MISUSE OF DRUGS ACT, 2016

Arrangement of Sections

PART I

PRELIMINARY

1. Short title.

2. Interpretation.

3. Classification and designation of controlled drugs and precursors.

4. Legitimate activity involving controlled drugs.

PART II

OFFENCES INVOLVING CONTROLLED DRUGS

5. Importation and exportation.

6. Manufacture and cultivation.

7. Trafficking.

8. Possession, purchase and use.

9. Possession with intent to traffic.

10. Organisation, management and financing of drug trafficking.

11. Use of premises to commit offence.

12. Diversion of precursors, equipment and material.

13. Regulation of precursors.

14. Inspections of persons and establishments.

15. Aiding or attempting the commission of offence.

16. Conspiracy to commit offence.

PART III

EVIDENCE AND INVESTIGATION

17. Certificate relating to controlled drug.

18. Certificate of foreign law.

19. Presumption of intent to traffic.

20. Presumption of possession.

21. Presumption relating to premises.

22. Presumption relating to incoming vessel or aircraft.

23. Presumption relating to vehicle etc.

24. Presumption of use.

25. Power of search and seizure.

26. Power of arrest.

27. Procedure following seizure.

28. Secure destruction of controlled drugs, plants and seeds.

29. Urine and blood samples.

30. Fingerprints, measurements and photographs.

31. Protection of informers.

32. Undercover officer.

33. Powers of investigation.

34. Controlled delivery.

35. Obstruction of justice.

PART IV

COURT PROCEDURE FOR DRUG USERS

36. Identification of drug users and drug dependent persons.

37. Assessing drug dependency.

38. Dealing with drug users.

39. Dealing with drug dependent persons.

40. Court-ordered admission to approved institution.

PART V

ALTERNATIVE MEASURES FOR DRUG USERS

41. Formal caution for controlled drug.

42. Indicative quantities for personal consumption.

43. Drug dependent persons not charged with an offence.

44. Voluntary admission for treatment and rehabilitation.

45. Voluntary admission to residential programme.

46. Agreement to drug testing.

PART VI

SENTENCING

47. Sentencing for offences under this Act.

48. Aggravating factors.

49. Mitigating factors.

50. Travel restriction order.

51. Transitional provision.

PART VII

GENERAL

52. Jurisdiction.

53. Indemnity.

54. Regulations.

55. Repeal and savings.

FIRST SCHEDULE

SECOND SCHEDULE

THIRD SCHEDULE

FOURTH SCHEDULE

5 of 2016,

SI 34 of 2016.

AN ACT to provide for effective measures against abuse and diversion of controlled drugs and precursors; facilitate the investigation and prosecution of offences involving controlled drugs, in particular drug trafficking; promote the treatment, education, rehabilitation, recovery and social reintegration of drug users and drug dependent persons; ensure the availability of controlled drugs for legitimate medical and scientific use; facilitate implementation of Seychelles’ commitments under the international drug control conventions and for matters connected therewith or incidental thereto.

[Date of Commencement: 1st June 2016]

PART I

PRELIMINARY

1. Short title.

This Act may be cited as the Misuse of Drugs Act, 2016.

2. Interpretation.

In this Act, unless the context otherwise requires—

“1961 Convention” means the Single Convention on Narcotic Drugs of 1961 as amended by its 1972 Protocol;

“1971 Convention” means the Convention on Psychotropic Substances of 1971;

“1988 Convention” means the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988;

“approved facility” means a place declared under this Act to be an approved facility for the purposes of drug testing, the assessment of drug dependency, or the provision of outpatient treatment or harm reduction services to drug dependent persons, including syringe and needle exchange programmes;

“approved institution” means a place declared under this Act to be an approved institution for the purposes of inpatient treatment and rehabilitation of drug dependent persons or residential education and social reintegration programmes for drug users;

