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Sonam Tshering v. Office of the Attorney General [Bhutan] [May 19, 2011]
Sonam Tshering, a private individual, is appealing his conviction on charges of tobacco smuggling under the Tobacco Control Act, 2010, which prohibits tobacco production, importation, and sale and limits the amount of tobacco an individual can import and possess for personal use. Tshering argues that he should have been charged with violating the prohibition on the sale and purchase of tobacco (Section 11(c)) and not for tobacco smuggling (Section 12). He also argues that because he revealed the source of his supply, he should be charged only with a misdemeanor and not a fourth-degree felony, the relevant penalties for revealing a source related to the sale or purchase of tobacco. Finally, he alleges that the sentence is disproportionate to the offense. (Tshering raised several other grounds not examined here.) The court upheld the lower court’s conviction on charges of tobacco smuggling, reasoning that because Tshering’s source of supply is in India, he engaged in smuggling – cross-border import or export of prohibited or restricted goods. Parliament unequivocally established that tobacco smuggling is a felony of the fourth degree, leaving no room for judicial leniency in the charges. There is room for leniency, however, in the sentence – with a minimum of three years up to a maximum of five years – leaving courts some room to consider the severity of the offense.