Repeated possession of even small amounts of narcotic drugs can attract KAAPA: Kerala HC Full Bench

A Full Bench of the Kerala High Court has ruled that a person repeatedly found possessing even "small quantities" of narcotic drugs can be treated as a "drug offender" or a "goonda" under the State's preventive detention law, Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) [Aaliya Ashraf v State of Kerala].

In the judgment delivered on March 31, the Bench of Justices Devan Ramachandran, P Gopinath, A Badharudeen, MB Snehalatha, and Jobin Sebastian also emphasised that society must adopt a zero-tolerance attitude to drug abuse.

"The societal expression of the slightest amount of tolerance to use or abuse of drugs - even in small quantities and for personal use - would be catastrophic, particularly when such substances, seemingly appear to be rather freely available. The approach of the society to this menace requires to be one of zero tolerance and non-negotiability; and even a trace of acceptance would be to push societies into chasms of irreparable consequences," the Court held.

The Court observed that any tolerance of drug abuse could have devastating consequences for society.

Even in small quantities, drug abuse could lead to severe social harm, crime, public health crisis and breakdown of families, the Court said. Therefore such offences cannot be treated casually, it opined.

"Democratic societies, in order to preserve their vigour and vitality, require to adopt a policy of 'Zero Tolerance' towards drugs, drug trafficking, and the powerful narcotic drug networks, by constantly evolving its statutory mechanisms to keep pace with the changing times," the Court remarked.

The question of whether those found with small quantities of narcotic drugs can be placed under preventive detention by classifying them as "drug offender" or a "goonda" under the KAAPA was referred to the Full Bench in view of conflicting judicial views in the matter.

A three-judge Bench, in Suhana v State of Kerala, had earlier ruled that the mere possession of "small quantity" of drugs would not make a person a "drug-offender" or "goonda" under KAAPA, unless there was evidence of an intent to sell.

A similar view was taken in the case of Luciya Francis v. State of Kerala, in which case it was held that KAAPA cannot be invoked against those found possession small quanitites of drugs for personal use, as such persons cannot be seen as a threats to public order.

In the latest ruling, the Full Bench has disagreed with these views.

Instead, it has affirmed the view taken in the case of Ashraf v. Inspector General of Police, in which it was held that the possession of any quantity of illegal drugs could render a person a "drug offender" under KAAPA. Similar views were taken in the cases of Devaki v. State of Kerala and Ansar TA v. State of Kerala.  

"We hold the declarations in Suhana, as also in Luciya Francis, to be incorrect; and hence not good law. We declare that the holdings in Devaki, Ansar T A and Ashraf are correct and approve them as good law," the Full Bench concluded.

To arrive at its conclusions, the Full Bench analysed the KAAPA alongside the  Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court noted that the NDPS Act distinguished between "small" and "commercial" quantities of drugs for the purpose of punishing those convicted under the said law. KAAPA dealt with the prevention of anti-social activities affecting public order, the Court went on to observe,

The Bench noted that Section 2(i) of KAAPA defined "drug-offender" by connecting such persons to drug "stocks." The Court opined that these terms were broad enough to include possession in all forms, including the possession of small quantities of drugs.

The Court opined any other interpretation that could limit the scope of KAAPA only to those stocking commercial quantities of drugs would render the law ineffective in tackling the growing drug menace and defeat its purpose.

"In many ways, stocking and possession are the same because, there cannot be one without the other; but when possession of an article is held for future use – whatever be the nature of such goods – it infers 'stocking' in its semantic sense. In fact, the Legislative debates conclusively show that every violation of the NDPS Act was intended to be brought within the net of 'anti-social activity', as defined under the 'KAAPA' and to subject the offender to its full warrant, especially for repeated offences," the Court added.

Further, the Court concluded that the definition of "goonda" under KAAPA was inclusive and broad enough to cover even those found possessing small quantities of drugs, and that such activities could constitute an "anti-social activity" under KAAPA.

The Bench also addressed concerns that such an interpretation could lead to the law's misuse against addicts or casual users. The Court held that while rehabilitation was necessary in such cases, repeated violations of drug laws could not be ignored, especially when such conduct has wider societal consequences.

Advocate MH Hanis appeared for a petitioner.

Public Prosecutor KA Anas appeared for the State.

Advocates S Prasun, Chithra P George, Mathew P George and Vivek AV also assisted the Court.

[Read Judgment]