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The High Court
The High Court

Bangkok drug case convicts benefit from principle of lenity

HC altered the charges from first-degree felony to third degree

Differing statements from two agencies involved in controlling and regulating drugs has benefitted four people who were convicted of trafficking controlled substances from Bangkok to Jakarta in March 2016.

The two agencies submitted differing statements to the High Court (HC) when the court sought their opinion on whether methamphetamine is listed as a controlled substance in the Narcotic Drugs, Psychotropic Substances and Substance Abuse Act of Bhutan (NDPSSA) 2015.

The HC wrote to the two agencies, the Drug Regulatory Authority (DRA) and Bhutan Narcotic Control Authority (BNCA), during its trial of the seven people who were involved in a drug smuggling case to Jakarta.

The Office of the Attorney General (OAG) charged the seven people, Pema Khandu, Kunzang, Dechen Dolma and Sonam Zangmo on August 8, 2016, and Tandin Wangchuk, Kinley and Manoj Daga in absentia on May 15, 2017, for illicit trafficking of methylamphetamine from Bangkok to Jakarta.

The HC wrote to DRA and BNCA after it was revealed that the drugs the seven people trafficked was methamphetamine, which is popularly known as ‘Ice’. The court could not establish whether methamphetamine was a controlled substance in the NDPSSA 2015.

DRA, on September 9 this year, responded that methylamphetamine and methamphetamine are synonyms known by different names in different countries.

It also submitted that methylamphetamine is listed in form of salts under serial number 13 and 24 of schedule II as per the NDPSSA 2015.

BNCA, on October 5 this year, responded that methamphetamine is known as methylamphetamine but methamphetamine is listed as metamfetamine both under schedule II of the 1971 International Convention of Psychotropic Substances and Schedule IV of the NDPSSA 2015’s serial number 80.

The different interpretation of the two agencies lead the court to invoke a universal principle, The Rule of Lenity, a judicial doctrine which requires the court to rule in favour of the more lenient punishment when there are inconsistencies in punishments. Going by DRA’s interpretation, the crime of the people involved will be graded a first-degree felony with 15 years to life imprisonment while BNCA’s interpretation grades it a third-degree felony, which is five to nine years imprisonment.

The HC, therefore, altered the charges and changed it to a third-degree felony and imprisoned Pema Khandu, Kunzang, Sonam Zangmo and Dechen Dolma to seven years in prison. The judgement was rendered on December 19.

The court also deferred the judgment for the alleged ringleader of the racket Manoj Daga, a resident of Jaigaon and Kinley and Tandin Wangchuk, stating that rendering judgment without providing any opportunity for them to defend themselves would risk violating fair trial, principles of natural justice and the provisions of the Constitution and other relevant laws in the country.

The court ordered the OAG and Royal Bhutan Police (RBP) to expedite the arrest of the three people by working with international agencies, as deferring the judgment could send a wrong message and encourage people who commit crimes and abscond.

“If the investigating and prosecuting agencies do not produce such people to court, it might also set the wrong precedence,” the judgment stated.

It also stated that it is evident from the case that some Bhutanese people will be easily influenced to commit such crimes for economic benefits, affecting Bhutan’s image and bilateral relations with other countries. “To deter such activities, the passport of Pema Khandu, Kunzang, Dechen Dolma and Sonam Zangmo should be cancelled.”

The court also ordered OAG and RBP to work with relevant agencies to cancel the passport of Manoj Daga, Kinley and Tandin Wangchuk and issue a notification about it. “Cancelling their documents would also expedite their arrest.”

The HC, during the trial, also had to establish whether it has the jurisdiction to pursue a case where the crime happened outside the country, after Pema Khandu and Kunzang’s lawyer, Cheda, contended that it did not have jurisdiction.

The court established that according to section 20 (b) of the Civil and Criminal Procedure Code of Bhutan (CCPC), it has jurisdiction. Section 20 (b) of the CCPC states that the HC shall exercise jurisdiction outside Bhutan based on the active nationality principle.

Background

Meanwhile, the crime surfaced after police in Thailand recovered a body of a Bhutanese man, late Ugyen Tshering, from a canal in Bangkok’s Klong Ong Ang district on April 3, 2016.

The judgment stated that the deceased, two absconders, Kinley and Tandin Wangchuk, four convicts, Pema Khandu, Kunzang, Dechen Dolma and Sonam Zangmo worked with Manoj Daga and trafficked ‘Ice’ from Bangkok to Jakarta in Indonesia.

It stated that few months before the incident, Kinley and Pema Khandu met in Jaigaon, where Kinley told Pema Khandu that if they carry drugs, they will be paid Nu 60,000 to 70,000. They then encouraged Ugyen Tshering, Tandin Wangchuk and Kunzang to join. “On February 27, 2016, they borrowed Nu 300,000 from a person by mortgaging Ugyen Tshering’s taxi and bought air tickets to travel to Bangkok with the money.”

It also stated that when they reached Jaigaon, Kinley said they need more people and that is when Dechen Dolma and Sonam Zangmo were asked to join. “Late Ugyen Tshering, Tandin Wangchuk, Kunzang, Dechen Dolma and Sonam Zangmo travelled to Bangkok from Kolkata on March 27 last year and met Manoj Daga on March 30. The Bhutanese people had, by then, availed visa to visit Jakarta.”

On March 31, Manoj Daga and Tandin Wangchuk brought a bag of ‘Ice’ and made Kunzang, Pema Khandu and Dechen Dolma swallow 3 to 4gms of ‘Ice’ capsules. Kunzang swallowed 90 capsules, Pema Khandu swallowed 81 and Dechen Dolma swallowed 80. They then flew to Jakarta, where Dechen Dolma and Pema Khandu handed over the capsules to an Indian national. However, Kunzang was constipated and couldn’t relieve the capsules.

Back in Bangkok, Sonam Zangmo swallowed 20 capsules and concealed a large capsule in her sanitary napkin. Tandin Wangchuk could not swallow a single capsule and Manoj Daga asked him to refund all the expenditure incurred. “Ugyen Tshering fell ill after swallowing 40 capsules.”

The judgment stated that only Sonam Zangmo flew to Jakarta and concealed the drugs in a hotel room.

It stated that the three left Jakarta without Kunzang who was intoxicated and became violent.

Sonam Zangmo returned to Bangkok and then to Delhi. She surrendered to RBP on April 12. Pema Khandu and Dechen Dolma returned to Kolkata. They absconded to Nepal. They surrendered to police on April 15.

Kunzang was detained in Jakarta immigration for a night and deported to Delhi, where he stayed for more than 10 days. He surrendered to police on April 26.

Tashi Dema and Tshering Palden

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