Illicit Drugs Control Act 2003
Act 7 of 2003
C
T
ILLICIT DRUGS CONTROL ACT 2003
Illicit Drugs Control Act 2003 Arrangement of Sections
Act 7 of 2003
to
Page 3
C
T
ILLICIT DRUGS CONTROL ACT 2003
Arrangement of Sections
Section
PART I - PRELIMINARY 7
1 Short title..........................................................................................................7
2 Interpretation....................................................................................................7
PART 2 - OFFENCES 9
3 Unlawful import or export of illicit drugs........................................................9
4 Unlawful possession, manufacture, cultivation, use and supply....................10
5 Controlled chemicals and equipment.............................................................10
6 International traveller’s exemption ................................................................10
7 Exemption......................................................................................................10
8 Designated forensic laboratory ......................................................................11
PART 3 - INVESTIGATION, SEARCH AND SEIZURE 11
DIVISION I – POWERS OF POLICE OFFICERS ............................................11
9 Covert monitoring..........................................................................................11
10 Use of tracking devices..................................................................................12
11 Controlled delivery ........................................................................................13
12 Power to search vehicles or craft ...................................................................13
13 Power to search a person................................................................................14
14 Internal concealment......................................................................................14
15 Search of female ............................................................................................15
DIVISION 2 – POWERS OF CUSTOMS OFFICERS.......................................15
Arrangement of Sections Illicit Drugs Control Act 2003
Act 7 of 2003 Page 4
to
16 Boarding, search and detention of craft..........................................................15
17 Access to customs area...................................................................................16
18 Search and examination of baggage...............................................................16
19 Questioning and searching persons ................................................................16
20 Arrest without warrant ...................................................................................17
21 Entry and search without warrant...................................................................17
22 Entry and search with warrant........................................................................17
DIVISION 3 – WARRANTS ..............................................................................18
23 Search Warrants .............................................................................................18
24 Search and seizure without warrant in emergencies.......................................18
DIVISION 4 – ENFORCEMENT POWERS......................................................19
25 Assistance.......................................................................................................19
26 Use of force ....................................................................................................19
27 Evidence of authority .....................................................................................19
28 Protection of officers ......................................................................................19
29 Offences against officers ................................................................................19
30 Protection of informers and undercover officers............................................20
31 Authorised Officers ........................................................................................21
DIVISION 5 – POST SEIZURE PROCEDURES..............................................21
32 Disposal and storage of seized illicit drugs ....................................................21
33 Forfeiture........................................................................................................22
PART 4 - EVIDENTIARY MATTERS 22
34 Factual presumption relating to samples ........................................................22
35 Proof of prohibited import or export of an illicit drug under foreign law......22
36 Scientific analyst certificate ...........................................................................22
37 Offence of interfering with evidence..............................................................23
PART 5 - OTHER MATTERS 23
38 Regulations.....................................................................................................23
SCHEDULE I 24
ILLICIT DRUGS................................................................................................24
OTHER ILLICIT DRUGS ..................................................................................26
SCHEDULE 2 27
CONTROLLED CHEMICALS...........................................................................27
Illicit Drugs Control Act 2003 Arrangement of Sections
Act 7 of 2003
to
Page 5
SCHEDULE 3 28
CONTROLLED EQUIPMENT...........................................................................28
Illicit Drugs Control Act 2003 Section 1
Act 7 of 2003
to
Page 7
C
T
ILLICIT DRUGS CONTROL ACT 2003
Act 7 of 2003
AN ACT TO CONTROL ILLICIT DRUGS, CONTROLLED
CHEMICALS AND EQUIPMENT
I assent,
HRH PRINCE TUPOUTO‘A,
23rd October, 2003
[18th of August, 2003]
BE IT ENACTED by the King and the Legislative Assembly of Tonga in the
Legislature of the Kingdom as follows:
PART I - PRELIMINARY
1 Short title
This Act may be cited as the Illicit Drugs Control Act, 2003.
