The Guyana Energy Agency (GEA) says that the conviction rates in fuel smuggling cases has increased and will continue in years to come.
Amendments to the law as well as more equipment enabled the successful prosecution of smugglers, the agency said in a recent statement. It noted that the GEA Act creates various offences penalizing the possession of or general dealings with fuel smuggling. Those offences include being in possession of, storing, purchasing, transporting, and selling illegal petroleum.
“Owing to the fact that legislation of this nature was new to the region, restrictions in the initial definition of illegal petroleum, the lack of equipment to scientifically determine the type of fuel found to be illegal, among others, hampered the Agency’s ability to successfully prosecute persons found with illegal fuel,” the statement said. It added that in some instances charges were filed after the statutory limitation period had expired causing the matters to be struck out.
“Having addressed such issues, the conviction rate significantly increased in 2012, a year in which 15 convictions were recorded. Following the implementation of the (Fuel Marking Programme (FMP) in 2003) the conviction rate, representing a total of 26 convictions to date, has dramatically increased and will continue to increase in years to come,” the GEA asserted.
It said that for 2013 there were 35 incidents of illegal fuel and 13 prosecutions continuing before the magistrates’ courts in Guyana. Two convictions along with one dismissal were recorded for the year.
The GEA had faced difficulty in securing convictions before. One such case was the infamous 2005 Buddy’s fuel smuggling case which was prosecuted by attorney Anil Nandlall, who is now the Attorney-General. At the time, it was said to be one of the largest fuel busts locally and tests carried out on fuel found that it was illegal. Over 43,000 litres of diesel valued at $6 million was seized. Ten workers and businessman Omprakash `Buddy’ Shivraj were charged. Shivraj, on whose property the alleged illegal fuel was found was charged with possession of illegal fuel and storage of illegal fuel.
In March 2008, after more than two years in the courts, the case against the 11 accused in the Buddy’s fuel bust was discharged by Magistrate Priya Sewnarine-Beharry at the Providence Magistrate’s Court. In her ruling, the magistrate had described the case as presented by the prosecution as “water fetched in a basket” and said that it was replete with errors.
Nandlall subsequently told Stabroek News that he would appeal the decision and had already filed a notice of appeal in the High Court. It is not clear if he has filed an appeal.
Evidence Act
In terms of combating illegal fuel, this year the National Assembly passed the Evidence Act (Amendment) Bill 2013, which amends the Evidence Act and paves the way for an expansion of the categories of experts whose certificates, analyses, reports or any form of certification of diagnosis can be admissible in a court of law. Under the new law, criminal and civil courts will also be required to accept “a certificate or report signed or purported to be signed by an analyst stating that he
has analyzed or examined a
fingerprint; a firearm or ammunition; a poisonous and noxious substance; a firearm or ammunition; a local or foreign currency; human blood, bones or tissues; or fuel or fuel based substance, and the results or his analysis or examination.”
In its statement, the GEA said that its success would not have been possible without the partnership and support of other agencies. It noted that in 2007, a Task Force on Fuel Smuggling and Contraband was convened under the auspices of the Ministry of Home Affairs to coordinate the efforts of the different law enforcement agencies in the fight against fuel smuggling and contraband. “The resulting cooperation between the Guyana Police Force, Guyana Revenue Authority, Guyana Defence Force Coast Guard and Customs Anti-Narcotics Unit (CANU) aided in several interdictions of illegal fuel and assistance in capturing, escorting and securing various transport vessels (both land and water). Cooperation from the Guyana Police Force in the detention of suspects and the GDF Coast Guard and Guyana Revenue Authority (GRA) in joint operations have proven invaluable in combating the illegal fuel trade,” the agency said.
It noted that prior to 2003 Guyana was facing a large number of fuel smuggling and associated tax losses. Non-taxed fuel was being smuggled into the country and sold illegally to retail sites while taxed road fuels were being adulterated with low-tax kerosene. With no means of identifying which fuels were legally imported and which were smuggled, and recognizing the ruinous effect of fuel smuggling on legitimate businesses, government implemented the FMP in 2003 and the laws were amended to cater for the programme and set out penalties for offences.
In 2010, the FMP was bolstered with the addition of a mechanised system to add the chemical marker into the ‘bulk storage tanks’. This bulk marking system utilizes self-powered injectors to automatically inject the chemical marker concentrate during discharge of fuel from the international vessels into the bulk storage tanks.
“This system of bulk marking has improved security and integrity by taking the domestic marker out of the hands of the marking staff where ‘losses’ have been experienced in the past…the change from manual to mechanical marking further enhanced the Programme whilst minimizing impact on terminal operations,” Dr Mahender Sharma, the Chief Executive Officer of the GEA was quoted as saying.
The GEA said that the issue of fuel adulteration not only covers evasion of taxes on fuel but also encompasses instances where tax free fuel is being utilized for unauthorized purposes. “In this regard the program has had tremendous success. Analysis of the laboratory results of samples collected from various sites from 2007 to 2012 revealed that there was a reduction in the number of sites found with adulterated/illegal fuel,” the statement said.
The GEA disclosed that for the years 2007 to 2010, there was a continuous increase in the number of incidents of illegal fuel being found at inspected sites. The numbers however dramatically decreased in the years 2011 and 2012, with 2011 recording a 60% decrease from 2010 and 2012 recording a 38% decrease from 2011. This was despite there being an increase in the number of sites being sampled annually. “This consistent reduction of numbers prompted internal investigations after which, due to lack of confidence in their ability to carry out their duty, several employees’ services were terminated in accordance with their contracts,” the statement said.
Following this, incidents of illegal fuel being found increased by 169% from 2012 to 2013, again with more sites being sampled than previous years.
The agency noted that the FMP provides benefits in a number of areas. These include: improved and sustained sales of legitimate diesel and gasoline, improved and sustained collection of excise tax, assurance of fuel quality, direct employment of about 50 persons, confidence in the industry, and in the ability of the regulatory/enforcement Agencies to stamp out illegal activity.
“In addition to increased revenue, the record has shown that since 2006 the rate of fuel adulteration detected has substantially dropped each year due to the Fuel Marking Programme. Hence, the constant monitoring and maintenance of the system’s integrity, and by extension the Officers employed under the Programme, is absolutely necessary for its continued success,” the GEA said.
Smuggling of fuel from Venezuela remains a big business, reports say. The cheap fuel comes across from Puerto Ordaz and other areas in Venezuela and is distributed along the Essequibo Coast and further.
