Unconvinced, OAG is to appeal to the larger bench of High Court
Unless convicted by a court of law an earlier case, a person shall not be considered a habitual or repeat offender on being penalised by a law enforcement agency, the High Court’s bench I ruled on July 9.
The ruling came after the Office of the Attorney General (OAG) appealed to the High Court, which assigned the case to its Bench I, against Thimphu dzongkhag’s judgment in an illegal tobacco possession case.
On March 21, 2017, inspectors found 282 sticks of cigarettes in a shop on the Norzin Lam. The shopkeeper, Muku, paid a fine of Nu 11,600 to Bhutan Narcotic Control Authority.
On May 25, 2017, inspectors yet again found 21 sticks of cigarettes and a packet of chewing tobacco, Baba, with 10 grammes of tobacco content.
The Tobacco Control Act (Amended) 2014 has fixed the permissible limit of import of cigarette at 800 sticks a month with taxes paid.
While on both occasions she was caught with cigarettes within the permissible limit she did not have receipts of tax and duty payments.
Muku submitted to court that she had bought the tobacco for her own consumption.
Tobacco Control Act (Amended) 2014 section 11D states that no person shall possess tobacco or tobacco products without proof of tax and duty payments or beyond the permissible quantity and type determined by Parliament.
The point OAG’s prosecutor is contending is that Muku has a previous similar criminal record and that she should be treated as a repeat offender or a habitual offender and therefore, submitted to the dzongkhag and the High courts that she deserves a harsher sentencing.
The dzongkhag court sentenced the 32-year-old woman to three months in prison for not producing receipts of tax and duty payments and ordered her to pay a total fine of Nu 14,624.
Citing provisions from the Bhutan Penal Code 2011, the court ruled that Muku couldn’t be considered a repeat offender or a habitual offender, as she was not tried in a court for that offence.
The High Court upheld the dzongkhag court’s judgment intact.
The High Court gave its ruling on the interpretation of section 28 of the Bhutan Penal Code 2014 which 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.”
The High Court ruling stated that imposing fines and penalties are lawful administrative rights of enforcement agencies. However, the ruling stated that the person has carried out the offence and paid penalty as per the procedure. Unless the earlier offence was decided by a court of law it cannot be considered repeat offender, it stated.
Further it pointed out that the Civil and Criminal Procedure Code 2011 states that every citizen shall have the right to be tried by the ordinary courts of law and shall not be tried before ad hoc courts.
The High Court ruling also stated that section 24A of the Penal Code states that the crime is committed by a defendant, who has previously been convicted of a crime that was punishable by imprisonment or a crime of the same or similar nature.
The OAG prosecutor said that his office would appeal to the larger bench seeking further clarity on the interpretation.