2 Interpretation
In this Act, unless a contrary intention appears:
Section 2 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 8
to
“authorised officer” means a person or any one of a class of persons
authorised by the Minister of Police or the Chief Commissioner of
Revenue under this Act;
“Chief Commissioner” means the Chief Commissioner of Revenue;
“contiguous zone” means the territorial sea and any contiguous sea
extending 24 nautical miles from the baselines;
“controlled chemical” means any controlled chemical listed in Schedule
2 or anything prescribed by way of regulation to be a controlled chemical;
“controlled delivery” means the investigative technique described in
section 11 for gathering evidence to identify any person involved in any
offence or to facilitate prosecution of that offence;
“controlled equipment” means anything listed as such in Schedule 3 or
anything prescribed by way of Regulation to be controlled equipment;
“craft” includes any aircraft, ship, boat or other machine or vessel used or
capable of being used for the carriage or transportation of persons or
goods, or both, by air or water or over or under water;
“cultivate” includes harvesting and the separation of opium, coca leaves,
cannabis and its extracts from the plants from which they are obtained;
“customs area” means any place appointed under the Customs and Excise
Act (CAP. 67) to be a customs area for the deposit of goods subject to
customs control by the Chief Commissioner by notice in writing;
“document” means:
(a) any paper, parchment, or other material used for writing or printing,
marked with matter capable of being read;
(b) any photograph, or any photographic negative, plate, slide, film, or
microfilm, or any photo static negative;
(c) any disc, tape, wire, sound track, card, or other material or device in
or on which information, sounds or other data are recorded, stored
or embodied so as to be capable, with or without the aid of some
other equipment, of being reproduced therefrom;
(d) any material by means of which information is supplied, whether
directly or by means of any equipment, to any device used for
recording or storing or processing information; or
(e) any material derived, whether directly or by means of any
equipment, from information recorded or stored or processed by
any device used for recording or storing or processing information;
“evidence in relation to commission of an offence” shall not be
restricted to evidence that is to be produced in Court;
Illicit Drugs Control Act 2003 Section 3
Act 7 of 2003
to
Page 9
“goods” includes all kinds of moveable personal property including any
living thing;
“illicit drug” means any drug listed in Schedule I or anything prescribed
by regulation to be an illicit drug;
“manufacture” means to carry out any process by which an illicit drug or
controlled chemical is produced, and includes extracting, refining,
formulating, preparing, mixing, compounding, making an illicit drug or
controlled chemical into dosage form, and packing or transforming it into
another drug or chemical;
“Minister” means the Minister of Police;
“monitor” means to maintain regular surveillance over a period of time;
“place” includes any land or any other premises;
“premises” includes the whole or any part of a structure, building, craft or
vehicle;
“property” means currency and all other personal property of every
description, whether situated in Tonga or elsewhere and whether tangible
or intangible, and includes an interest in any such property;
“supply” includes distribute, give and sell;
“tracking device” means a device capable of transmitting a signal to a
receiver for the purpose of indicating the location of the device:
“utensils” includes any article associated with the manufacture or use of
an illicit drug or controlled chemical;
“vehicle” means a conveyance for use on land, whether or not it is also
capable of being used on or over water.
PART 2 - OFFENCES
3 Unlawful import or export of illicit drugs
Any person who knowingly without lawful excuse, the proof of which shall lie
on him, imports or exports any illicit drug commits an offence and shall be liable
upon conviction to a fine not exceeding $1,000,000 or imprisonment for a term
not exceeding 30 years or both.
Section 4 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 10
to
4 Unlawful possession, manufacture, cultivation, use and supply
Any person who knowingly without lawful excuse, the proof of which shall lie
on him:
(a) possesses, manufactures, cultivates, uses or supplies an illicit drug;
or
(b) engages in any dealings with any other person for the import,
export, possession, manufacture, use, cultivation, supply, transfer,
transport, offer or sale of an illicit drug,
commits an offence and shall be liable upon conviction to a fine not exceeding
$750,000 or imprisonment for a term not exceeding 25 years or both.
5 Controlled chemicals and equipment
Any person who without lawful excuse, the proof of which shall lie on him,
imports, exports, possesses, manufactures, or supplies any controlled chemical
or controlled equipment:
(a) knowing that the chemical or equipment is to be used in, or for, the
commission of an offence against section 4; or
(b) being reckless as to whether that chemical or equipment is to be
used in or for the commission of an offence against section 4;
commits an offence and shall be liable upon conviction to a fine not exceeding
$750,000 or imprisonment for a term not exceeding 25 years or both.
6 International traveller’s exemption
Notwithstanding anything contained in this Act, any person undergoing
treatment of a medical condition, who is entering, leaving or transiting through
Tonga, may possess such quantities of an illicit drug that have been lawfully
prescribed or supplied to that person or person under their care for the purpose
of treating a medical condition for a period of not more than one month.
Provided that such person shall have written authority from the doctor by whom
he is being treated.
7 Exemption
(1) Any person whose lawful occupation or profession requires the
possession, supply or use of an illicit drug, controlled chemical or
controlled equipment is exempted from the offences under this Act
provided that such possession, supply, or administration is for the specific
purpose of their lawful occupation.
