CHAPTER 08:12
ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
3. Extra-territorial jurisdiction
PART II
Offences
4. Use and possession of illicit substances
5. Trafficking in narcotic drugs or psychotropic substances
6. Cultivation of plants for narcotic or psychotropic purposes
7. Conspiracy to commit offences
8. Inducing another to take narcotic drugs or psychotropic substances
9. Unlawful possession of instruments or utensils for administering narcotic drugs or psychotropic substances
10. Permitting premises to be used for unlawful use of narcotic drugs or psychotropic substances
11. Unlawful supply of illicit substances, narcotic drugs or psychotropic substances
12. Provisions relating to certain prescriptions
13. Vicarious liability relating to controlled substances
14. Removal of practitioners’ name from register
15. Double doctoring
16. Special jurisdiction
PART III
Investigation, Search and Seizure
17. Obligation to report certain information to law enforcement officer
18. Powers of law enforcement officer
19. Disclosure of information
20. Power to search for illicit substances
21. Operating and permitting premises to be used as clandestine laboratory
22. Internal concealment
23. Power to intercept communication
24. Controlled delivery
25. Obstruction of inspection or search
PART IV
Rehabilitation Centres
26. Rehabilitation centres
PART V
Drug Enforcement Agency
27. Drug Enforcement Agency
28. Functions of Drug Enforcement Agency
PART VI
Final Provisions
29. Regulations
Schedule - United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Act 15, 2018.
An Act to domesticate the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances and to provide for matters connected therewith and incidental thereto.
[Date of Commencement: 29th June, 2018]
PART I
Preliminary
This Act shall be cited as the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act.
In this Act, unless the context otherwise provides—
"Agency" means a Drug Enforcement Agency established under section 28 of the Act;
"Authority" means the Medicines Regulatory Authority as established under section 3 of the Medicines and Related Substances Act (Cap. 63:04);
"clandestine laboratory" means a secret place where manufacturing of illicit substances takes place;
"controlled delivery" has the same meaning as assigned to it under the Convention;
"controlled substance" has the same meaning as assigned to it under the Medicines and Related Substances Act (Cap. 63:04);
"Convention" means the Convention of the United Nations against illicit traffic in narcotic drugs and psychotropic substances, signed on 20 December, 1988, as set out in the Schedule to this Act, and includes any amendments thereto;
"deal in", in relation to any illicit substance or any plant from which such a substance can be manufactured, includes performing any act in connection with the collection, importation, supply, transshipment, administration, exportation, buying, selling, cultivation, manufacture, transmission or prescription of the substance;
"dependence-producing substance" means dependence producing drugs as may be declared by the Minister;
"drug" means any dependence-producing substance or any dangerous dependence-producing substance;
"illicit substance" means any substance, natural or synthetic, which has been declared as an illicit substance by the Minister responsible for health;
"inspector" has the same meaning assigned to it under the Medicines and Related Substances Act (Cap. 63:04);
"law enforcement officer" includes a police officer, health inspector and a customs officer;
"manufacture" includes all operation involved in the production, processing, compounding, formulation, filling, packaging, re-packing and labelling of a drug, related substance or a habit-forming drug;
"medical practitioner", means a person registered as a medical practitioner under the Botswana Health Professions Act (Cap. 61:02);
"narcotic drug" means any substance declared as such under the Convention and includes any substance declared as a narcotic drug by the Minister responsible for health;
"plant" includes any portion of a plant;
"possess" includes keep, store or have in custody or under control or supervision;
"precursor chemicals" means a substance, including its salts, isomers, derivatives, and analogues, that may be used frequently in the illicit synthesis or manufacture of narcotic medicines, psychotropic medicines, and illicit substances as provided for under the Convention;
"premises" means land or any building, dwelling, flat, room, shop, office or other structure;
"produce" where the reference is to producing a narcotic drug or psychotropic substance, means producing it by manufacture, cultivation or any other method and "production" shall be construed accordingly;
"psychotropic substance" means any substance which has been declared as such under the Convention;
"sell" in relation to a drug, includes to offer, advertise, possess or expose the drug for sale, to dispose of it, whether for consideration or otherwise, or to exchange it;
"the register" has the same meaning as assigned to it under the Botswana Health Professions Act (Cap. 61:02);
"toxicological testing or screening" is the test that determines the approximate amount and type of the legal or illegal drugs in the person’s body through blood, urine, hair, saliva or sweat sample;
"trafficking" means the importation, exportation, manufacturing, buying, selling, supplying, storing, administering, conveyance, delivery or distribution by any person of an illicit substance, narcotic drug or psychotropic substance or any substance represented or held out by that person to be an illicit substance, narcotic drug or psychotropic substance; and
"veterinary surgeon" has the same meaning as assigned to it under the Veterinary Surgeons Act (Cap. 61:04).
