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2022 Supreme(J&K) 335
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Nissar Ahmad Yattoo – Petitioner
Versus
UT of J&K through P/S Batamaloo – Respondent
Crl. M. No. 850 of 2022, Bail Application No. 51 of 2022
Decided On : 17-08-2022
Advocate Appeared:
For the Petitioner: Tasaduq H. Khawaja.
For the Respondent: Sajad Ashraf.
The correction of an arithmetical mistake under Section 362 of the Cr.P.C can alter the outcome of a judgment and is permissible.
Headnote:
Arithmetical Error - Bail Application under Section 439 of Cr.P.C - NDPS Act - Entry 35 of notification bearing S.O. 826(E) - Correction of arithmetical mistake under Section 362 of Cr.P.C
Fact of the Case:
The petitioner filed an application seeking rectification of an arithmetical error in the order passed by the Court in a bail application under Section 439 of the Cr.P.C. The petitioner sought bail for offences under Section 8/21 of NDPS Act. The Court had dismissed the bail application primarily on the ground that the narcotic drug recovered from the petitioner fell within the category of commercial quantity under Section 37 of the NDPS Act.
Finding of the Court:
The Court found that an arithmetical mistake had occurred while calculating the percentage of Codeine Phosphate in the recovered drugs. The Court held that the correction of the arithmetical mistake would alter the complexion of the case, making a case for grant of bail in favor of the petitioner.
Issues: The main issue was the correction of the arithmetical mistake in the calculation of the percentage of Codeine Phosphate and its impact on the classification of the recovered substance as a 'manufactured drug' under Entry 35 of the notification bearing S.O. 826(E).
Ratio Decidendi: The Court held that the correction of an arithmetical mistake under Section 362 of the Cr.P.C is permissible and can alter the outcome of a judgment. The Court also clarified that the subsequent notification categorizing Codeine as a narcotic drug did not affect the classification of the recovered substance.
Final Decision: The Court admitted the petitioner to bail after correcting the arithmetical mistake and held that the judgment's ratio would apply only to cases where the percentage of the offending drug falls below the prescribed limit.
JUDGMENT :
SANJAY DHAR, J.
1. The petitioner has filed the instant application seeking rectification of arithmetical error in order dated 18.07.2022 passed by this Court in Bail Application No. 51/2022.
2. A perusal of the record shows that the petitioner had invoked the jurisdiction of this Court under Section 439 of the Cr.P.C. seeking bail in FIR 139/2020 for offences under Section 8/21 of NDPS Act registered with Police Station, Batamaloo. The aforesaid application came to be dismissed by this Court in terms of order dated 18.07.2022, primarily, on the ground that the narcotic drug recovered from the possession of the petitioner falls in the category of commercial quantity and, as such, rigour of Section 37 of the NDPS Act is attracted to the case at hand.
3. In the application it has been contended that while passing the aforesaid order, this Court has committed an arithmetical mistake, inasmuch as the percentage of Codeine Phosphate, the drug which is subject matter of the case, has been calculated as 10% of the whole preparation whereas the fact of the matter is that it constitutes only 0.01% of the whole concentrate. It is urged that if this arithmetical mistake is set right, then the petitioner would be entitled to grant of bail in view of the fact that concentration of Codeine in the whole mixture would fall below the prescribed limit of 2.5%.
4. The respondent has resisted the instant application of the petitioner by filing objections thereto. In the objections, it has been contended that the Central Government has issued notification 381(E), dated 29th May, 1989, whereby Codeine has been categorized as a narcotic drug. On this ground it is urged that even if arithmetical mistake that has crept in order dated 18.07.2022 is set right, still then the petitioner would not be entitled to grant of bail. It has been further contended that a Criminal Court including a High Court, while exercising its criminal jurisdiction, does not have power to review its own judgment/order in view of the specific bar contained in Section 362 of the Cr.P.C. It is contended that if the application of the petitioner is allowed, it would amount to review of order dated 18.07.2022, which is impermissible in law.
5. I have heard learned counsel for the parties and perused the record of the case.
6. In the order dated 18.07.2022, which is sought to be corrected, it has been noted that Codeine and its all salts, dilutions and preparations have been declared as manufactured drug in terms of notification bearing S.O. 826(E), dated 14th November, 1985 in vide Entry 35 of the said notification. The relevant paras of the order dated 18.07.2022 are reproduced as under:
10. It appears that, in exercise of the powers conferred under the aforesaid provision, the Central Government has issued notification bearing S.O. 826(E), declaring certain narcotic substances and preparations to be “manufactured drug.” Entry (35) of the said notification is relevant to the context and the same is reproduced as under:
“(35) Methyl morphine (commonly known as ‘Codeine’) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations, except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice.”
11. From a perusal of the aforesaid Entry, it appears that Codeine and its salts, all dilutions and preparations have been declared as “manufactured drugs.” An exception has been carved out in respect of those which are compounded with one or more other ingredients and containing not more than 100 mg of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice, meaning thereby that if concentration of Codeine in undivided preparation is not more than 2.5% and
