THE CONTROL OF NARCOTIC SUBSTANCES
ACT - THE NEED FOR CHANGE
Zunera Shahid, Advocate and Waleed Bin Usman, Advocate
In 1997, the Control of Narcotic Substances Act (CNSA) aimed to tackle the traffic of drugs through and within the country by prescribing heavy punishments for possession, trafficking, production, export, import and the overall financing of the drug trade.
In recent years the Anti-Narcotics Force (ANF) claims to have made a record number of arrests and seizures. Yet, the fact that this is making a negligible difference on our multi-faceted drug problem reflects the many irrationalities of our current law in operation. These specific problems of the current legal regime have been brought to light by the Foundation for Fundamental Rights in its report, ‘Optimising Pakistan’s drug law: Making the Control of Narcotic Substances Act stronger, fairer and more effective’ launched in January, 2018. Keeping in view the findings of the report, we here seek to identify recurrent problems in the law, those that continue to have disproportionate impact upon the most vulnerable parties ensnared in drug trafficking, drug couriers or mules. Additionally, we illustrate the many points at which these same problems have been sought to be addressed by the higher judiciary.
Drug cartels and drug mules: polar opposites
A major problem fuelling the inefficacy of our current drug laws is that tertiary actors in the complex drug trade are brought within the net of enforcement to an extent that far outweighs their importance to the sustenance of this hugely profitable global enterprise. Drug couriers or drug mules, as they are alternately called, are often the least integrated actors in the web of relationships that allow for clandestine transfers of drugs and money. The FFR Report is based upon 120 cases and 76 interviews. Of the persons interviewed, none displayed any solid affiliation with the owner or manager of the cartel; a person far from the core of the cartels organizational hierarchy approached the majority of interviewees. Additionally, although the popular image of a male is one of being a drug addict himself or herself, this was also not found to be the case amongst those convicted in Pakistan. Many of these mules testified to being entangled by the way of trickery, blackmailing or coercion. In other cases, it was dire economic necessity that dictated that they take on the considerable risks, including facing the death penalty if apprehended, associated with the transport of drugs for what was in fact a nominal financial payback.
As it currently stands, the report shows that 70% of cases initiated under the CNSA never revealed a kingpin while a further 29% of cases revealed actionable leads to a cartel or business enterprise that were never pursued by law enforcement agencies. Secondly, the report found that 72% of the culprits were extremely poor, while the majority of them were also uneducated, therefore susceptible to the cartels for misuse.
In this matrix of extreme disparity between the core managers of the drug trade and the mule or courier, it is nonetheless the latter that is almost always the subject matter of criminal conviction in Pakistan’s efforts to curtail drug trafficking and trade. While we proceed to discuss the question of proportionate punishments for couriers and mules later in this article, the evidence that the CNSA has unfairly scapegoated the mule is irresistible.
Three specific and inter-related problems can be cited of the CNSA as it currently stands. The first is that an extremely parsimonious view of possession is taken, especially at the trial stage to indict those who are mere tertiary players, if even that, in the drug trade. Secondly, the punishment regime itself is pivoted around possession and that tied to quantum of drug or prohibited substance and neither acknowledges mitigating circumstances nor distinguishes between classes of drugs to render more proportionate sentences. Finally, the law’s most severe punishments have not been effective in deterring drug crime, and do not comport with international best practice in tackling large scale drug trafficking, which generally shows the most effective way of deterring such offences involves a mixture of financial and custodial penalties as opposed to capital punishment. While parts III and IV below lay out our analysis of these problems, the following Part II illustrates the structure and provisions of the CNSA that give rise, repeatedly to such ill effects.
Structure of the Control of Narcotic Substances Act (CNSA), 1997
In the CNSA, ostensibly three different categories of crime are established so as to stem the chain of activities that together constitute the drug trade. While cultivation is a stand-alone crime with its own penalties in section 5, the list of acts in sections 6,7 and 8 are together subject to the punishments accorded in section 9, as discussed in greater detail further along. Section 6 provides:
“No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force.”
While section 7 of the act prohibits the import or export of narcotic drugs, it reads,--
(1) No one shall,--
(a) import into Pakistan;
(b) export from Pakistan;
(c) transport within Pakistan; or
Section 8 of the Act intends to criminalize the control structure of the drug trade:
No one shall--
(a) organize, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic substances or controlled substances; or
(b) use violence or arms for committing or attempt to commit an offence punishable under this Act.
