However, Article 195 of the Federal Criminal Code states that when the accused is in possession of the substances referred to in Article 479 of the Federal General Health Law in an amount equal to or greater than one thousand times the legal limits for personal possession, it will be presumed that the possession is for the purpose of any of the conducts of the crime of drug trafficking in Article 194 of the Federal Criminal Code and will be punishable with five to fifteen years of imprisonment.
A prison sentence of five to fifteen years and a fine of one hundred to three hundred and fifty days will be imposed on anyone who possesses any of the narcotics indicated in Article 193, without the corresponding authorization referred to in the General Health Law, as long as such possession is for the purpose of engaging in any of the conducts set forth in Article 194, both of this Code.
The possession of narcotics may be investigated, prosecuted and, as the case may be, punished by the authorities of the common law under the terms of the General Health Law, when the assumptions of article 474 of said law are fulfilled.
When the accused possesses any of the narcotics indicated in the table provided for in article 479 of the General Health Law, in an amount equal to or greater than the amount resulting from multiplying by one thousand the amounts referred to therein, it is presumed that the possession is for the purpose of committing any of the conducts provided for in article 194 of this code.
Article 195 of the Federal Criminal Code
Trafficking and possession, being different, are related. In the former, the accusation requires circumstantial evidence confirming that the possession of the substances is intended for commerce and not for personal consumption. There are some incentives to determine that possession is an indicator of trafficking, these include the confiscation of certain elements, such as:
- Plastic bags or sleeves.
- Exorbitant amount of cash.
- Records of purchase and sale.
- Witnesses of the negotiations.
Cases in which possession does not imply trafficking.
Article 195 bis of the Federal Criminal Code exempts treatment of diseases or cultural practices from crime. Specifically when:
- One suffers from a medical condition, which requires treatment with psychotropic drugs. The sale of these medicines requires institutional sanitary requirements to be able to acquire them.
- One belongs to an indigenous community, which uses a necessary amount of hallucinogenic mushrooms for its ceremonies or rituals.
Situations in which the penalty is increased for drug trafficking in Mexico
Article 196 of the Federal Criminal Code provides for the following specific situations:
- If members of the Mexican Armed Forces or of any public institution are involved. In the latter case, the penalty will be increased if they are in charge of preventing or investigating matters related to public health.
- If minors or disabled persons are used to commit the crime of drug trafficking.
- If the crime is committed within institutions for education, security, social assistance or confinement.
- If spaces are rented for the manufacture of drugs and their subsequent trafficking.
It should be noted that in the case of public servants or members of the Mexican State security forces, in addition to the penalty, they will be dismissed from their positions.
Factors for criminalizing the crime of drug trafficking in Mexico
- The number of individuals involved in the crime.
- The social and personal harm caused.
- The number and type of crimes committed.
- The seriousness of the damage to health.
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