The definition of 'drug-offender' under KAAPA requires reconsideration regarding possession and anti-social activity.

Dated this the 7^th day of January, 2026 REFERENCE ORDER Devan Ramachandran , J.

This matter has been placed before us, consequent to a reference by a learned Division Bench of this Court on 02.06.2025, expressing an opinion that the ratio in Suhana v. State of Kerala ( 2024 (6) KLT 371 ) requires a re-look.

2. We have heard the learned counsel on both sides and have examined the Reference Order of the learned Division Bench intently.

3. We must say upfront that we are also guided to the opinion that Suhana (supra) requires a re-look, for the very same reasons as have been enumerated by the learned Division Bench in its reference order.

4. For ease of reading and reference, we extract the most relevant portions of the said order as under:

“11. Coming to Suhana, it is seen that it is following the dictum in Luciya Francis , it was found therein that the absence of the word 'possession' in the definition of 'drug- offender' as contained in Section 2 (i) implies that mere possession of a drug in contravention of the provisions of the Act would not satisfy the definition 'drug-offender' unless it is accompanied by evidence of intention to sell. We are unable to agree with this view. In general, stocking an article implies having the same in one's possession or control, often with the intention of using it or selling it. In other words, according to us, instead of using the word 'possession', 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. In fact, it is noted by the Full Bench in Suhana itself that the term 'stocking' encompasses possession whereas 'possession' does not necessarily imply stocking. In other words, the expression 'stocks' used in the Section being a wider expression which takes within its scope 'possession' as well, it cannot be said that the expression 'possession' does not fall within the scope of 'stocks'. The view aforesaid, therefore, requires reconsideration. That apart, in the light of the decision in Devaki , the view taken by the Full Bench in Suhana that in order to satisfy the definition of 'goonda', the offending act must concurrently qualify both 'anti-social activity' and the activity of a 'drug-offender' may not be correct and the said view also requires reconsideration. As already indicated, if an activity does not fall within the scope of the definition 'drug-offender', it could still be an anti- social activity and if it is an anti-social activity, action can be taken against the person committing that activity under the Act, for, what is provided in Section 3(1) of the Act conferring power on the competent authority to detain a 'goonda' under the Act is that such power shall be exercised with a view to prevent such person from committing any anti-social activity.

12. It is observed by the Apex Court in Hira Singh v. Union of India , (2020) 20 SCC 272 that the problem of drug addicts is international and that it is a crime against the society. In the light of the said observation, possessing a drug in contravention of the provisions of the Act for personal use also, according to us, is an anti- social activity falling within the scope of Section 2 (a) of the Act, for the same is an activity which is likely to cause danger to public health. In other words, the view that such an activity is not intended to be brought under the purview of the Act is also, according to us, incorrect and requires reconsideration. Inasmuch as we entertain a serious doubt as to the correctness of the dictum in Suhana, we express our inability to consider the argument ad