Cassation
No. 206 of 2022
Issued
on 05/04/2022 (Penal)
Panel:
Presided over by Mr. Judge Ahmed Abdullah Al-Mulla, “Chief Judge of the
Circuit”, with Messrs. Judges Muhammad Ahmed Abdel Qader and Al-Tayeb
Abdel Ghafour Abdel Wahhab as members.
(1,
2) Narcotics and psychotropic substances “Possession of narcotics and
psychotropic substances with the intent to abuse: Case of recidivism.”
Ruling “Deficiencies in reasoning: Error in the Application of the
Law.”
(1)
It is stipulated that an offender who returns to abusing narcotics or
psychotropic substances, consuming a dose above that specified in the medical
prescription and outlined in Tables No. 1, 2, and 5, except for Item 29 of Table
No. 1, within a period not exceeding three years from the initial act, shall
face imprisonment for a minimum term of six months as per Article 41/2 of Law 30
of 2021.
(2)
The respondent's commission of the crime of consuming narcotics, receiving a
final ruling, and subsequently repeating the same act within a period not
exceeding three years qualifies as recidivism. Condition therefor. Its effect.
The necessity of applying Article 41/2 of Law 30 of 2021. The contested ruling
has violated this regulation, displaying an error in the application of the
law.
1-
It is established according to Article 41 of Federal Decree Law No. 30 of 2021
on Combating Narcotics and Psychotropic Substances, effective from 2/1/2022,
that:
“1-
A penalty of imprisonment for a term not less than three months or a fine
between twenty thousand dirhams and one hundred thousand dirhams shall be
imposed on anyone who:
a-
abuses or personally uses, in unauthorised circumstances or in doses greater
than those specified in the medical prescription, any narcotics or psychotropic
substances as detailed in Tables No. (1), (2), and (5), excluding item (29) in
Table No. (1)....
2-
If the offender repeats any of the acts stipulated in the preceding clause
within a period not exceeding three years from the initial offense, the penalty
shall be imprisonment for a duration not less than six
months...”
2-
In the present circumstances, and whereas it has been substantiated in the
documentation that the respondent previously committed a narcotics-abuse crime
prior to 3/6/2019, leading to a two-year imprisonment ruling issued by the
first-instance court in Penal Case No. 383 of 2019 in the session held on
11/12/2019, and confirmed by Appeal No. 532 of 2019 on 31/12/2019. Additionally,
on 16/10/2021, the respondent again abused the psychotropic substance
(amphetamine), subject-matter of the appeal. Consequently, this repetition of
the offence within the three-year timeframe qualifies the respondent as a
recidivist. Notably, there is no evidence to support rehabilitation or the
prescription of the penalty by the statute of limitations according to Article
315/3 of the Criminal Procedure Law. Furthermore, no comprehensive pardon has
been granted to the respondent, and Law No. 30 of 2021 has neither abolished nor
authorised the criminalisation concerning the previously charged act. Thus, the
criminal implications persist. Consequently, he shall be punished in accordance
with Article 41/2 of the aforementioned law. Given the contested ruling
sentenced the appellant to three months' imprisonment, it is considered as
having erred in the application of the law, which requires its reversal as to
the part related to the punishment imposed on the respondent.
Whereas
in the facts, as apparent pursuant to the perusal of the contested ruling and
the remaining documents, the Public Prosecution accused the respondent of having
on 16/10/2021 in the Department of ......... City:-
Abused
as a recidivist, psychotropic substances (methamphetamine) in circumstances
other than those permitted by law, as indicated in the investigations.
The
Public Prosecution sought the respondent's penalization in accordance with
Articles 1, 6, 34, 39, and 65 of Federal Law No. 14 of 1995 on Combatting
Narcotics and Psychotropic Substances, as amended, in conjunction with Item No.
9 of Table 5 appended to said law.
Subsequently,
on 15/11/2021, the court of first instance rendered a judgment imposing a
two-year imprisonment sentence upon ..... for the charges, alongside the mandate
to settle judicial fees.
The
convict contested this ruling by filing an appeal.
Later,
in a session held on 14/2/2022, in Appeal No. 383 of 2021, the Federal Court of
Appeal accepted the appeal in form and, on the merits, altered modified the
appealed ruling into stipulating a three-month imprisonment term for the
aforementioned charge against the accused, while also requiring payment of
fees.
The
Public Prosecution, in disagreement with the prior judgment, filed the current
appeal in cassation.
Whereas,
the basis for the Prosecution's objection to the contested ruling lies in its
alleged error in the application of the law, specifically in mitigating the
penalty below the minimum prescribed by the second paragraph of Article 42 of
Decree Law No. 30 of 2021 on Combatting Narcotics and Psychotropic Substances.
This objection is rooted in the respondent's prior commission of a similar
offence and subsequent punishment on 31/12/2019. Considering that the act of
drug abuse in the present case transpired over a span of three years, the
Prosecution contends that the court should have imposed a minimum sentence of
six months' imprisonment. The contested ruling, by reducing the penalty to the
minimum, is deemed flawed and necessitates reversal.
Whereas
the objection of the public prosecution holds merits,
since
It is
established according to Article 41 of Federal Decree Law No. 30 of 2021 on
Combating Narcotics and Psychotropic Substances, effective from 2/1/2022, that:
“1-
A penalty of imprisonment for a term not less than three months or a fine
between twenty thousand dirhams and one hundred thousand dirhams shall be
imposed on anyone who:
a-
abuses or personally uses, in unauthorised circumstances or in doses greater
than those specified in the medical prescription, any narcotics or psychotropic
substances as detailed in Tables No. (1), (2), and (5), excluding item (29) in
Table No. (1)....
2-
If the offender repeats any of the acts stipulated in the preceding clause
within a period not exceeding three years from the initial offense, the penalty
shall be imprisonment for a duration not less than six
months...”
2-
In the present circumstances, and whereas it has been substantiated in the
documentation that the respondent previously committed a narcotics-abuse crime
prior to 3/6/2019, leading to a two-year imprisonment ruling issued by the
first-instance court in Penal Case No. 383 of 2019 in the session held on
11/12/2019, and confirmed by Appeal No. 532 of 2019 on 31/12/2019. Additionally,
on 16/10/2021, the respondent again abused the psychotropic substance
(amphetamine), subject-matter of the appeal. Consequently, this repetition of
the offence within the three-year timeframe qualifies the respondent as a
recidivist. Notably, there is no evidence to support rehabilitation or the
prescription of the penalty by the statute of limitations according to Article
315/3 of the Criminal Procedure Law. Furthermore, no comprehensive pardon has
been granted to the respondent, and Law No. 30 of 2021 has neither abolished nor
authorised the criminalisation concerning the previously charged act. Thus, the
criminal implications persist. Consequently, he shall be punished in accordance
with Article 41/2 of the aforementioned law. Given the contested ruling
sentenced the appellant to three months' imprisonment, it is considered as
having erred in the application of the law, which requires its reversal as to
the part related to the punishment imposed on the respondent, with
remand.