Illicit Drugs Control Act 2003 Section 8
Act 7 of 2003
to
Page 11
(2) Any import, export, possession manufacture or use of any illicit drug,
controlled chemical or controlled equipment by the Ministry of Health
shall be exempt from any offence under this Act and a certificate signed
by the Minister of Health shall be evidence in any court that the illicit
drug, controlled chemical or controlled equipment described therein was
exempt.
8 Designated forensic laboratory
The Minister may, by notice published in the Gazette, designate secure premises
as a forensic laboratory for the testing, analysis, storage and destruction of any
illicit drug, controlled chemical or controlled equipment in relation to the
investigation of offences or to any court proceeding.
PART 3 - INVESTIGATION, SEARCH AND SEIZURE
DIVISION I – POWERS OF POLICE OFFICERS
9 Covert monitoring
(1) If a police officer of or above the rank of sergeant or an officer in charge
of a police station, suspects on reasonable grounds that a person has
committed, is committing or is about to commit an offence under this Act,
that officer may for the purpose of investigation:
(a) if the circumstances are such that time does not allow for a written
application, make an oral application to a Magistrate for express
authority to enter a place and covertly monitor and record, by any
means, the conduct and communications, including
telecommunications, of any person; or
(b) make a written application to a Magistrates’ Court for express
authority to enter a place and covertly monitor and record, by any
means, the conduct and communications including
telecommunications, of the person.
(2) Every application, whether in writing or made orally, shall include:
(a) the facts relied upon;
(b) a description of the manner by which it is proposed to monitor
the person;
(c) the name and address of the suspects if known and, if not known,
then the premises, or place or device where it is intended to monitor
the person;
Section 10 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 12
to
(d) the identity of any person who may be required to provide
assistance for the purpose of giving effect to the authority to
monitor covertly; and
(e) the period for which the authority to monitor is requested.
(3) An authority to monitor covertly issued under subsection (1):
(a) authorises any police officer and any person identified under
paragraph (b) of this subsection to enter, by force if necessary, and
place specified in the authority;
(b) shall identify any person who is required to provide assistance, for
the purpose of giving effect to the authority to monitor covertly;
and
(c) enables any police officer in charge to obtain assistance from any
person identified under paragraph (b) of this subsection for the
purpose of giving effect to the authority to monitor covertly,
(4) An authority to monitor covertly given following oral application under
subsection (1)(a) shall be valid for 48 hours unless extended following a
written application.
(5) Any person who without reasonable excuse fails to provide such
assistance as may be required under the terms of the authority to monitor
covertly commits an offence and shall be liable upon conviction to a fine
not exceeding $1,000 or to imprisonment not exceeding 6 months or both.
10 Use of tracking devices
(1) If a police officer, of or above the rank of sergeant or officer in charge of
a police station considers it necessary for the investigation of an offence
against this Act, he may authorise the placing of a tracking device in or on
any place, vehicle, craft or goods.
(2) If the placing, service or retrieval of the tracking device requires entry
onto or into private property or business premises, the officer responsible,
shall apply to the Magistrates’ Court for authority to enter.
(3) Any person who without the written approval of the Minister —
(a) possesses, uses or manufactures any tracking device; or
(b) engages in any dealing with any other person for the import, export,
manufacture, supply, transport, offer or sale of any tracking device;
commits an offence and shall be liable upon conviction to a fine not
exceeding $10,000 or to 2 years imprisonment or both.
Illicit Drugs Control Act 2003 Section 11
Act 7 of 2003
to
Page 13
11 Controlled delivery
(1) If a police officer, of or above the rank of sergeant or officer in charge of
a police station suspects on reasonable grounds that any person has
committed, is committing or is about to commit an offence against this
Act, he may give written approval for:
(a) a controlled delivery to be carried out; and
(b) named persons to carry out or participate in the controlled delivery.
(2) Notwithstanding any law to the contrary, activities which may be
undertaken in the course of and for the purposes of a controlled delivery
include the following:
(a) allowing any craft or vehicle to enter, leave or transit through
Tonga;
(b) allowing delivery of any:
(i) illicit drug, controlled chemical or controlled equipment, in
or on the craft or vehicle; or
(ii) property suspected to be involved directly or indirectly with
any offence under this Act;
and the officer may, for the purpose of investigating the matter, leave or
replace any portion of that illicit drug, controlled chemical or controlled
equipment;
(c) using such force as may be reasonable in the circumstances to enter
and search the craft or vehicle;
(d) placing a tracking device on board the craft or vehicle; or
(e) allowing any person who has possession, custody or control of the
illicit drug, controlled chemical or controlled equipment to enter,
leave or transit through Tonga.
