Nissar Ahmad Yattoo vs Ut Of J&K Through P/S Batamaloo
2022 Latest Caselaw 1274 j&K/2

      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:       HON'BLE 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 Page |2 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 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.

Page |3 CrlM No.850/2002 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 'manufactured drug' in terms of notification

bearing S. O. No.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 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 '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 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 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 further it has been established in therapeutic practice, then it would not qualify to be a "manufactured drug".

12. Coming to the instant case, as per the seizure memo, 11 bottles of Omrex (100 ml each) were recovered from the Page |4 CrlM No.850/2002 In Bail App No.51/2022

possession of the petitioner and as per the literature, each bottle contained 10 mg of Codeine Phosphate. Similarly, the seizure memo depicts that 05 bottles of X-Cuf (100 ml each) were recovered from the petitioner and as per the literature, each bottle contained 10 mg of Codeine Phosphate. Thus, the material on record prima facie suggests that out of 100 ml of the preparation contained in each bottle, the quantity of Codeine Phosphate was found to be 10 mg, which roughly comes to about 10% of the contents of the whole bottle. Thus, the notification bearing No.S.O.826(E) of the Central Government, particularly the exclusion clause contained in Entry (35), would not come to the rescue of the petitioner.

13. As already noted, the material on record prima facie suggests that the quantity of Codeine Phosphate in the mixture of recovered drug was more than 2.5%, as such, the substance recovered from the petitioner falls within the definition of "manufactured drug" in terms of Entry (35) of notification bearing No.S.O.826(E) issued by the Central Government."

7) From the above, it is clear that while calculating the percentage

of Codeine Phosphate in each 100 ml bottle of the medicine X-Cuf and

Omrex, 10 mg has been taken as equivalent of 10 ml and on this basis,

it has been held that content of Codeine Phosphate in each bottle comes

to about 10% of the whole contents. This is clearly a case of

arithmetical mistake as milligram is not equivalent to milliliter. A

milligram, which is a measure of weight, when converted into

milliliter, which is a measure of volume, would be equivalent to 0.001

milliliter. Thus, 10 mg would be equivalent to 0.01ml, meaning thereby

that a 100 ml bottle containing 10 mg of Codeine Phosphate would

make the quantity of Codeine Phosphate as 0.01% of the contents of

whole bottle. Thus, the calculation made by this Court while disposing

of the bail application of the petitioner in terms of order dated

18.07.2022 is clearly incorrect and is certainly an arithmetical mistake.

Page |5 CrlM No.850/2002 In Bail App No.51/2022

8) Section 362 of the Cr. P. C debars a Court from altering or

reviewing its judgment or final order except to correct a clerical or

arithmetical error. In the instant case, as already noted, this Court has

committed an arithmetical error while calculating the percentage of

Codeine Phosphate in the recovered drugs. The same can definitely be

set right by exercising powers under Section 362 of the Cr. P. C, which

does not debar a Criminal Court from correcting a clerical or

arithmetical error.

9) Once the arithmetical error in calculating the percentage of

Codeine Phosphate in the recovered drug is corrected and it is held that

quantity of Codeine Phosphate in the recovered drug comes to about

0.01% of the contents of the whole bottle, exception carved out vide

Entry 35 of the notification bearing S.O. No.826(E) would come into

play. As per the said exception, those drugs 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% in undivided preparations and which have been

established in therapeutic practice would not qualify to be

'manufactured drug', which, in other words, means that if

concentration of Codeine in undivided preparation is not more than

2.5% and further it has been established in therapeutic practice, then it

would not qualify to be a 'manufactured drug'. Once the drug

recovered from the possession of the petitioner does not prima facie fall

within the definition of 'manufactured drug', any amount of neutral

substance recovered from the petitioner would not be a manufactured Page |6 CrlM No.850/2002 In Bail App No.51/2022

drug or a narcotic substance within the meaning of Section 2(xi) and

2(xiv) of the NDPS Act. Thus, by correcting the arithmetical error in

the basic judgment passed by this Court, the complexion of the case of

the petitioner would get altered, inasmuch as a case for grant of bail in

his favour would be made out.

10) In view of the above, the question that falls for consideration is

whether this Court can go to the extent of reversing its own order as a

consequence of correction of arithmetical mistake. The learned counsel

for the respondent has submitted that such a course is not available to

this Court. He has relied upon the judgments of the Supreme Court in

the cases of:

                 I.    Raj Narain vs. State, AIR 1959 All 315;
                II.    State of Orissa vs. Ram Chander Agarwala & Ors.
                       (1979) 2 SCC 305;

