Criminal Law Case: Uttam Lama v. His Majesty’s Government of Nepal, NKP 2061, No. 9, DN: 7432
Case: Human Trafficking
Plaintiff: HMG on the complaint of Chari Maya Moktan
Defendant: Uttam Lama
Decision Number: 7432
This case is related with retrospective effect of law.
Fact of the case:
In this case the defendant, Uttam Lama, and Khaiba Syangtan sold the victim, Chari Maya, in Shrawan 2043 BS in one of the brothels of Bombay. The victim worked for ten years in a brothel in Bombay and returned in 2053 BS and filed an FIR against the defendant.
Victim Chari Maya Moktan stated that Khaiba and Uttam Lama allured her to engage in a good job in the carpet industry in Kathmandu but later sold her to Bombay in the flesh trade. Uttam Lama first took her to Raksaul, and from there she was taken by Uttam with the help of another woman to India. There she was sold to a brothel owner Mala Tamagni for IC Rs. 35,000 and was forced into prostitution.
Decision of the Courts:
Makawanpur District Court verdict: Khaiba Syantan was convicted of aiding and abetting in the offense and sentenced to 2 years of imprisonment as per sec. 8(4) of the Human Trafficking Control Act, 2043 BS.
Uttam Lama was sentenced to 10 years of imprisonment as per sec 8(1) and fined Rs. 56,000/-, equivalent to the principal amount as per sec 8(5) of the Human Trafficking Control Act, 2043 BS, by the district court.
The defendant appealed to the Hetauda Appeal Court, but the appeal court upheld the decision of the trial court.
Supreme Court:
The defendant appealed to the Supreme Court against the decision of the lower court, arguing that the judgment violated Article 14(1) of the Constitution of the Kingdom of Nepal, 2047 B.S. This Article guarantees that no act shall be declared a punishable offense retroactively by a law enacted after the act was committed, nor shall anyone be punished for an act that was not considered an offense by law at the time it was committed. Similarly, no one shall receive a punishment greater than what was prescribed by the law in force when the offense occurred.
The defendant claimed that the alleged act was committed in Shrawan 2043, while the Human Trafficking Control Act, 2043 came into effect only on 2043/07/24. Therefore, imposing punishment under this Act would violate Article 14(1), as it would give retrospective effect to the law. The defendant argued that the lower courts had wrongly applied the Act retroactively, and hence, the decision should be annulled.
In this, the joint bench of the Supreme Court also noted that it disagrees with its earlier joint bench decision in a similar case (Pasang Dawa Tamang v. Government of Nepal, 2055 BS), where punishment was given based on a law enacted after the crime occurred. Because of this disagreement, the court decided to refer the case to a full bench for final judgment.
Full Bench:
Out of three judges, the majority decision of the full bench of the Supreme Court also upheld the decision of the lower court and dismissed the claim of the defendant. The decision made by the appeal court of Makawanpur District Court sentencing the defendant according to the Human Trafficking Act, 2043 BS, for an offense committed before the enactment of the Act was, just and lawful.
Basis for decision:
1. Question of Ex Post Facto Law
The main issue in the case was whether a person could be punished under the Human Trafficking (Control) Act, 2043 (1986 AD), which came into effect after the offense (committed in Shrawan 2043).
The court noted that even at the time of the offense, the Muluki Ain 2020 BS (National Code) had already considered selling a person as a crime, punishable by up to 20 years in prison. Since the later Act did not increase the punishment or criminalize any new act that was previously not a crime, applying it did not violate the concept of Ex Post Facto Law.
2. Constitutional Provision
According to Article 14(1) of the Constitution of the Kingdom of Nepal, 2047 (1990 AD), no person shall be given a punishment greater than what was prescribed by the law in force at the time of the offense.
In this case, the later Act did not impose a harsher penalty than the earlier law, so applying it was not contrary to the Constitution.
Established Principle:
“No person can be punished for an act not made punishable at the time of commission, and no penalty can be imposed greater than what was prevalent at the time of its commission.”
