JUDGMENTBY: SALLEH ABAS F.J

SALLEH ABAS F.J (delivering the judgment of the Court): The two appellants in this appeal were convicted by Yusoff Mohamed J. for trafficking in dangerous drugs, i.e. 20.27 kilograms of raw opium, which is an offence under section 39B(1)(a) of Dangerous Drugs Act and punishable under subsection (2) of the same section of the Act. They were sentenced to life imprisonment plus six strokes of rotan each. The appellants appeal to us against conviction only. The facts are not much disputed and can be briefly stated as follows.

A motor car bearing registration number JM 2944 came under the surveillance of Customs authorities since July 5, 1977 as a result of information received that the car was suspected of being used to carry drugs to Johore Bharu. The Customs authorities laid three unsuccessful ambushes against the car on July 5, 9 and 25, 1977 at Johore Causeway. Nothing happened in any of these ambushes. Finally on August 15, 1977 on receipt of further information another ambush was laid. At about 11.15 a.m. on that date this car was seen near Tasek Golf Club to be proceeding towards Johore Causeway. PW5 Mohd. Tahir bin Ismail, P.K.P. 2043 who took up an ambush position at Jalan Larkin followed the car in his car and overtook it at the Causeway where it was stopped. At the steering wheel was Appellant No. (1) whilst Appellant No. (2) was sitting in the front seat next to the driver. In the back seat there were two women, one of whom (PW2) was the wife of Appellant No. (1) and the other (PW3) the fiancee of Appellant No. (2). There were also two children in the back seat. Having identified himself to Appellant No. (1) that he was a Customs Officer PW5 asked Appellant No. (2) if he was carrying anything in the car. The reply was that there were some chempedak fruits and rambutans in the luggage boot of the car. Upon opening the luggage boot three chempedak fruits which emitted very strong smell and one bunch of rambutans were found in it. On further search 10 packets of raw opium weighing 20.27 kilograms were found hidden behind the back rest of the rear seat of the car. The search was conducted in the presence of both appellants and assisting PW5 to carry out the search were two other Customs Officers, namely PW6 and PW7 who both took part in the ambush. On being questioned about the opium both the appellants denied having any knowledge of it. Finally they were arrested and charged for the offence and were subsequently convicted.

To prove an offence of trafficking under section 37(B)(1)(a) the prosecution has to rely on statutory presumptions under section 37 of the Act. Paragraph (da) of this section says:

"Any person who is found in possession of 5 kilogrammes of raw

opium shall be presumed, until the contrary is proved, to be

trafficking in the said drug."

In this case there is no dispute that the weight of the raw opium found in the car is more than what is required by this paragraph. If possession is proved against both the appellants they would be guilty of trafficking. The question, therefore, is whether the appellants were in possession of the opium at the material time and place when the Customs Officers searched the car. One of the elements to constitute possession is knowledge which means that the prosecution must prove that the appellants knew of the existence of the opium hidden behind the back rest of the cars rear seat. In holding that the appellants had the necessary knowledge, the learned judge in the court below accepted the prosecutions submission that not only could the statutory presumption in paragraph (g) of section 37 be invoked but that also the circumstances of the case show that the appellants actually knew of the opium being hidden in the car.

There are three presumptions which could possibly be invoked. These are presumptions in paragraphs (d), (g) and (h). The presumption under paragraph (d) says: --

"Any person who is found to have had in his