3. Extra-territorial jurisdiction
(1) A citizen of Botswana or a person who permanently resides in Botswana, who commits an act outside Botswana that constitutes an offence under this Act if committed in Botswana, commits such offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 10 years, or to both.
(2) A person may not be convicted of an offence under subsection (1) if such person has been acquitted or convicted in the country where that offence was committed.
PART II
Offences
4. Use and possession of illicit substances
(1) A person shall not without lawful authority—
(a) deal in any illicit substance or any plant from which any illicit substance can be manufactured;
(b) possess or use any illicit substance or plant referred to under paragraph (a); or
(c) possess or use any precursor chemical for the manufacture of any illicit substance.
(2) A person who contravenes the provisions of subsection (1)(a) or (c), commits an offence and shall be liable to all of the following punishments, namely, to imprisonment, without the option of a fine, and without the suspension of any part thereof, for not less than 15 years or more than 20 years, and to a fine not exceeding P1 000 000 or in default of the fine, to an additional term of imprisonment of not less than 5 years or more than 7 years.
(3) A person who contravenes the provisions of subsection (1)(b), in relation to the possession of less than 60 grams of cannabis, commits an offence and shall be liable to a fine not exceeding P20 000, or to a term of imprisonment not exceeding three years, or to both.
(4) A person who contravenes the provisions of subsection (1)(b), in relation to more than 60 grams of cannabis, commits an offence and shall be liable to a fine not exceeding P500 000 or to a term of imprisonment not exceeding 10 years, or to both.
(5) Where a person commits an offence under subsection (1)(b) in relation to the possession of—
(a) such illicit substance as the Minister may prescribe for the purposes of this subsection;
(b) such number of tablets, capsules, or pills as may be prescribed each consisting of or containing any illicit substance; or
(c) any preparation containing one gram or more of any illicit substance, other than cannabis,
the punishment for the offence shall be the same as for an offence under subsection (2).
(6) Where upon the trial of a person for an offence in terms of subsection (2), the court considers that the offence has not been proved, but is satisfied that the person is guilty of an offence in terms of subsection (4), the court shall find that person guilty of such latter offence and convict and sentence the person accordingly.
(7) Every person required to be in possession of a permit, licence, prescription, approval or authority shall be considered to be without such permit, licence, prescription, approval or authority unless the person produces or gives satisfactory proof of possessing the same.
(8) Any person who is upon, or in charge of, or who accompanies, any vehicle, aircraft or animal in or upon which there is any controlled substance, or any plant or portion of a plant from which any such drug can be extracted, derived, produced or manufactured shall, until or unless the contrary is proved, be deemed for the purposes of this section, to be the possessor of such, drug, plant or portion of a plant.
(9) Notwithstanding subsection (8), the Minister may, in writing, and acting in consultation with the Authority, authorise any company, institution or individual to cultivate, manufacture, import, export, possess, distribute or sell a prohibited substance for the purpose of research, pharmaceutical analysis, or medical purpose.
5. Trafficking in narcotic drugs or psychotropic substances
Any person who traffics in a narcotic drug or psychotropic substance commits an offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 25 years, or to both.
6. Cultivation of plants for narcotic or psychotropic purposes
(1) Any person who, without lawful authority, cultivates any plant which can be used or consumed as a narcotic drug or psychotropic substance, or from which a narcotic drug or psychotropic substance can be extracted, commits an offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 20 years, or to both.
(2) If any charge under this section it is alleged that cannabis was being cultivated, evidence that such cannabis was found in cultivated land shall be sufficient proof that it was being cultivated with the knowledge of the owner or occupier of such land, unless the contrary is proved.
7. Conspiracy to commit offences
Where two or more persons act together to commit an offence under this Act, they shall be liable to a fine not exceeding P500 000 or imprisonment for a term not exceeding 20 years, or to both.
8. Inducing another to take narcotic drugs or psychotropic substances
Any person who, by force, deceit or by any other means, induces any other person to take any illicit substance, narcotic drug or psychotropic substance, or who by any other means induces any other person to administer an illicit drug or psychotropic substance onto another person, commits an offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 20 years, or to both.
9. Unlawful possession of instruments or utensils for administering narcotic drugs or psychotropic substances
Any person who, without lawful authority, has in his or her possession instruments or utensils used in administering narcotic drugs or psychotropic substances commits an offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 20 years, or to both.
10. Permitting premises to be used for unlawful use of narcotic drugs or psychotropic substances
A person who occupies or controls premises or who permits those premises to be used for administering narcotic drugs or psychotropic substances, or who occupies or uses premises for the purposes of a clandestine laboratory, commits an offence and shall be liable to a fine not exceeding P200 000 or to imprisonment for a term not exceeding 10 years, or to both.