While Sections 6, 7, 8 have identified a range of potential offences under the law, it is only ‘manufacturing’ as a distinct offence as per section 6 that is given further definition in Section 2.
includes, process by which such drugs or substances may be obtained, refining of such drugs or substances, transformation of such drugs or substances; and making or preparing such drugs or substances.
Section 9 of the act deals with sentencing under sections 6, 7 and 8. To be noted is the fact that the section refers to only one criteria for sentencing, the quantity of drug or prohibited substance in reference to which the offence has been committed. Section 9 reads,
9. Punishment for contravention of sections 6, 7 and 8. Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with--
(a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed on kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the controlled substance exceeds the limits specified in clause (b):
Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.
As a special law, the CNSA has been accorded the capacity to over-ride, through express language, provisions of the Code of Criminal Procedure (CrPC). Section 25 reads:
25. Mode of making searches and arrest. The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections.
Another provision of this law which is an express derogation from other principles of law, namely that everyone is innocent until proven guilty of a crime is contained in S. 29:
29. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of,--
(a) any narcotic drug, psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adapted for the production ...
(d) any materials which have undergone any process towards the production or manufacture of narcotic drug, ... for the possession of which he fails to account satisfactorily.
Possession based sentencing
Given that the language of s. 9 of the CNSA varies punishment on the quantity of drug, there is an assumption built into law that the accused will in fact be in possession of the drug in order for a successful conviction to be granted. For punishments to be granted under s. 9 for other offences, it is worthwhile being attentive to the fact that the commission of these offences would require the prosecution to satisfy the additional burden of proving ‘constructive possession’ thereby showing control over the substance absent physical possession. From accounts given by ANF officials themselves, the problems associated with compiling such evidence are often insurmountable.
The senior traffickers responsible for driving Pakistan’s drug trade—and receiving major financial benefits as a result—are at a far remove from the actual substance. In our experience, ANF officials cite considerable and real hurdles in being able to trace and apprehend the drug kingpins and cartel managers. They cite the impossibility of engaging in digital surveillance. Further, the ability to identify and freeze financial assets in the investigative stages is also lacking. Added to this, the detailed forensic accounting and investigative capacity that would enable an identification of wealth and assets to fuel the drug trade is also missing. Enhancement of the investigative capacities of law enforcement agencies through the investiture of a civil power requiring a suspect to provide information on their assets and the means by which they were obtained shall allow for the prioritization of dismantling of organized drug trafficking networks.
Furthermore, the CNSA sentencing regime employs the death penalty as the harshest penalty available for those convicted of crimes involving large quantities of drugs, despite the proven failure of this punishment as a deterrent. While anti-narcotics courts continue to hand down death sentences to low-level drug mules, rates of drug addiction and trafficking in Pakistan have actually increased’ because the kingpins are not affected by such penalties. A combination of custodial and financial penalties to effectively target traffickers’ liberty and liquidity would be a much more effective deterrent. As found by the Sentencing Advisory Panel of the UK, “asset recovery measures have been found to be of much greater concern to dealers. The profits that can be made from drug offences are enormous and, where such large sums of money are involved, it would appear that the fear of financial reprisal is of more concern to offenders than the potential loss of liberty.”ii
Other jurisdictions have adopted such measures with great success. In Germany for example, an offender trading in narcotics can be sanctioned under Section 43a of the German Criminal Code, which provides for a confiscation order requiring the offender to pay a sum of money in addition to a term of imprisonment.iii The sum which must be paid is limited only by the value of the offender’s assets,iv meaning the courts are empowered to punish drug traffickers by taking away the entirety of their wealth. Under Ireland’s Misuse of Drugs Act section 27, judges can punish drugs offences with both statutorily-limited prison sentences and “an appropriate fine.”v Thus the law gives judges discretion to charge a fine that will be an effective deterrent in each case. Those offenders charged with sale or supply of controlled drugs can be punished with an unlimited fine—an effective deterrent against drug traffickers seeking to run profitable businesses. Ireland’s Criminal Justice Act 1994 further provides for seizure and confiscation of assets derived from the proceeds of drug trafficking and any property used in commission of a crime.vi The Act also provides for international cooperation in enforcementvii—cooperation that would be more available to Pakistan as well if the death penalty were no longer applied to drug offenders.
