No more ‘petty’ offence: Kerala High Court says even small drug quantities can label you ‘goonda’ in key ruling

“These days, there appears to be a growing unacceptable impression, particularly among young citizens, that they can get away with paying a fine if apprehended with a ‘small quantity’ of drugs, and this, with little doubt, has led to the apparent tenacious grip of the offending articles on our societies,” the Kerala High Court said.

The five-judge bench heard the matter on March 31. (Image enhanced using AI)

The bench added that 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.

What Suhana judgment laid down

The court noted that the 2024 Suhana judgment addressed whether a person possessing only a statutorily defined ‘small quantity’ of a drug as per the Narcotic Drugs and Psychotropic Substances (NDPS) Act could be classified as a goonda under KAAPA. A corollary question was whether such a quantity would render that person a ‘drug offender’ under KAAPA.

It added that the full bench concluded that it would not be so, and hence the rigour of “KAAPA” would not apply to such a person, and it is singularly the above view that has been doubted by both the division bench and the full bench of this court.

‘India obliged to comply with national, international laws’

The court added that it is imperative to call to mind that India is a party to the three Core Conventions of the United Nations, namely: the Single Convention on Narcotic Drugs, 1961 (as amended by 1972 Protocol); the Convention on Psychotropic Substances, ޳ and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

“It, therefore, has the obligation to ensure that its domestic laws comply with the afore-mentioned Conventions; and that it is in tune therewith that it has enacted the NDPS Act, along with the Drugs and Cosmetics Act, 1940, and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,” the bench observed.

The bench emphasised that democratic societies, to preserve their vigour and vitality, require adopting a policy of “zero tolerance” towards drugs, drug trafficking, and the powerful narcotic drug networks, by constantly evolving their statutory mechanisms to keep pace with the changing times.

No drug offence ‘petty’

The five-judge bench of the Kerala High Court emphatically rejected the “petty offence” classification. It noted that even for a first offence of possessing a small quantity, the NDPS Act provides for up to one year of imprisonment.

Crucially, the court highlighted that Section 31 of the NDPS Act mandates enhanced punishment for repeat offenders, making rigorous imprisonment of up to 1.5 years mandatory.

The NDPS Act defines a commercial quantity based on different drugs. It refers to a Central government notification of 2001 to explain the commercial quantity with respect to different types of outlawed drugs.

“We are firm in our minds that each such offence is and must be treated as a serious one, being an offence against society at large,” the Kerala High Court observed, noting that drug use corrodes social order and safety.

The bench added that the holdings in Suhana that “petty drug offences”, to mean offences involving “small quantities” of drugs, cannot bring a person within the hold of a “drug offender”, can never be approved or found legally correct.

What ‘small quantity’ means

The judgment referred the NDPS Act, which classifies drug quantities as small or commercial based on a 2001 Central government notification.

It added that one of the prominent features of this Act is that punishments are provided with reference to the quantity of the drugs and psychotropic substances, as being ‘small quantity’ and ‘commercial quantity’, as stipulated under sub sections of Section 2 (definitions) of the Act.

‘Drug addiction problem international’

• The exigency and significance of the issues before us can ill afford to be not taken with the seriousness it deserves, in the tenebrous scenario of rampant drug addiction and inadequate enforcement, which we see not merely in our country, but even internationally.
• 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 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.
• Individuals with dependence on drugs and other substances face severe constraints in social functioning and create a burden on society.

• Drug use and abuse lead to severe psychiatric conditions, disability, and even death as a result of accidents or diseases caused or worsened by them, and high rates of suicidality.
• The costs associated with uncontrolled and unrestrained substance abuse are staggering, creating huge loads on the public healthcare system and a consequent economic burden

Even small quantities would be catastrophic: Order

• In many cases, addiction and drug abuse are not merely moral issues, but conditions with significant physiological and psychological ramifications.
• With continued use, an individual’s nervous system becomes conditioned to the substance, leading to withdrawal symptoms, cravings, sleep disruption, anxiety, depression, violent behaviour, and impaired judgment, each of which has a deep societal impact and is not merely an individual concern.
• Recidivist tendencies – to say, a person repeatedly involved in offences – cannot be regarded as casual, even though the quantity involved in each instance may be small as per the statutory prescription.
• Rather, such conduct must be viewed as an indication requiring urgent intervention and decisive action.
• The societal expression of the slightest amount of tolerance to use or abuse of drugs – even in small quantities and for personal use – would be catastrophic, particularly when such substances seemingly appear to be rather freely available.
• The approach of society to this menace needs to be one of zero tolerance and non-negotiability, and even a trace of acceptance would be to push societies into chasms of irreparable consequences.

Background

The landmark judgment originated from a plea of Aaliya Ashraf, the 28-year-old petitioner from Kannur, who challenged the application of KAAPA against individuals found in possession of “small quantities” of prohibited drugs.

The full-judge bench was convoked under the orders of the Chief Justice following a reference which doubted the correctness of the conclusions and holdings of another full bench of the Kerala High Court in Suhana v State of Kerala. The reference was triggered by a doubt expressed by a division bench that Suhana had not laid down the law correctly when tested on the touchstone of the relevant statutes and provisions.