1. Criminal Appeal in hand is directed against the Judgment and Order of 2nd Additional Sessions, Jammu dated 26th September’ 2006, whereby the Trial Court has held the appellants guilty of offences punishable under Section 8(C) read with Section 21(C) Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as N.D.P.S Act) and sentenced the appellants to undergo ten years rigorous imprisonment and a fine of Rs. 1 Lakh each and in default of payment of fine to undergo rigorous imprisonment for a further period of one year each. 2. The background facts are as under:- Police Station, Gandhi Nagar, Jammu on 27th of March 2003 received an information from a reliable source that the appellants and absconding accused traveling in Maruti Car under registration number JK02K- 7659 were in the process of smuggling Brown Sugar and Heroine out of State from Jammu to Pathankote. The report led to registration of case FIR No.96 of 2003 under Sections 8/22/29 N.D.P.Act, 1985 by Police Station, Gandhi Nagar, Jammu. The copy of FIR was forwarded through Constable Mushtaq Ahmed No. 2045-J to PSI, Wasim Raja, In-charge Naka at Gole Market, Gandhi Nagar, Jammu. On receipt of the copy of the report, PSI Wasim Raja, along with the Naka party, rushed to Shiv Chowk, Shastri Nagar, Jammu from where the appellants were expected to move in the said vehicle. Mr. Sameer Geelani, PSI, In-charge Police Post, Digiana also arrived on the spot along with weighing balance and weights. Mr. Rakesh Sharma, Executive Magistrate was also called to the spot. The appellants at about 20.45 hours came in the reported Maruti Car from Gandhi Nagar, Jammu and were intercepted by the Naka party. The appellants were asked to get down from the vehicle and informed that the Naka party intended to search them. The appellants were given an option to be searched in presence of the Executive Magistrate or in presence of any other Gazetted officer. The appellants consented to their personal search in presence of the Executive Magistrate. Immediately, after the appellants conveyed their consent, Executive Magistrate was requested to conduct personal search of Constable Sunil Dutt, so that the chances of Constable Sunil Dutt having any contraband in his possession were excluded. The appellants consented to their personal search in presence of the Executive Magistrate. Immediately, after the appellants conveyed their consent, Executive Magistrate was requested to conduct personal search of Constable Sunil Dutt, so that the chances of Constable Sunil Dutt having any contraband in his possession were excluded. Constable Sunil Dutt, thereafter conducted personal search of the appellants one by one and on such search, following contraband was allegedly recovered from their possession: i) 1 Kg "Heroine" like substance was recovered from the possession of each of the appellants Uttam Singh, Ravinder Singh (absconding accused) and Jaswinder Singh; ii) 1/2 Kg of "Brown Sugar" was recovered from the appellants Tarsem Singh and Opinder Singh. The samples were taken from each of the five seized packet of suspected contraband on spot, in presence of the Executive Magistrate. The samples as well as rest of the recovered/seized substance were sealed, recovery/seizure memos prepared and other paper work done. The appellants and the absconding accused were arrested. The investigation was taken over by Inspector Shamsher Singh Samyal, SHO, Police Station, Gandhi Nagar, Jammu. The Investigating Officer recorded statements of witnesses, forwarded the samples to Forensic Science Laboratory (F.S.L) for analysis, obtained the report from the laboratory and on the strength of the material collected during the investigation, found the appellants and the absconding accused to have committed offences punishable under Sections 8/22/29 N.D.P.S Act, 1985, concluded investigation as proved against the appellants and the absconding accused and accordingly presented the charge sheet against the appellants and absconding accused in the Court of Sessions Judge, Jammu where from it was transferred to 2nd Additional Sessions Judge, Jammu for its disposal under law. 3. The appellants and absconding accused were formally charged of the offences punishable under Section 8(c)/21(c) of N.D.P.S Act, 1985 on 22nd of August’ 2003. The appellants and absconding accused denied the charge and asked for trial. The prosecution in the circumstances was directed to adduced evidence in support of the charge.. The accused Ravinder @ Babloo was granted interim bail. The accused jumped over the interim bail, failed to appear before the trial Court and General Arrest Warrant was issued against the accused and proceedings under Section 512 Cr.P.C were initiated on 3rd of June’ 2006. The accused was not be arrested till the trial concluded and resultantly judgment against the accused was not pronounced. 