Other sentencing failures
Nonetheless, there are other problems with the sentencing structure that cannot fully be redressed solely with a recalibration of the offence of possession. For instance, s. 9 of the CNSA has not marked any distinction between hard and soft drugs in terms of punishments. As per section 9(c), an offence involving 1 kg of Cannabis or 1 kg of Heroin carries the same punishment i.e. Life imprisonment or death. The same seems entirely unreasonable as the health and social harm of both drugs is poles apart. This is also in direct contrast to worldwide trends which evidence a cognizance of this variance. Fortunately, though there is some progressive jurisprudence from our superior courts that appreciates the need for drawing such distinctions and for devising sentencing guidelines to reflect such variance.
Notably, a special bench of the Lahore High Court in Ghulam Murtaza v Stateviii decreed that silence of the CNSA on classes of drugs does not mandate a blind approach towards the types of drugs involved. In his judgement, Khosa J. provides:
Different kinds of contraband narcotic substances covered by the Control of Narcotics Substances Act, 1997 vary sharply in their harmful nature or dangerous effects as a huge quantity of one substance may be less harmful or dangerous than a small quantity of another substance. Thus, in many situations a sentencing approach based only upon quantity of the recovered substance may lead to unjust and oppressive results and to punishments which may be unduly cruel and harsh.
The honorable judge proceeded in that case to formulate a criterion for convictions depending upon the quantity and the composition of the drug. The ANF is seemingly supportive of variance in sentencing standards to reflect the relative harmfulness of the drug involved. The same criterion were upheld by the Honorable Supreme Court of Pakistan in Ameer Zeb v State.ix However, the Courts under the CNSA have failed to incorporate these rules and sentencing thereby continues to be in violation of direct orders of the highest court and thereby render punishments that are arbitrary and capricious.
Even more far reaching changes are required in terms of sentencing and punishment to bring about more just proportionality in the operation of the law. It is easy to find examples of jurisdictions where such principles of proportionality are applied in multiple ways. For instance, in the United Kingdom, courts determine a proportional sentence for each drug-related crime by considering (1) the nature of the offence, (2) the culpability of the offender, and (3) the harm caused by the offence.x Where Pakistan’s drug law does not distinguish between senior traffickers and simple carriers, in UK law each drug offence (e.g. selling, importing, possession) has its own detailed chart laying out suggested sentences. Each chart gives a matrix of possible sentences based on the offender’s culpability and the harm caused.xi To determine culpability, the judge considers all facts of the case to determine the role of the offender as being leading, significant, or lesser.xii
In Canada, the Controlled Drugs and Substances Act (CDSA) sets out punishments for drug offences which are differentiated based on (1) the type of offence involved and (2) the harmfulness of the drug involved.xiii Senior traffickers who finance and organise the drug trade face much harsher penalties than carriers—the law mandates longer custodial sentences for trafficking, producing, and importing/exporting drugs than it does to for simple possession. For example, someone found guilty of traffickingxiv importing/exportingxv or producingxvi morphine or opium can be sentenced to life in prison, whereas someone convicted for possession of synthetic cannabis can only be sentenced to a maximum of 5 years.
Importantly, in both these jurisdictions, the offences have distinct elements that may or may not be reliant upon possession. Additionally, mere possession with not additional act or intention to sell or supply is viewed less harshly for the purposes of sentencing.
Although the structural irrationalities of the CNSA have combined with law enforcement practices to disproportionately criminalize tertiary actors within the drug trade, some recognition of this is being found in recent judgements of the Supreme Court. While we await redressal for some of the deeper problems of the existing law, the turn towards a recognition of mitigation in the commission of possession-based offences needs to be recognized and practiced to a greater extent. The FFR report suggests that “mitigation of punishment and grants of immunity from prosecution encourage accomplices and ‘insiders’ to supply useful information and testimony.”xvii In line with that, mitigation of punishment to those persons who aid in the investigation and prosecution of criminal offences must be considered.
A liberal trend is now visible in the decisions of superior judiciary where it overturned several harsh convictions merely on the grounds that the accused were couriers hence had a limited in interest in the drug trade. This was held to be the case in the appeal of Arshad Ahmed.xviii The (which court) reduced the convict’s sentence from death penalty to life imprisonment and the fine imposed upon him was also reduced based on the Supreme Court’s observation that he was ‘a simple carrier and a first time offender and hence deserved a lesser punishment.
Similarly, in Khalida Akram v Statexix the honorable court embarked upon establishing more mitigating factors to be determined while reducing sentences. It was observed by the court that “the appellant is an old lady and has continuously remained in custody since the day of her arrest effected on 17-4-2002 and she is also a first offender therefore, considering the submissions made in her appeal filed in the shape of mercy petition furnishing mitigating circumstances, we find that she deserves leniency.”
