The Court ruled that the accused are guilty yet not guilty
After the Supreme Court (SC) judgment let off 554 people detained and charged for possessing and trafficking Spasmo Proxyvon Plus (SP+), the Office of the Attorney General (OAG) has been receiving more than a dozen reports from family members contesting that their relatives were wrongly charged for Spasmo Proxyvon (SP) while they were arrested with SP+.
The judgment, touted to set a precedent has also left both lawmakers and lawyers questioning the legality of the decision.
While some said that the judgment helped the judiciary correct the mistakes of the lower courts, others accuse the country’s top appellate court of usurping the Parliament’s power and violating the Penal Code.
Observers, including lawyers, say that the SC has overstepped onto the Parliament’s jurisdiction by legislating, as the SC, in its judgment, allowed the Bhutan Narcotics Control Authority (BNCA) to update the list of controlled substances.
The observers also point out that there is no lacuna to fill as the Narcotic Drugs and Psychotropic Substances and Substance Abuse Act 2015 (NDPSSA Act 2015) was clear on who had the power to update the list.
Usurpation of Parliament’s powers
The judgment allowed BNCA to update the list of banned substances, which was annexed to the Narcotic Drugs and Psychotropic Substances and Substance Abuse Act 2015 (NDPSSAA 2015), as and when necessary. Observers said that according to the Act, this authority rests with the Parliament.
Observers said that SP+ was a narcotic drug not listed as a prohibited drug on the list of banned substances. Those who were caught abusing SP+ argued that they could not be prosecuted because the drug is not a banned substance because it is not in the Act.
The SC exercised the power of judges to fill the lacuna as per the section 28 (1) of the Civil and Criminal Procedure Code of Bhutan, 2001. The section states: “Every judge shall decide a case in accordance with the provisions of law. Where any section is ambiguous or there exists lacuna, the decision of the majority Judges of the Supreme Court or High Court shall prevail.”
The court, in its judgment, said that the Parliament during the amendment of the Act erred by drawing out a fixed list of the prohibited drugs and psychotropic substances.
“The Parliament didn’t insert a provision in the Act that can cover other narcotic drugs and psychotropic substances not listed in the Act’s annexes,” the judgment stated.
As the prohibited drugs were annexed to the Act, only the Parliament could alter the lists. According to the SC, the list of prohibited narcotic drugs and psychotropic substances should have been left to be included in the rules and regulations of the Act.
However, observers insist that there was no lacuna or ambiguity in the law.
“There is no lacuna in the law where the SC need to legislate because it is clear on who has the power to revise the list of the controlled substances,” a lawyer said.
“The NDPSSAA 2015 is clear, as it states only the Parliament has the right to amend the list, so the least that SC could have done was to ask the Parliament to amend it,” a senior attorney said.
For some leaders in the Parliament, this act was tantamount to violation of the Constitution, which provides for clear separation of powers between the three branches of the government.
“This is a usurpation of the power of the Parliament by the judiciary,” a senior National Assembly (NA) member claimed.
Another NA member said that new products and new brand names will keep coming in the market and it should be the content that should determine and not the form. “Putting every drug on the list was impossible, that’s why similar drugs with the same content and same effect on users should have been subjected to the same interpretation and application of the provisions of the law,” he said.
Another MP said that only an Act (legislation) of the Parliament could snatch the basic rights of an individual. “If given the power to revise the list, the BNCA lacking in expertise and foresight tomorrow can include even a minor drug as prohibited substance, making it draconian like the earlier Tobacco Act; then almost everyone would be behind bars.”
MPs said the NDPSSA’s sections 137 and 139 were clear enough to cover drugs of similar nature.
Section 137 of the Act states that a defendant shall be guilty of an offence of illegal possession of narcotic drugs and psychotropic substances, listed in Schedule III or IV of this Act if the quantity is less than the limit determined in Schedule VII of this Act but fails to produce a prescription from a registered physician for licit use.
