Recurrent Possession Of “Small Quantity” Drugs Can Attract Preventive Detention Under KAAPA: Kerala High Court
The Court held that the expression “stocks” in the definition of “drug-offender” under KAAPA is wide enough to take in possession, and that repeated involvement in offences relating to even small quantities of narcotic drugs cannot be excluded from the preventive framework of the statute merely by treating them as matters of personal use.
The Kerala High Court has held that a person repeatedly found in possession of narcotic drugs or psychotropic substances, including “small quantity” as understood under the Narcotic Drugs and Psychotropic Substances Act, 1985, cannot be automatically kept outside the sweep of the Kerala Anti-Social Activities (Prevention) Act, 2007.
The Court was dealing with an intra-court reference to determine the correctness of Suhana v. State of Kerala (2024), in which a Five-Judge Bench had excluded such persons from the ambit of “drug-offender” and “goonda” under KAAPA.
A Bench of Justice Devan Ramachandran, Justice Gopinath P., Justice A. Badharudeen, Justice M.B. Snehalatha and Justice Jobin Sebastian observed: “The final argument qua the word “stocks” is that its synonym would concede only to “hoarding” and keeping in large quantities. We cannot accede to this either because, “stocks” in the “KAAPA” is not used in the same meaning as ‘stock-in-trade’, as is now tried to be urged before us. It can only construe the normal semantic meaning, namely, ‘to keep for a future time’; and which, therefore, would have no reference to the quantity”.
For the petitioner, Advocate M.H. Hanis appeared. The respondents were represented by Grashious Kuriakose, Additional Director General of Prosecution.
Background
The matter with Ashraf v. Inspector General of Police (2014), where a Division Bench held that possession of a prohibited drug or psychotropic substance by itself could render a person a “drug offender” under KAAPA and therefore amenable to proceedings under that statute.
Shortly thereafter, another Division Bench in Devaki v. State of Kerala (2014) considered whether a “drug-offender” under Section 2(i) of KAAPA could be treated as a “goonda” under Section 2(j) without independent proof that the person’s conduct was harmful to public order. Devaki answered that question by holding that once a person fell within the statutory categories included in Section 2(j), including “drug-offender,” no further proof of a separate public order element was necessary, since anti-social activity within the meaning of KAAPA already carried that character.
That line was followed by Ansar T.A. v. State of Kerala (2017), where the Court again held that possession of narcotic substances could fall within the definition of “drug-offender” under KAAPA, notwithstanding the absence of the word “possession” in Section 2(i). Ansar specifically approved the reasoning in Ashraf and rejected the contention that possession of ganja could not be relied upon to classify a person as a “known goonda.”
The position shifted with Luciya Francis v. State of Kerala (2023), where a learned Bench held that mere possession of a small quantity for personal use could not automatically be treated as affecting public order and that preventive detention could not be used as a punitive substitute for ordinary criminal process.
Thereafter, a Full Bench in Suhana v. State of Kerala (2024) held that a person found in possession only of “small quantity” under the NDPS Act would not fall within the ambit of “drug offender” or “goonda” under KAAPA, largely on the reasoning that the word “stocks” in Section 2(i) had to be understood ejusdem generis with other expressions such as “cultivates,” “manufactures,” “transports,” “sells” and “distributes,” all of which, according to Suhana, contemplated commercial activity rather than personal use.
It was this conclusion in Suhana that was later doubted by a Division Bench and then by another Full Bench, which noted that Suhana itself had accepted that “stocking” would encompass possession, yet had still concluded that “small quantity” possession for personal use fell outside Section 2(i) of KAAPA. The later Full Bench therefore directed the matter to be placed before a Bench of competent strength.
Court’s Observation
The Court began by setting out the relevant statutory framework in a structured sequence. It reproduced the definitions of “goonda” in Section 2(j), “known goonda” in Section 2(o), “anti-social activity” in Section 2(a), and “drug-offender” in Section 2(i) of KAAPA. The Court further noted that the NDPS Act creates a separate classification between “small quantity” and “commercial quantity,” but that this classification is relevant for punishment under that statute and not determinative of the scope of preventive action under KAAPA.
The Bench then examined the reasoning in Suhana and identified two principal strands in that decision: first, that a person could be treated as a “goonda” only if the act simultaneously answered both “anti-social activity” and “drug-offender”; and second, that “stocks” in Section 2(i) of KAAPA could not include mere possession of small quantity unless there was evidence of intended sale or commercial use. The present Bench found both strands unsustainable.
