BNCA can update banned drugs list: SC

Bhutan Narcotic Control Authority (BNCA) can update the list of banned drugs as and when necessary, the Supreme Court said in its judgment of the first case of Spasmo Proxyvon Plus (SP+) abuse.

SP+ is a narcotic drug not listed as a prohibited drug on the list of banned substances in the country which is annexed with the Narcotic Drugs and Psychotropic Substances and Substance Abuse Act 2015 (NDPSSAA 2015).

Those who were caught abusing SP+ argued that they cannot be prosecuted because the drug is not a banned substance simply because it is not on the list attached to the Act.

The Supreme Court exercised the power of judges to fill the lacuna mentioned in 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 Supreme Court in its judgment noted that the Parliament during the amendment of the Act failed to envision the future situation of drug use in the country. So it specified the prohibited drugs and psychotropic substances as an annexure of the Act.

The Supreme Court also said that there was a blunder in drafting the amendment of the Act.

“The Parliament didn’t put clauses 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.

“The list of prohibited narcotic drugs and psychotropic substances should actually have been left to be included in the rules and regulations of the Act and not as the annexure of the Act,” the judgment stated.

One of the main reasons to amend the NDPSSAA 2005 was because there were new drugs in the market which were not on the banned substances lists in the Act.

Ketamine was listed as a controlled drug in the amended Act following the incident in 2013 where a Bhutanese woman was caught smuggling the drug at the Suvarnabhumi International Airport in Bangkok, Thailand.

Categorised under schedule IV of the Narcotic Drugs, Psychotropic Substances and Substance Abuse Act (NDPSSA) 2015, Ketamine was listed as a psychotropic substance with medicinal value.

Along with Ketamine, 18 new controlled narcotic drugs, psychotropic substances and precursor chemicals were added to the new Act.

The list of 255 drugs also includes Spasmoproxyvon and Relipen, which were widely abused in Bhutan then.

The controlled drugs and psychotropic substances were classified under various schedules from I to VI along with the permissible quantity of the drugs or substances are to be used for health, educational or industrial purposes.

The Supreme Court’s basis for the interpretation was on the principle that the inclusion of one thing suggests the exclusion of all others.

According to this interpretation if the acts are not clearly specified in the Act as illegal then it would be considered as licit act. SP+ is not listed in banned list of drugs of the NDPSSAA 2015.

However, Supreme Court  said that regarding SP+ this interpretation if applied can destroy the lives of the youth in the country.

The Supreme Court’s judgment clarified how the two sections of the Act should be interpreted.

The section 137 on illegal possession of narcotic drugs and psychotropic substances states, “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.”

Section 139 of the Act on illicit trafficking of narcotic drugs and psychotropic substances states that a defendant shall be guilty of the offence of Illicit trafficking of narcotic drugs and psychotropic substances if he or she 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 Supreme Court judgment stated that besides what is mentioned in the above two sections, the BNCA can as per situation and time announce or add narcotic drugs and psychotropic substances to the annexes one to four of the Act.

From the date of the judgment if the BNCA adds narcotic drugs and psychotropic substances in any of the annexures of the Act the penalties will be as per the NDPSSA 2015.

Enforcement agencies and courts are tasked to implement the Supreme Court’s judgment until the Parliament amends the Act.

The cases under trial in courts and those under investigation will have to follow the new rule.

More than 554 people were arrested in relation to abusing SP+ between September 1, 2015, and June 6, 2017. Of that, 381 were charged to the court. The police also seized 254,226 capsules of SP+.

The Supreme Court’s judgment on the first case altered all the non-compoundable imprisonment sentences given to those convicted earlier to compoundable ones, where the convicted can opt for payment in lieu of their sentences.

Henceforth, those caught  in illegal possession or trafficking of SP+ will be charged to court as per the section 137 and 139 of the NDPSSA 2015 and other relevant laws.

The Supreme Court in its judgment said that it made the decision after referring the NDSSPA 2015 and other relevant laws, keeping in mind the objectives of the judiciary and in particular the Supreme Court being the final interpreter of the Constitution.

The Supreme Court had liberally interpreted the provisions of the laws not failing the responsibilities of the judiciary and to harmonize the inconsistency in the laws.

Tshering Palden

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