Wan Adnan J

The charge against the two accused persons was as follows:

That you on the 5th of July 1983 at house No 137-0, Jalan Rambutan, Ayer Itam in the district of Georgetown in the State of Penang, in furtherance of the common intention of you all, did on your own behalf traffic in dangerous drugs, to wit, 7,645 gms of raw opium, in contravention of s 39B(1)(a) of the Dangerous Drugs Act (1952) (Revised 1980) and that you have thereby committed an offence punishable under s 39B(2) of the same Act, read with s 34 of the Penal Code.

The case for the prosecution was that on 5 July 1983 PW4 M Ramalingam led a police party to premises No 137-O, Jalan Rambutan, Air Hitam, Penang. The other members of the party were ASP Yunus, Inspector Rafie, Inspector Arumugam, DPC Fan Eng Lai, DPC Panjinathan and D/Sgt Kok Kim Hock.

PW1 entered the premises and saw the first and second accused in the hall. He identified himself to them and told them the purpose of the police visit. A search was made on the ground floor but nothing was found. The two accused persons were then taken upstairs to the first floor. In the presence of the accused persons the first room was searched. No drugs were found in that room. PW4 asked the first and second accused as to which room they occupied. They led PW4 to the second room. A search was carried out but nothing incriminating was found in the room. As PW4 was about to leave the said second room he noticed on the ceiling of the room an opening with a lid on. The lid appeared to have been tampered with. PW4 then instructed DPC Panjinathan to climb to the ceiling, to remove the lid, and to see if there was anything on the ceiling. DPC Panjinathan climbed up. He removed the lid to the side and within seconds he took out a biscuit tin and lowered it to PW4. DPC Panjinathan just put his head above the ceiling and brought down the tin. PW4 received the tin and asked the first accused what was in the tin. The first accused said, 'ubat cina.' PW4 removed the lid of the tin and found inside it four slabs of a blackish substance believed to be opium. PW4 then placed both the accused persons under arrest. The four slabs of blackish substance were analysed by the chemist PW3, who found them to contain 7,645 gm of raw opium.

At the close of the prosecution case I had to consider whether there was some evidence (not inherently incredible) which if I were to accept as accurate would establish each essential element of the alleged offence: see Haw Tua Tau v PP [1981] 2 MLJ 49 . The learned counsel for the accused persons submitted that the prosecution had failed to make out a prima facie case against both the accused persons. Among his grounds were the following:

(a) failure of the prosecution to call DPC Panjinathan who took the drug from the ceiling was fatal;

(b) the statement of the first accused — 'ubat cina' — was not admissible as at the time of making it the first accused was already under arrest.

(A) Failure of prosecution to call DPC Panjinathan

It was submitted by the learned counsel that as DPC Panjinathan was the one who took the biscuit tin containing the drug from the ceiling he was a material witness for the prosecution and failure to call him as a witness was fatal to the prosecution. I had examined carefully the part played by DPC Panjinathan in the recovery of the drug. PW4 said in evidence:

I then instructed DPC Panjinathan to climb to the ceiling to remove the lid and to see if there was anything on the ceiling. He climbed up. He removed the lid to the side and within seconds he took out a biscuit tin and lowered it down to where I was. He put his head above the ceiling and brought down the tin. I received the tin ...

During cross-examination he said:

It is not possible to reach by hand while standing. Panjinathan used a stool to climb onto a cupboard to reach the hole. He used two stools. Panjinathan went up for hardly a minute. Panjinathan was standing on the cupboard when he lowered the tin.

The abov