(delivering oral judgment): The Public Prosecutor has applied for the following questions of law of public interest to be reserved for determination by the Federal Court under section 66 of the Courts of Judicature Act, 1964 —

"(i) Whether or not section 388 Criminal Procedure Code overrides the provision of section 41B of the Dangerous Drugs Act 1952 (Act 234).

(ii) If the answer to question (i) above is in the negative, whether it is right in law for bail to be granted in respect of a person charged for an offence under section 39B of the Dangerous Drugs Act 1952 (Act 234)."

The questions of law are said to have arisen in the course of an appeal by the Public Prosecutor against the order of the President, Sessions Court, Penang granting bail to Chew Siew Luan (f) accused of an offence under section 39B punishable under section 39B(2) of the Dangerous Drugs Act, 1952 (Act 234). The appeal was dismissed.

The accused was charged before the Sessions Court, Penang. On June 9, 1980 the learned President granted bail pending the hearing of the case. The Public Prosecutor appealed against the order.

It is not in dispute that the accused was a woman and was medically certified to be pregnant and due for delivery on or about July 1, 1980. In granting bail the learned President relied upon the proviso to section 388(i) of the Criminal Procedure Code which permits the granting of bail to any person under the age of 16 years, any woman, or any sick or infirm person charged with non-bailable offence carrying life imprisonment or death as penalty.

I dismissed the appeal as I formed the view that, notwithstanding the provisions contained in section 41B of the Dangerous Drugs Act, 1952, it was still within the court's discretion to grant bail in non-bailable offences punishable with death or imprisonment for life to persons covered by the proviso to section 388(i) of the Criminal Procedure Code. For ease of reference I reproduce hereunder section 388(i) of the Criminal Procedure Code and its proviso and section 41B(1) and (2) of the Dangerous Drugs Act, 1952 —

"388(i) When any person accused of any non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a court, he may be released on bail by the officer in charge of the police district or by such court, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

41B(1) Bail shall not be granted to an accused person charged with an offence under this Act —

(a) where the offence is punishable with death; or

(b) where the offence is punishable with imprisonment for more than five years; or

(c) where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person.

(2) The provisions of subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary."

Section 41B of the Act inter alia expressly prohibits the granting of bail to an accused person charged with an offence under the Act where the offence is punishable with death. Subsection (2) of section 41B provides that subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.

The second limb of section 388(i) does not make provision contrary to section 41B(1) in so far as it relates to an offence punishable with death. However, there is a proviso that confers discretion to release a person accused of such offence if that person is under 16 years of age or a woman or a sick or infirm.

I form the view that the provision relating to criminal procedure must be construed strictly. To my mind sec