12 Power to search vehicles or craft
(1) This section applies if a police officer has reasonable cause to suspect that
there is in or on any vehicle or craft:
(a) an illicit, controlled chemical or controlled equipment;
(b) evidence relating to an illicit drug, controlled chemical or
controlled equipment; or
(c) any other evidence relating to any offence under this Act.
(2) The police officer may:
(a) stop and detain any vehicle or craft for the purpose of searching it
or any occupants or goods;
Section 13 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 14
to
(b) search any person in that vehicle or craft and detain that person for
such period as may be reasonably necessary to complete the
search; and
(c) search any goods carried within the vehicle or craft.
(3) Any person who fails or refuses to comply with an officer’s request under
this section commits an offence and shall be liable upon conviction to a
fine not exceeding $10,000 or imprisonment not exceeding 12 months
or both.
13 Power to search a person
(1) If a police officer has reasonable cause to suspect that any person has
committed an offence under this Act he may detain and search
that person.
(2) The police officer may seize anything found on the person relating to the
commission of an offence under this Act.
14 Internal concealment
(1) If a police officer has reasonable cause to suspect that a person is
transporting an illicit drug or controlled chemical by concealing it inside
that person’s body, the officer may detain that person for the purpose
of search.
(2) A police 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 medical examination order issued under subsection
(2)(c) shall:
(a) authorise the detention of that 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
Illicit Drugs Control Act 2003 Section 15
Act 7 of 2003
to
Page 15
(c) authorise a medical practitioner to carry out such examination and
to provide such medical treatment as may be reasonable and
appropriate in the circumstances.
(4) No action shall lie against a medical practitioner for any act done by him
under this section unless it can be proved that such act was done
maliciously and without reasonable justification.
(5) Any police officer who obtains a detention and medical examination order
under subsection (2)(c) may apply to the Magistrate’ Court, before the
detention order has expired, for an extension of the detention order.
(6) A police officer may seize any illicit drug or controlled chemical found
under this section.
(7) If no illicit drug or controlled chemical is found following the medical
examination the detained person shall be released.
(8) A customs officer shall have the same powers as a police officer under
subsections (1) to (5) if the person is in any place subject to customs
control.
15 Search of female
A female shall not be searched except by a female police officer.
DIVISION 2 – POWERS OF CUSTOMS OFFICERS
16 Boarding, search and detention of craft
(1) A customs officer may stop and board a craft:
(a) while the craft is within the territorial waters;
(b) while the craft is within the contiguous zone; or
(c) outside the territorial waters of any country if the craft is registered
in Tonga;
if the officer has reasonable grounds to suspect that the craft is carrying
illicit drugs, controlled chemicals or controlled equipment.
(2) A customs officer may when he considers it necessary direct the craft be
taken to a suitable place in Tonga and detained for the purpose of search.
(3) A customs officer may search a craft boarded under subsection (1) or
detained under subsection (2) and any person on board and undertake tests
and take samples of anything on the craft.
(4) A customs officer may question any person on board the craft or require
the production of any documents relating to the craft or anything on the
craft and may seize and copy any documents produced.
Section 17 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 16
to
(5) A customs officer may seize anything found on the craft which appears to
him to be evidence of an offence under this Act.
(6) A customs officer may remain on the craft for such time as he thinks
necessary for the purpose of searching the craft.
(7) If a craft fails to stop at the request of a customs officer it may be pursued
into international waters and such action as is necessary may be
undertaken to stop the craft.
(8) The master or commander of the craft shall provide any customs officer
who remains on board the craft with suitable food and accommodation
without charge.
(9) For any of the purposes in this section, a customs officer may direct the
master, a member of the crew or any person on board to take any
necessary action.
(10) A master, commander or any person who contravenes any subsection of
this section commits an offence and shall be liable to a fine not exceeding
$250,000 or imprisonment not exceeding 10 years or both and in addition
the Court may order that the craft be forfeited.
17 Access to customs area
A customs officer may refuse any person access to:
(a) a craft that has arrived in or is about to depart from the Kingdom; or
(b) a customs area.
18 Search and examination of baggage
A customs officer may search and examine baggage, packages or other goods
carried by a person or belonging to the person if he:
(a) has arrived in, or is intending to depart from, the Kingdom as a
passenger or a crew member of a craft;
(b) is the master or commander of a craft that has arrived in, or is about
to depart from, the Kingdom; or
(c) is arriving in, departing from or within a customs area.