4. The accused jumped over the interim bail, failed to appear before the trial Court and General Arrest Warrant was issued against the accused and proceedings under Section 512 Cr.P.C were initiated on 3rd of June’ 2006. The accused was not be arrested till the trial concluded and resultantly judgment against the accused was not pronounced. 4. The prosecution examined 12 out of 13 witnesses, listed witnesses in the charge sheet, in support of its case. The incriminating material come across in the prosecution evidence was put to the appellants on 2nd of January 2006. The appellants denied the occurrence and recovery of alleged contraband from their possession. The appellants examined 03 witnesses in their defence. 5. The trial Court on going through the charge sheet and the evidence on the file as also the stand taken by the appellants in their statement under Section 342 Cr.P.C held prosecution to have successfully discharged burden of proving its case against the appellants beyond reasonable doubt. The trial Court accordingly, held the appellants guilty of offences punishable under Section 8(c)/ 21 (c) of N.D.P.S Act, 1985 and sentenced the appellants to ten years rigorous imprisonment and a fine of Rs. 1 Lakh each and in default of payment of fine to undergo rigorous imprisonment for a further period of one year each. 6. The judgment and order of the trial Court dated 26th of September’ 2006 are assailed in the present Criminal Appeal, on the grounds that the trial Court while scanning the prosecution evidence failed to appreciate that there was violation of Section 50 N.D.P.S Act, 1985 and that the prosecution case was liable to be thrown out on this count alone. It is urged that the trial Court while admitting in para 36 of the judgment that there were a number of unexplained facts and discrepancies in the prosecution case, down-played the discrepancies, erroneously holding prosecution to have proved its case beyond reasonable doubt, despite such discrepancies. The trial Court is also said to have failed to give due importance to refusal of PW Rakesh Sharma, Executive Magistrate, to identify the appellants in the Court. It is pleaded that the statement made by PW Rakesh Sharma, Executive Magistrate, should have made the trial Court to disbelieve the prosecution case. The trial Court is also said to have failed to give due importance to refusal of PW Rakesh Sharma, Executive Magistrate, to identify the appellants in the Court. It is pleaded that the statement made by PW Rakesh Sharma, Executive Magistrate, should have made the trial Court to disbelieve the prosecution case. The trial Court is also said to have ignored the gaps in the prosecution story as regards lifting of samples from the alleged contraband, delivery of samples to FSL; delivery of copy of FIR no. 96 of 2003 to PSI Wasim Raja at Gole Market, Gandhi Nagar, Jammu and interception by the same Naka party of the appellant’s car near cremation ground Shastri Nagar, Jammu. The appellants also assail the prosecution case on the ground that the F.S.L expert had failed to give exact finding regarding the percentage of Diacetyle Morphine in the recovered substance. 7. I have gone through the memorandum of appeal, the judgment and order impugned in the appeal as also the trial Court record. I have heard learned counsel for the parties at length and given thoughtful consideration to the arguments advanced at bar. 8. 7. I have gone through the memorandum of appeal, the judgment and order impugned in the appeal as also the trial Court record. I have heard learned counsel for the parties at length and given thoughtful consideration to the arguments advanced at bar. 8. Learned counsel for the appellants while dilating on the grounds of attack urged in the memorandum of appeal have laid emphasis on the following aspects of the case:- i) That there were serious contradictions and discrepancies in the prosecution evidence as regards the make of packets in which the contraband alleged to have been recovered from the appellants was found as also the mode and manner in which the samples from the alleged contraband were taken, sealed and sent to the F.S.L; ii) That both the independent witnesses claimed to have been present on the spot namely PW Rakesh Sharma, Executive Magistrate and PW Yasir Rasool, belied the prosecution case; that whereas PW Rakesh Sharma, Executive Magistrate, failed to identify the appellants; PW Yasir Rasool denied to have seen the appellants on the spot, was declared hostile and allowed to be cross examined by the prosecution; and that the prosecution case was supported only by interested witnesses; iii) That prosecution failed to produce alleged contraband before the Court, get it marked/exhibited as prosecution item/matter; that failure of prosecution