Citing the dangers of proliferation of trafficking, Office of Attorney General (OAG) asked the Supreme Court (SC) to convict a man who was alleged of abusing Spasmo Proxyvon plus (SP+), a drug not listed as banned substance in the Narcotic Drugs, Psychotropic Substances and Substances Abuse Act of Bhutan (NDPSSA) 2015.
The Mongar district court and the High Court sentenced the man to nine and a half years in prison for the offence. The man appealed to the SC.
OAG prosecutor said that while the SP+ may be different from the banned Spasmo proxyvon (SP), the two substances had the same effect on consumers. So he urged the court to consider the substances same and penalise the man for the alleged offence.
Police arrested the man at Korila, between Tashigang and Mongar, in May 2016 with 115 tablets of SP+.
The prosecutor said that the person did not have a prescription to use the drug and the quantity exceeded the permissible limit of 10 tablets.
He said that the mischief rule, a certain rule that judges can apply in statutory interpretation in order to discover the intention of the act, should be applied to the case.
The application of the mischief rule gives the judge more discretion as it allows him to effectively decide on Parliament’s intent.
“If the court does not punish such cases, then it would only create an opportunity for the undesirable illegal sale of the drugs, which could have an immense adverse impact in the society,” the OAG prosecutor said.
While the accused submitted that he had bought the substance at the request of another man in Mongar from Samdrupjongkhar, the courts did not accept the excuse.
The defence lawyers, Yeshi Wangdi and Sonam Dendup, argued that there is no need to apply the mischief rule, as the rules are clear.
They said that there cannot be penalty without law.
The two defence lawyers said their client could be penalised as per the Bhutan Medicine Act 2003 but not the NDPSSA 2015.
“A careful scrutiny and an analysis of all the ingredients of the two drugs, SP and SP+, reveals that they are utterly different from each other by virtue of its varied component present in it,” a defence lawyer said.
He said while SP contains paracetamol, dicyclomine, and dextropropoxyphene, the SP+ contains dicyclomine, acetaminophen or paracetamol, and tramadol hydrochloride.
“None of the above ingredients of SP+ is restricted and controlled by NDPSSA 2015 under any of its schedules,” the defence lawyer said. “The two drugs have two common ingredients but these medicines being non-prescription do not require any prescription to possess. This proves that the two drugs are different.”
He said the question was if the substance in question, SP+ and its ingredients, are contraband substance under the Act and its schedule.
The defence lawyers submitted that while both dextropropoxyphene and one of the ingredients of SP+ tramadol contain opiate and asked why was it not listed as an illegal substance in the Act. “It was not a new drug as it was introduced by Germany in international markets in 1977,” a defence lawyer said.
“What I’m more worried about is that if individuals are being charged and penalised without any clearly written and publicly disclosed laws, it may violate the very principle of rule of law,” a defence lawyer said.
The closing hearing will be held on May 18.