Importar sementes de maconha não configura tráfico

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hempadao 1 fevereiro, 2016

O Tribunal Regional Federal da 3ª Região (TRF3) concedeu habeas corpus para trancar ação penal destinada a apurar a importação de 11 sementes de maconha da Holanda por um morador de Lençóis Paulista (43 quilômetros de Bauru). Ele havia sido indiciado por tráfico de drogas, mas o órgão federal desqualificou o crime para contrabando e aplicou o princípio da insignificância.

Fonte: JC NET

 

Segundo a denúncia, em fevereiro de 2014, na sede da Empresa de Correios de São Paulo, no Serviço de Remessas Postais Internacional da Alfândega, foi apreendida uma encomenda, postada do município de Den Haag, na Holanda, quer tinha como destinatário o acusado, residente em Lençóis Paulista.

O conteúdo da embalagem foi submetido à exame químico toxicológico e o laudo revelou que as sementes eram da espécie Cannabis Sativa Linneu, popularmente conhecida por maconha. O importador foi indiciado por tráfico, com base no artigo 33, § 1º, I, e artigo 40, I, ambos da Lei nº 11.343/2006. O

TRF3 entendeu que as 11 sementes de maconha não podem ser consideradas drogas, uma vez que não possuem tetrahidrocanabinol (THC) em sua composição.

A decisão cita que, embora as sementes sejam aptas a gerar “pés de maconha”, também não podem ser consideradas matérias-primas juridicamente, já que, para que se tornem próprias para consumo, devem ser primeiramente semeadas e fertilizadas, até que fiquem prontas para a colheita.

O órgão assinala que, se fosse o caso, a importação das 11 sementes melhor se amoldaria ao artigo 28, § 1º, da Lei nº 11.343/2006, uma vez que o produto importado se destinava à semeadura. Contudo, o dispositivo fala em “semear, cultivar ou colher” plantas destinadas à preparação de pequena quantidade de substância ou produto capaz de causar dependência física ou psíquica.

Desqualificado
Segundo a Justiça, no caso em questão, as sementes foram apreendidas ainda no curso do seu trajeto, tendo como destino final a cidade de Lençóis Paulista, e no setor de Serviços de Remessas Postais Internacional da Alfândega de São Paulo, não chegando sequer a serem semeadas.

Para os desembargadores, a conduta do acusado, que ingressou com habeas corpus, não se enquadra na referida lei. O colegiado pontua que não há como negar que as sementes são de uso, importação, exportação, manipulação e comércio proibidos, o que leva à caracterização do contrabando.

Assim, o crime de tráfico foi desqualificado para o crime de contrabando, previsto no artigo 334-A do Código Penal, que tem por finalidade a proteção da saúde pública. Para os julgadores, falta justa causa para a ação penal devido à irrelevância penal da conduta do acusado.

Em regra, não se aplica princípio da insignificância ao contrabando, exceto diante da mínima ofensividade da conduta delituosa; da ausência de periculosidade do agente; do reduzido grau de reprovabilidade do comportamento e da inexpressividade da lesão jurídica. “Não há como entender que 11 sementes de maconha seriam capazes de colocar minimamente em risco a saúde pública”, diz a decisão.



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