Possession of small quantities of drugs can constitute anti-social activity under KAAPA, warranting preventive detention for repeated offenses despite previously conflicting interpretations.

ORDER :

1. Before us for resolution, is a substantial question - wholly within the realm of the applicable statutes - riddled with a fair degree of forensic dilemma; and governed by apparently conflicting precedents.

2. This Bench has been convoked under the orders of the Hon’ble Chief Justice, consequent to a reference made by a learned Full Bench, doubting the correctness of the conclusions and holdings of another learned Full Bench of this Court in Suhana v. State of Kerala, 2024 (7) KHC 212. The reference was, in fact, triggered by a doubt expressed by a learned Division Bench of this Court that Suhana has not laid down the law correctly, when tested on the touchstone of the relevant statutes and provisions.

3. In Suhana, the essential question was, if a person found in possession of solely the statutorily defined ‘Small Quantity’ of a drug or psychotropic substance, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), would render him within the ambit of ‘Goonda’, under the Kerala Anti-Social Activities (Prevention) Act, 2007 (“KAAPA” for short); with a corollary question posed if such would render that person to be a ‘Drug Offender’, as again defined under the “KAAPA”. The learned Full Bench concluded that it would not be so and hence that the rigour of the “KAAPA” would not apply to such a person.

4. It is singularly the above view that has been doubted by both the learned Division Bench and the Full Bench of this Court.

5. We will deal with the germane issues in detail, as we are enjoined to, after we indite the most unexpendable factual factors, relevant precedential declarations and applicable statutory provisions.

6. The path to this Bench, in fact, began in the year 2014, when a learned Division Bench delivered judgment in Ashraf v. Inspector General of Police, (2014) 3 KLT 722. The said judgment declared that, possession of any prohibited drug or psychotropic substance by itself would render the person to be a ‘drug offender’ under the “KAAPA”; and consequently, amenable to the consequences under it. The observations of the said Bench is available in paragraph 3 of the judgment, extracted below for ease of reading:

“The allegations against the petitioner in those cases, as rightly noted by the Advisory Board, fall squarely under Sections 2 (i), 2(j) and consequently under Section 2 (o) (ii) of KAAPA. Noticing the substance of the allegations of those cases, the plea of the petitioner that mere possession would not attract those provisions was rightly repelled by the Advisory Board. 'Possession' is necessarily an inseparable component of any or all of the activities of stocking, transportation, sale or distribution. Hence, the mere absence of the word 'possession' in the definition of the term 'drug-offender' in KAAPA is not decisive to exclude a person found to be in possession of any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act or in contravention of any other law for the time being in force, from the ambit of 'drug-offender' as defined in (i) of KAAPA and therefore from the purview of the terms 'goonda' and 'known-goonda' defined respectively in clauses (j) and (o) of of KAAPA. This is the law. The petitioner's plea that in the absence of the word 'possession' in those definition clauses, he cannot be covered by a restraint order under KAAPA has, therefore, been rightly r