5-judge Kerala HC bench to decide if all drug offenders can be labelled ‘goondas’

Kochi: Kerala high court is set to answer a legal question on whether mere possession of narcotic drugs amounts to "stocking" or "anti-social activity" under the Kerala Anti-Social Activities (Prevention) Act (Kaapa).A five-judge bench comprising Justices Devan Ramachandran, P Gopinath, A Badharudeen, M B Snehalatha and Jobin Sebastian adjourned the matter to next week for a detailed hearing. The question arose from a previous ruling of a three-judge bench in Suhana vs State of Kerala, which had quashed a preventive detention order under Kaapa, holding that mere possession of a small quantity of drugs does not render an accused a "drug offender" or "goonda" in the absence of material showing an intention to sell. Subsequently, other benches of the court, while dealing with cases in the same line, expressed serious reservations about the ruling, leading to a reference to the five-judge bench.
Under Section 2(i) of Kaapa, a "drug offender" is defined as a person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act. However, under the NDPS Act, even possession of narcotic drugs constitutes an offence. The core issue, therefore, is whether mere possession of drugs can be treated as "stocking" under Kaapa, failing which such offenders cannot be proceeded against under the Act.During hearing on Wednesday, the court orally questioned how persons caught with small quantities of drugs are let off with only minimal consequences, observing that such leniency could encourage offenders to continue carrying small quantities, thereby spreading drug abuse. "Where are we going when kids are walking around with marijuana? What does it mean when you are emboldened by certain provisions of the NDPS Act to continue committing offences," the bench asked.HC further opined that offenders caught in possession of small quantities of drugs should be sent for rehabilitation at the first instance, stating that such an approach could help curb the menace. The bench also expressed concern over the legislative framework, noting that not all drug-related offences have been brought within the ambit of Kaapa, as the Act categorises offences such as stocking, cultivating and manufacturing separately.