Abdull Hamid Embong JCA:

[1] The sole question for our decision is simply what a magistrate needs to do in a case where an accused person who is tentatively charged for drugs trafficking under s 39B(1) Dangerous Drugs Act is brought up before him for a mention.

[2] The High Court at Shah Alam had called up this matter for a revision. The learned judge set aside the order of the magistrate who had earlier remanded the accused for a further period of two months when his case was brought up before the magistrate for an initial mention. The reason given for the further remand was that the chemist report on the drugs which was the subject matter of a tentative charge for trafficking under s 39B(1) of the Dangerous Drugs Act 1952 (DDA) against the accused was not ready. As such the magistrate withheld the transmission of the case to the High Court.

[3] Both the learned deputy public prosecutor and the accused person were represented and advanced submissions at the revision proceedings before the High Court. The learned judge concluded that to further remand the accused person for another two months was unlawful and amounted to the usurpation of a judicial function by the prosecution. The learned judge then revised the order made by the magistrate (for a further remand of the accused) pursuant to his power of revision under s 325 of the Criminal Procedure Code (CPC) . The High Court then ordered that the accused be reproduced before the magistrate to reconsider whether the case should be transmitted to the High Court under s 41A DDA or alternatively for his discharge pursuant to s 29 CPC .

[4] Against that order the learned public prosecutor appealed to this Court.

[5] Before us the learned deputy public prosecutor argued that the magistrate has no power to transmit the case to the High Court without the consent of the public prosecutor under s 39B(3) of the DDA . That section reads:

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(3) A prosecution under this section shall not be instituted except by or with the consent of the Public Prosecutor;

Provided that a person may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody notwithstanding that the consent of the Public Prosecutor to the institution of a prosecution for the offence has not been obtained, but the case shall not be further prosecuted until the consent has been obtained . (emphasis by the DPP).

Subsection (4) reads as follows:

4. When a person is brought before a Court under this section before the Public Prosecutor has consented to the prosecution the charge shall be explained to him but he shall not be called upon to plead, and the provisions of the law for the time being in force relating to criminal procedure shall be modified accordingly.

[6] The DPP argued that reliance by the learned judge on s 41A of the DDA was a clear misdirection relying, in the main, on the decision of the High Court in the case of Pendakwa Raya v. Ilamaran Kanniapan and quoting in particular this passage of that judgment:

... the accused is brought before the Court when the charge may be read and explained to him. He will not be asked to plead to the charge (see s 39B(4) and neither will he be formally tried for the offence with which he had been tentatively charged until the consent by the Public Prosecutor as required under s 39B(3) has been obtained. In the meantime the offending drugs should, as expeditiously as the circumstances of the case permit, be delivered to the Chemist for analysis and final determination of its weight and contents. Pending the Chemist report and the consent from the Public Prosecutor, the accused may by virtue of the proviso to subsection (3) of s 39B , be remanded in custody.

[7] The case of PP v. Oladotun Lukmanu Umaru & Ors, [1991] 1 MLJ 187 was also relied upon where the learned High Court judge there opined that the public prosecutor's consent is a necessary safeguard that needs to be undertaken before one is exposed to a prosecution for an of