Gunn Chit Tuan J:

The accused/applicant was charged together with her husband Salleh bin Saud and her brother Ismail bin Daud in the Sessions Court in Butterworth on 5 March 1978, for an alleged offence of trafficking in dangerous drugs under s. 39(B)(1)(a) of the Dangerous Drugs Ordinance, 1952 (FM No. 30 of 1952). The case was transferred to the Special Sessions Court in George Town and when she appeared before the President of the Special Sessions Court, George Town, on 6 March 1978 her application for bail was refused, but she was apparently advised by the learned President to apply to the High Court for bail.

Though a Judge has under ss. 388 and 389 of the Criminal Procedure Code (FMS Cap. 6)absolute discretion in granting bail, that discretion must be exercised judicially and he should not (except for exceptional and very special reasons) grant bail if there appears reasonable grounds for believing that the accused has been guilty of an offence punishable with death or life imprisonment. (See Re KS Menon [1946] MLJ 49 and Regina V. Ooi Ah Kow . The offence with which the accused/applicant has been charged is punishable on conviction under s. 39(B)(2) of the Dangerous Drugs Ordinance, 1952, with death or imprisonment for life, and also, if the offender is not sentenced to death, with whipping. It was therefore necessary for me to consider some of the facts before me in order to find out whether there were any exceptional or very special reasons in the present case for bail to be granted. What constitutes exceptional and special reasons must necessarily depend on the facts of each case. I was, of course, aware that I should not make any statements which were likely to, or probably be construed as indicating my views of the case though I was at a disadvantage in considering this application when there was little of the evidence before me which it was intended to adduce at the trial.

However, according to the affidavit filed in support of the application, the accused/applicant has affirmed that she was in her bedroom feeding her 4-month old baby on the day and time in question when she was arrested. She was not aware that there were any drugs in her house at that time, and although the incriminating articles were found in her house, they were not in her possession. She has 6 children who are 11 years, nine years, six years, four years, three years and four months old respectively. Since her arrest all her children, except the youngest one, have been in the care of their grandparents who are old and unable to give them proper attention. She herself was in poor health and her youngest child has been staying with her in the prison where conditions were such as not to be conducive to the child's health as well as to her health as she was not able to get special food for both of them. Her 4-month old baby has to be with her in prison as she was still breast-feeding the child. Her other children would also suffer mentally and physically during her absence in prison. It would be quite some time before her case could be heard and disposed of and in the meantime she was not able to give proper instructions to her solicitor.

There was no affidavit filed in reply by the learned Deputy Public Prosecutor, who opposed bail and referred to PP v. Latchemy [1967] 2 MLJ 79 in which case the only ground for application for bail was that the accused was "a mother of 10 children and the youngest of them is still under breast-feed". On an appeal from the Magistrate's Court which had granted her bail, Pawan Ahmad J held that the reasons put forward in that application fell short of being, exceptional and very special reasons and that the application should have been refused. Bail was cancelled and the accused was ordered to be put back on remand. With respect, I agree that the fact that an accused was breast-feeding a child was not an exceptional or very special reason for granting bail, but in my opinion that case is distinguishable f