Conventions Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances act

Arrangement of Sections

1. Short title.

PART I

Convention Offences

2. Offences.

3. High Court vested with jurisdiction to hear offences under the Act.

4. Rights of certain persons arrested for offences under this Act.

5. Evidence.

6. Seizure and freezing.

7. Forfeiture.

8. Offences to be cognizable and non-bailable.

PART II

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

CHAPTER I

Narcotic Drugs and Psychotropic Substances

9. Parties to the Convention.

10. Amendment of Extradition Law, No. 8 of 1977.

11. Interpretation in relation to the Extradition Law.

12. Extradition arrangements deemed to provide for offences in the Second Schedule to this Act.

13. Minister may treat United Nations Convention as an extradition arrangement between Sri Lanka and a Convention country in respect of offences in the Second Schedule to this Act.

14. Duty of Minister to notify requesting State, of measures taken against persons for whose extradition a request is made.

15. Assistance to Convention Countries.

16. Interpretation Chapter I of Part II

CHAPTER II

Establishment of the precursor control authority for the monitoring of the substances specified in table i and table ii used in the illicit manufacture of narcotic drugs or psychotropic Substances

17. Convention country.

18. Precursor Control Authority to be responsible for the administration of this part.

19. Duties of Authority.

20. All substances in Table I and Table II to be imported or exported on a licence.

21. Inspection of records.

22. Avoidance of doubts.

PART III

The south Asian Association for Regional Co-operation Convention on Narcotic Drugs and Psychotropic Substances

23. Existing extradition arrangements with certain SAARC states deemed to provide for offences in the Second Schedule.

24. Amendment of Extradition Law, No. 8 of 1977.

25. Minister may treat Convention as an extradition arrangement between Sri Lanka and a SAARC state in respect of offences in the Schedule.

26. Interpretation.

27. Duty of Minister to notify requesting country, of measures taken against persons for whose extradition request is made.

28. Assistance to SAARC states.

PART IV

Miscellaneous

29. Provisions of sections 3, 4, 5, 6, 7 and 8 to apply to Parts II and III.

30. Amendment of First Schedule by Resolution of Parliament.

31. Regulations.

32. Sinhala text to prevail in case of inconsistency.

33. Interpretation.

SCHEDULE

1 of 2008.

AN ACT to give effect to the United Nations Convention and the South Asian Association for Regional Co-operation Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which the Government of Sri Lanka has become a party; and to provide for matters connected there with or incidental thereto.

[Date of Commencement: 23rd January, 2008]

1. Short title.

(1) This Act may be cited as the Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act.

(2) Subsection (1) shall come into operation on the date that this Act is certified as an Act of Parliament and the other provisions of the Act shall come into operation on such date as the Minister may appoint by Order published in the Gazette. Different dates may be appointed in respect of the different Parts of this Act, so however that—

(a) the date appointed in respect of Part II shall not be earlier than the date on which the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, enters into force in respect of Sri Lanka; and

(b) the date appointed in respect of Part III shall not be a date earlier than the date on which the South Asian Association for Regional Co-operation Convention in Narcotic Drugs and Psychotropic Substances enters into force in respect of Sri Lanka.

PART I

Convention Offences

2. Offences.

(1) Any person who, whether in or outside Sri Lanka, and whether he is a citizen of Sri Lanka or not, intentionally—

(a) produces, manufactures, extracts, prepares, offers, offers for sale, distributes, sells, delivers, acts as broker for the supply of, dispatches, dispatches in transit, transports, imports or exports or traffics any narcotic drugs or psychotropic substances;

(b) cultivates opium poppy, coca bush or the cannabis plant, for the purposes of the production of any narcotic drug;

(c) possesses or purchases any narcotic drug or psychotropic substance, for any of the purposes described in paragraph (a);

(d) procures, manufactures, stores, transports, sells, delivers or distributes any equipment, material or any substance, set out in Table I or Table II of the First Schedule to this Act, knowing that it is to be used in, or for, the unlawful cultivation, production or manufacture of, any narcotic drug or psychotropic substance;

(e) organises, arranges or finances any of the acts described in paragraphs (a), (b), (c), or (d);

(f) acquires, possesses or uses any property, knowing at the time of such acquisition, possession or use, that such property was derived from an act described in paragraphs (a), (b), (c) (d) or (e), or from an act of participation in any such act;

(g) possesses any equipment or material or any substance, set out in Table I or Table II of the First Schedule to this Act, knowing that it is being, or is to be used in, or for, the unlawful cultivation, production or manufacture of any narcotic drug or psychotropic substance;

(h) publicly incites or induces other persons by any means, to commit any of the offences described in this section, or to use narcotic drugs or psychotropic substances, unlawfully;

