The court emphasized that while denying bail under the Dangerous Drugs Act, considerations of the accused’s health, age, and evidence against them must not be overlooked.

Mahazan Mat Taib JC:

[1] In this case, Puan binti Saad ("the accused/the applicant") together with two other persons were charged on 27 June 2020 before Magistrate's Court Alor Setar for an alleged offence of trafficking in dangerous drug under s 39B(1)(a) of the Dangerous Drugs Act 1952 (" DDA ") punishable under s 39B(2) of the same Act read together with s 34 of the Penal Code for being in joint possession of 780.18g of heroin. The charge read as follows:

Bahawa kamu bersama-sama pada 19hb. Jun 2020 lebih kurang 6.00 petang di bahu Jalan Batu 2, Jalan Datuk Kumbar, 05300 Alor Star, di dalam daerah Kota Setar di dalam Negeri Kedah telah didapati memperedarkan dadah berbahaya iaitu jenis 'Heroin' seberat 780.18 gram. Oleh yang demikian itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan.

[2] No bail was allowed.

[3] The accused/applicant then filed for bail pursuant to s 388 of the Criminal Procedure (' CPC ") before this Court. The material parts of the section read as follows:

Section 388 (1) When any person accused of any non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a Court, he may be released on bail by the officer in charge of the police district or by that Court, but he shall not be released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of that officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

[4] Section 41B of the Dangerous Drugs Act 1952 denies bail for persons charged with offences under the Act that carries the death sentences or sentences of more than five years' imprisonment. Section 41B states as follows:

(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;

(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.

(2) Subsection (1) shall effect notwithstanding any other written law or any rule of law to the contrary.

[5]Sub-paragraph 41B(1)(c) of DDA states clearly that, "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". Subsection (2) further emphasises that no other legal provision can interfere with this provision and this shall means that this provision stands on its own.

[6] That provision would mean that the Public Prosecutor will decide, and the accused has to stay in detention until the trial is over and the Court decides whether he/she is guilty or not. Paragraph 41B(1)(c) gives the power of denial of bail to the Public Prosecutor, who simply has to certify "in writing that it is not in the public interest to grant bail to the accused person". In other words, the Court's power to decide on bail is simply ousted. It goes further in sub-s (2) to state that this provision prevails over any other written law.

[7] However, I am of the view that the Court's role should not be put aside