The Act’s section 139 states that a defendant shall be guilty of the offence of illicit trafficking of narcotic drugs and psychotropic substances if the person possesses, imports, exports, stores, sells, purchases, transports, distributes, or supplies any substances under Schedules I and II of this Act regardless of the degree of purity or formulation; or any substances under Schedules III and IV of this Act regardless of the degree of purity.
The defendant’s attorneys argued in the SC that there could not be punishment without law. SP+ was different from SP because one of the ingredients of SP+, tramadol, was not on the list of controlled substances.
“Therefore, those arrested with SP+ cannot be convicted as they have not violated the law,” the defense attorney said
Violation of the Penal Code of
On the day of the judgment outside the SC, close to a dozen prosecuting attorneys took comfort in the fact that the judgment has made their jobs easier. “By allowing BNCA to include tramadol as a banned substance, those charged would be convicted without them having to argue much,” a lawyer said.
However, the legal fraternity too remained divided on the judgment. The judgment, according to some senior lawyers, violated the Penal Code by letting the person convicted of a third-degree felony by the Mongar dzongkhag court and later by the High Court to pay thrimthue.
In the July 26 judgment, the SC ordered all those convicted to date or those in the process of going to trial in the SP+ related cases could pay penalty in lieu of prison terms.
The Penal Code’s section 28 on Thrimthue states, “Except for the recidivist and accustomed or habitual offender, the court may make an order to pay fine in lieu of imprisonment if the offence is not a felony.”
A person in possession of controlled substances without an authorised prescription is liable for the offence of misdemeanour, while a person guilty of illegal transaction of controlled substances is liable for offence of second degree with a minimum sentence of nine years to 15 years in prison.
A senior attorney said that instead of letting those convicted of a felony to pay thrimthue and violate the Penal Code, the Court could have reduced their sentence to a misdemeanour as the substance was not listed in the Act and then allow them to pay thrimthue, which would be legal.
On accusation to the Court for violating the Penal Code as it let go people charged with third-degree felony or felony by paying thrimthue, an MP said that was the only option left to the Court to correct the gross mistakes of the lower courts.
The attorneys said the judiciary should be consistent in their judgments. “Otherwise, the judiciary could lose peoples’ confidence in its system,” an MP said.
The benefits from the Judgment
However, some MPs and officials from the BNCA said the SC judgment was long overdue. “Because of people abusing new drugs, implementing the Act was challenging which defeated the purpose of the Act,” an official said. “With the authority given by the SC through its judgment, we can now update the list on time to dissuade people from abusing or trafficking harmful substances.”
National Assembly member, Ritu Raj Chhetri said that such a judgment is judicial activism where the judiciary intervenes to correct the mistake of the legislature. He added that the law reform task force is reviewing the Act because it was found not to be comprehensive.
What’s with SP?
SP was banned in India in September 2013. Major pharmaceutical companies stopped manufacturing SP thereafter but it was available in the Indian market beyond the ban date.
SP was banned in Bhutan under the NDPSSAA 2015, which came into force on July 20, 2015. However, SP remained available across the border.
SP+ came into the market sometime in the third quarter of 2015 once manufacturers learnt that SP was banned in Bhutan.
During the initial stage, SP+ cases were investigated as SP cases. Investigation reports from the police to the OAG came as SP cases. OAG prosecuted these cases as SP and the courts rendered judgments as SP cases too.
It was only after some defense counsels raised the issue, that SP+ cases came to the OAG as SP+ cases and not as SP and were charged as such, and judgments rendered accordingly.
Many people convicted for SP are now claiming that they were caught with SP+ and not SP. They may be making genuine claims, but the police, OAG and court records indicate otherwise.
“If these claimants are given the benefit of doubt, people convicted under actual SP cases will claim that they too were caught with SP+ and not SP, since their record will show the same,” an OAG official said.
However, with BNCA destroying all physical evidence in February 2017, SP+ convicts may not be able to get the benefit they should get under the Supreme Court judgment.