19 Questioning and searching persons
(1) A customs officer who has reasonable cause to suspect that an offence has
been committed under this Act, may stop, question, detain and search any
person if that person:
Illicit Drugs Control Act 2003 Section 20
Act 7 of 2003
to
Page 17
(a) has arrived in, or is intending to depart from the Kingdom as a
passenger or a crew member of a craft; or
(b) is the master or commander of a craft that has arrived in, or is about
to depart from, the Kingdom; or
(c) is arriving in, departing from or within a customs area.
(2) A customs officer may seize any thing found which appears to him to be
evidence relating to the commission of an offence under this Act.
20 Arrest without warrant
A customs officer who has reasonable cause to suspect that a person has
committed an offence under this Act, may arrest the person without warrant and
shall deliver the person as soon as practicable into the custody of the police who
shall deal with him as if he had made the arrest without warrant.
21 Entry and search without warrant
A customs officer may, at any time and without a search warrant, enter and
search any place within a customs area.
22 Entry and search with warrant
(1) If a customs officer has reasonable cause to suspect that an offence has
been committed under this Act and that there is evidence relating to the
commission of such an offence in or on any place, the officer may make
application by information on oath to a magistrate for a warrant.
(2) The magistrate may issue a warrant authorising the officer to:
(a) enter with such force as may be reasonable and search the place in
accordance with the warrant;
(b) search and detain for the purposes of the search:
(i) any person found at or in the place;
(ii) any person whom the officer suspects is about to enter or
leave the place; or
(iii) goods in the apparent control of any person at that place; and
(c) seize and remove any evidence relating to the commission of an
offence under this Act.
Section 23 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 18
to
DIVISION 3 – WARRANTS
23 Search Warrants
(1) If a magistrate is satisfied, by information on oath, that there are
reasonable grounds to suspect that there is in or on any place:
(a) an illicit drug, controlled chemical or controlled equipment;
(b) any evidence relating to the commission of an offence against this
Act; or
(c) any property derived from an offence under this Act;
the magistrate may issue a warrant empowering a police officer or a
customs officer at any time, or at such time as the magistrate may specify
in the warrant, to enter the place, search for any illicit drug or thing and if
found, seize it and search any person found at or in the place.
(2) A police officer or a customs officer who executes a warrant issued under
subsection (1) may;
(a) enter any place named or described in the warrant;
(b) search and detain for the purpose of search:
(i) any person found at or in the place;
(ii) any person whom the officer suspects about to enter or leave
the place; and
(iii) goods in the apparent control of the person; and
(c) seize:
(i) any illicit drug, controlled chemical or controlled equipment;
(ii) any evidence relating to the commission of an offence
against this Act; and
(iii) any property which the officer suspects may have been
derived from an offence under this Act.
24 Search and seizure without warrant in emergencies
(1) A police officer may exercise any of the powers in section 23 without a
warrant, if the grounds for obtaining a warrant under that section exist and
the officer suspects on reasonable grounds, that:
(a) it is necessary to do so in order to prevent the concealment, loss or
destruction of anything connected with an offence under this
Act; and
Illicit Drugs Control Act 2003 Section 25
Act 7 of 2003
to
Page 19
(b) the circumstances are of such seriousness and urgency as to require
the immediate exercise of the power without the authority of a
warrant.
(2) A police officer may, for the purposes of this section, stop any vehicle or
craft where the officer suspects on reasonable grounds that anything
connected with an offence under this Act is upon or in the vehicle or craft.
(3) A police officer shall report to a magistrate any action, which he has taken
under this section.
DIVISION 4 – ENFORCEMENT POWERS
25 Assistance
In exercising any power conferred by this Act, a police officer, customs officer
or authorised officer may have with him and use such assistance as the officer
considers necessary.
26 Use of force
A police officer, customs officer or authorised officer may use such force as is
necessary in the performance of his duties.
27 Evidence of authority
A police officer, customs officer or authorised officer shall, on request, produce
his identification and authority in the exercise of any powers under this Act.
28 Protection of officers
A police officer, customs officer or authorised officer shall not be liable in any
civil or criminal proceedings for anything done in the performance of the
officer’s duties under this Act if the act was done in good faith and on
reasonable grounds.
