Repeated Possession Of Small Quantity Drugs Can Trigger Preventive Detention Under KAAPA: Kerala High Court Full Bench

A five-judge Full Bench comprising Justice Devan Ramachandran, Justice P Gopinath, Justice A Badharudeen, Justice MB Snehalatha, and Justice Jobin Sebastian delivered the judgment in a reference made due to conflicting judicial precedents.

The Court was examining whether possession of a “small quantity” of narcotic drugs under the NDPS Act, absent proof of commercial intent, falls within the definition of “drug offender” under Section 2(i) of KAAPA, and consequently justifies preventive detention as a “goonda”.

Section 2 (i) of KAAPA Act uses the word “stocks” with others to define “drug offender”; while, the Narcotic Drugs and Psychotropic Substances Act, 1985, brings in to its fold even possession of drugs to make it an offence.

The conflicting views in the judicial precedents started with the decision in Ashraf v Inspector General of Police (2014).

In Ashraf, the Court held 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 ratio in Ashraf was adopted in Ansar T.A v State of Kerala (2017) as well.

Later, in Luciya Francis v State of Kerala (2023), the Court departed from the position in Ashraf, and drew distinction between “public order” and “law and order” to declare that a person in possession of a small quantity of drug for personal use cannot be seen to be a threat to public order; and hence the provision of KAAPA Act cannot be invoked against him.

Later, a Full Bench in Suhana v. State of Kerala (2024) held that “stocks” must be read alongside terms like “sells” and “distributes” and concluded that only possession linked to commercial intent qualifies to be considered under KAAPA. It thus held that mere possession of “small quantity” for personal use does not make one a “drug offender” or “goonda”.

The Court began by underlining the consequences of substance abuse.

“ Drug abuse, even in small quantities, poses significant challenges to families and society, invariably resulting in catastrophic consequences. Within families, substance abuse can lead to emotional distress, financial strain, and the breakdown of trust and relationships. It has far more dangerous repercussions on the society, contributing to very high crime rates, breakdown in law and order, challenges to public safety, increasing healthcare costs and loss of productivity, among various other deleterious consequences”, it noted.

The Court analysed the statement and objects and reasons of KAAPA and observed that the Act is enacted to provide adequate intervention to prevent antisocial activities of various types, prejudicial to the maintenance of public order, with particular emphasis on the larger interests of society.

It further examined the definition of “anti-social” activity under KAAPA and observed:

“The purpose of the “KAAPA” becomes crystally manifest from the definition, namely, that it is designed to prevent, inter alia 'antisocial activities', which fall within the sweep of its definition under Section 2(a) thereof.”

The Court observed that “KAAPA” thus describes a “goonda” to be a person, who either indulges in any anti-social activity; or promotes or abets any illegal activities which are harmful to the maintenance of public order, directly or indirectly; and includes all those categories from bootlegger to property grabber.

“It is perspicuous that “goonda” draws into its clasp, not only the categories of offenders from “bootlegger” to “property grabber”; but also anyone who indulges in “any anti-social activities”; apart from promoting an illegal activity harmful to the maintenance of public order.” Court added.

The Court thus noted that the definition under KAAPA provides an inclusive meaning to the word “goonda” and such a definition only expands the meaning of the term beyond its ordinary definition, to include specific, additional, or related concepts.

The Court thus held that the conclusion in Suhana, that only a person who concurrently qualifies the two limbs of statutory definition of “goonda” will come within it, can never obtain legal or forensic imprimatur.

“We cannot, therefore, subscribe to the opinion in Suhana that, for a person to be declared a “goonda,” the “anti-social activity” imputed against him must always be of such a kind as to be harmful to the maintenance of public order.” Court ordered.

The Court further held that a person found in possession of “small quantity” of drugs and psychotropic substances as defined in NDPS Act, can be considered as an “anti-social activity”.

“To have a person repeatedly offending the NDPS Act and found in possession of drugs and psychotropic substances - albeit in small quantities - would surely not be countenanced by any civilised society; and since the demeanour and comportment of such persons remain without any predictability, the feeling of insecurity, danger and fear among law abiding citizens is certain and undeniable. Add to this, when the word “anti-social activity” is defined under Section 2(a) of the “KAAPA” to even include actions that would pose a danger to the safety of individuals, along with the safety of the public, the purpose behind the enactment of the said Act becomes glaring and beyond doubt.” Court held.

“We are firm in our minds that each such offence is and must be treated as a serious one -- being an offence against the society at large, since it corrodes persons of their worthiness and capacity and causes burden on their near ones and family, if not on the community as a whole.” Court added.

The Court noted that the NDPS Act distinguished between "small" and "commercial" quantities of drugs for the purpose of punishing those convicted under the law. It noted that stocking and possession are the same because, there cannot be one without the other; but when possession of an article is held for future use – whatever be the nature of such goods – it infers “stocking” in its semantic sense.

"In fact, the Legislative debates conclusively show that every violation of the NDPS Act was intended to be brought within the net of “anti-social activity”, as defined under the “KAAPA” and to subject the offender to its full warrant, especially for repeated offences." Court noted. 

The Court has also recommended to consider instituting a mandatory medical evaluation and rehabilitation for first or second time offender caught with small quantities, in order to curb the recidivistic tendencies effectively. 

"Every offence requires to be viewed with “Zero Tolerance” and “Non-Negotiability”; and in that perspective, it would be desirable, as far as practically possible, to subject even the first offender found with “small quantity” of drugs and/or psychotropic substances - if not, at least on detecting the second offence - to medical evaluation and mandatory rehabilitation, which then would bring in substantial degree of control on recidivistic tendencies and subsequent offences." Court concluded.

Case Title: Aaliya Ashraf v State of Kerala

Case No: ICR (WP(Crl.)) 20/ 2025

Citation: 2026 LiveLaw (Ker) 184

Counsel for Petitioner: M H Hanis, P M Jinimol, T N Lekshmi Shankar, Ria Elozabeth T J, Nancy Mol P, Anandhu P C, Neethu G Nadh, Sinisha Joshy, Ann Mary Ansel

Counsel for Respondents: Gracious Kuriakose (Adl. DGP), C.K. Suresh (PP), S. Prasun, Chithra P. George, Vivek A.V, Mathews P. George, K.A. Anas (PP)