“article liable to seizure” means anything whatsoever, including cash and instrumentalities of use, cultivation or manufacture, by means of or in respect of which an offence under this Act or a related money laundering offence has been or is being committed, or which contains or constitutes evidence of such an offence;

“cannabis” means any part, excluding seeds, of a plant of the genus cannabis from which the resin has not been extracted, by whatever name it may be designated;

“cannabis plant” means a plant of the genus Cannabis;

“cannabis resin” means the separated resin, whether crude or purified, obtained from the cannabis plant;

“chief officer of NDEA” means a person appointed under section 12(1) of the NDEA Act;

“child” means a person who has not attained the age of majority;

“Class A drug”, “Class B drug” or “Class C drug” means a controlled drug specified in Part I, II or III respectively of the First Schedule in accordance with section 3;

“Commissioner of Police” means a person appointed under Article 160(1) of the Constitution;

“controlled delivery” means the practice of allowing unlawful or suspicious consignments of controlled drugs or articles liable to seizure to pass into, within, out of, or through Seychelles, with the knowledge and under the supervision of NDEA or police, with a view to the investigation and identification of persons involved in offences under this Act;

“controlled drug”

(a) means all narcotic drugs, whether synthetic or natural, plants and preparations classified in Schedules I, II, III and IV of the 1961 Convention, and all psychotropic substances classified in Schedules I, II, III and IV of the 1971 Convention, which are specified in the First Schedule to this Act; and

(b) includes any other narcotic or psychotropic substance, plant or preparation, including any new psychoactive substance, which may be included in the First Schedule to this Act by the Minister under section 3(2); but

(c) does not include a preparation containing a Class B or Class C drug that is compounded in such a way as to present no or a negligible risk of abuse and from which the substance cannot be recovered by readily applicable means;

“corresponding law” means a law in force providing for the control and regulation in a country other than Seychelles of the manufacture, trafficking, use, export or import of a narcotic or psychotropic substance, preparation or product in pursuance of the Conventions or any other treaty, agreement or arrangement to which the Republic and the government of that country are parties;

“cultivation by enhanced indoor means” in relation to a controlled drug, means cultivation of a plant inside a building or a structure involving at least one of the following processes—

(a) nurturing the plant in nutrient enriched water, with or without mechanical support;

(b) application of an artificial source of light or heat;

(c) suspending the plant’s roots and spraying them with nutrient solution;

“document” has the meaning ascribed to it by section 2 of the Evidence Act;

“drug dependent person” means a person who through the use of a controlled drug has developed a psychological or physical dependency upon the effect of that drug; and

“dependency on a controlled drug” has a corresponding meaning;

“informer” means a person who has given information to NDEA or police with respect to an offence under this Act;

“manufacture” includes any process of production of a controlled drug or the refining or transformation of one controlled drug into another;

“Minister” means the Minister responsible for Home Affairs;

“NDEA’’ means the National Drugs Enforcement Agency constituted by the NDEA Act;

“NDEA Act” means the National Drugs Enforcement Agency Act, 2008;

“NDEA agent” means a person appointed under section 13(1) of the NDEA Act;

“new psychoactive substance” means a substance of abuse, either in a pure form or a preparation, that is not controlled by the 1961 Convention or the 1971 Convention but which may pose a public health threat;

“officer” means a police officer or NDEA agent;

“offender” means a person who has been convicted of an offence under this Act;

“organised criminal group” means a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more act which constitutes criminal conduct as specified in paragraph (a)
to (d) of section 3(9) of the Anti-Money Laundering Act, 2006;

“police” means the Seychelles Police Force constituted by the Police Force Act;

“precursor” means the substances and preparations thereof frequently used in the unlawful manufacture of controlled drugs, as classified in Tables I and II of the 1988 Convention, which are listed in the Third Schedule to this Act, but does not include a preparation containing a precursor that is compounded in such a way that the substance cannot be recovered by readily applicable means;

“repealed Act” means the Misuse of Drugs Act, 1990;

“traffic” means—

(a) to sell, broker, supply, transport, send, deliver or distribute;

(b) to offer to do anything mentioned in paragraph (a); or

(c) to do or offer to do any act preparatory to or for the purposes mentioned in paragraph (a); and

“trafficking” has a corresponding meaning; and

“undercover officer” means a person authorised under section 32(1)(a) of this Act.