29 Offences against officers
Any person who:
(a) wilfully obstructs, assaults, intimidates or threatens a police officer,
customs officer or authorised officer in the performance of any duty
under this Act;
Section 30 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 20
to
(b) without reasonable excuse resists arrest or fails to comply with any
lawful request made by a police officer, customs officer or
authorised officer in the performance of any duty under this Act; or
(c) in purporting to give information required by a police officer,
customs officer or authorised officer in the performance of his
duties under this Act;
(i) makes a statement he knows to be false in a material
particular;
(ii) recklessly makes a statement which is false in a material
particular; or
(iii) intentionally fails to disclose any material particular;
commits an offence and shall be liable upon conviction to a fine not
exceeding $10,000 or a term of imprisonment not exceeding 3 years or
both.
30 Protection of informers and undercover officers
(1) Subject to subsection (3), no witness in any proceedings under this Act
shall be obliged:
(a) to disclose:
(i) the name or address of any informer or undercover police
officer, customs officer or authorised officer, who has given
information with respect to an offence against this Act; or
(ii) the name and address of any person who has assisted with the
enforcement of any provision of this Act;
(b) to answer any question if the answer would lead, or would tend to
lead, to the discovery of the name, address or identity of such
informer or undercover officer, where the informer or officer is not
a witness in the proceedings.
(2) If any record which is in evidence or liable to inspection in any
proceedings contains an entry in which any such informer or undercover
officer is named or described or which might lead to his discover, such
entry shall be concealed from view or obliterated so far as may be
necessary to protect the information or person from discovery.
(3) If in any proceedings before the Court under this Act, the Court, after full
enquiry into the case, is satisfied that an informer or undercover officer
wilfully made any material statement which he knew to be false or did not
believe to be true, the Court may permit enquiry and full disclosure
concerning the informer or undercover officer.
Illicit Drugs Control Act 2003 Section 31
Act 7 of 2003
to
Page 21
(4) If in any other proceedings the Court is of the opinion that justice requires
disclosure of the name of an informer or another person who assisted in
any investigation or proceedings under this Act, the Court may permit
enquiry and full disclosure concerning that informer or person.
31 Authorised Officers
(1) The Minister or Chief Commissioner may in writing authorise a suitably
qualified and trained person:
(a) in the Kingdom who is not a police officer or customs officer; and
(b) from another country, whether or not he is a police officer or
customs officer in that country;
to be an authorised officer.
(2) The authorisation shall be made for a specified period not exceeding 3
years, and may be renewed for a period not exceeding 3 years.
(3) The Minister or Chief Commissioner may revoke an authorisation for any
of the following reasons:
(a) incapacity;
(b) neglect of duty;
(c) misconduct;
(d) if the authorised officer gives written notice to the Minister or Chief
Commissioner that he wishes the authorisation to be revoked; or
(e) in any other circumstances where, in the opinion of the Minister or
Chief Commissioner, the authorisation is no longer necessary.
(4) When the person ceases to be an authorised officer, all articles and
documents received by him in relation to the authorisation shall be
surrendered to the Minister or Chief Commissioner.
DIVISION 5 – POST SEIZURE PROCEDURES
32 Disposal and storage of seized illicit drugs
(1) If scientific analysis of a sample of a seized substance or article indicates
that it is an illicit drug, controlled chemical or controlled equipment, the
analyst shall forward a copy of the scientist’s certificate to the
Commander of Police.
(2) Where the Court orders the forfeiture or destruction of any illicit drug,
controlled chemical or controlled equipment, it shall be disposed of only:
(a) by delivery:
Section 33 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 22
to
(i) to the Ministry of Health for use exclusively in meeting the
lawful medical or scientific needs; and
(ii) the Ministry of Police for training needs; or
(b) by incineration, or such other means as ordered by the Court.
33 Forfeiture
Where a person is convicted of an offence under this Act all articles, goods or
property if any, in respect of which the offence was committed and in the
possession of such person, shall be forfeited in addition to any penalty imposed
under this Act.
PART 4 - EVIDENTIARY MATTERS
34 Factual presumption relating to samples
If in any prosecution for an offence against this Act it is proved that a sample
which was taken from any seized substance or article possesses a particular
property, it shall be presumed that any substance or article from which it was
taken possesses the same properties, unless the contrary is proved.
35 Proof of prohibited import or export of an illicit drug under
foreign law
A certificate purporting to be issued by or on behalf of a foreign state to the
effect that the import or export of an illicit drug, controlled chemical or
controlled equipment is prohibited by the law of that state is for the purpose of
any proceedings under this Act, prima facie evidence of the matters stated.
