Pendakwa Raya v 1. ) VILVA NATHAN A/L SURIANMURTY 2. ) CHAKRA WARTHI A/L PANNIR SELVAN 3. ) PUTERI MURNI

Case Significance

Illustrates the proof of possession and exclusive access required before the section 37(da) trafficking presumption can operate, and how an incomplete investigation and a broken link between the accused and the premises defeat a joint drug prosecution.

This High Court decision at Butterworth concerns a drug-trafficking prosecution of three accused charged jointly under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), read with section 34 of the Penal Code, for trafficking in 149.7 grams of methamphetamine at a house in Seberang Perai, Penang. Acting on information about drug activity, a narcotics team conducted the operation, and the prosecution called five witnesses, including the chemist, the raiding complainant, a raid team member and the investigating officer. The decisive issue at the close of the prosecution case was whether the prosecution had proved a prima facie case that the three accused were in possession of the drugs found in the house, which required proof that they were the occupants of the premises, that they had the custody, control and knowledge of the drugs, and that they had the capacity to deal with the drugs to the exclusion of others, so as to raise the presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 together with a common intention. The court's analysis exposed serious gaps in the prosecution's proof. A significant difficulty was that the location where the first accused was arrested differed from the location of the house where the drugs were found, undermining the link between the accused and the premises; and the evidence did not establish that all three accused had the exclusive access, custody, control and knowledge necessary to fix them with possession. The court also found the investigation incomplete, so that an adverse inference under section 114(g) of the Evidence Act 1950 could be drawn for the failure to call material witnesses and adduce relevant evidence. Concluding that it would not be safe to call on the accused to enter their defence, the court held that no prima facie case had been made out and ordered that all three accused be dilepaskan dan dibebaskan tanpa dipanggil membela diri (discharged and acquitted without being called to enter a defence). The prosecution filed a notice of appeal. The judgment is a useful illustration of the proof of possession and exclusive access required before the trafficking presumption can operate, and of the consequences of an incomplete investigation.