3. Classification and designation of controlled drugs and precursors.

(1) Controlled drugs and preparations thereof shall be classified in the First Schedule to this Act according to the degree of control to which they should be subject, as follows—

(a) Class A: Drugs that are subject to special measures of control in view of the particular harms that their non-medical or non-scientific use can cause, including those classified in Schedule IV of the 1961 Convention and in Schedule I of the 1971 Convention;

(b) Class B: Drugs having a medical and/or scientific use which should be subject to control in view of the harms that their non-medical or non-scientific use can cause, including those classified in Schedule II of the 1971 Convention, and in Schedule II and Schedule I of the 1961 Convention, except the drugs included in its Schedule IV;

(c) Class C: Drugs having a medical and/or scientific use which should be subject to control in view of the harms that their non-medical or non-scientific use can cause, but of a less substantial degree than Schedule II drugs, including those preparations classified in Schedule III of the 1961 Convention and in Schedule III and Schedule IV of the 1971 Convention.

(2) The Minister may in consultation with the Minister responsible for health amend the First and Third Schedules.

(3) The Minister may, in consultation with the Minister responsible for health by notice published in the Gazette appoint an independent advisory body to review the First and Third Schedules on a continuing basis and recommend amendments as appropriate, including new inclusions, deletions, or transfer of controlled drugs from one class to another.

4. Legitimate activity involving controlled drugs.

(1) A controlled drug may be manufactured, imported or exported, and dealt with in Seychelles for medical or scientific purposes in accordance with regulations made under this Act.

(2) In any proceedings under this Act a person claiming to have acted pursuant to a provision of this Act or to regulations made under subsection (1) shall bear the burden of proving that fact.

PART II

OFFENCES INVOLVING CONTROLLED DRUGS

5. Importation and exportation.

A person who imports or exports a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

6. Manufacture and cultivation.

(1) A person who manufactures a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

(2) A person who cultivates a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

(3) A person who possesses or purchases any instrument, utensil, apparatus or equipment intended to facilitate the manufacture of a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

(4) Where an offence of cultivation under subsection (2) is committed using enhanced indoor means, the Court shall treat the offence as aggravated in nature.

7. Trafficking.

(l) A person who traffics in any quantity of a controlled drug, whether on his or her own behalf or on behalf of another person, whether the other person is in Seychelles or not, in contravention of this Act commits an offence of trafficking and is liable on conviction to the penalty specified in the Second Schedule.

(2) A person who traffics in a substance, preparation or product which purports to be a controlled drug but is not, or which purports to be a controlled drug but is so low in purity as not to be usable as such, whether on his or her own behalf or on behalf of another person, whether the other person is in Seychelles or not, also commits an offence of trafficking and is liable on conviction to the penalty specified for an offence under subsection (1).

(3) Where a person is charged with an offence under this section and the Court is of the opinion that the person is not guilty of that offence but is guilty of an offence under section 8 or section 9, the Court may convict the person of the offence under section 8 or section 9 even though the person was not charged with that offence.

(4) Where a person is convicted of an offence of trafficking in more than 1.5 kilogrammes of cannabis or cannabis resin or more than 250 grammes of any other controlled drug, the Court shall treat the offence as aggravated in nature.

8. Possession, purchase and use.

(1) A person who possesses, purchases, or uses a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

(2) A person who possesses or purchases any pipe, syringe, utensil, apparatus or other article intended to facilitate the use of a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

(3) Notwithstanding subsections (1) and (2), a person who possesses a clean syringe or needle obtained from an approved facility pursuant to a regulated exchange programme, or who uses a controlled drug by means of such syringe or needle, does not contravene this Act if the syringe or needle—

(a) is, or was immediately before use, in its original packaging;

(b) is possessed or used only by the person who obtained it from the approved facility; and

(c) where applicable, is declared to an officer before any search is conducted.

