Nirmahl a/l Subramannian v Public Prosecutor

Appellant(s): Nirmahl A/L Subramannian

Respondent(s): Pendakwa Raya

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The appellant was charged under s. 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 424.78 grams of Heroin and Monoacetylmorphines, an offence punishable under s. 39B(2) of the same Act.
• The prosecution's key witness (SP4), the raiding officer, testified that he observed the appellant for 45 minutes, saw him place a paper bag into a Proton car, and subsequently found car keys and a remote control in the appellant's pocket; the paper bag was found to contain the drugs.
• The appellant's defence was that a friend (Kamotenu) had returned the Proton car to him shortly before the raid and was responsible for the drugs; Kamotenu was arrested nearby but no drugs were found on him.

• Whether the credibility of SP4's oral testimony was fatally undermined by omissions in his police report (particularly the 45-minute observation and the act of placing the bag into the car) and alleged discrepancies with the investigating officer's (SP2's) evidence.
• Whether the failure of the prosecution to call Kamotenu and the registered owner of the Proton car (Subramaniam) as witnesses warranted an adverse inference under s. 114(g) of the Evidence Act 1950.
• Whether the appellant had successfully rebutted the presumption of trafficking under s. 37(da) of the Dangerous Drugs Act 1952 on a balance of probabilities.

• The Court upheld the High Court's finding that SP4's oral testimony remained credible; omissions in a police report are not substantive evidence and do not automatically destroy a witness's credibility — the critical question is whether any discrepancy strikes at the root of the charge, which it did not here, especially as the defence failed to directly cross-examine SP4 on the specific acts of observation and placing the bag into the car.
• The Court held that s. 114(g) of the Evidence Act did not apply: since SP4 directly observed the appellant place the bag into the car, neither Subramaniam nor Kamotenu were material or essential witnesses to the prosecution's narrative, and the prosecution was entitled to rely on SP4's evidence alone.
• The appeal was dismissed; the Court found no merit warranting interference with the High Court's findings of fact and law, affirming the conviction and sentence of life imprisonment and 12 strokes of the cane.