The whole Bhutanese Criminal justice system rest’s on the Article 7(16) “a person charged with penal offence has right to be presumed innocent until proven guilty in accordance with the provisions of the law”.
This means, any person charged for penal offence can only be convicted if found guilty as per the provisions of the law. Therefore, law enforcement or the judiciary is impliedly prohibited from convicting any person, if there is no law prescribing that as penal offence.
Further, even if there is a law, the state (Prosecutor/Office of the Attorney General) must prove beyond reasonable doubt that the accused committed the offence in the law as provided under Section 204 of the Civil and Procedure Code. In nutshell, if something is not an offence, then any kind of criminal proceedings against that person would cause gross miscarriage of justice. This Article is supplemented by inherent judicial principles on the benefit of doubt. The principle of benefit of doubt is fundamental in criminal jurisprudence and the accused is entitled to benefit of any reasonable doubt. This means if there is any ambiguity in law or evidence, the accused gets the benefit.
The recent news about numerous cases where a person is accused of an offence of abuse, possession, illicit trafficking of a drug known as spasmo proxyvon plus being prosecuted under Section 139 of the Narcotic Drugs, Psychotropic Substance and Substance Abuse Act 2015 (NDPSSA Act 2015) pending in the court for numerous months is something of a concern. If true, the law enforcement agencies or courts have failed to protect the rights of those accused as most of them have languished their lives in detention centers not only due to the loophole in law but because of failure of agencies and the prosecutor’s inability to provide concrete answer to the courts. The problem emerged not few a months ago but a long time back.
The existing law is not only clear but also very specific by providing the exact list of drugs as controlled substance. By examining the Section 139 of the Act, it makes an offence of trafficking of narcotic drugs or psychotropic substance only if a person is found in possession, importing, exporting, storing, selling, purchasing, distributing or supplying these drugs. The offence would have been committed only if the accused fulfills the either of the two conditions provided under Section 139(1) or (2) and not otherwise merely for the possession of the controlled substance. Section 139 (1) says the substance must be listed under Schedules I and II and 139(2) says the substance must be listed under Schedules III and IV. Thus, it is the duty of the prosecutor to prove beyond doubt that the accused have committed the offence under this section. Going by the current reports, the substance in question does not seem to fulfill the conditions and any criminal proceedings against them would not sustain at all as there is no locus standi (Legal Standing).
Therefore, whether it is named spasmo proxyvon or spasmo proxyvon plus or some other brand name, so long as it is not listed in the schedules, it would not amount to offence under this law. The justification as provided in the reports that alleged drugs have same or more effect on the person or it is presumed to be listed in the schedule does not provide any discretionary authority to initiate criminal proceedings nor the courts to pass judgments convicting the accused, no matter how it has impacted in the society, as the law explicitly lists down the controlled substances in detail.
The only way to initiate criminal proceedings is by including this drug in the schedules of the law by parliamentary act and not otherwise. The custodian of the law, Bhutan Narcotic Control Authority can no longer act complacent by keeping the accused in detention for indefinite period or the courts cannot halt the decision only because there is a loophole from the responsible agencies.
However, there are no information that the concerned agency proposed for amendment which proves the complacency of those responsible and so they should be held accountable if the evidence proves that the substance does not fall within schedules for the arbitrary arrest and detention, deprivation of their liberty, mental trauma, economic and financial loss and sufferings of his or her family. They should be held accountable to compensate the accused as per Section 212 of the Civil and Criminal Procedure Code Amendment Act 2011 in case the substance is not on the list after the confirmatory test.
Courts in the country as custodian of the rule of law and Justice for all should not have admitted any such case or kept the decision pending only because BNCA failed to provide clear and accurate evidence before the court.
If the judiciary would have passed judgment and convicted any person only because it is causing inconvenience to the state or this drug has similar effect on the humans, it would only deprive the liberty, right to presume innocence and benefit of doubt and lead to miscarriage of justice. Therefore, for just and equal society in a democracy, rule of law must prevail. It is far better that ten guilty men go free than one innocent man is wrongfully convicted.
By sonam tshering
The writer is a lawyer based in Thimphu