9. Possession with intent to traffic.

(1) A person who possesses a controlled drug, whether lawfully or not, with intent to traffic in contravention of this Act commits an offence of trafficking and is liable on conviction to the penalty specified for an offence under section 7(1).

(2) Where a person is charged with an offence under this section and the Court is of the opinion that the person is not guilty of that offence but is guilty of an offence under section 8, the Court may convict the person of the offence under section 8 even though the person was not charged with that offence.

10. Organisation, management and financing of drug trafficking.

A person who organises, manages or finances an offence under section 5, 6, 7 or 9 of this Act commits an offence of trafficking and is liable on conviction to the penalty specified for an offence under section 7(1).

11. Use of premises to commit offence.

(1) An owner, occupier or person in charge of or concerned with the management of any place or premises who permits or suffers such place or premises or any part thereof to be—

(a) used in connection with the import or export of a controlled drug in contravention of section 5;

(b) used for the manufacture or cultivation of a controlled drug in contravention of section 6; or

(c) acquired, maintained, or used for the purpose of trafficking in a controlled drug in contravention of section 7,

commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

(2) An owner, occupier or person in charge of or concerned with the management of any place or premises who permits or suffers such place or premises or any part thereof to be acquired, maintained, or used for the purpose of the use of a controlled drug in contravention of section 8(1) commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

12. Diversion of precursors, equipment and material.

(1) A person who manufactures, imports, exports, traffics, purchases, or possesses or has in his or her control a precursor or any equipment or material, including seeds—

(a) for the purpose of using it in or for the cultivation or manufacture of a controlled drug in contravention of section 6; or

(b) knowing that the precursor, equipment or material is to be used for a purpose specified in paragraph (a),

commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

(2) Notwithstanding any other written law, an import or export permit shall not be granted for any precursor, equipment or material if there are reasonable grounds to suspect that the consignment is destined for the cultivation or manufacture of a controlled drug in contravention of this Act.

13. Regulation of precursors.

(1) This section applies to every person who manufactures, imports, exports, trades or distributes whether in wholesale or retail any precursor.

(2) A person referred to in subsection (1) shall enter in a register any acquisition or transfer of any precursor at the time of acquisition or transfer, without leaving any blank space or erasing or overwriting any previous entry, indicating the date of the acquisition or transfer, the name and the quantity of the precursor acquired or transferred, and the name, address and occupation of both the purchaser and vendor, provided that a retailer need not enter the name or details of the purchaser.

(3) The register maintained under subsection (2) shall be kept for at least 5 years after the last entry, for presentation whenever required by the chief officer of NDEA or the Commissioner of Police or upon an order of Court.

(4) A person referred to in subsection (1) shall immediately notify the chief officer of NDEA or the Commissioner of Police of—

(a) any order or transaction that appears suspicious, particularly as regards the quantity of the precursor ordered or purchased, the repetition of such orders and purchases, modes of payment or transport used in connection with the order or purchase or any loss or theft; and

(b) any proposed export of a precursor, which notification shall in any event be no later than 7 working days prior to the export.

14. Inspections of persons and establishments.

(1) Every person licensed to manufacture, import, export, transport, trade or distribute whether in wholesale or retail any precursor or any equipment or material designed or known to be used in the cultivation or manufacture of controlled drugs shall be subject to, and shall provide all reasonable assistance to facilitate, inspections carried out at least every 2 years in such manner as may be prescribed.

(2) Where there are reasonable grounds to suspect that any precursor, equipment or material, including seeds, is to be used in the cultivation or manufacture of a controlled drug in contravention of this Act, an officer may, without a warrant, seize that precursor, equipment or material and detain it in accordance with this Act.