Over the last few years, mitigating and circumstantial factors have been considered by the superior judiciary while reducing sentences of accused persons. Unfortunately, trial courts are yet to incorporate the liberal interpretations produced by the superior judiciary and have failed to honor the concepts of mitigating and circumstantial factors while handing down sentences. In a murder case Muhammad Juman v State,xx the Honorable Supreme Court ordered,
“No mathematical formula, standard or yard stick could be prescribed or set out to inflict a conviction and sentence, as factors varied from case to case. Court had an onerous responsibility to inflict, fair, reasonable and adequate sentence, which commensurate with the gravity and or severity of crime, looking at the motive, attending and or mitigating circumstances that provoked or instigated commission of crime, and it involved conscious application of mind.”
While the necessary tie in of possession with the punishments accorded under s. 9 will be discussed in greater detail in the following part, it is important to understand how the unelaborated nature of the offence of possession leads to an over-heavy reliance upon this it for successful convictions. Particularly egregious applications of the CNSA on persons who may have had no cognizance or expressed no will to be in possession of a quantity of prohibited substance are illustrative of such miscarriages of justice.
FFR’s report cites the example of Dilawar, a truck-driver involved in the possession and transport of a sizeable quantity of narcotics. Dilawar claims to have been tricked into carrying a consignment, the contents of which he was oblivious. He was apprehended by the ANF police and later sentenced to life in prison. Unable to satisfy the burden of discharging the reverse onus of s. 29, he was given the harsh penalty because his ownership of the truck established, for the trial court, sufficient criminal liability’ to prove possession.
What is patently obvious from such an application of the law is that the act of possession is stretched to account for proximity but also, more importantly, that judges are not seeking application of mind in the commission of the offence. In other words, there is no clear mandate to find a mens rea or mental intent in the commission of the crime. Relatedly, but not discussed extensively in this paper, is the issue of capacity. Is the offender of full mental capacity, i.e. not a juvenile/subject to duress, etc. so as to allow their act to be considered to have been undertaken consciously and willfully so as to attract the punishment? In spite of the absence of express authorization for such a form of judicial inquiry however, at the level of the superior judiciary, such considerations are increasingly being brought to bear. Thus, at the appellate level, harsh penalties imposed at the trial level are often over-turned when judges apply more nuanced tests to establish possession.
As per a reported judgment Muhammad Aslam v. State,xxi the honorable judge pointedly drew attention to the fact that mere proximity to a prohibited substance was insufficient evidence to lead to a finding of possession. While no specific definition for ‘active possession’ was established in this case, the “well-settled legal principle regarding dispensation of justice in criminal cases that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party” was imported. In the facts of this case, the Honorable judge held that it was “not established beyond reasonable doubt that the alleged quantity of 9½ mounds contained in ten sacks was owned by the appellant or it was in his possession.” Many convictions have been revised on similar grounds where the accused was imputed to be in possession because the prohibited substance was recovered from a vehicle in which the accused was travelling, with judges finding that mere presence in a vehiclexxii or homexxiii from which drugs are recovered does not make each person present guilty of possession. Answering the question then of what might be the ingredients to satisfy the burden of proving conscious or willful possession requires attentiveness to what the judges cite as absent in the evidence assessed, which often includes witness testimony.xxiv
Thus through these and other judicial interventions, the looming presence of s. 29 has been reduced from rendering the offence of possession as one of strict liability to having more limited effect in a number of cases. In Ahmad Gul v. State,xxv the court specifically provides that while the language of the provision implies that a “heavy duty lies on the shoulder of the accused” to absolve themselves from the “commission of the offence”, this is balanced by the duty upon the prosecution to “prove that the narcotic drug has been recovered from the conscious possession of the accused.” It is thus the particular importation of the idea of conscious possession through which a mental element is imported into the act and thereby resultantly, any strict liability implications for mere possession, obviated. That there is insufficient knowledge at the level of the lower courts about established precedence is something that we hope to redress with this article and that the FFR report has been instrumental in highlighting.
