Virtuous precedence

“linda”, a regular commentator, screamed in my last post:

ANY SAY ON THE TANALUM TOBACCO CASEEEEEE? DIFFERENT LAWS IN DIFFERENT DISTRICT, DIFFERENT LAWS BY DIFFERENT DRANGPON …. DIFFERENT LAWS TO DIFFERENT PEOPLE

What upset “linda” was the apparent inconsistency the verdict by the Chukha District Court on a 29-year old bus driver.

On 16th March, in Tanalum, the driver had been caught with 10 packets of Baba chewing tobacco and two packets of cigarettes. He was charged with smuggling tobacco under the Tobacco Control Act.

On 28th March, the driver had been released on bail.

And on 30th March, the district court decided that the driver had not smuggled tobacco, but had possessed the tobacco for his personal consumption. The court ruled that possessing tobacco for self-consumption is a misdemeanor, a bailable offense, and sentenced the driver to a prison term of one year.

That, in short, is what I know about what “linda” calls the “tanalum tobacco case”. My knowledge comes from Bhutan Today. Their website continues to remain inactive, so I’ve attached a copy of their article at the end of this post.

Now for my “say on the tanalum tobacco case”. I welcome the Chukha District Court’s verdict.

Number one, the driver was allowed bail during the trail. Great! After all, the driver couldn’t have been that great a threat to society (or to himself) to deny him bail.

Number two, the case was wrapped up in barely two weeks. Again, great!

And number three, the district court ruled that the accused had possessed tobacco for personal consumption, and that he was not involved in contraband. Great! Absolutely great!

Sending the driver to jail for one year for possessing 10 packets of khaini and two packets of cigarettes is stiff. But the sentence is bailable. And the sentence is required by the Tobacco Control Act.

Convicting the driver of smuggling, and sentencing him to three years in prison, without bail, would be draconian. That would also be wrong. The driver couldn’t possibly be carrying the 10 packets of khaini to sell in the black market. He couldn’t be smuggling.

I’m excited about the tanalum tobacco case verdict for another reason. Precedence. I’m hopeful that the verdict sets a virtuous precedence for future judgments, including Sonam Tshering’s who has appealed to the High Court.

Sonam Tshering, by the way, is represented by Cheda, a partner with UC Associates. Cheda and his legal firm are representing Sonam Tshering and Lhab Tshering pro bono.

Sonam Tshering’s trial at the High Court is expected to begin today. He’s already been in detention for 71 days.

 

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Comments

  1. I wonder how even the judiciary end up interpreting the same act in different ways. Why does this happen?

  2. ONE NATION + ONE PEOPLE + MANY LAWS = ANARCHY!!!

  3. Shop Lifter says:

    A driver who travels to and from P/ling would not keep ten packets of tobacco for self consumption. He was taking it for somebody, I am sure.

  4. Shop Lifter says:

    A driver who travels to and from P/ling every day would not keep ten packets of tobacco for self consumption. He was taking it for somebody, I am sure.

  5. Shop Lifter says:

    In other words, this translates to “smuggling.”

  6. Shop Lifter says:

    So, the Court should not free the “smuggler”.

  7. Some are imprisoned for the same case, on the other hand some can be”bailed out”….
    This shows something is wrong some where.

    Please find out?????????

  8. Rationalist says:

    Wow it’s undeniably a fair judgment and i love to hear such judgment from all the Court of Justice. Wow ,,,, great job, well done and I could not restraint myself from joining our Hon’ble Opposition Leader to submit my sincere appreciation for Chukha Drangpen. Keep up,,, u deserved to be honour for your wonderful interpretation on Tobacco Control Act. That’s what we call justice and hope this will set precedence for Tobacco cases in other part of court. To the possible extent, I understand like our Hon’ble Opposition Leader, you have balance the offence with the punishment.
    Hon’ble Chukha Drangpen, as a Drangpen you have wonderfully shoulder your responsibility. Let the people who fail to understand laws criticize you for your wonderful judgment but remember on other side of the coin, there are more people who have appreciated and will continue to appreciate your judgment. Thank God, at least you have saved one judge of such caliber in the house of justice. It’s really wonderful.

  9. Contradictory Laws but whose responsibilities is it to maintain consistency?

    Hon’ble Opposition Leader and Hon’ble member of OP, Dasho Damchoe.

