Pendakwa Raya v 1. ) SIVASANGKARAN A/L MOGANIL 2. ) PARTIBEN A/L MANOGARAN

Case Significance

Illustrates that the section 37(da) presumption of trafficking under the Dangerous Drugs Act 1952 cannot be invoked unless possession is first proved, so that a broken chain of custody and unproven occupancy defeats a prima facie case.

This High Court decision, delivered in Bahasa Malaysia, concerns a drug-trafficking prosecution in which the court had to decide whether the prosecution had established a prima facie case at the close of its evidence. Two accused faced three charges of trafficking in dangerous drugs — heroin (476.22 grams), methamphetamine (5,664.5 grams) and monoacetylmorphines (128.561 grams) — found at a condominium unit, each charge framed under section 39B(1)(a) of the Dangerous Drugs Act 1952 ("Akta Dadah Berbahaya 1952"), punishable under section 39B(2) and read with section 34 of the Penal Code for common intention. The drugs were found in a dwelling, and the central questions were who occupied the premises, whether the chain of evidence was intact, and whether either accused had the custody, control and knowledge of the drugs — to the exclusion of others — necessary to establish possession. The evidence showed that one accused had attempted to flee before arrest and that the other was arrested at a location far from the house where the drugs were found. The court held that the prosecution had failed to prove possession, and that the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act could not be invoked because it depends on possession being established first. Making a maximum evaluation of the whole of the prosecution evidence, the court found no prima facie case made out against either accused on any of the three charges under section 180(4) of the Criminal Procedure Code, and ordered both accused "dilepaskan dan dibebaskan tanpa dipanggil untuk membela diri" (discharged and acquitted without being called to enter a defence). The judgment illustrates that the presumption of trafficking cannot bridge a gap in proof of possession, and that a broken chain of custody and doubtful occupancy will defeat a prima facie case. The court stressed that mere presence at or near the premises, without proof of custody and control excluding the access of others, could not fix either accused with possession of the drugs recovered, and that the investigative gaps left the prosecution case incomplete.