Augustine Paul JCA:

[1] This appeal brings into focus two issues of considerable importance in a criminal trial. They relate to the meaning of the expression "selling" in the definition of "trafficking" in s 2 of the Dangerous Drugs Act 1952 ("the Act") in a prosecution for drug trafficking and the extent to which the case for the prosecution is restricted to what was stated in the opening address.

[2] The accused (the respondent before us) was charged in the High Court at Johore Bahru for trafficking in dangerous drugs under s 39B(1)(a) of the Act read with s 39B(2) of the Act with one Mohd Saupi bin Jusoh in furtherance of their common intention as provided by s 34 of the Penal Code. Both the accused persons claimed trial to the charge. At the conclusion of the case for the prosecution the learned Judge acquitted and discharged Mohd Saupi bin Jusoh without calling upon him to enter his defence. He was of the view that the prosecution had made out a case against the respondent based on the presumptions contained in ss 37(d) and 37(da) of the Act. Having amended the charge with the omission of the ingredient of common intention the learned Judge called upon the respondent to