    Please kindly read this article and if possible share your expertise on this issue at ongyel85@hotmail.com. This issue had been sitting uncomfortably in my conscience for a long time but I failed to find the ultimate answer -

    The Penal Code of Bhutan, 2004, under 279 states, “A defendant shall be guilty of the offence of smuggling, if the defendant secretly and illegally imports or exports the restricted and prohibited goods or substances including animal parts”. The section 280 of penal code graded the offence of smuggling as value-based sentencing.
    On other hand, the Tobacco Control Act under the section 52 provide, “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”.
    Now the issue here is why the penalty for smuggling which actually is a same offence different in these two laws; Penal Code and Tobacco Control Act. The question here is which law (Penal Code of Bhutan and Tobacco Control Act) should now prevail to penalize the offender involved in the offence of smuggling? Secondly whose responsibilities is it to maintain consistency in the laws to avoid confusion among the general public.
    As per Tobacco Control Act, if someone is caught even with a single packet of chewing tobacco or a packet of cigarette fails to reveal the source, he is liable for smuggling which constitute of an imprisonment of felony of 4th degree. To me, it’s degrading and inhuman punishment. Even our constitution seems prohibiting degrading and inhuman punishment under the article 7, section 17 which states, “A person shall not be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The reason is clear to call such punishment as degrading or inhuman because the punishment therein Tobacco Control Act does not at all fit the crime. When one is required to reveal source, it is necessary that the source to be within Bhutan. This is silly because if source is expected to be within Bhutan, then it reverse section of act that restrict sell of tobacco.
    The proportionality principle of law (Let the punishment fit the crime) that is generally accepted around the world which emphasis that the severity of penalty for a misdeed or wrongdoing should be always reasonable and proportionate to the severity of the infraction or crime seems missing in this act. If this proportionality principle of law is being followed by Bhutan Narcotic Control and our parliamentarians while coming up with this Tobacco Control Act, I think today our Tobacco Control Act might have invited criticism to this extent.

  10. Thats the best thing I have heard and it should be that way. I don’t know why the Thimphu Drangpon has to turn and twist and make things so complicated. I hope and pray that it will be much better and sensible judgement for Sonam Tshering and Lhab Tshering.

    Please HC, give your Juctice but a fair and reasonable one.

  11. Dropping by says:

    Thanks to BT’s report..the guy has been sentenced to three years prison term on 04 April 2011..

  12. Doesnt Matter says:

    Thanks to Bhutan Today’s half baked report. The guys has been sentenced to three years prison term yesterday…

  13. Ahhhhhh,,,,,,,, sad if that is true.

  14. Dear OL
    I am flabbergasted to hear that the Drangpon of Chukha District do not have even Tobacco Act!!!!!!!!!!!!!

  15. pema tshering says:

    The tobaco control act of bhutan really seems unrealistic in general. May be it would be a concern but the overall public impacts needs to be observed at a greater level. Why dont the government ban the consumption of liquor and imported wines inthe country as it has the greater health and societal concerns. Even the WHO declared it as oldest and second largest killer in the world. Consumption of tobacco doesnot creates any family and societal problems, its the chemical drinks thats does. Such unthought initiative has only created black market and has cretaed abundance menamce in the atmosphere. The government needs to think on this, wise it will be too late to regrett. I would also like to call on all the concerned leaders to give a second thought on the issue. At the moment i appreciate the steps undertaken by some of the concerned citizens. Tashi Delek.

  16. Whats going on??? Today I read in newspaper that the ‘Bus driver’ is sentenced to 3 yrs.. one moment you are out on bail and next you get 3 yrs.. very uncertain law.

  17. pema tshering says:

    Is the judiciary confused or what? How can a bailable offence be rejected, while the former was already granted a bail on the issue. How it could have been proven that the former was smuggling and not taking for self consumption? Is it applicable to punish a fellow for three consecutive years, just for ten packets of khainee? Where is the penal code of bhutan considered to be? Is the case of smuggling just ten packets of khainee beyond the penal code and the constitution? Who is responsible, the judiciary or the law makers? Will the govt. Simply watch the scene, who will take care the family members of those arrested who are depended on them? Is the govt. Looking into it? If consuming tobacco is a crime then what about the liquor that creates the family and societal nuisance? Instead the govt.could take initiatives to create quota system per consumer per month. Why this cannot be considered? There needs alot of considerations to be made in the act. Tashi Delik!

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