III. State vs. K. V. Rajendran and Ors. (2008) 8 SCC 673;

IV. Hari Singh Mann vs. Harbhajan Singh Bajwa and Ors. (2001) 1 SCC 169;

V. Mohammad Zakir vs. Shabana and others, (2018) 15 SCC 316;

VI. Sanjeev Kapoor vs. Chandana Kapoor and others, AIR 2020 SC 1064;

11) There can be no dispute with the proposition of law that a

Criminal Court including a High Court does not have jurisdiction to

review or alter its owner judgment or order in view of specific bar

contained in Section 362 of the Cr.P.C but here we are dealing with a

case of correction of arithmetical |error which, as already discussed, has

occurred while calculating the percentage of Codeine Phosphate in the

recovered drug. So, it is not a case of review but it is a case of Page |7 CrlM No.850/2002 In Bail App No.51/2022

correction of an arithmetical mistake. A clerical or arithmetical error is

an error occasioned by any accidental slip of omission of the Court. An

arithmetical mistake is a mistake of calculation and clerical error is a

mistake in writing or typing. What the petitioner is calling upon this

Court is to consider is correction of an arithmetical error by invoking

jurisdiction of this Court under Section 362 of the Cr. P. C. In my

opinion, the petitioner is not seeking a judicial consideration, which is

outside the jurisdiction of the Court. Prayer of the petitioner is only that

because of an arithmetical mistake, the percentage of Codeine

Phosphate in the whole contents of the mixture has not been correctly

calculated. The same definitely can be set right in exercise of power of

this Court under Section 362 of the Cr. P. C. Once this correction in the

arithmetical mistake is effected, prima facie the substance recovered

from the petitioner falls beyond the purview of definition of

'manufactured drug' as declared in the exclusionary clause of Entry 35

of the notification bearing S.O. No.826(E). The very basis of the

judgment dated 18.07.2022, therefore, crumbles down. In my opinion,

if the correction of an arithmetical mistake or clerical error results in

changing the complexion of a judgment or order, the same is not

prohibited by law. Once a clerical mistake or an arithmetical error is set

right, which as already stated is within the jurisdiction of a criminal

court, all consequences will have to follow. The objection raised by

learned counsel for the respondents to the maintainability of the

application is, therefore, without any merit.

Page |8 CrlM No.850/2002 In Bail App No.51/2022

12) So far as the contention of learned counsel for the respondents

that a subsequent notification dated 29th of May, 1989 has been issued

by the Central Government whereby Codeine has been categorized as a

narcotic drug, is concerned, the same is without any substance for the

reason that the said notification has been issued by the Central

Government in exercise of its powers conferred by sub-section (1) of

Section 52-A of the NDPS Act, which provides for disposal of seized

narcotic drugs and psychotropic substances. It does not define the kinds

of substances that would fall within the category of 'narcotic drugs'. It

is only notification bearing No.S.O. 826(E) dt. 14.11.1985 issued by

the Central Government in exercise of its powers under Section 2(xi) of

the NDPS Act, which declares certain substances as 'manufactured

drugs'. As per Section 2(xiv) of NDPS Act, all manufactured drugs fall

within the definition of 'narcotic drug'. Therefore, unless a substance is

categorized as a 'manufactured drug', it would not fall within the

definition of 'narcotic drug'. As already noted, having regard to the

percentage of Codeine Phosphate in the recovered substance, the same,

prima facie, does not fall in the category of 'manufactured drug' and, as

such, it would not fall within the category of narcotic drug.

13) Having taken a prima facie view on the basis of the material

available on record of the challan filed before the trial court that

percentage of Codeine Phosphate in the recovered drug is less than

2.5%, the rigour of Section 37 of the NDPS Act would not come into

play in the instant case and consequently the petitioner becomes Page |9 CrlM No.850/2002 In Bail App No.51/2022

entitled to grant of bail in view of the ratio laid down by the High Court

of Delhi in Iqbal Singh vs. State (Bail App No.645/2020 decided on

31st July, 2020).

14) Consequently, the petitioner is admitted to bail subject to the

following conditions:

(i) That he shall furnish bail bond and personal bond in the amount of Rs.1.00 lac (rupees on lac) with one surety of the like amount to the satisfaction of the trial court;

(ii) That he shall appear before the trial court on each and every date of hearing;

(iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the trial court;

(iv) That he shall not tamper with the prosecution witnesses/evidence;

15) Before parting, it would be apt to make it clear that it is only on

the basis of the details regarding the quantity of Codeine Phosphate

given in the seizure memo prepared by the investigating officer in the

case at hand that this Court has recorded a prima facie opinion that the

substance recovered from the petitioner does not fall within the

definition of 'manufactured drug'. The ratio laid down in this order

shall remain confined to the facts of the instant case and to the cases

where there is material on record to suggest that the percentage of

manufactured drug falls below the prescribed percentage and not to the

cases where there is no material on record of the challan as to the

details of the percentage of the offending drug. It is further provided

that in case during the trial of the instant case the respondent succeeds P a g e | 10 CrlM No.850/2002 In Bail App No.51/2022

in showing before the trial court that the percentage of Codeine

Phosphate in the recovered substance was more than 2.5% of the whole

mixture, then any observation made in this order shall not come in the

way of the trial court in passing an order of conviction against the

petitioner.

16) The application shall stand disposed of accordingly.

(SANJAY DHAR) JUDGE Srinagar, 17.08.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:         Yes/No
                   Whether the order is reportable:       Yes/No