Defendant benefits from NDPSSA 2018 (amendment) Act

Court invokes ‘Rule of Lenity’

Thimphu dzongkhag court’s bench I sent a 21-year-old man for rehabilitation after Thimphu police caught him possessing 32.6gms of cannabis.

Police, based on a tip-off, stopped a Maruti car near the Babesa entrance gate and raided it on the night of December 15 last year. Police then arrested Dawa Gyeltshen from Khariphu in Mewang gewog, Thimphu, for possessing the cannabis.

He also tested positive for cannabis abuse while conducting urine test.

The Office of the Attorney General (OAG) charged him with possession and abuse of cannabis.

The May 3 judgment ruled that since the man admitted before the court that the 32.6gms of cannabis belonged to him and that he brought it for his own consumption, the court will invoke the ‘Rule of Lenity’ and send him for rehabilitation based on section 141 (A) of the Narcotic Drugs, Psychotropic Substances and Substance Abuse (Amendment) Act of Bhutan 2018.

In the amended NDPSSA Act of Bhutan 2018, a new section is inserted after section 141 as 141A with an explanation, “Notwithstanding the provisions of this Act, a person possessing equal to or less than two times the quantity determined in Schedule VII of this Act shall be liable for offence of substance abuse under Section 152 of this Act in lieu of the offence of illicit trafficking, provided all of the following conditions are present: (1) The substance in possession is Cannabis and its derivatives or a substance under Schedule III or IV of this Act; (2) Tested positive for the substance in possession; (3) No past criminal record related to illicit trafficking of controlled drugs or substances; and (4) Absence of proof against illicit trafficking.”

The judgment stated that although both the NDPSSA 2015 Act and NDPSSA (Amendment) Act 2018 applies in Dawa Gyeltshen’s case, it invoked the ‘Rule of Lenity’ principle to base the sentencing in accordance with NDPSSA 2018 (Amendment) Act.

The court ordered Bhutan Narcotics Control Authority, OAG and police to collaborate and send the man for rehabilitation.

It also ordered police and OAG to handover the substance involved and submit a report to the court.

Tashi Dema

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