(i) converts or transfers any property, knowing that such property is derived from any act or acts described in paragraphs (a), (b), (c), (d) or (e), of this section, or from an act of participation in any such act, for the purpose of concealing or disguising the illicit origin of the property, or assisting any person who is involved in the commission of any such act or acts to evade the legal consequences of such acts;

(j) conceals or disguises the true nature, source, location, disposition, movement, rights with respect to, or ownership of, any property knowing that such property is derived from the commission of any act described in paragraphs (a), (b), (c), (d) or (e) of this section, or from an act of participation in any such act,

shall be guilty of an offence under this Act and shall on conviction after trial on indictment before the High Court, be punished with imprisonment for a term not less than ten years and not exceeding fifteen years:

Provided that, the acts referred to in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (0 and (f) shall have been committed in Sri Lanka:

Provided further, that the above provisions shall not be applicable to offences to which Part III of the Third Schedule to the Poisons, Opium and Dangerous Drugs Ordinance applies.

(2) Any person who—

(a) attempts to commit; or

(b) abets the commission of; or

(c) conspires with any other person to commit,

any such offence as is referred to in subsection (1) shall be guilty of an offence under this Act, and shall on conviction after trial on indictment by the High Court, be liable to the same punishment as he would have been liable to, had he committed the offence, which he is convicted of having attempted to commit, or having abetted the commission of or having conspired with any other person to commit.

(3) In this section "abet” has the same meaning as in sections 100 and 101 of the Penal Code and "conspires” has the same meaning, as in section 113a of the Penal Code.

(4) In imposing punishment on any person convicted of an offence under this section, the Court shall have regard to the following—

(a) the involvement in the commission of the offence, of an organised criminal group to which the offender belongs;

(b) the involvement of the offender in any other international organised criminal activities;

(c) the involvement of the offender in other illegal activities facilitated by the commission of the offence;

(d) the use of violence or arms by the offender in the commission of the offence;

(e) the fact that the offender holds a public office and the offence is connected with the office in question;

(f) the victimisation or use of minors in the commission of the offence;

(g) the fact that the offence is committed in a prison or in an educational institution or social service institution or in their immediate vicinity or in any other place to which school children and students resort, for educational sports and social activities.

3. High Court vested with jurisdiction to hear offences under the Act.

(1) The High Court of Sri Lanka holden in Colombo or the High Court of the Province established under Article 154p of the Constitution for the Western Province, holden in Colombo, shall, notwithstanding anything in any other law, have exclusive jurisdiction to hear, try and determine in the manner provide by written law, any offence under this Act.

(2) Where an act constituting an offence under this Act is committed outside Sri Lanka, the High Court referred to in subsection (1) shall have jurisdiction to try such offence as if it were committed within Sri Lanka, if—

(a) the person who committed such act is present in Sri Lanka;

(b) such act is committed by a citizen of Sri Lanka or by a national of another State which is a party to this Convention, or by a stateless person, who has his habitual residence in Sri Lanka;

(c) such act is committed against, or on board a ship or aircraft registered in Sri Lanka at the time of the commission of the offence;

(d) such act is committed against or on board a ship or aircraft registered under the laws of another State which is a party to this Convention, at the time of the commission of the offence;

(e) the person in relation to whom the offence is alleged to have been committed is a citizen of Sri Lanka;

(f) such act is committed in order to compel the Government of Sri Lanka, to do or abstain from doing, any act.

4. Rights of certain persons arrested for offences under this Act.

Where a person who is not a citizen of Sri Lanka, is arrested for an offence under this Act, then he shall be entitled—

(a) to communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to protect his rights or if he is a stateless person, which he requests and is willing to protect his rights; and

(b) to be visited by a representative of that State.

5. Evidence.

Where in a prosecution for an offence under section 2 the question arises as to weather any drug or substance is a narcotic drug or a psychotropic substance or a substance specified in Table I or Table II of the 1988 United Nations Convention or the SAARC Convention, a report by the Government Analyst to the effect that such drug or substance is a narcotic drug or psychotropic substance or a substance specified in Table I or Table II of the 1988 United Nations Convention or the SAARC Convention, shall be admissible in evidence and shall be prima facie evidence of the facts stated therein.

For the purposes of this section "Government Analyst” shall include the Additional Government Analyst, a Deputy Government Analyst, a Senior Government Analyst or an Assistant Government Analyst.

6. Seizure and freezing.

(1) On indictment of any person in the High Court, for an offence under this Act—

(a) any article or substance in connection with which the offence was committed, or used in, or in connection with, the commission of such offence;

(b) the proceeds of such offence,

shall with effect from the date of filing of such indictment be liable to seizure or freezing as the case may be, on application made in that behalf to the High Court.

(2) The seizure of any article or substance or the freezing of proceeds in terms of subsection (1) shall be in force until the conclusion of the trial.

