Pendakwa Raya v MOHAMAD SALEHUDDIN BIN ALI

Case Significance

Illustrates the sequential structure of a trafficking prosecution under the Dangerous Drugs Act 1952: where possession is not proved, the section 37(da) presumption of trafficking cannot be activated, and the accused is discharged and acquitted at the close of the prosecution case.

This High Court decision at Johor Bahru concerns two drug charges tried together against the same accused under the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952). The first charge alleged trafficking in 610.82 grams net of methamphetamine, an offence punishable under seksyen 39B(2), said to have occurred on 2 October 2021 at KM 56.3 of the Senai–Desaru Highway in the District of Kota Tinggi; the second charge alleged possession of 3.13 grams net of heroin, punishable under seksyen 39A(1) of the same Act. At the close of the prosecution case the court had to decide whether a prima facie case had been established on each charge, which required the prosecution first to prove that the accused was in possession of the drugs. The court found that possession had not been proved against the accused, with the consequence that the statutory presumption of trafficking under seksyen 37(da) of the Act could not be activated (anggapan statutori di bawah seksyen 37(da) ADB telah gagal diaktifkan); the court therefore did not need to consider that presumption further. Concluding that the prosecution had failed to establish a prima facie case, the court ordered the accused dilepaskan dan dibebaskan tanpa dipanggil untuk membela diri (discharged and acquitted without being called to enter a defence). Dissatisfied with that outcome, the learned Deputy Public Prosecutor (Timbalan Pendakwa Raya) filed an appeal, and the judgment sets out the court's reasons for the acquittal. The judgment is a useful illustration of the sequential structure of a trafficking prosecution, in which the failure to prove possession forecloses reliance on the section 37(da) presumption and defeats the charge at the prima facie stage. The court explained that the logical order of a drug prosecution places proof of custody or control of the drugs first, because the trafficking and possession presumptions are triggered only once that foundation is laid, and that a court cannot leapfrog to the presumption to cure an evidential gap in possession itself.