IN THE HIGH COURT OF JAMMU & KASHMIR AND

AT SRINAGAR

Reserved on: 03.08.2022

Pronounced on: 17.08.2022

CrlM No.850/2022

In

Bail App No.51/2022

NISSAR AHMAD YATTOO

... PETITIONER(S)

Through: -

Mr. Tasaduq H. Khawaja, Advocate.

Vs.

UT OF J&K THROUGH P/S BATAMALOO …RESPONDENT(S)

Through: -

Mr. Sajad Ashraf, GA.

CORAM:

HON9BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

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 App 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 No.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

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CrlM No.850/2002

In

Bail App No.51/2022

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

No.381(E) dated 29^th May, 1989, whereby Codeine has been

categorized as a 8narcotic drug9. 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.

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In

Bail App No.51/2022

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 8manufactured drug9 in terms of notification

bearing S. O. No.826(E) dated 14^th 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 No.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

8Codeine9) 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 milligrames 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 establish