The Control of Narcotics Substances Act 1997 needs radical amendments to more precisely meet the social objective of addressing Pakistan’s multifaceted drug problem. While the superior judiciary has erected significant barriers to its most inequitable applications, these are insufficient for overcoming it’s many flaws in practice. A law that differentiates degrees of criminal responsibility based upon an accused’s knowledge, pre-meditation, control and likeliness to profit from the movement and sale of prohibited substances is one that will likely be more effective as well as having the benefit of being more humane.
i. In 2013, the UNODC estimated that 4.25 million Pakistanis were drug-dependent. The International Narcotics Control Board reported in 2014 that rates of both opiate use and trafficking in Pakistan had increased from 2006 to 2013. FFR, ‘Optimising Pakistan’s drug law: Making the Control of Narcotic Substances Act stronger, fairer and more effective, pp. 20-21.
ii. Sentencing Advisory Panel, ‘Sentencing for Drug Offences Consultation Paper’ (Sentencing Guidelines Council, 2007) p.14. https://www.banksr.co.uk/images/Guidelines/Advisory%2oPanel%2oConsultution%20Papers/Drug Offences Consultation paper 2009.pdf
iii. German Criminal Code, sec. 43a, available at: https://www.gesetze-un-internet.de/englisch_stgb/englisch_stgb.html.
v. See, e.g., Misuse of Drugs Act (Ireland) 1977, sec. 27 F49(3)(b).
vi. Criminal Justice Act (Ireland) 1994, sec.
4, available at: http://www.irishstatutebook.ie/eli/1994/act/15/enacted/en/print.
vii. Id. at part VII.
viii. 2009 PLD 362.
ix. 2012 PLD 380.
x. Sentencing Council, ‘Drug Offences Definitive Guideline (UK)’, 2012, available at: https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_Offences_Definitive_Guideline_final_web1.pdf. Per the Coroners and Justice Act 2009 sec. 120, the Definitive Guideline applies to all drug offenders aged 18 and older.
xi. See, e.g., id. at p. 12 for chart laying out sentences for the offence of supplying an illegal drug.
xii. Id. at p. 10.
xiii. See generally Controlled Drugs and Substances Act (Canada) [hereinafter CDSA], Part I: Offences and Punishment, available at: https://laws-lois.justice.ge.ca/PDF/C-38.8.pdf.
xiv. CDSA, Section 5(3)(a).
xv. CDSA, Section 6(3)(a).
xvi. CDSA, Section 7(2)(a).
xvii. Optimising Pakistan’s drug law: Making the Control of Narcotic Substances Act stronger, fairer and more effective at p. 13.
xviii. Criminal Appeal No. 124-L/2012.
xix. 2013 MLD 176.
xx. 2018 SCMR 318.
xxi. 2011 SCMR 820.
xxii. E.g. Hashim & another v. State, 2017 PCrLJ 409 (“Mere presence of the appellants in the passenger bus or recovery of bags beneath their seats is not enough to fix the responsibility upon them”); Jameela v State, PLD 2012 SC 369 (“Mere presence of the appellant in a vehicle would not be treated as sufficient to saddle him with the responsibilities of possession of narcotic substance recovered from the secret cavities of the vehicle.”) Another case establishing the same position is Ikramullah v State, 2015 SCMR 1002 (duty was imposed upon the prosecution “to prove the physical and conscious possession of the appellants through consistent and confidence inspiring evidence”).
xxiii. E.g. Tariq v State, 2018 PCrLJ 109 (holding prosecution must establish “through cogent and tangible evidence that the house in question was in the exclusive possession of the appellant” and that “possession has not been defined in the Act of 1979 but it has been judicially construed to be conscious and intelligent possession); Bashir Ahmed v State, 2016 MLD 291 (broadening exclusive possession to mean both ownership and control).
xxiv. E.g. Hashim & another v State, 2017 PCrLJ 409 (honorable judge found it “astonishing” that “neither the statement of driver, cleaner nor any passenger boarded in the said bus was recorded by the prosecution”); Ahmad Gul v State, 2012 MLD 507 (prosecution witnesses “have categorically admitted that nothing has been recovered from the physical possession of the appellant.” The duty is laid on the prosecution in such cases “to establish that the appellant had some direct relation with the recovered narcotic substance, vehicle or co-accused, who was driving the vehicle.”); Ikramullah v State, 2015 SCMR 1002 (“The law is quite entrenched by now’ that the guilt of passengers travelling in a vehicle can only be established where “passenger knew or was conscious of availability of narcotic substance in the vehicle and still he had opted to travel in that vehicle); Waqas Ali v State, 2017 YLR 878 (“mere presence of the appellant in the vehicle is not enough to hold him responsible for the recovered contraband as the recovery of contraband was not effected on the pointation of the appellant.”).
xxv. 2015 MLD 507.