36 Scientific analyst certificate
(1) In any proceedings under this Act, the production of a certificate
purporting to be signed by a scientific analyst shall be prima facie
evidence of the facts therein stated.
(2) Such a certificate shall only be admissible under subsection (1) if a copy
of the scientific analyst’s certificate has been served by or on behalf of the
prosecution on the accused or his counsel at least 28 days before the
hearing at which the certificate is to be tendered in evidence and at the
same time the accused has been served with a written notice that the
prosecution does not propose to call the analyst as a witness.
Illicit Drugs Control Act 2003 Section 37
Act 7 of 2003
to
Page 23
(3) The accused shall give written notice to the prosecution at least 21 days
before the hearing that he requires the person who made the analysis to be
called by the prosecution as a witness.
37 Offence of interfering with evidence
Any person who:
(a) unlawfully interferes with, uses, takes or disposes of a seized
substance or article or any sample thereof; or
(b) unlawfully interferes with or falsifies any evidence with the
intention of interfering with the course of justice;
commits an offence and shall be liable upon conviction to a term of
imprisonment not exceeding 10 years.
PART 5 - OTHER MATTERS
38 Regulations
The Minister may, with the consent of Cabinet, make regulations, for the proper
and efficient administration of this Act.
Passed in the Legislative Assembly this 18 day of August, 2003.
SCHEDULE I Illicit Drugs Control Act 2003
Act 7 of 2003 Page 24
to
SCHEDULE I
(Section 2)
ILLICIT DRUGS
The following drugs, designated by their international non-proprietary names or the
names used in international conventions in force their isomers, esters and ethers, their
salts, including the salts of any such isomer, ester or ether, and any preparations
including any such substances are illicit drugs unless exempted by law;
(FROM SCHEDULE IV OF THE CONVENTION ON NARCOTIC DRUGS,
1961)
Acetorphine Acetyl-alpha-methyl- Methyl-3fentanyl
Cannabis and fentanyl Methyl-3thio —
cannabis resin Alphacetylmethadol fentanyl
Desomorphine Alpha-methylfentanyl MPPP
Etorphine Beta-hydroxyfentanyl Para-fluorofentanyl
Heroin Beta-hydroxy-methyl-3- PEPAP
Ketobemidone fentanyl Thiofentanyl
(FROM SCHEDULE I OF THE CONVENTION ON PSYCHOTROPIC
SUBSTANCES, 1971)
Brolamphetainine Etryptamine Parahexyl
Cathinone (+)-Lysergide PMA
DET MDA Psilocine, psilotsin
DMA Mescaline Psilocybine
DMHP Methcathinone Rolicyclidine
DMT Methyl-4 anuinorex STP, DOM
DOET MMDA Tenamphetamine
Eticyclidine MDMA Tenocyclidine
N-ethyl MDA Tetrahydrocannabinol
N-hydroxy MDA TMA
(FROM SCHEDULE I OF THE CONVENTION ON NARCOTIC DRUGS, 1961)
Acetylmethadol Ethylmethyl- Normorphine
Alfentanil thiambutene Norpipanone
Allylprodine Etonitazene Opium
Alphameprodine Etoxeridine Oxycodone
Alphamethadol Fentanyl Oxymorphone
Alphamethylthio- Furethidine Pethidine
fentanyl Hydrocodone Pethidine
Alphaprodine Hydromorphinol intermediate A
Illicit Drugs Control Act 2003 SCHEDULE I
Act 7 of 2003
to
Page 25
Anileridine Hydromorphone (4-cyano-l methyl —
Benzethidine Hydroxypethidine 4-phenyl-piperidine)
Benzylmorphine Isomethadone Pethidine
Betacetylmethadol Levomethorphan intermediate B
Betamerprodine Levomoramide (4-phenylpiperidine-4 —
Bethamethadol Levophenacylmorphan carboxylic acid
Betaprodine Levorphanol ethylester)
Bezitramide Metazocine Pethidine
Clonitazene Methadone intermediate C
Coca (leaf) Methadone intermediate (1-methyl-4 —
Cocaine (4-cyano-2-dimethyl- phenylpiperidine —
Codoxime amino-4, 4-diphenyl 4-carboxylic acid)
