A conviction for drug trafficking under the Dangerous Drugs Act is upheld where actual possession and knowledge of the drugs are established, while passive possession without knowledge cannot sustain a conviction.

Ravinthran Paramaguru JCA:

[1] There are three appeals before us. They arise from two criminal cases that were jointly tried.

[2] In Criminal Trial No BA-45A-128-12/2017, Sri Ganesh a/l Jaya Balan (Sri Ganesh) was convicted under s 39B(1) of the Dangerous Drugs Act 1952 and sentenced to death. The charge against him read as follows:

Bahawa kamu pada 26 April 2017 pada jam lebih kurang 10.20 malam bertempat di pintu lobi blok A, Impian Meridien, Jalan Subang 1, USJ 1, Subang Jaya Selangor, di dalam daerah Petaling Jaya, di dalam Negeri Selangor telah memperedarkan dadah berbahaya disyaki Cannabis anggaran berat 3024 gram. Oleh itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama.

[3] In Criminal Appeal No B-05(M)-120-03/2019, he has appealed against the said conviction and sentence.

[4] In Criminal Trial No BA-45A-141-12/2017, Agnish Gajanan Balasundrampillai (Agnish) was charged as follows.

Bahawa kamu pada 26 April 2017 pada jam lebih kurang 10.20 malam bertempat di pintu lobi blok A, Impian Meridien, Jalan Subang 1, USJ 1, Subang Jaya Selangor, didalam daerah Petaling Jaya, didalam Negeri Selangor telah memperedarkan dadah berbahaya disyaki Cannabis anggaran berat 7178 gram. Oleh itu kamu telah melakukan suatu kesalahan dibawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah s 39B(2) Akta yang sama.

[5] However, at the conclusion of the trial, he was convicted of the offence of possession under s 39A(2) of the Dangerous Drugs Act 1952 and sentenced to ten years imprisonment and ten lashes of the whip. In Criminal Appeal No B-05(SH)-121-03/2019, Agnish has appealed against the conviction and sentence.

[6] In Criminal Appeal No B-05(H)-145-03/2019, the Public Prosecutor has appealed against the alleged inadequacy of the sentence meted out to Agnish. The Public Prosecutor did not appeal against the order of acquittal on the trafficking charge.

Case For Prosecution

[7] On 26 April 2017 at about 10 pm, SP3 (ASP Mohd Syaipul Rizal) from Narcotics Division of the Subang Jaya District Police Headquarters led a team of police officers to the Impian Meridien Condominium at Jalan Subang after receiving information about drug trafficking activity. At 10.20 pm he observed two men walking towards the compound of the condominium. Each of them carried a sling bag. SP3 followed them to the lobby of Block A of the condominium. At the lobby, SP3 introduced himself as a police officer and showed them his authority card. Both men appeared startled and attempted to run away. A scuffle followed with the other members of the raiding team who successfully subdued and arrested them. They were identified as Sri Ganesh (referred to as the first accused during the trial) and Agnish (referred to as the second accused). Sri Ganesh is a Malaysian citizen whereas Agnish is a Sri Lankan citizen. SP3 said that Sri Ganesh carried a blue black sling bag with the writing "Silver Star" and the picture of a red car. The bag that Agnish carried was a black bag with the brand name "Lenovo".

[8] Upon checking the two bags, SP3 found 3 slabs of dried vegetable matter suspected to be ganja and a boarding pass in the name of Sri Ganesh a/l Jaya Balan in the bag carried by Sri Ganesh. In the bag carried by Agnish, seven slabs of dried vegetable matter were found together with his Sri Lankan Passport. The exhibits and the arrested person were handed over to the investigating officer. The exhibits from the two bags were separately marked and sent to the Chemistry Department for analysis. The chemist (SP4) issued a report stating that the substance taken from the bag carried by Sri Ganesh was cannabis with a total weight of 3024 grams whereas the bag carried by Agnish contained cannabis with a total weight of 7033 grams

High Court Finding At End Of Prosecution's Case

[9] At the end of the prosecution's case, the learned High Court Judge found that a prima facie case had been