(3) The nature and quantity of any precursor seized under subsection (2) shall be recorded and reported to the chief officer of NDEA or the Commissioner of Police.

15. Aiding or attempting the commission of offence.

(1) A person who—

(a) aids, abets, counsels, incites or procures another person to commit an offence under this Act;

(b) does or omits to do any act for the purpose of enabling another person to commit an offence under this Act; or

(c) attempts to commit or does any act preparatory to or in furtherance of the commission of an offence under this Act,

commits an offence is liable to the punishment for the offence.

(2) A person who aids, abets, counsels, incites or procures the commission in any place outside Seychelles of an act which would if done in Seychelles constitute an offence under this Act, and which is punishable under a corresponding law in that place, commits an offence and is liable on conviction to the penalty specified in the Second Schedule.

16. Conspiracy to commit offence.

A person who agrees with another person or persons that a course of conduct shall be pursued which, if pursued—

(a) will necessarily amount to or involve the commission of an offence under this Act by one or more of the parties to the agreement; or

(b) would necessarily amount to or involve the commission of an offence under this Act by one or more of the parties to the agreement but for the existence of facts which renders the commission of the offence impossible,

commits an offence and is liable to the punishment provided for the offence.

PART III

EVIDENCE AND INVESTIGATION

17. Certificate relating to controlled drug.

(1) The Minister may, for the purposes of this Act appoint a forensic analyst or other expert person for examining, testing and certifying suspected controlled drug, plant, seed and other articles seized under this Act.

(2) A certificate purporting to be signed by a forensic analyst or other expert person appointed by the Minister under subsection (1) and purporting to relate to a controlled drug, plant or seed or to a sample thereof, shall be admitted in evidence in any proceedings for an offence under this Act, on its production by the prosecution without proof of signature and, until the contrary is proved, the certificate shall be prima facie evidence of all matters contained therein.

(3) A forensic analyst or other expert person signing a certificate under subsection (2) shall not be required to attend Court or give evidence unless a notice for attendance is filed in Court and served on the Attorney General at least 21 days before the date fixed for trial, which notice shall specify the grounds on which the person’s attendance is required.

(4) Where a notice has been served under subsection (3), but the Court is of the view that the grounds specified in the notice do not raise a genuine issue about the evidential value of the certificate, the Court may direct that the attendance of the person is not required.

18. Certificate of foreign law.

A certificate purporting to be issued by or on behalf of the government of a country other than Seychelles and purporting to state the terms of a corresponding law in that country shall be admitted in evidence, in any proceedings for an offence under this Act, on its production by the prosecution without proof of signature and the certificate shall be conclusive evidence—

(a) that it is issued by or on behalf of the government of that country;

(b) that the terms of the law are as stated in the certificate; and

(c) that any facts stated in the certificate as constituting an offence under the corresponding law do constitute the offence.

19. Presumption of intent to traffic.

(1) A person who is proved or presumed to have had in his or her possession or custody or under his or her control—

(a) 100 grammes or more of opium;

(b) 3 grammes or more of morphine;

(c) 2 grammes or more of diamorphine (heroin) or cocaine; or

(d) 25 grammes or more of—

(i) cannabis; or

(ii) cannabis resin,

shall be presumed, until the person proves the contrary, to have had the controlled drug in his or her possession with intent to traffic in contravention of section 9 of this Act.

(2) Where the presumption in subsection (1) is not engaged, it shall be a question of fact whether a person possessed any controlled drug with intent to traffic.

(3) In determining whether a controlled drug was possessed with intent to traffic under subsection (1) or subsection (2), the Court shall have regard to all relevant circumstances, including where applicable any evidence that the person has engaged in a deliberate pattern of activity whereby amounts in his or her possession at any time are maintained at a level below a threshold specified in subsection (1).