Concentrate of poppy butane) Phenadoxone
straw Methyldesorphine Phenampromide
Dextromoramide Methyldihydromorphine Phenazocine
Diampromide Metopon Phenomorphan
Diethylthiambutene Moramide Phenoperidine
Difenoxin Morpheridine Piminodine
Dihydromorphine Morphine Piritramide
Dimenoxadol Morphine methobromide Proheptazine
Dimepheptanol and other pentavalent Properidine
Dimethylthiambutene nitrogen morphine Racemethorphan
Dioxaphetyl butyrate derivatives Racemoramide
Diphenoxylate Morphine-N-oxide Racemorphan
Dipipanone Myrophine Sufentanil
Drotebanol Nicomorphine Thebacon
Fegonine Noracymethadol Thebaine
its esters and Norlevorphanol Tilidine
derivatives Normethadone Trimeperidine
(FROM SCHEDULE II OF THE CONVENTION OF NARCOTIC DRUGS, 1961)
Acetyldihydrocodeine Ethylmorphine Pholcodine
Codeine Nicodicodine Propiram
Dextropropoxyphene Nircodeine
Dihydrocodeine Norcodeine
(FROM SCHEDULE II OF THE CONVENTION ON PSYCHOTROPIC
SUBSTANCES, 1971)
Amphetamine Methamphetamine Phenmetrazine
Dexamphetamine Methamphetamine racemate Secobarbital
Fenetylline Methaqualone Zipeprol
Levamphetamine Methylphenidate
Mecloqualone Phencyclidine
(FROM SCHEDULE III OF THE CONVENTION ON PSYCHOTROPIC
SUBSTANCES, 1971)
Amobarbital Cathine Pentazocine
SCHEDULE I Illicit Drugs Control Act 2003
Act 7 of 2003 Page 26
to
Buprenorphine Cyclobarbital Pentobarbital
Butalbital Glutethimide Flunitrazepam
(FROM SCHEDULE IV OF THE CONVENTION ON PSYCHOTROPIC
SUBSTANCES, 1971)
Allobarbital Ethinamate Methylprylon
Alprazolam Ethyl loflazepate Midazolam
Aminorex Etilamphetamine Nimetazepam
Amphepramone Fencamfamin Nitrazepam
Barbital Fenproporex Nordazepam
Benzphetamine Fludiazepam Oxazepam
Bromazepam Flurazepam Oxazolam
Brotizolam Halazepam Pemoline
Butobarbital Haloxazolam Phendimetrazine
Camazepam Ketazolam Phenobarbital
Chlordiazepoxide Lefetamine Phentermine
Clobazam Loprazolam Pinazepam
Clonazepam Lorazepam Pipradrol
Clorazepate Lormetazepam Prazepam
Clotiazepam Mazindol Pyrovalerone
Clozazolam Medazepam Secbutabarbital
Delorazepam Mefenorex Temazepam
Diazepam Meprobamate Tetrazepam
Estazolam Mesocarb Triazolam
Ethchlorvynol Methylpheno-barbital Vinylbital
OTHER ILLICIT DRUGS
Ketamine
Khat
Gamma-hydroxybutyrate (GHB)
Gamma-butyrolactone (GBL)
1, 4-butanediol (tetramethylene glycol)
Anabolic and androgenic substances
Growth hormones
Cannabis fruit
Cannabis plant (whether fresh, dried, or otherwise) – that is, any part of any
plant of the genus cannabis
Cannabis seed
Cannabis oil
4-bromo 2, 5 dimethoxyamphetamine (Bromo DMA)
Illicit Drugs Control Act 2003 SCHEDULE 2
Act 7 of 2003
to
Page 27
SCHEDULE 2
(Section 2)
CONTROLLED CHEMICALS
The following substances designated by their international non-proprietary or the
names used in international conventions and the salts of these substances, with the
exception of the salts from sulphuric and hydrochloric acid are controlled chemicals.
(FROM THE ANNEX TO THE UNITED NATIONS CONVENTION AGAINST
ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES, 1988)
Ephedrime N-acetylanthranilic acid
Ergometrine Isosafrole
Ergotamine 3, 4 methylenedioxphenyl —
Lysergic acid 2-propanone
1-phenyl-2propanone Piperonal
Pseudoephedrine Safrole
Norephedrine
Acetic anhydride Hydrochloric acid
Acetone Methylethyl
Anthranilic acid Ketone
Ethylether Potassium permanganate
Phenylacetic acid Sulphuric acid
Piperidine Toluene
SCHEDULE 3 Illicit Drugs Control Act 2003
Act 7 of 2003 Page 28
to
SCHEDULE 3
(Section 2)
CONTROLLED EQUIPMENT
Encapsulating machines
Tabletting machines
Rotary evaporators
Laboratory equipment with a capacity of 25 litres or above and related
condensers, separating funnels and heating apparatus.
