Monday, April 4, 2011 | By: CHIMI DORJI

Is the quantification of tobacco necessary for conviction viz-a viz the violation of Tobacco Control Act of Bhutan?

The Tobacco Act has been already enforced and adequate public hue and cry has been raised, the Act as draconian and the punishment prescribed under the Act is unreasonable disproportionate to the of gravity of offence. Many people are disheartened with this Act as instead of will the people of Bhutan it seems the will of the Parliamentarians. And also, weigh the Act with other laws wherein though offence is much severe than smuggling tobacco but it’s bail able and punishment prescribed is more relax than the one prescribed for smuggling tobacco.
 I’m sure if ask to every Bhutanese fellow about punishment for the offence of smuggling tobacco then everybody would say punishment is unreasonable, unfair and unjust. Felony of fourth degree is certainly too rigorous for the offence of smuggling tobacco but it is already a law of land and few people are already behind the bar. So no matter how unreasonable could be the punishment, once it is law of the land everybody is bond to abide by it.
It would have been just and reasonable if the offence under Act was punishable to the maximum extent of misdemeanor. But seems it was our legislature’s deliberate attempt for controlling tobacco. Unless they amend, which is not happening this coming session, executives will go on enforcing and judiciary will go on imposing the minimum punishment of three years and we don’t know how many would be unlucky to get minimum of three years until amendment, if ever happens the amendment or keep the Act ‘as is’ forever.
Though public claims that gravity of punishment is unreasonable, however, as to punishment the Act is very clear without any ambiguity but the Act is silent about minimum quantity of tobacco a person should posses to amount the violation of Act, to which recently Kuensel reported that law enforcers were seeking clarification from Tobacco Control Board as to quantity of tobacco that possessing what quantity of tobacco would amount to violation of Act? or irrespective of quantity all persons can be liable for violation of Act. When Tobacco Board clarified that irrespective of quantity all persons are liable for punishment, I thought their stand is right or else legislators should have been embedded the provision regarding the quantity? or by not providing the provision regarding quantity it can be considered as their lapses ? Or quantification is not necessary at all? If not necessary, why is it so?. Save all other controversial aspects of the Act, just get down to, as Kuensel titled, ‘nitty gritty’, about the quantification, whether it is necessary for conviction under the Act?
If we refer penal code of any country no where we would find the conviction for any offence is based on threshold of quantity. In property offences like theft, robbery and burglary the conviction is not based on quantity of property the person has committed the crime against. If person has committed the act punishable by law, for conviction no difference would make whether he has robbed one ngultrum or one million or smuggled one gram of gold or 500 grams of gold. The quantity is not a factor for conviction at all. After conviction for sentencing it may be a mitigating factor. If the conviction was to be based on quantity then whole purpose of law would be defeated as, despite commission of crime, some would get to walk free without punishment. After all whether person has robbed one ngultrum or one million ngultrum his mental element could be one and would have been sole driving force behind that led to result physical act and that act is crime if punishable by law otherwise not, so based on person’s mental element not based on threshold of quantity, person, provided his act is punishable by law, is convicted and punished his act. The whole criminal jurisprudence has been evolved based on so called mens reas(guilty mind) and actus reas(guilty act). Guilty mind means intention to commit the act punishable by law. Mere guilty mind without act (physical action, whether commission or omission, as the case may be) cannot amount to crime. There should be guilty mind and that guilty mind must have caused an act which is punishable by law. So, person is convicted and his act is punished based on mens rea. Though mere guilty mind without act cannot be amount to conviction but act without guilty mind can be amount to conviction. In strict liability (criminal) an act per is punishable without considering the mental element. It depends, some law may prescribe expressly or impliedly the requirement of guilty mind for particular offence while some law does not prescribe requirement of mental element which means criminal liability is strict, an act per se is punishable irrespective of mens rea.
The Tobacco Act as name of the Act itself connotes is meant for controlling the tobacco. No where the act mentions about the requirement of mental element, the very act of person possessing tobacco per se seems offence if he does not produce the receipt. Since very act of possessing tobacco per se without tax receipt is offence under the Act the person cannot walk free even if he is found with a packet of cigarette. The Tobacco Act was intended to punish the offender for his very act of possessing tobacco if found without receipt, so the quantity of tobacco is immaterial for conviction under the Act. Once it is found person is possessed with tobacco without receipt then it is sufficient to prove that he has violated the Act. Once it has been proved that person has violated the Act then the quantity seems favorable for deciding whether his violation would fall under misdemeanor or felony of fourth degree. The word used under the Act is ‘sell’, which means prohibited to sell, so quantity can a factor for tracing his mental element whether he intended for self consumption or smuggle for sell. Even it’s for self consumption if it is found without receipt then still liable for violation of Act. In any way he cannot walk away without punishment once he is found possessing tobacco, irrespective of quantity, he is liable for conviction under the Act as act of possessing tobacco per se is an offence under the Act, whether under misdemeanor or felony seems controversy which may vary from case to case. The conviction for any offence is based on actus reus and mens reas of the offender and thus, the quantification of tobacco for conviction under the Tobacco is not necessary. Possession per se is punishable under the Act, which seems this was necessitated for accomplishing the very purpose of the Act, for controlling tobacco but how far it would make a difference, let’s watch and see ahead


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