20. Presumption of possession.

(1) A person who is proved to have had in his or her possession or custody or under his or her control—

(a) anything containing a controlled drug;

(b) the key of anything containing a controlled drug;

(c) the key of any place or premises or any part thereof in which a controlled drug is found, or

(d) a document of title relating to a controlled drug, or any other document intended for the delivery, or which would require the delivery to the person, of a controlled drug,

shall be presumed, until the person proves the contrary, to have possessed the controlled drug.

(2) The fact that a person never had physical possession of a controlled drug shall not be sufficient to rebut the presumption in subsection (1).

(3) Where one of two or more persons with the knowledge and consent of the other person or persons has any controlled drug in that person’s possession, all of the persons shall be deemed to be in possession of the controlled drug.

21. Presumption relating to premises.

(1) Where a pipe, syringe, utensil, apparatus or other article intended for the use of a controlled drug is found in any place or premises, it shall be presumed, until the contrary is proved, that the place or premises is used for the purpose of the use of a controlled drug.

(2) A person found in or escaping from any place or premises which is proved or presumed to be used for the purpose of the use of a controlled drug shall, until the person proves the contrary, be presumed to have used a controlled drug in the place or premises.

(3) A person found in or escaping from any place or premises in which plants are being cultivated in contravention of section 6 shall be presumed, until the person proves the contrary, to have been cultivating the plants.

(4) A person found in or escaping from any place or premises in which a controlled drug is being manufactured in contravention of section 6 shall be presumed, until the person proves the contrary, to have been manufacturing the controlled drug.

22. Presumption relating to incoming vessel or aircraft.

Where a controlled drug is found in any vessel or aircraft arriving from any place outside Seychelles, it shall be presumed, until the contrary is proved, that the controlled drug has been imported with the knowledge of the master or captain.

23. Presumption relating to vehicle etc.

Where a controlled drug is found in a vehicle, vessel or aircraft, other than a vessel or aircraft referred to in section 22, it shall be presumed, until the contrary is proved, that the controlled drug is in the possession of the owner of the vehicle, vessel or aircraft and of the person in charge of the vehicle, vessel or aircraft for the time being.

24. Presumption of use.

Where a controlled drug is found in the urine or blood of a person as a result of a test carried out under this Act, the Road Transport Act, or the Criminal Procedure Code, the person shall be presumed, until the person proves the contrary, to have used the controlled drug.

25. Power of search and seizure.

(1) An officer may at any time, without a warrant—

(a) stop and search any person whom the officer reasonably suspects of having in his or her possession a controlled drug or an article liable to seizure;

(b) enter and search any place or premises in which the officer reasonably suspects that there is to be found a controlled drug or an article liable to seizure; and

(c) search any person found in the place or premises referred to in paragraph (b).

(2) An officer or an officer of customs may at any time, without a warrant—

(a) stop, board and search any vessel, aircraft or vehicle if the officer reasonably suspects that there is to be found in the vessel, aircraft or vehicle a controlled drug or an article liable to seizure under this Act;

(b) search any person found in a vessel, aircraft or vehicle referred to in paragraph (a); and

(c) stop and search any person entering or leaving Seychelles whom the officer reasonably suspects to have committed an offence under this Act.

(3) An officer or an officer of customs exercising functions under subsection (1) or subsection (2)—

(a) may, with such assistance as the officer deems necessary in the circumstances, use such force as is reasonably necessary in the circumstances;

(b) shall ensure that any woman searched is searched by a female officer;

(c) shall seize and detain any controlled drug; and

(d) may seize and detain any article liable to seizure and any vessel, aircraft or vehicle in which a controlled drug or article liable to seizure has been found.

26. Power of arrest.

(1) An officer may arrest without warrant a person who has committed, or whom the officer reasonably suspects to have committed, an offence under this Act and may search the person arrested.

(2) An officer exercising functions under subsection (1), when making an arrest—

(a) shall ensure that any woman searched is searched by a female officer;

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