Excelsior Correspondent
Srinagar, Aug 22: Observing that law does not debar the court to correct its clerical or arithmetical error, High Court has granted bail to an accused involved in narcotic drug trafficking with the direction that the accused shall not leave the limits of Jammu and Kashmir without proper permission.
Justice Sanjay Dhar has granted bail to one Nisar Ahmad Yatoo in an FIR registered with Police Station Batmaloo Srinagar for offences committed by him under Narcotic Drugs and Psychotropic Substance Act. Earlier the accused-Yatoo was denied bail on the ground that the narcotic drugs recovered from him falls in the category of commercial quantity.
The counsel representing the accused while referring the denial of bail order submitted that the court has mentioned the quantity of recovered drugs as commercial while as the same does not attract the rigour of Section 37 of NDPS Act as such the court while denying the bail has committed an error on mentioning that the recovery is of commercial quantity which is not the fact.
Court granted the bail to accused-Yatoo with the condition that he shall furnish bail bond and personal bond in the amount of Rs one lakh with one surety of the like amount to the satisfaction of the trial court.
He has further been ordered to appear before the trial court on each and every date of hearing and shall not leave the territorial limits of &K without prior permission of the trial court.
Court has made it clear that 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 the court has recorded a prima facie opinion that the substance recovered from him 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”, Justice Dhar clarified
Court has further provided that in case during the trial of the instant case the prosecution succeeds 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 the instant order shall not come in the way of the trial court in passing an order of conviction against the petitioner.
The court while clarifying its earlier order said that the 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 and 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 law which does not debar a Criminal Court from correcting a clerical or arithmetical error.
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