11. Unlawful supply of illicit substances, narcotic drugs or psychotropic substances
Any person who, without lawful authority, supplies to, or procures for, any person an illicit substance or narcotic drug or psychotropic substance or advertises for sale any such drug or substance, or uses force, intimidation or extortion in supplying to or procuring for, any person an illicit or narcotic drug for sale, commits an offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 20 years, or to both.
12. Provisions relating to certain prescriptions
(1) A medical practitioner, dentist or pharmacist shall not—
(a) prescribe for, administer, sell or supply to any person, a narcotic drug or psychotropic substance; or
(b) sign any prescription or order for the supply of narcotic drug or psychotropic substance to any person,
except where the narcotic drug or psychotropic substance is required for the medical treatment of that person.
(2) A veterinary surgeon shall not—
(a) prescribe, administer, sell or supply a narcotic drug or psychotropic substance; or
(b) sign any prescription or order for the supply of narcotic drug or psychotropic substance to any animal,
except where the narcotic drug or psychotropic substance is required for the veterinary treatment of an animal.
(3) A person who contravenes the provisions of subsection (1) or (2) commits an offence and shall be liable, upon conviction, to a fine not exceeding P100 000, or to imprisonment for a term not exceeding 10 years, or to both.
13. Vicarious liability relating to controlled substances
(1) Any medical practitioner, veterinary surgeon, dentist or pharmacist shall be deemed guilty of an offence and shall be liable to the penalties prescribed in section 12(3) in respect of controlled substances where the act constituting an offence was that of a partner, manager, clerk, agent, apprentice or servant associated with or employed by the medical practitioner, veterinary surgeon, dentist or pharmacist, unless that medical practitioner, veterinary surgeon, dentist or pharmacist satisfies the court that the act was committed without his or her knowledge and was not due to his or her negligence in the supervision of that partner, manager, clerk, agent, apprentice or servant.
(2) Every director and manager of a company or institution, who is resident in Botswana, shall be liable for and subject to penalties prescribed in section 12(3) in relation to illicit substances by such company or institution.
14. Removal of practitioners’ name from register
Where a medical practitioner, veterinary surgeon, dentist or pharmacist is convicted of an offence under this Act, he or she shall, notwithstanding any other written law, be liable to have his or her name removed from the register of practitioners licensed or registered to practice within Botswana as a medical practitioner, veterinary surgeon, dentist or pharmacist as the case may be.
Any person who, with intent to deceive obtains a narcotic drug or psychotropic substance or a prescription for a narcotic drug or psychotropic substances from a medical practitioner without disclosing to the practitioner, particulars of every narcotic drug or psychotropic substance or prescription for such drug or substance issued to him or her by a different practitioner within the preceding 30 days commits an offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 20 years, or to both.
(1) Notwithstanding anything to the contrary in any written law, any Magistrate at the level of Magistrate Grade 1 and above shall have special jurisdiction to impose any penalties provided for in this Act for any contravention of the provisions of this Part, or any regulations made under this Act relating to this Part, or to exercise any of the powers provided therein in respect of such contraventions.
(2) Where any person is found guilty of any contravention of the provisions of this Part or any regulations made under this Act relating to this Part, the court shall order any illicit substance, plant, pipe, receptacle or material in respect of which the offence was committed to be forfeited to the State.
(3) Where any person is found guilty of any contravention of the provisions of this Part or any regulations made under this Act relating to this Part, the court shall order that any vehicle, aircraft, boat, animal, receptacle or thing in or upon which such illicit substance was found, be detained for a period of 28 days, and if within such period no successful application is made under subsection (4), it shall thereafter be forfeited to the State.
(4) If upon application being made to it within 28 days of the date of the order made under subsection (3) by a person claiming ownership, the court is satisfied that—
(a) such vehicle, aircraft, boat, animal, receptacle or thing is not the property of the person convicted;
(b) the claimant is the owner; and
(c) the claimant did not know that it was being used for an illegal purpose or was not able to prevent its use by the person convicted,
it may, if it considers it to be equitable and expedient to do so, order the return thereof to the claimant.
(5) If the convicted person used any motor vehicle, aircraft or boat to carry or convey the medicine, plant, pipe, material or thing in respect of which the offence was committed, the court may—
(a) suspend for a period not exceeding five years, any licence issued to that person to drive, fly or operate a vehicle, aircraft or boat, as the case may be; and
(b) cancel any license issued in respect of the vehicle, aircraft or boat used in committing the offence.
