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2010 MarsdenLR 825
AHMADI HAJI ASNAWI
PP – Appellant
Versus
AZLI DAUD – Respondent
Possession of drugs requires proof of custody, control, knowledge, and the power to dispose. The prosecution's failure to call a key witness raised reasonable doubt, leading to an acquittal.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 39(2) - Trafficking in cannabis - The accused charged with possession of cannabis exceeding statutory weight - Evidence of police raid and recovery of drugs from the accused's postal bag - The court emphasized the need for the prosecution to prove possession, knowledge, and control over the drugs to establish trafficking - The defence successfully raised reasonable doubt regarding the accused's connection to the drugs - The absence of a key witness, who could clarify doubts, warranted an acquittal. (Paras 1-31)
Facts of the case:
The accused was charged with trafficking 2,354 grammes of cannabis found in a postal bag during a police raid at his residence. The bag was confirmed as belonging to him, but the accused denied knowledge of the drugs and suggested a third party's involvement. (Paras 1-20)
Findings of Court:
The prosecution had not proven beyond a reasonable doubt that the accused possessed the cannabis, as significant elements of the case were unchallenged, including the prosecution's failure to call a crucial witness. (Paras 29-30)
Issues: The primary issue addressed was whether the prosecution successfully established the accused's knowledge and possession of the cannabis based on the evidence presented. (Paras 18-30)
Ratio Decidendi: The court ruled that possession is determined by custody, control, knowledge, and the power to dispose of the substance, but due to the absence of crucial testimony, the court found reasonable doubt exists regarding the accused's involvement. (Paras 29-30)
Result: The accused is acquitted and discharged of the offence. (Para 31)
| Table of Content |
|---|
| 1. accused charged with drug trafficking. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. drug tests confirm substance as cannabis. (Para 7 , 8) |
| 3. exhibits under accused’s custody and control. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. knowledge inferred from circumstances. (Para 15 , 16) |
| 5. possession and trafficking presumption established. (Para 17 , 18 , 19) |
| 6. accused's complete denial of possession. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 7. defence hinged on presence and testimony of wan. (Para 27 , 28 , 29) |
| 8. prosecution failed to prove beyond reasonable doubt. (Para 30 , 31) |
Ahmadi Asnawi JC:
[1] The accused was charged with an offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 ('DDA') for trafficking in 2,354 grammes of cannabis on 24 July 2004 at about 12.30am at house No. 453A, Kuaters Pos, Jalan Bukit Pasir, Bukit Pasir, Muar, Johor, an offence punishable under s. 39(2) of the Act which carried the mandatory death penalty.
Case For The Prosecution
[2] PW5 (C/Insp. Chu Soon Lee) together with his team of officers raided house No. 453A, Kuaters Pos, Jalan Bukit Pasir, Muar at about 12.30am on 24 July 2004. Upon arrival at the said house, PW5 knocked on the main door. The door was then opened by the accused. Upon identifying himself, PW5 and 5 of his men entered the said house. PW9 (Haslinda binti Mohamad) who had been married to the accused about a week before the said instant was also in the house. A search of the said house was made by SP5 and his party. Nothing incriminating though was found in the main room (master bedroom).
[3] Next PW5 searched the rear room. In this room he found a postal bag (exh. P9A). Inside the postal bag he found a plastic bag bearing the Astaka brand. Inside the plastic bag were four compressed blocks of plant materials suspected to be cannabis. There were two big blocks and 1 small block wrapped in aluminium foils. One other small compressed block was unwrapped.
[4] PW5 also seized a set of the accused's postal uniform from a cupboard inside this room. He also seized a key to the said house.
[5] PW9 is now divorced from the accused. The accused was a postman. She did not know from where the cannabis were recovered from. She confirmed that the postal bag P9A was the accused's working bag and saw the accused using the postal bag for his work on 23 July 2004. She confirmed that the said cannabis were not hers and also confirmed that she did not put the said cannabis inside the said postal bag.
[6] The cannabis seized by PW5 is now the subject matter of the charge levelled against the accused.
The Nature Of The Drug
[7] The investigating officer ('I.O') of the case, ASP Robin Guha Thakurtha, PW10, had these incriminating exhibits (4 blocks of compressed plant materials) examined by the chemist, PW7. The chemist testified at length the four tests he applied to determine the plant materials, namely physical examination, microscopic test, Duquenois Levine Test and Thin layer Chromatography Test. He concluded that the four blocks of plant materials were cannabis within the definition of s. 2 of the DDA, weighing 2,354 grammes.
[8] In the event, I am satisfied that from the tests conducted by PW7 and from the evidence he had adduced in court, the said drugs were cannabis as defined by the DDA.
Custody And Control
[9] Upon the facts and evidence as adduced. I find as a fact that the said incriminating exhibits were wholly under the custody and control of the accused.
[10] I have no reason to reject the testimonies of PW5, the arresting officer and the officer who effected the seizure of the exhibits; PW9, the ex-wife of the accused who had married the accused for about a week before the raid and who had been since then staying with the accused in the said house off and on for a total of 3 or 4 days prior to the arrest of the accused and PW8, the supervisor incharge of Pejabat Pos Bukit Pasir. Their testimonies were consistent and cogent enough and did not suffer from any apparent infirmitie
