JUDGMENT

Raja Azlan Shah CJ (Malaya):

In this case the following questions were referred to us under s. 66 of the Courts of Judicature Act 1964:

(i) Whether or not s. 388 Criminal Procedure Code overrides the provisions ofs. 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 s. 39B of the Dangerous Drugs Act 1952 (Act 234).

We answered the first question in the negative and the second was accordingly a non sequitur.

On 26 May 1980 a woman enceintewith accouchement due in early July 1980, was charged with trafficking in 157.08 grammes of heroin, an offence under s. 39B (1)(a) and punishable under s. 39B(2) of the Dangerous Drugs Act, 1952offence carries a punishment for life. On 9 June 1980 the learned President of the Sessions Court granted her bail pending the hearing of the case on an application of the proviso to s. 388(i) of the Criminal Procedure Codewhich permits the granting of bail to any person under the age of 16 years or any woman or any sick or infirm person accused of a non-bailable offence carrying life imprisonment or death as a penalty.

On appeal by the Public Prosecutor against the order so made granting bail the learned Judge dismissed it stating that s. 41B(1) and (2) of the Dangerous Drugs Actdoes not override the proviso to s. 388(i) of the Criminal Procedure Code.He seemed to think that s. 41B of the Act should not be construed as having the effect of fettering the discretion to grant bail under the provisions of the Criminal Procedure Codein cases covered by the proviso to s. 388 (i) thereof. Section 41B (1) of the Dangerous Drugs Actprovides:

(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.

Now, the Criminal Procedure Code (F.M.S. Cap. 6) which came into force on 1 January 1927 is an enactment regulating criminal proceedings in general in the former Federated Malay States. It was amended and extended throughout Malaysia by the Criminal Procedure Code (Amendment and Extension) Act 1976 on 10 January 1976. It cannot be gainsaid that it is a written law within the meaning assigned in s. 2 of the Interpretation Act 1967.

The Dangerous Drugs Act 1952 (Revised - 1980)is an Act specifically designed to regulate the importation, exportation, manufacture, sale and use of, inter alia, dangerous drugs, and "to make special provisions relating to the jurisdiction of Courts in respect of offences thereunder and their trial, and for purposes connected therewith". In other words, the Act is in substance a special law passed by Parliament in derogation of the rights of a person concerning the granting of bail in an otherwise ordinary case. We further note in particular that s. 41B of the Act is an entirely new section introduced by the Dangerous Drugs (Amendment ) Act 1978 (Act A426) and became operative on 10 March 1978. Generalibus specialia derogantis a cardinal principle of interpretation. It means that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law. [See also PP v. Chu Beow Hin[1982] CLJ (Rep) 288 at p. 291]. The provisions of s. 3 of the Criminal Procedure Codewhich counsel for the respondent seeks to rely on has no relevance whatsoever to the matter in issue before us.

It would be erroneous to apply expressions used and provisions made in a statute to another and entirely different