IMPORTANT POINT
Mere possession of narcotics without intent to sell does not qualify as 'drug-offender' under KAA(P)A.

JUDGMENT :

SHOBA ANNAMMA EAPEN, J.

1. A Division Bench of this Court, by an order of reference, directed to place this Criminal Appeal before the Full Bench so as to consider the question whether the expression ‘stock’ in the definition of ‘drug-offender’ in Section 2(i) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [hereinafter referred to as, ‘KAA(P)A’], takes within its sweep, the possession by itself, of the drug. The Division Bench doubted the correctness of the findings in Ansar T.A. v. State of Kerala and Others, 2017 (2) KHC 413, wherein reliance was placed upon the decision of this Court rendered by a Single Judge in Ashraf v. Inspector General of Police, 2014 (3) KLT 722 to contend that mere possession of small quantity of narcotic drug by itself would answer the definition of a ‘drug-offender’ under Section 2(i) of KAA(P)A, wherefore, the detenu is liable to be considered as a ‘goonda’ as per Section 2(j) of KAA(P)A and consequently, a ‘known goonda’ under Section 2(o) of KAA(P)A. In the Reference Order, the Division Bench leaned in favour of the view expressed by this Court in Luciya Francis v. State of Kerala, 2023 (5) KHC 255, wherein it was found that mere possession of a narcotic substance cannot be construed as part of stock unless it is manifested with evidence of intention to sell and further found that the word ‘stocks’ occurring in Section 2(i) of KAA(P)A must be in such nature kept in possession not for personal use. If any element of commercial motive surfaces, no doubt, such ‘stocks’ shall be classified as acts affecting public order. Hence, doubting the judgment in Ansar T.A (supra), the matter was referred to this Full Bench and we are called upon to answer the same.

2. Reference to the following relevant provisions is essential to analyse the issue:

“2. Definitions - In this Act, unless the context otherwise requires:

(a) “anti-social activity” means acting in such manner as to cause or is likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m), (n), (q) and (s) of this section.

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(i) “drug-offender” means a person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) or in contravention of any other law for the time being in force, or who knowingly does anything abetting or facilitating any such activity.

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(j) “goonda” means a person who indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copyright pirate, a drug offender, a hawala racketeer, a hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber.

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(o) “ known goonda “ means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act: (i) found guilty, by a competent court or authority at least once for an offence within the meaning of the term ‘goonda’ as defined in clause (j) of section 2; or (ii) found in any investigation or enquiry by a competent police officer, or other authority or competent court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term ‘goonda’ as defined in clause (j) of section 2. Provided that an offence in respect of which a report was filed by a police office