Vicious precedence

Okay, I’m confused…

On 31st March, Bhutan Today reported that the Chukha district court found the driver who was caught with 10 packets of khaini and 2 packets of cigarettes guilty of a misdemeanor. I’d written that we should welcome the verdict, and posted a copy of Bhutan Today’s article in which the Hon’ble Drangpon was quoted extensively.

But today, Bhutan Today reports that the Chukha district court found Ambar Biswa, the driver who was caught with 10 packets of khaini and 2 packets of cigarettes, guilty of a fourth degree felony and sentenced him to a prison term of three non-bailable years.

Do you smell anything vicious? Here’s today’s article by Bhutan Today:

 

 

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  1. Hahahaa..from Virtuous Precedence to now “Vicious Precedence”… Dear OL, don’t trust our media 100%, they are hardly 50% accurate.

  2. salt lick says:

    To recapitulate, here again are the key sections of the Tobacco Control Act:

    Quote:

    Definition of the offense in Section 11 of the Tobacco Act:

    11. No person in the country shall:
    a) cultivate or harvest tobacco.
    b) manufacture, supply or distribute tobacco and tobacco products.
    c) sell and buy tobacco and tobacco products.

    Specification of the penalty in the act:

    50. Any person who contravenes the provision of section 11 (a) and (b) shall be punishable with a felony of the fourth degree as per the Penal Code of Bhutan.

    51. Any person who contravenes the provision of section 11(c) shall be punishable with misdemeanor if the source of supply is revealed. If the accused fails to disclose the source of supply, he or she shall be liable for the offence of smuggling in addition to the offence of misdemeanor.

    52. Any person found smuggling tobacco or tobacco products shall be guilty of an offence of smuggling and shall be punishable with minimum sentence of felony of fourth degree.

    54. Any person found with more than the permissible quantity for personal consumption under section 12 shall be guilty of the offense for smuggling and shall be punishable with a minimum sentence of felony of fourth degree.

    Note that the key sections are so short barely covering a page, that it boggles the mind that they couldn’t even get this right.

    Interpretation of key clauses and some principles of law

    Having read the key clauses, there are some important points that stand out.

    1) The possession and consumption of tobacco is not criminal as per the act. The fact that you are allowed to import it for personal consumption makes this so. Only the acts of buying, selling, supplying, advertising, cultivating and manufacturing are criminalized.

    2) Clause 11 which begins with “No person in the country shall: …” makes it clear that the law applies only within the geographic confines of Bhutan. This is an important distinction to make as it means that a Bhutanese buying, selling, manufacturing or cultivating tobacco outside Bhutan is free to do so. Specifically, it is perfectly legal to buy tobacco in Jaigaon or on Druk Air when it is outside Bhutanese airspace.

    3) The concept of smuggling is given emphasis with three clauses (51, 52 and 54) dedicated to it. However, it remains muddle headed with lots of invalid assumptions:

    Clause 51 allows the charge of smuggling to be lowered to misdemeanour if a source of supply is revealed. This is apparently designed to encourage reporting on organised smugglers. However, it assumes that the average Bhutanese can buy his tobacco only from smugglers. Bhutan has 300 kms or more of border with India, double that if you add the border with China. It is clearly possible to buy your own tobacco, legally, in any border town just outside Bhutan.

    In other words, a source of supply is quite often not going to be a smuggler but a legitimate shop across the border, and should be accepted when “revealed” as the source of supply. Why? Because it is plausible and it can happen.

    4) Clause 52 is completely redundant as it only states what clause 54 states, but without any reference to what constitutes smuggling. Clause 54 on the other hand states clearly that you are guilty of smuggling if you are “found with more than the permissible quantity for personal consumption”. However, it does not make any distinction between having or not having an official import receipt for the purpose of judging whether you are guilty of smuggling. The only defining factor is whether you have more or less than what is allowed for personal consumption. In the dispensing of justice, such wording of law is critical, and it is correct to interpret it for what it says rather than how anyone thinks it should be understood.

    5) Finally in this section, the principles of law that apply universally and that follow from the wording of the tobacco act.

    a) The act of buying and selling tobacco in Bhutan is criminal. So is the possession of tobacco, if it exceeds the amount allowable for personal consumption. In the latter case, possession alone is sufficient to be charged for a fourth degree felony. However, if the amount possessed is less than or equal to the allowable amount, you cannot be charged with smuggling, whether you have or don’t have an import receipt. Clause 54 is explicit in its wording in this regard as I have shown.

    b) The act of buying and selling has to be proven. That is, one must be caught in the act of buying and selling tobacco inside Bhutan. Having an amount on your person or in your shop that is less than the permissible amount is not sufficient basis to be charged with the act of buying and selling tobacco. This is an element of the concept of “innocent until proven guilty” and having evidence that proves engagement in buying or selling tobacco. There must be proof of the exchange of tobacco to the buyer and money to the supplier. In the absence of such proof, finding tobacco in any particular vicinity only counts as circumstantial evidence and not one that can hold up in a decent court of law.

