JUDGMENT

Zulkefli JC

This is an application by one Baharuddin bin Kamsin, a member of the rank and file of the Royal Malaysian Navy ('the RMN') attached to the Royal Malaysian Naval Base at Lumut, Perak for a writ of habeas corpus ad subjiciendum. The facts surrounding this application are as follows.

On 21 October 1994, the applicant was directed by his commanding officer to undergo a urine test for the purpose of detecting whether the applicant was involved in drug abuse. A chemist report dated 23 November 1994 confirmed the urine test of the applicant as being positive in that it contained active ingredients of the drug cannabis. On 17 April 1995, the applicant was served with an abstract of evidence consisting of signed statements of four witnesses as is necessary to prove the charge against the applicant under r 36 of the Armed Forces (Court-Martial) Rules of Procedure 1976 ('Rules of Procedure'). The trial of the applicant before the court-martial on the charges framed against him was fixed for hearing on 8 September 1995. The following two charges were framed by the first respondent, the convening authority, against the applicant:

Pertuduhan Pertama:

Tidak mematuhi perintah-perintah tetap yang bertentangan dengan s 51 Akta Angkatan Tentera 1972 iaitu ia di pasukan khas laut, Pengkalan TLDM 32100, Lumut, Perak Darul Ridzuan pada 21 October 1994 lebih kurang jam 11 pagi telah tidak mematuhi Perintah Am Panglima Armada s 1208(3) yang diketahuhinya atau yang sepatutnya ia patut mengetahui telah menyalahgunakan dadah berbahaya iaitu 'cannabis' melalui ujian kencing positif.

Pertuduhan Kedua:

Kelakuan yang memudaratkan keadaan baik dan tatatertib perkhidmatan yang bertentangan dengan s 87 Akta Angkatan Tentera 1972 iaitu ia di pasukan khas laut, Pengkalan TLDM 32100, Lumut, Perak Darul Ridzuan pada 21 Oktober 1994 telah terlibat dan ada bersangkut paut dengan menyalahgunakan dadah di mana air kencingnya didapati positif melalui laporan dari Jabatan Kimia Ipoh bertarikh 23 November 1994.

The trial of the applicant on the said two charges before the court-martial on 8 September 1995 did not commence as scheduled and the trial was rescheduled for hearing on 3 October 1995. Pending the said hearing date on 3 October 1995, the applicant was detained under close arrest on 8 September 1995 at the Sungai Wangi Camp, Sitiawan, Perak. Prior to 8 September 1995, the applicant had never been placed under any form of arrest. By a letter dated 15 September 1995, the applicant through his counsel made an application to the first respondent for the release of the applicant from the said detention but until the day of hearing of this application the applicant had not been so released. The first respondent in a letter dated 18 September 1995 to the counsel of the applicant however replied by stating that on the ground of security the applicant should not be released from close arrest while he is on trial before the court-martial. On 3 October 1995, the trial of the applicant on the said two charges before the court-martial commenced and after one witness gave evidence the trial was adjourned for continued hearing on 4 December 1995 and the applicant was continuously detained thereafter.

On the day of hearing of this criminal application on 18 October 1995, the Federal Counsel, Pn Nurulhuda appearing for both the respondents applied to the court to strike out the second respondent, the Minister of Defence, Malaysia from being cited as a party to this proceeding. I allowed the application as I am satisfied from the affidavits filed for both the applicant and the respondents that there is no evidence to show that the purported detention of the applicant had been made through the exercise of any of the powers vested in the Minister of Defence under the Armed Forces Act 1972 ('the Act'). Learned Federal Counsel at the outset of the hearing also made a preliminary objection as regards the admissibility of the affidavit filed by the applicant in supp