In the case of Aleema A. v. State of Kerala & Others, W.P.(Crl.) No. 1189 of 2024, the High Court of Kerala, comprising Justice P.B. Suresh Kumar and Justice Jobin Sebastian, delivered a detailed judgment on December 18, 2024, rejecting a habeas corpus petition challenging the detention of Abdul Safwan under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the ‘Act’).

The petitioner, Aleema A., sought a writ of habeas corpus to secure the release of her son, Abdul Safwan, who had been detained pursuant to an order issued under Section 3(1) of the Act. The petitioner argued that the detention was arbitrary and contrary to the provisions of the Act, emphasizing that the allegations against her son did not meet the statutory definitions of a "drug offender" or "goonda."

The impugned detention order was based on the premise that the detainee, classified as a "drug offender" under Section 2(i) of the Act, automatically qualified as a "goonda" under Section 2(j). This classification stemmed from seven cases registered against him under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Of these, four involved the consumption of ganja (punishable under Section 27(b)) and three concerned the possession of MDMA (punishable under Section 22(b)).

The petitioner’s counsel raised several arguments, contending that the detention was unsustainable:

 “Mere consumption of ganja and possession of MDMA do not constitute anti-social activities harmful to public order,” it was argued. Counsel emphasized that possession of MDMA in quantities below the "commercial quantity" threshold could not justify preventive detention without evidence of harm to public order.

Relying on judicial precedents, including Suhana v. State of Kerala, 2024 (7) KHC 212 (FB) and Ameena Begum v. State of Telangana, 2023 KHC OnLine 6816, the petitioner argued that mere registration of cases does not automatically render an individual a "known goonda" or justify detention under the Act.

The petitioner contended that the subjective satisfaction of the detaining authority was based solely on the number of cases registered and lacked substantive analysis of the detainee’s activities’ impact on public order.

The Court conducted a detailed examination of the legal framework and the factual matrix of the case. It noted that the detention order was issued following the procedural requirements under the Act and was supported by the requisite subjective satisfaction of the detaining authority.

The Bench distinguished between the allegations of consumption and possession. It noted that, as per the Full Bench decision in Suhana, consumption of ganja does not bring an individual within the ambit of a "drug offender" under Section 2(i) of the Act. However, the possession of MDMA in quantities exceeding the "small quantity" threshold, particularly when associated with intent to sell, constitutes actionable contravention and qualifies as anti-social activity under the Act.

“The allegations of possession of MDMA for sale clearly denote commercial activity in contravention of the NDPS Act,” the Bench observed, adding that the determination of guilt in these cases was not a precondition for invoking preventive detention under the Act.

The Court clarified that a "drug offender" is explicitly included in the definition of a "goonda" under Section 2(j) of the Act. It rejected the petitioner’s argument that this classification required additional proof of activities harmful to public order. The Court reasoned that the statutory language is clear: “If an individual meets the definition of a drug offender, they automatically qualify as a goonda, without the need for independent evidence of harm to public order.”

 
Addressing the procedural aspect, the Court held that the detaining authority had recorded its subjective satisfaction based on detailed consideration of the detainee’s involvement in multiple criminal cases. Extracting paragraphs from the detention order, the Court highlighted the authority’s finding that “preventive detention was necessary to prevent the detainee from perpetuating anti-social activities that posed a threat to public order.”

The Court found the petitioner’s arguments devoid of merit and upheld the detention order, concluding that the allegations against Abdul Safwan satisfied the statutory definitions under the Act. The judgment reaffirmed the objective of preventive detention to avert potential threats to public order and articulated the legislative intent underlying the enactment of the law.

“The statutory framework and procedural safeguards under the Act have been meticulously followed, and the detention order stands firmly on legal footing,” the Bench concluded.

The writ petition was accordingly dismissed.

Case Title: Aleema A. v. State of Kerala & Others
Case Number: W.P.(Crl.) No. 1189 of 2024
Bench Details: Justice P.B. Suresh Kumar and  Justice Jobin Sebastian