  3. Cut the news paper clipping and it would be a collectors item…

  4. polyarchist says:

    guess what? i am too sick of hearing and stumbling upon this tobacco controversy over and over and over again. ol,if you really believe that it’s bad for the country and the people, try to iron out this issue and come up with something viable, something feasible, something genuine-at the earliest! if you don’t wholeheartedly oppose the law, stop here. period! we have got a lot of stuff to do other than this. do not miss the woods for the trees!

  5. mediawatch says:

    For misinforming the whole nation, for factual errors, for lack of editorial discretion on a critical issue..no action or rejoinder has be given. BToday needs to explain this. And BICMA needs to question this!

  6. dont be misinformed because it could also be a little play put up by the government. The government might have asked Bhutan today to do the story just to see how people react and I hope Bhutan today shares with people where they got the story. If it is a bluff by the reporter than his license should be canceled and if it is the Drangpon he should be kicked out. In west to let people panic is a crime

  7. Linda, letting people panic is a crime in Bhutan as well and accusing govt. falsely is even more serious crime. Do you have any background information to share your assumption of the government asking BT to make a false reporting?

    Going by your name, if you are an American, keep your nose within the boundaries of USA. Let Bhutanese deal with their problem.

  8. kWangchuk says:

    Mr. ypenjor, its people voice in this democratic world. afterall how much we will be quite and follow what the government says, now its time to raise your voice and fight for the right.it might be also true what linda have mentioned,we won’t mind if you dont comment or share your feelings over this topic but at the same time don’t disturb those who are sharing and willing to share their feelings,,,,,,,,,,,,,,,

  9. Y Penjor please do read my comment once because i used the word it could and it might which means that i am not sure and i am like everyone sharing my thoughts. I also said that i hope BT shares about where it got the story so that people would get to know the truth and where it went wrong. I am using this platform because its a www which if you dont understand means world wide web and dont think i am concerned only about Bhutan i have the freedom to get my nose to the whole world.

  10. YPenjor says:

    Mr. kWangchuk, please note that my participation to discuss Bhutanese politics, governance system and the livelihood in Bhutan goes by my right as a Bhutanese citizen. I do not need to bother whether my comments are in favor or against people like you.

    Linda, I know what is www and the freedom of participation in such open forums. But, what i am telling you is to watch out baseless assumptions and accusation. Such expressions will in no way benefit you unless you are hiding your originality under a disguised skin.

  11. nado_kado says:

    Hon’ble MP,

    Do you respect the verdict passed by Chhukha District court? Do you practice what you preach?? Keep smelling…..

  12. I read the April 8th Kuensel article referenced by OL in his twitter updates on Sonam Tshering, and my blood froze.

    The article reported:
    “… They (Office of the Attorney General) argued that the adversarial system of claiming innocence until being proven guilty should not be a blanket application to all criminal cases. They said this application was but a discretionary right of the court, …”

    Either the official representing the Attorney General or the Kuensel reporter is very wrong…

    Our Constitution guarantees fundamental human rights to all citizens. Its Article 7 (“Fundamental Rights”), Section 16, reads:
    A person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law.

    Yet, the Office of the Attorney General – of all offices of our land – reportedly argued in public court that it should be applied as the “discretionary right of the court”.

    A nation that puts a fundamental human right at the mercy of official discretion is a scary place to live.

    I hope it was the Kuensel, and not the Office of the Attorney General, that got it wrong …

  13. Sir,

    I have one query.

    If a person is found carrying 10-20 partially burnt ciggerettes and he justifies the source as being collected from trash bin; will he still be punishable by law.

    This gives one more reason to ammend the law, especially for the ones who want to enforce it so strictly.

    P.S. It was just a thought and I do not mean anything to our great policy makers.

    Regards…

  14. @ Linda…..before u accuse the reporter for bluffing the report…i would suggest u to read both the issue of the article and then come down to conclusion rather then posting your baseless allegations.

    For your kind information, reporters only write facts and yes they do make mistakes, not to that extend where public like you get shocked.

    Had the reporter writted wrong, he or she would have been sued for the factual errors by now…..

    so i shall suggest Linda….if you would once again go through the news and make comment.

  15. According to my understanding i have never accused anyone thats why i have used words like may have been or could have and I have called the concerned people for investigation so my dear bella if you have not understood my comment or read it properly because of your weak English please let somebody read it for you and if you think I am still mistaken than all I can say is sorry.

  16. TORISE dragon says:

    wow well i guess thers certain laws for higher level peoples and harsh n cruel laws for we poors……if the diver was guilty with 10pkts of khaini and 2pkts of ciggrete and directly sentenced to 3yrs imprison on non bailable…… then what happened to teh air port issue which include militry personals who are from high post …where by they are actually placed to guide the countrys law…we dont hear about them now…..is it that coz they are higher label persons so they dont entertain meidas or is it that they are behind bars……
    we really need to knw about teh laws….

  17. @ Linda….i think before u question abt my ability to understand the english….you should read your previous comments…you have alledge the reporter of bluffing and without knowing the fact…..you have no right to point a finger and if the reporter has factually made mistake….let the concern authorities take the measures, why are u demanding…….i sympathy your poor knowledge on understanding the “news”…..LOL

  18. Truth_is_Buddha says:

    I only hope the judges in different district courts are not trying to duplicate each other’s verdicts for the tobacco cases, to exhibit consistency. Individual cases (any case) have a right to individual and independent adjudication in the court of law.

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