The OAG’s refusal to prosecute a group of Bhutanese arrested for suspected illicit trafficking of Khat last week raises more confusion than clarity. This is because this plant (Catha edulis) fall under schedule II (Psychotropic substance with no medicinal value) of the Narcotic Drugs, Psychotropic Substance, and Substance Abuse (NDPSSA) Act 2015, meaning they may have been charged for illicit trafficking of drugs under Section 139(1) facing a minimum of 15 years imprisonment (Section 140) since the quantity was huge.

Kuensel reported that OAG refused to prosecute the case because “agriculture ministry of Ethiopia had issued the phytosanitary certificate to the Bhutanese consignees to make them believe that the consignment was moringa tea, both trade officials and the Bhutanese exporters knew they weren’t” produced in Bhutan, they acted in “good faith and had no knowledge of the consignment to be khat.” And BAFRA neither conducted a test nor opened the consignment because the phytosanitary certificate was issued authenticating the product’s origin.

These grounds are confusing for various reasons. First, if the exporters and officials knew that it was labelled as a product of Bhutan, how does the principle of good faith apply? Second, when one country issues certificate does it indicate that it is legal in the other country as well? For example, selling and buying of tobacco and tobacco products within Bhutan is completely illegal while it is legal in India. Does it mean if India issues the phytosanitary certificate of a product named as morning containing tobacco products, it automatically legitimises the products in Bhutan too?

As per the Internal Journal of Drug Policy, ELSEVIER, Khat is not only legal in Ethiopia but also the largest crop by area of cultivation and the country’s largest export earner.  Therefore, the Ethiopian Agriculture Ministry issuing the phytosanitary certificate is legal under their law. The phytosanitary certificate is issued under the FAO Convention primarily to certify that the plant does not contain contamination or pests and FAO guideline requires that the certificate should also have a botanical name beside the origin of the product.

The reason for the quantification of controlled drugs under narcotic laws to define illicit trafficking is not limited to Bhutan but across most legal systems including Australia, India, the United States, and Europe because it is almost impossible to ascertain the knowledge in the illicit trafficking of drugs. The new theory of lack of knowledge deviates from the fundamentals of quantification theory.

This is not the first time. A few years ago, the Supreme Court through judgment not only authorized BNCA to amend the law but also allowed all those convicted for SP+ pay thrimthue. Since Tramadol was not even in the law, those people did not commit any crime in the eyes of law, yet they were convicted. In the present case, it proved otherwise even when it is in the law.

If law enforcement agencies decide to interpret the laws to determine offences even when the laws are clear, will it not encourage more criminal syndicates to operate and later justify their lack of knowledge as the basis of excuse and impede the primary roles of judiciary and parliament? The fundamental rights of presumption of innocent until proven guilty must be tested through due process of law by the courts and not law enforcement agencies. Our constitution and laws provide adequate protection to accused to exonerate them, even if they are charged.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.