The Kerala High Court on Wednesday said that it intends to send a strong message that it will not tolerate drug offences [Aaliya Ashraf v. State of Kerala].
A five-judge Full Bench of Justices Devan Ramachandran, P Gopinath, A Badharudeen, MB Snehalatha, and Jobin Sebastian emphasised that drug offenders must be deterred from the very first time that they are caught committing such an offence.
"Deterrence must come at the first offence. They must be taken to the hospital for rehab immediately. But there is a lack of facilities. Smart parents will do this when their children get in trouble because they have the resources...We have to send a message to society that at least the High Court of Kerala will not tolerate violations of the NDPS Act (Narcotic Drugs and Psychotropic Substances Act)," Justice Devan Ramachandran orally observed.
The judge went on to criticise how those caught with small quantities of drugs are let off with a mere slap on the wrist. This has led to a situation where offenders are encouraged to keep carrying small quantities, thereby spreading the scourge of drug abuse, he said.
"Where are we going when kids are walking around with marijuana? What does it mean when you are emboldened by certain provisions of NDPS Act to continue committing offences?" he said.
Justice Ramachandran also said that in his personal view, those caught with small quantities of such drugs must mandatorily be sent to rehab at the first instance itself.
"My personal view, which may not be shared by anybody else, is that even those who come in which small offences should be sent to rehab. They should never come back as a drug offender. Here we slap a penalty. And we publicise it heavily after catching the children of important people. But it is bailable and they are sent after paying a fine," he explained.
Where are we going when kids are walking around with marijuana?Kerala High Court
This discussion took place when the Bench was hearing a reference to reconsider a previous three-judge bench ruling in Suhana v. State of Kerala in which the Court quashed a preventive detention order under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA). In said judgment, the Court had held that mere possession of a "small quantity" of drugs does not automatically make someone a "drug-offender" or "goonda" without evidence of intention to sell.
However, other Benches of the Court subsequently raised concerns regarding the correctness of the ruling, leading to the reference before the five-judge bench.
The main issue arises from the fact that KAAPA, while defining “drug-offender”, in Section 2(i), uses the word “stocks." But the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) makes even "possession" of drugs an offence.
The primary question before the five-judge bench is whether mere possession of drugs amounts to "stocking" or "anti-social activity" under KAAPA. The view taken in Suhana was that while “stocking” would encompass possession, “possession” does not necessarily imply stocking.
During the hearing, Justice Ramachandran questioned why a person who is repeatedly caught with a "small quantity" cannot be assumed to be stocking drugs.
The five-judge Bench is also considering the question of whether an accused's offending act must concurrently qualify under the definitions of “anti-social activity” and “drug-offender” in order to satisfy the definition of “goonda."
"My personal view is that everything in this case turns on the definition of drug offender, because drug offender leads to goonda. So, everything essentially turns around in the interpretation that we might place on the definition of drug offender," Justice Gopinath said.
Justice Ramachandran added that the act of procuring and using drugs itself can be construed as an anti-social activity, especially considering its role in funding terrorism.
"You are consuming drugs, knowing it to be bad. You are consuming it without telling us where you're getting it from. The fact of you getting it itself is antisocial. This could, as well, be cannabis coming from Afghanistan, funding terror. And it is known internationally that every activity of terrorism is funded by drugs. Is that not anti-social?" he said.
Justice Badharaudeen summed up the issue at hand, saying,
"What we have to see now is whether the Legislature had any intention to make it so that not all drug offenders are brought under KAAPA. And whether that is why they brought in different categories, such as stocking, cultivating, etc."
The Court will be considering the matter again next week.
"The purpose of this exercise (full Bench hearing) is not merely legal; we are looking at the next generation, at the future of this country," Justice Ramachandran said.
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