Callow J:

This headnote is an appeal from the District Court Malacca, against the convictions and sentences of two years rigorous imprisonment, together with the order of forfeiture of lorry No. M 1067, imposed on 26 October 1948, for possession of eight slabs of opium, contrary to s. 3(1) of the Opium and Chandu Proclamation (No. 49 of 1946).

On 2 October 1948, the lorry was stopped at Merlimau Police Station and in a secret compartment reached through the tool box was found a considerable quantity of opium described in the charge as eight slabs and appearing to me as upwards to some ten pounds.

This Court viewed the lorry. A large locker of tool box has been constructed on either side of the vehicle to the rear of the cab and under the body or flat of the lorry.Each locker has a false side or back behind which is room for a quantity of small articles to be secreted and conveyed.Only careful scrutiny of these lockers would disclose the presence of the hidden places.If the lorry is loaded access can only be through the locker door and then by moving a fitted board or panel; if unloaded, entrance can also be obtained by moving a board from the flat of the lorry.The key to the locker was at all material times in the exclusive possession of the first appellant.

There were four persons travelling on the lorry, and all were charged with the possession of this opium.After preliminaries the prosecution offered no evidence against two of the accused and the trial proceeded against the present appellants.The 1st appellant described himself as the lorry cleaner, but according to the owner (third prosecution witness) he had the general care and charge of the vehicle; the second appellant was the driver only.

The grounds of appeal argued were similar, both submitted that the Court below erred in ordering the forfeiture and that the sentences were excessive.The first appellant also submitted:

2(b). That the learned District Judge erred in holding that your Petitioner had not discharged the onus case by s. 18(1) of the said Proclamation of proving that your Petitioner had no knowledge or reason to know of the contents (other than tools and patent medicines) of the tool box in the Motor Lorry M 1067 (Exh: 'P1').

and with the acquiescence of the Deputy Public Prosecutor and the leave of the Court the first appellant adopted and argued ground second of the petition of the second appellant.This reads:

2. Your Petitioner is dissatisfied with the Judgment on the ground that the Learned District Judge erred in Law in holding that your Petitioner had custody or control over the Opium forming the subject matter of this Charge.

The second appellant in addition to his own ground 2 (supra) submitted:

3. Your Petitioner in further dissatisfied with the Judgment on the ground that the Learned District Judge erred in Law in holding that S 18(1) of Proclamation No. 49/46 cast any onus on your Petitioner.

4. Your Petitioner is further dissatisfied with the Judgment on the ground that the Judgment is against the weight of evidence in that there was no evidence to prove that the second Appellant knew that Opium was in the Motor Lorry.

At the opening of the appeal the learned Deputy Public Prosecutor intimated that he was unable to support the conviction against the second appellant.

It would certainly appear from perusal of the record that following the case of Tan Shu En & Anor. v. PP, [1948] MLJ 196 (CA) the mere discovery of the opium was insufficient by itself to hold applicable the provisions of s. 18 of the Proclamation.

It is iteration to set out the latter part of the judgment in the Tan Shu En case [1948] MLJ 196 (CA), and with respect I cannot but subscribe to it, particularly in view of the amendment to s. 3 (2) of the Proclamation placing the onus of disproving possession when opium is found on any person's premises.

It seems to me that vehicles being peculiarly excluded it is useless to prosecute these travelling in a lorry in which opi