7. Forfeiture.

(1) On the conviction of any person for an offence under section 2, the Court may Order that—

(a) any article or substance in connection with which the offence was committed, or used in or in connection with, the commission of such offence;

(b) the proceeds of such offence, shall be forfeited to the State.

(2) any property forfeited to the State by an Order made under subsection (1), shall vest absolutely in the State. Such vesting shall take effect—

(a) where no appeal in preferred to the Court of Appeal against the Order of forfeiture, on the expiration of the period within which an appeal may be preferred to the Court of Appeal against such Order of forfeiture;

(b) where an appeal has been preferred, to the Court of Appeal against such Order of forfeiture and no appeal is preferred to the Supreme Court against the Order of the Court of Appeal affirming or upholding such Order of forfeiture, on the expiration of the period within which an appeal may be preferred to the Supreme Court from such Order of the Court of Appeal; or

(c) where an appeal has been preferred to the Court of Appeal against such Order of forfeiture and an appeal has been preferred to the Supreme Court from the determination of the Court of Appeal on the first mentioned appeal, upon the determination of the Supreme Court affirming or upholding the Order of forfeiture.

(3) Where a Court is satisfied on the evidence adduced at a trial for an offence under section 2, that any funds standing to the credit of any account in any bank, are the proceeds of such offence, it may by written Order prohibit the manager of such bank from permitting or allowing the withdrawal of any funds from that account, until the conclusion of the trial of such offence.

8. Offences to be cognizable and non-bailable.

An offence under section 2 shall be a cognizable offence and a non-bailable offence, within the meaning and for the purposes of the Code of Criminal Procedure Act, No. 15 of 1979.

PART II

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

CHAPTER I

Narcotic Drugs and Psychotropic Substances

9. Parties to the Convention.

The Minister may from time to time, by Order published in the Gazette, certify for the purposes of this Part of this Act, the countries that are parties to the 1988 United Nations Convention. A country in respect of which, an Order made under this section is in force is hereinafter in this Part of this Act, referred to as "a convention country”.

10. Amendment of Extradition Law, No. 8 of 1977.

The Extradition Law, No. 8 of 1977 is hereby amended in the Schedule to that Law, by the addition immediately before Part B thereof, of the following paragraph:—

"(52) An offence within the scope of the Conventions Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Act, No. 01 of 2008 (i.e. the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed at Vienna on December 20,1988).”

11. Interpretation in relation to the Extradition Law.

Notwithstanding anything contained in the Extradition Law, No. 8 of 1977 an offence specified in Part B of the Schedule to that Law and the Second Schedule to this Act shall for the purpose only of extradition under that Law. of any person accused or convicted of any such offence, as between Sri Lanka and a convention country, be deemed not to be a fiscal offence or an offence of a political character or an offence connected with a political offence or an offence inspired by political motives.

12. Extradition arrangements deemed to provide for offences in the Second Schedule to this Act.

Where there is an extradition arrangement in force between the Government of Sri Lanka and a convention country such arrangement shall be deemed for the purposes of the Extradition Law, No. 8 of 1977, to include provision for extradition in respect of the offences described in the Second Schedule to this Act.

13. Minister may treat United Nations Convention as an extradition arrangement between Sri Lanka and a Convention country in respect of offences in the Second Schedule to this Act.

When there is no extradition arrangement in force, between the Government of Sri Lanka and a convention country, the Minister may, for the purposes of the Extradition Law, No. 8 of 1977, by Order published in the Gazette, treat the 1988 United Nations Convention as an extradition arrangement made by the Government of Sri Lanka with such convention country providing for extradition in respect of the offences described in the Second Schedule to this Act.

14. Duty of Minister to notify requesting State of measures taken against persons for whose extradition a request is made.

Where a request is made to the Government of Sri Lanka by or on behalf of the Government of a convention country for the extradition of any person accused or convicted of an offence described in the Second Schedule to this Act, the Minister shall, on behalf of the Government of Sri Lanka forthwith notify the Government of the Requesting State of the measures that Government of Sri Lanka has taken or proposes to take, for the prosecution or extradition of that person, for that offence.

15. Assistance to Convention Countries.

(1) The provisions of the Mutual Assistance in Criminal Matters Act, No. 25 of 2002 shall, wherever it is necessary for the investigation and prosecution of an offence under section 2 of this Act, or an offence described in the Second Schedule to this Act, be applicable in respect of the providing of assistance as between the Government of Sri Lanka and other States who are either Commonwealth countries specified by the Minister by Order under section 2 of the aforesaid Act or Non-Commonwealth countries with which the Government of Sri Lanka entered into an agreement in terms of the aforesaid Act.

