been requested by one Somma Kumaran to be delivered to another person, and to the prosecution's failure to call Somma Kumaran, the tenant of the relevant house, as a witness — a failure that attracted an adverse inference under section 114(g) of the Evidence Act 1950 and, applying the Radhi direction, further weakened the prosecution's case. Concluding that the prosecution had not made out a prima facie case of trafficking on any charge, the court ordered the accused discharged and acquitted of all three charges without his defence being called ("tertuduh dilepaskan dan dibebaskan daripada ketiga-tiga pertuduhan tanpa perlu dipanggil untuk membela diri"). The court emphasised that, the drugs having been found in a backpack said to have been handed to the accused for delivery to a third party and in a house connected to the uncalled witness, the prosecution's own narrative pointed away from any knowing possession by the accused.