Article 33

POSSESSIONS OF DRUGS

The Parties shall not permit the possession of drugs except under legal authority.

Commentary

1. Article 33 must be read in connexion with article 4, paragraph (c) requiring Parties, subject to the exceptions expressly permitted by the Single Convention, 1 to limit exclusively to medical and scientific purposes the pos session of drugs. It has therefore been stated in the comments on that paragraph that apart from these exceptions, Parties may not authorize the possession of drugs for other purposes.

2. It may be repeated here that some Governments consider that they are not required to punish the unauthorized possession of drugs by addicts for their personal use, because the word "possession" as used in article 36, paragraph 1, covers only possession for distribution, and is not meant to include possession for personal use; but even if this view is not accepted, there cannot be any doubt that Parties need not consider unauthorized possession of drugs for personal use to be a "serious" offence within the meaning of article 36, paragraph 1, liable to punishment by imprisonment or other penalties of deprivation of liberty. They may choose to impose minor penalties such as fines or even censure. 2 -

3. Whatever the position the Parties may take on this question of penal sanctions, it does not affect their obligation under article 33 not to permit the unauthorized possession of drugs for personal consumption, like any other possession of drugs without legal authority. If they choose not to impose penalties on the unauthorized possession for personal use, they still must use their best endeavours to prevent this possession by all those administrative controls of production, manufacture, trade and distribution which are required by the Single Convention, and whose basic objective is the prevention of the abuse of drugs and therefore also to prevent the unauthorized possession by addicts. It is also submitted that Parties which do not consider such possession to be an offence under article 36, and therefore are not required to apply article 37 regarding the seizure and confiscation of drugs, are nevertheless bound to confiscate the drugs found in the unauthorized possession of persons for personal consumption. This obligation appears to be implied in the provision of article 33.3

4. It will be noted that article 33 applies to all drugs and their prepara tions. Drugs in Schedule II and their preparations, as well as preparations in Schedule III, which it may be possible for individuals to acquire without medical prescriptions, 4 are not excepted. 5 Although free from the prescription requirement, they are not excluded from the scope of article 4, paragraph (c), requiring Parties to limit the possession and use of drugs to medical and scientific purposes, and they may be sold only by State enterprises or licensed traders or dispensed or administered by persons duly authorized to perform therapeutic functions. c

5. Parties may therefore not authorize the possession of drugs in Schedule II and their preparations as well as of preparations in Schedule III 7 by individuals for the purpose of abusing them. They should therefore require their licensed retail traders not to sell these drugs and preparations to an individual who obviously intends to abuse them, and in any event not to sell excessive amounts of them to a single person.

6. They would also be bound to confiscate these drugs and preparations if found in the possession of a person who needs them not for medical purposes, but exclusively for the purpose of abusing them.

7. The Parties are, however, not bound to adopt measures which are not expressly or impliedly required by the Single Convention in order to enforce the limitation of the possession and use of drugs in Schedule II and their preparations, or of preparations in Schedule III, to medical and scientific purposes. It is moreover suggested that, unless more strict controls are required by national law than those prescribed by the Single Convention, the application of article 33 to the unauthorized possession by individuals of these drugs and preparations for the purpose of abusing them will generally be very difficult indeed, and in many cases not only impractical but also impossible.

8. It may be mentioned in this context that the leaves of the cannabis plant, when not accompanied by the tops, are not "drugs", s and are therefore not subject to article 33. 9

9. For a provision in an earlier treaty requiring Parties to take measures to prohibit the delivery to or possession by any unauthorized person of drugs, see article 7 of the 1925 Convention. This provision has, however, a more limited scope than article 33 of the Single Convention. 10

1 Article 2, para. 9, article 27 and article 49.

2 For a more extensive discussion of this legal question, see above comments on article 4, para. (c).

3 See also above, comments on article 4, para. (c); the United Nations Secretariat is not aware of any constitutional provisions which would prevent such course of
action. It is however suggested that where such an obstacle should exist, the same effect could be accomplished by making the unauthorized possession of drugs by addicts for personal consumption an offence, to be punished exclusively by the confiscation of the drugs.

4 Article 30, para. 6.

5 Article 2, paras. 2 to 4.

6 Article 30, para. 1, subpara. (a) and (c) in connexion with the references in foot-note 5.

7 Preparations in Schedule III will, however, generally hardly be liable to the kind of abuse which the Single Convention is intended to prevent; see article 3, para. 4.

8 Article 1, para. 1, subparas. (b) and (j), and Schedules I and II.

9 See article 28, para. 3 and comments thereon.

10 Article 7 of the 1925 Convention does not apply to raw opium, prepared opium, coca leaves, cannabis and cannabis resin; to the possession for retail trade or personal consumption of drugs in Group lI of the 1931 Convention (and of the 1948 Protocol) and to those preparations which either by express treaty provisions or by operation of article 8 of the 1925 Convention are exempted from the application of this Convention, i.e. to the so-called "preparations for the export of which export authorizations are not required" which are a group of preparations whose position corresponds to some extent to that of preparations in Schedule III of the Single Convention; see articles 8 and 4, para. (d) of the 1925 Convention, article 13, para. 1 and para. 2, subparas. (a) and (b) of the 1931 Convention; see also Commentary on the 1931 Convention, para. 135; article 7 of the 1925 Convention moreover applies only "as regards the internal trade" to the drugs which it covers. It may however be noted that all the drugs and their preparations covered by article 7 or excluded therefrom are subject under the narcotics regime preceding the Single Convention, to the import certificate and export authorization system of chapter V of the 1925 Convention, the only exception being "the preparations for the export of which export authorizations are not required".