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2021 MarsdenLR 2282
HIGH COURT (GEORGETOWN
MOHD RADZI ABDUL HAMID, J
Balachandran al K Arujunan & Anor – Plaintiff
Versus
Public Prosecutor – Defendant
CRIMINAL APPLICATION NO PA-44-4-03 OF 2021
N Sivananthan (Nabila Habib with him) (Sivananthan) for the applicants.
Khairul Anuar bin Abdul Halim (Noor Azura bt Zulkifle and Yazid Mustaqim bin Roslan with him) (Deputy Public Prosecutor, Penang State Legal Advisor's Office) for the respondent.
The court upheld the validity of section 41B of the Dangerous Drugs Act, affirming that it constitutionally limits bail for serious drug offenses, emphasizing Parliament's authority to regulate judicial discretion.
Headnote:(A) Dangerous Drugs Act, 1952 - Section 41B - Criminal Procedure Code - Section 388(1) - Application for bail denied under section 41B as it prohibits bail for offences punishable with death or lengthy imprisonment - Court upheld the constitutionality of section 41B against challenges related to judicial powers and the exercise of discretion. (Paras 8, 22, 40, and 54)
(B) Judicial Power - The court emphasized the legislative competence of Parliament to curtail judicial discretion in matters of bail in drug-related cases, affirming the principle that specific provisions prevail over general laws. (Paras 9, 31 and 56)
(C) Public Interest - The court noted the pressing need for laws dealing strictly with drug-related offenses due to their societal impact, reinforcing the need for a law that limits bail to ensure public safety. (Paras 10, 43 and 54)
Facts of the case:
The Applicants sought bail under the Dangerous Drugs Act after their initial application was denied at the Magistrate Court. They relied on previous court decisions, arguing for constitutional validity of their application based on medical issues and gender considerations.
Findings of Court:
The court dismissed the bail application, holding that section 41B of the Dangerous Drugs Act is constitutionally valid and specific law prevails over the provisions of the Criminal Procedure Code.
Issues: The main issues included the constitutionality of section 41B, the limitations on judicial power regarding bail, and the applicability of previous decisions regarding bail applications under the Dangerous Drugs Act.
Ratio Decidendi: The court reasoned that section 41B of the Dangerous Drugs Act validly restricts the grant of bail as a preventive measure for serious drug-related offenses, and such a restriction is within the legislature’s competence to define and regulate offenses against public interest.
Result: Application dismissed.
| Table of Content |
|---|
| 1. bail application under cpc. (Para 1 , 1 , 2 , 3) |
| 2. arguments for and against bail application. (Para 6 , 7) |
| 3. analysis of section 41b dda's impact. (Para 8 , 9 , 10 , 11 , 12) |
| 4. court's stance on federal court's decisions. (Para 13 , 14 , 16) |
| 5. principles regarding constitutionality. (Para 19 , 21 , 23) |
| 6. distinguishing dda from other laws. (Para 24 , 26 , 28) |
| 7. legislative power and court jurisdiction. (Para 29 , 30 , 31 , 32) |
| 8. impact of drug laws on society. (Para 33 , 34 , 35) |
| 9. validity and enforcement of drug laws. (Para 46 , 49 , 50 , 51) |
| 10. court's decision on following previous rulings. (Para 61 , 62) |
| 11. dismissal of the bail application. (Para 63) |
[1]This an application by way of a Notice of Motion by both the Applicants for a bail pursuant to Section 388 (1) Criminal Procedure Code
Background
[2]On 8.12.2020 both the Applicants were charged before the Magistrate Court at Georgetown, Penang for an offence under section 398 of the Dangerous Drugs Act 1952
[3]Dissatisfied with decision of the Magistrate in denying bail, both Applicants filed the Application with a Certificate of Urgency. The certificate was premised on the matter of liberty of both the Applicants. The Application was then heard on 16.4.2021.
The Application
[4]The Application was supported by Affidavit of Nurul Nabilah binti Habibu, legal counsel for both the Applicants (“Applicant’s Affidavit”).
[5]The Respondent filed a total of 13 Affidavits in reply to the Application (“Affidavits in Reply”).
[6]The Application is premised on several issues. They are summarized as follows:
(a)The effect of the decision of Federal Court in Koh Chin Wah lawan Pendakwa Raya (No Rayuan Jenayah: 07-13- 11/2019(W)) that allowed an application for bail under section 13Security Offences (Special Measures) Act 2012
(b)That on the authority of the Federal Court decision Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat section 41BDangerous Drugs Act 1952court and is therefore ultra vires Article 121 of the Federal Constitution;
(c)That section 41BDDAsection 388(1) CPC
(d)The effect of the High Court decision in Puan Saad v PP where the Court in that case had allowed an application for bail by an accused charged under section 398 of the DDA
(e)That in the event this Court holds section 41BDDAPuan Saad (supra) then section 388(1)CPCCourt should therefore consider this Applicant on its merits. In consideration of the medical issues suffered by both the Applicants and additionally, the second Applicant’s gender, bail should be granted.
[7]The Application is opposed by the Respondent based, inter alia, on the following contentions:
(a)That there is a presumption of the constitutionality of section 41BDDA
(b)That the exercise and limits of judicial power to grant or not grant bail is derived from Article 121 of the Federal Constitution and as provided by law;
(c)That section 41BDDAsection 388(1) CPC
(d)That even if section 388(1) CPC
Deliberations by this CourtProhibition against bail under the DDA – Background
[8] Section 41B of the DDA provides:
(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)Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.
[9]This provision of the DDA came into effect on 10.3.1978 via the Dangerous Drugs (Amendment) Act 1978. It is plainly clear that section 41B Court had the occasion to express its views on section 41B PP v Chew Siew Luan [1982] CLJ Rep 285 that the is a special law passed by Parliament that deals with drugs related offences and in derogation of the rights of an accused to be granted bail. I