(6) If the convicted person is the holder of any licence issued under the provisions of any written law relating to the issue of operating licences, and it is proved to the satisfaction of the court that the person used the licence to conceal or assist that person in concealing the offence, the court may cancel the licence, and may declare that person to be disqualified from obtaining another such licence for a period not exceeding five years.
(7) The office of receiver established under the Proceeds and Instruments of Crime Act (Cap. 08:03) shall take control of property forfeited to the State under this section and the provisions of the Proceeds and Instruments of Crime Act (Cap. 08:03) shall apply to such property.
PART III
Investigation, Search and Seizure
17. Obligation to report certain information to law enforcement officer
An owner, occupier or manager of any premises or any person in control of any place of entertainment, worship, sporting or social club who has the supervision of the place, has reason to suspect that any person in or on such place of entertainment, worship, sporting or social club uses, has in his or her possession or deals in illicit substances, narcotic drugs or psychotropic substances in contravention of the provisions of this Act, he or she shall—
(a) as soon as possible report the suspicion to any law enforcement officer or to the nearest police station, as the case may be; and
(b) at the request of the law enforcement officer, furnish such law enforcement officer with such particulars as he or she may have available regarding the person in respect of whom the suspicion exists.
18. Powers of law enforcement officer
(1) A designated law enforcement officer may if he or she has reasonable grounds to suspect that an offence under this Act has been or is about to be committed by any means in respect of any illicit substance, narcotic drug or psychotropic substance at any time—
(a) enter or board and search any premises, vehicle, boat or aircraft on or in which any such narcotic drug or psychotropic substance is suspected to be found;
(b) search any container or other thing in which any such narcotic drug or psychotropic substance is suspected to be found;
(c) search or cause to be searched any such person or anything in his or her possession or custody or under his or her control;
(d) intercept or cause to be intercepted either during transit or otherwise any such article, and open and examine it in the presence of any suitable person;
(e) question any person who in his or her opinion may be capable of furnishing any information relating to the offence or alleged offence under this Act; or
(f) seize any property which in his or her opinion is connected with, or may provide proof of, a contravention of a provision of this Act.
(2) For purposes of subsection (1)(f), property has the same meaning assigned under the Proceeds and Instruments of Crime Act (Cap. 08:03).
A person may disclose to any law enforcement officer such information as he or she may consider necessary for the prevention or combating of the use or possession of or dealings in illicit substances, narcotic drugs or psychotropic substances.
20. Power to search for illicit substances
(1) Where a designated law enforcement officer has reasonable grounds for believing that any person is operating a clandestine laboratory or is using any premise for the purpose of illegal production of illicit substances as the case may be, the designated law enforcement officer may—
(a) enter without a search warrant upon any land, and require such person to produce for inspection his or her licence for any precursor chemical in such person’s possession or any licence or other authorisation issued to the person;
(b) without a search warrant, search any person, any animal in the possession of such person, enter and search any land, building, vehicle, equipment, aircraft or boat in possession of that person;
(c) seize any precursor chemical, equipment or any article which he or she suspects is used for the production of illicit substances in a clandestine laboratory; or
(d) undertake any inspection which he or she may consider necessary to determine whether the provisions of this Act are complied with.
(2) A law enforcement officer may subject, or cause to be subjected to toxicological testing or screening, any person arrested or detained under this section where there is reasonable suspicion that the person has used an illicit substance.
21. Operating and permitting premises to be used as clandestine laboratory
(1) A person who operates a clandestine laboratory commits an offence and shall be liable to a fine of not exceeding P1 000 000 or to imprisonment for a term not exceeding 25 years.
(2) A person who permits his or her premises to be used as a clandestine laboratory commits an offence and shall be liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 15 years, or to both.
(1) Where a law enforcement officer has reasonable cause to suspect that a person is trafficking in an illicit substance or controlled chemical by concealing it inside his or her body, the law enforcement officer may detain the person for the purpose of search.
(2) A law enforcement officer detaining any person under this section shall—
(a) clearly inform the detained person of the reason for the detention;
(b) arrange for the attendance of a medical practitioner who shall ask the detained person for consent to undergo a medical examination; and
(c) in the event that the detained person refuses to consent to a medical examination under paragraph (b), apply to the Magistrates’ Court for a detention and medical examination order.
(3) A detention and a medical examination order issued under subsection (2)(c) shall—
(a) authorise the detention of a person for a period not exceeding 10 days;
(b) direct the detained person to submit to such medical examination as a medical practitioner considers may reasonably be necessary to establish whether the person is internally concealing an illicit drug or controlled chemical; and
(c) authorise a medical practitioner to carry out a relevant medical procedure to recover the drug or controlled substance as may be reasonable and appropriate in the circumstances.
(4) No action shall lie against a medical practitioner for any act done by him or her under this section unless it can be proved that such act was done maliciously and without reasonable justification.
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