GROUNDS OF JUDGMENT

THE CHARGE

The Accused faced the following charge:-

"Bahawa kamu pada 31 haribulan Julai 2002 jam lebih kurang 0500 petang di hadapan Post Pengawal Universiti Sains Malaysia, Jalan Sungai Dua, dalam Daerah Timur Laut, Dalam Negeri Pulau Pinang telah memiliki dadah berbahaya iaitu heroin seberat 6.07 gram, sedangkan kamu tidak mempunyai kuasa untuk memilikinya, dengan ini kamu telah melakukan satu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan dihukum di bawah Seksyen 39A(2) Akta yang sama ."

After calling for the defence the Learned Sessions Judge found the Accused guilty and sentenced him to 5 years in prison with 13 strokes of the rotan. Dissatisfied with the sentence the Public Prosecutor appealed. The Accused cross-appealed against both conviction and sentence. At the appeal, Mr. Karpal Singh for the Accused withdrew his cross-appeal against sentence. By consent I decided to hear Mr. Karpal's cross-appeal first against conviction.

FACTS

SP3 informed the Court that on 31.7.02 Inspector Rajaram led a party of police including himself on an operation to arrest a person trafficking in drugs in front of the guard post at Universiti Sains Malaysia (USM), Jalan Sungai Dua, Pulau Pinang. He said that he arrested the Accused who was in possession of the drugs. Inspector Rajaram then detained him.

Before detaining him, Inspector Rajaram identified himself as a Police Officer. He informed the Court that on the material date he, with a group of officers laid an ambush. They noticed the Accused working besides the guard post. He then walked from that place carrying a plastic bag in his left hand towards the guard post. As he reached the guard post, Inspector Rajaram, Detective Nizamuddin and SP3 who were in ambush position inside the guard house, immediately detained the Accused and Inspector Rajaram seized the bag the Accused was seen carrying. Then he goes to say that when Inspector Rajaram made the arrest the Accused was still holding the plastic bag in his left hand. Inside the plastic bag, and wrapped in newspapers were packets containing the drugs.

Under cross-examination he informed the Court that whilst lying in ambush he noticed the Accused driving a lorry loaded with sand to that place. The lorry unloaded the sand which was to be filled alongside the USM fence. Under further cross-examination he informed the Court that Inspector Rajaram had told him that the Accused came to work on a motorcycle and he even showed him the motorcycle which was parked in front of the guard house. He denied the suggestion that the Accused was not arrested whilst in physical possession of the plastic bag. He also denied the suggestion that the bag was found in the basket attached to the motorcycle, by the police.

FIRST ISSUE

The first issue raised by Mr. Karpal on appeal was, as to who actually arrested the Appellant whilst he was allegedly in physical possession of the bag. Was it SP3 or Inspector Rajaram (SP5)? Pointing out to the report lodged by SP5, Mr. Karpal submitted that SP5 had said he effected the arrest, whereas SP3 had said he arrested the Accused. Counsel argued that this contradiction as to who actually arrested the Accused was material with regard to ascertaining physical possession of the drugs by the Accused. From the judgment it would seem that the Learned Sessions Judge took it that SP5 had effected the arrest.

To see if there indeed is a contradiction, I reproduce herewith the lines of SP5' s report relating to the arrest. It reads as follows:-

"Bertindak maklumat dadah, pada 31/7/2002 jam l/kurang 1700 hrs, saya bersama D/Kpl. 92928, D/L/Kpl. 96345, 109985 dan Konst. 141523 telah tahan dan kenalkan diri Polis kepada (1) (L) (I) di hadapan Post Pengawal USM, Jln Sg Dua, G/Town, Pg di mana pada masa itu (L) (I) tersebut sedang memegang satu beg plastik warna putih/biru pada tangan kirinya."

In his evidence he said as follows:-

"... saya bersama pasukan telah menahan satu lelaki India di hadapan Post Penga