Procedural Law Case: Pasang Dawa Tamang (Lopchan) Vs. His Majesty’s Government of Nepal, NKP(2058), NO.3/4, DN: 6992
Case: Human Trafficking
Plaintiff: His Majesty’s Government on complaint of Pode Tamangni and others
Respondent: Pasang Dawa Tamang
Decision No: 6992
This case is related with retrospective effect(ex post facto) and application of procedural law.
Facts of the Case:
Pasang Dawa Tamang (Lopchan) lured 4 women, Pode Tamangni, Lakki Tamangani, Sisang Tamangani, and Dhiki Tamangani, to engage them in good work but trickily sold them in Bombay, India, to a brothel on 2042/01/01 BS. Victims came to know that they were sold by Pasang in this brothel through the individuals of Bombay. The victims escaped from the brothel in 2047 (after 5 years) and returned home, after which they filed a complaint stating that the accused, Pasang Dawa Tamang, had sold them in the brothel.
Claim of the Petitioner:
The plaintiffs claim that the accused intentionally deceived and lured the girls with false promises of work and took them to Bombay for the purpose of selling them into prostitution. The accused absconded for years and did not get in touch with police, so it also shows his involvement in the crime. Based on these claims, the plaintiffs requested that he be punished under Section 4(a) of the Human Trafficking (Control) Act, 2043 BS.
Claim of the Respondent:
The accused denies involvement and claims the allegations were made against him due to personal enmity. Defendant claims he was in Kathmandu and Gorkha from 2035 onwards, working in construction, and therefore could not have been present to commit the alleged offense in 2042. His key legal argument is that the alleged crime occurred on 2042/01/01, but the Human Trafficking (Control) Act, 2043, came into effect on 2043/07/24. Therefore, applying this act to an earlier event is a retroactive (ex post facto) application, which is unconstitutional.
He argues the case should have been filed under the older “Muluki Ain, Chapter on Human Selling,” not under the later Human Trafficking (Control) Act, 2043.
Decision of the Courts:
Rasuwa District Court:
Court accepted the victims’ statements, the supporting witnesses, and the fact that the accused had absconded as credible evidence. The court concluded that Pasang Dawa had deceived the victims and sold them in Bombay. So court convicted him under Section 4(a) of the Human Trafficking (Control) Act, 2043, and sentenced him to 10 years imprisonment under Section 8(1).
Appellate Court Patan:
The Appellate Court upheld the District Court’s judgment. It ruled that the crime continued from 2042 to 2047, meaning the trafficking continued even after the act became effective. Therefore, applying the 2043 Act was not retroactive.
The accused failed to produce convincing evidence to support his claim of innocence. The Appellate Court therefore affirmed the 10-year imprisonment.
Supreme Court:
Supreme Court dismissed the defendant’s appeal and upheld the decision of the lower court, i.e., 10 years imprisonment.
Supreme Court held that the Human Trafficking (Control) Act, 2043, did not repeal the older “Muluki Ain: Human Selling Chapter.” Instead, both laws function concurrently.
The new act did not impose harsher penalty on the accused. Under the old law, the penalty could be up to 20 years, but the accused received only 10 years, minimum under the new act. Hence, there was no adverse effect on the accused.
The crime continued until 2047, even after the new Act came into effect. Therefore, applying the new Act is legally valid and not retroactive, and procedural laws apply as per the time of trial, not the time of incident.
Thus, the 10-year imprisonment sentence imposed by the appellate court was confirmed.
Principle Established:
Procedural laws apply retrospectively, while substantive laws apply prospectively.
Procedural law (rules about filing, prosecution, evidence, burden of proof, hearings, etc.) applies to all cases currently being heard, even if the events or the filing happened earlier.