(2) In the case of a country which is neither a Commonwealth country specified by the Minister by Order under section 2 of the aforesaid Act, nor a Non-Commonwealth countries with which the Government of Sri Lanka entered into an agreement in terms of the aforesaid Act, then it shall be the duty of the Government to afford all such assistance to, and may through the Minister request all such assistance from, a convention country, as may be necessary for the investigation and prosecution of an offence under section 2 to the extent required for the discharge of its obligations under the United Nations Convention (including assistance relating to the taking of evidence and statements, the serving of process and the conduct of searches).

(3) The grant of assistance to a convention country, may be made subject to such terms and conditions as the Minister thinks fit.

16. Interpretation Chapter I of Part II

For the purposes of this Chapter—

"narcotic drug” means any drug included in Schedules, I, II and IV of the United Nations Convention on Narcotic drugs, 1961 and which are specified in the Third Schedule to the Act.

"psychotropic substance'' means any substance natural or synthetic or any natural material included in Schedules I, II, III and IV of the Convention on Psychotropic Substances, 1971 and which are specified in the Fourth Schedule to the Act.

CHAPTER II

Establishment of the precursor control authority for the monitoring of the substances specified in table i and table ii, used in the illicit manufacture of narcotic drugs or psychotropic Substances

17. Convention country.

For the purposes of this Chapter "convention country” shall be any country certified for the purposes of section 9.

18. Precursor Control Authority to be responsible for the administration of this part.

The Minister shall appoint a person or a body of persons as the Precursor control Authority (hereinafter referred to as "the Authority”), who shall be charged with the responsibility of administering the provisions of this Part of this Act. The Authority shall implement within Sri Lanka, in respect of the substances specified in Table I and Table II of the First Schedule to the Act, such measures as are required for monitoring the manufacture and distribution of the aforesaid substances, as required by the provisions of the 1988 United Nations Convention in such manner as shall be prescribed by regulations made under the Act.

19. Duties of Authority.

The Authority shall ensure—

(a) that persons seeking to import or export the substances specified in Table I and Table II of the First Schedule to the Act, do so in terms of a valid licence in the manner prescribed, taking into consideration the requirements of the respective industries;

(b) the taking of such measures, as are necessary for the registration of the premises from which the licensee will carry on the activities relating to the import or export of the substances specified in Table I and Table II of the First Schedule to the Act;

(c) that the substances specified in Table I and Table II of the First Schedule to the Act are used only for the purposes they are imported or exported;

(d) that any illicit manufacture of any narcotic drug or psychotropic substances using the substances specified in Table I and Table II of the First Schedule to the Act be duly reported and appropriate action taken to punish the offenders;

(e) that every importer or exporter of any of the substances specified in Table I and Table II of the First Schedule to the Act submit to the Authority, quarterly returns reflecting the import, export, use, manufacture and distribution of such substances;

(f) that details of all suspicious transactions in relation to any of the substances specified in Table I Table II of the First Schedule to the Act, are notified to the Authority without delay by persons connected with the manufacture, import or export of any of such substances;

(g) that proper records of matters prescribed are maintained and that such activities and records are monitored in the manner prescribed.

20. All substances in table I and Table II to be imported or exported on a licence.

(1) No person shall import or export any substance specified in Table 1 and Table II of the First Schedule to the Act, except under the authority of a licnece issued in that behalf in terms of the Import and Export Act, No. 1 of 1969, on application made in that behalf in the prescribed manner.

(2) The Controller of Imports and Exports shall, on receipt of an application for a licnece for the import or export of any substance specified in Table I and Table II of the First Schedule to the Act, refer such application to the Authority for an endorsement to the effect that the substances and the quantities in respect of which the application is being made, are in keeping with the requirements of the respective industry.

(3) The Authority shall forward its endorsement within ten days of the application being referred to it. The endorsement shall be based on the actual requirements of the respective industries, verified on the basis of the quarterly returns submitted to it by every importer or exporter.

(4) the Controller of Imports and Exports shall thereupon grant or for reasons stated refuse to grant, the licence to which the application and endorsement relates.

(5) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and shall on conviction after trial on indictment before the High Court, be punished with imprisonment for a term not less than three years and not exceeding five years.

21. Inspection of records.

(1) The Authority shall have the power to enter and inspect at all reasonable hours after due notice, the premises where the licensee will carry on the activities relating to the import or export, use, manufacture and distribution of the substances specified in Table I and Table II of the First Schedule to the Act, and inspect any equipment being used, or books, documents or other records kept, relating to the same.

(2) Any person who resists or obstructs the Authority in the course of carrying out its duties in terms of subsection (1) shall be guilty of an offence and shall on conviction after trial on indictment before the High Court, be punished with imprisonment for term not less than one month and not exceeding three years.

22. Avoidance of doubts.

For the avoidance of doubts, it is hereby stated that the provisions of this Part shall not apply to pharmaceutical preparations not to other preparations containing substances specified in Table I and Table II of the First Schedule to the Act, that are compounded in such a way that such substances cannot be easily used or recovered, and in a yield which could constitute a risk to public health.

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