witnesses to produce alleged contraband before the Court, to prove the contraband alleged to have been recovered from the appellants knocked the very bottom out the prosecution case; iv) That the F.S.L expert failed to return finding on exact percentage of Diacetyle Morphine found in the samples and even if the samples sent to the F.S.L held to be representative samples of the alleged contraband and to have been forwarded to F.S.L in accordance with the rules, still the exact quantity of Diacetyle Morphine in the samples remained to be known and that this by itself was sufficient to disbelieve the prosecution case. 9. The argument that the prosecution evidence suffered from serious contradictions or discrepancies, does not find support from the material on the file. Learned counsel for the appellants apart from a few minor contradictions here and there has not been able to point to any serious contradiction that ought to have persuaded the trial Court to disbelieve the prosecution case. 9. The argument that the prosecution evidence suffered from serious contradictions or discrepancies, does not find support from the material on the file. Learned counsel for the appellants apart from a few minor contradictions here and there has not been able to point to any serious contradiction that ought to have persuaded the trial Court to disbelieve the prosecution case. There is almost no discrepancy in the testimony rendered by the prosecution witnesses that the appellants as also the absconding accused were intercepted near cremation ground, Shastri Nagar, Jammu when they were traveling in Maruti Car No. JK02K-7659 and on their personal search were found to have suspected contraband of the description and weight detailed in the recovery memos. The police party on the spot appears to have acted in a very transparent manner, so that the investigation was neither mis-directed nor was any scope left for any suspicion as regards recovery of the contraband from the appellants and the absconding accused. The police party on spot took all measures to rule out any concoction by asking the Executive Magistrate to conduct personal search of PW Sunil Dutt before PW Sunil Dutt was asked to make personal search of the appellants and the absconding accused. The prosecution witnesses are in agreement that the contraband was recovered from the appellants and the absconding accused and have given the description and details of the contraband recovered from each of the appellants and the absconding accused. The minor discrepancies as a matter of fact lead to the conclusion that the testimony rendered by the prosecution witnesses is natural and free from any concoction or after-thought. The parrot like stories narrated by prosecution witnesses are not necessarily indicative of veracity of their testimony but may at times lead to the conclusion that the prosecution witnesses are tutored. The mere fact that one of the PWs deposed that the contraband was in a polythene wrapper and some other PW deposed that it was in a wrapper/packet of different make or texture should not lead us to disbelieve the prosecution case, more so, when there are no major discrepancies in the prosecution evidence. The mere fact that one of the PWs deposed that the contraband was in a polythene wrapper and some other PW deposed that it was in a wrapper/packet of different make or texture should not lead us to disbelieve the prosecution case, more so, when there are no major discrepancies in the prosecution evidence. It may be pointed out that all the steps taken on spot at the time of recovery of contraband from the appellants and the absconding accused are well documented and all the documentary evidence in shape of EXPW- SG-5 to ECPW-SG-9 lends support to the oral evidence on the file. 10. The argument that as PW Rakesh Sharma, Executive Magistrate, and PW Yasir Rasool failed to identify the appellants in the Court, the rest of the prosecution evidence must be disbelieved, is not tenable. The statements of PWs Rakesh Sharma and Yasir Rasool cannot negate the evidence of other prosecution witnesses who have in one voice confirmed the identity of the appellants and absconding accused and deposed that the appellants and absconding accused traveling in Maruti Car No. JK02K-7659 were intercepted near cremation ground, Shastri Nagar, Jammu and on their personal search contraband was recovered from their possession. It is pertinent to point out that PW Rakesh Sharma, Executive Magistrate, though expressing his inability to identify the appellants and the absconding accused, has admitted to have been present on spot at the time the Maruti Car was intercepted, the accused were asked to get down and thereafter subjected to personal search. The witness has admitted to have conducted personal search of PW Constable