On the first issue, the Court accepted the logic of Devaki that Section 2(j) of KAAPA is drafted inclusively and disjunctively. It noted that Devaki had already explained that the qualifying words relating to conduct “harmful for the maintenance of public order” attach only to the expression “promotes or abets any illegal activity” and not to the separate expression “indulges in any anti-social activity,” nor to the specifically included categories such as “drug-offender.” The Bench therefore held that Suhana erred in treating “anti-social activity” and “drug-offender” as concurrent cumulative requirements for attracting the definition of “goonda.”
On the second issue, the Court disagreed with the restrictive reading of the word “stocks.” It accepted the doubt expressed by the later Full Bench that if “stocking” encompasses possession, then there was no legitimate basis to hold that possession for personal use falls altogether outside Section 2(I), underscoring that the later Full Bench had already found force in the reasoning that “the word 'stocks' is used in the Section to bring the activity of possessing a drug in contravention of the provisions of the Act for personal use as also for commercial use.”
The Court placed the issue in its wider social and constitutional context. It underscored the extraordinary damage caused by drug abuse, even where the quantity involved is small, holding that the problem cannot be trivialised merely because the quantity seized in a given case is below the threshold of “commercial quantity.” In one of the central passages of the judgment, the Court stated: “Drug abuse, even in small quantities, poses significant challenges to families and society, invariably resulting in catastrophic consequences.”
It continued that repeated involvement in such offences cannot be brushed aside as casual or inconsequential merely because the individual incidents involve small quantities. The Court observed: “Recidivist tendencies – to say, a person repeatedly involved in offences - cannot be regarded as casual, even though the quantity involved in each instance may be small as per the statutory prescription. Rather, such conduct must be viewed as an indication requiring urgent intervention and decisive action.”
The Bench then expressly rejected any societal tolerance of drug use in small quantities, noting: “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 also drew considerable support from Supreme Court precedent. It referred to Hira Singh v. Union of India (2020) for the proposition that the NDPS Act is intended to operate as a deterrent and must be enforced stringently. It then cited Ankush Vipan Kapoor v. National Investigation Agency, where the Supreme Court described the “Ripple Effects of Illicit Drug Trade and Drug Abuse,” linked substance abuse to public health, social disorder, crime and national security, and stressed the State’s obligation under Article 47 of the Constitution.
The Court reasoned that there was no real repugnancy between KAAPA and the NDPS Act because both operate in different though complementary domains: the NDPS Act deals with offences and penalties; KAAPA deals with preventive detention of categories of offenders whose conduct reveals a threat to public order, public health and the community.
“In conspectus, there is hardly any repugnancy in the manner in which the two statutes operate and run; but, in fact, enforces its powers harmoniously, with the ultimate aim of ensuring that the scourge of drug menace is combated strongly, so that individuals and society at large are kept away from harm from the pernicious spread of drugs and narcotic substances; and the consequent evil of crimes, social unrest and threat to public order and public health”, the Bench remarked.
“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 Bench further added.
The Court also noted that India is a party to the core United Nations conventions dealing with narcotic drugs and psychotropic substances and that domestic law, including the NDPS Act and allied statutes, must be read in a manner consistent with those obligations. It stressed that the goal of a drug-free society cannot be advanced if any “legitimacy” is offered to drug consumption merely because the quantity is small.
Conclusion
Answering the reference, the Five-Judge Bench held that the declarations in Suhana and Luciya Francis are incorrect and no longer good law. It approved the earlier line in Devaki, Ansar T.A. and Ashraf as correctly laying down the law.
The Court Concluded: “In view of the opinion recorded by us in paragraphs 72, 80, 95, 104 and 112, we hold the declarations in Suhana, as also in Luciya Francis, to be incorrect; and hence not good law.”
It further declared: “We declare that the holdings in Devaki, Ansar T A and Ashraf are correct and approve them as good law.”
Cause Title: Aaliya Ashraf v. State of Kerala & Ors.
Appearances
Petitioner: Advocates M.H. Hanis, P.M. Jinimol, T.N. Lekshmi Shankar, Ria Elizabeth T.J., Nancy Mol P., Anandhu P.C., Neethu G. Nadh, Sinisha Joshy and Ann Mary Ansel.
Respondents: Grashious Kuriakose, Additional Director General of Prosecution; C.K. Suresh, Public Prosecutor; Advocates S. Prasun, Chithra P. George, Vivek A.V., Mathews P. George; and K.A. Anas, Public Prosecutor.