Sunil Dutt, to have been present when the contraband was recovered and to have been a witness to recovery/seizure memos EXPW-SG-5, EXPW-SG-6, EXPW-SG-7, EXPW- SG-8 & EXPW-SG-9. The witness has admitted to have put his seal and signature on the recovery/seizure memos. The seizure/recovery memos, it needs to be emphasized record the names and parentage and all other particulars of the appellants and absconding accused. The witness has even claimed to have used `ring’ to seal the packets. In the circumstances, mere fact that PW Rakesh Sharma, Executive Magistrate was not in a position to identify the appellants in the witness box is of no consequence. Same is true about PW Yasir Rasool, who in his cross examination has admitted to be a witness to the recovery/seizure memos EXPW-SG-5 to EXPW-SG-9. In the circumstances, mere fact that PW Rakesh Sharma, Executive Magistrate was not in a position to identify the appellants in the witness box is of no consequence. Same is true about PW Yasir Rasool, who in his cross examination has admitted to be a witness to the recovery/seizure memos EXPW-SG-5 to EXPW-SG-9. The inability or refusal of these two witnesses was not to persuade the trial Court to disbelieve the prosecution case more so, when the documents, to which these witnesses are signatories have been proved and even witnesses have admitted preparation of the documents on spot and their having put their signatures on the documents admitted to evidence. Again the testimony of PW Rakesh Sharma, Executive Magistrate and PW Yasir Rasool cannot be permitted to nullify other prosecution evidence on record when there is nothing on the file to suggest that the witnesses nursed any ill will against the appellants and the absconding accused as would have made them to falsely implicate the appellants and absconding accused. 11. Learned counsel for the appellants attempts to make much out of the failure of the prosecution to produce the contraband recovered from the appellants in the Court. Learned counsel, as a matter of fact, have laid extra emphasis on this aspect of the case, taking it sufficient to cast serious doubt on the prosecution case. It is argued that as the prosecution by its very nature revolves around the recovery of contraband from the possession of the appellants and the absconding accused, it is a bounden duty of the prosecution to not only produce the recovered contraband but also get its identity proved by the witnesses claimed by the prosecution to have been present when the recovery was made. Learned counsel for the appellants to buttress his argument seek to draw support from law laid down in Jitendra & Anr v. State of Madhya Pradesh, AIR 2003 SC 4236 . It is pointed out that in the reported case, the prosecution was held to be duty bound to produce the recovered contraband before the trial Court so as to connect it with the samples sent to F.S.L; proving that the contraband was recovered from the appellants and the absconding accused and to have marked the contraband as prosecution material. 12. It is pointed out that in the reported case, the prosecution was held to be duty bound to produce the recovered contraband before the trial Court so as to connect it with the samples sent to F.S.L; proving that the contraband was recovered from the appellants and the absconding accused and to have marked the contraband as prosecution material. 12. Learned counsel for the appellants while referring to the observations made by the Hon’ble Supreme Court in the aforesaid reported case, insist that the failure on the part of the prosecution is fatal to the prosecution case and ought to have led the trial Court to dismiss the prosecution case and acquit the accused. The case law relied upon by learned counsel for the appellant is of no help to the appellant’s case for the reasons that failure of the prosecution to produce the contraband before the Court in the said case was only one of a number of lapses committed by prosecution before the trial Court. In the aforementioned case the Panchas to the recovery memos turned hostile. The prosecution had failed to examine the Investigating Officer and there was a convincing defence put forth by the accused that whole case was set up at the instance of the land lady of the house where the accused was a tenant, so as to chase out the accused from the rented premises. It would be advantageous to extract following from the aforesaid judgment to point out how the facts of the case are markedly different from the facts of the case before this Court: "6. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS, Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the concerned police officer. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say that, despite the pancha witnesses having turned hostile, the non-examination of the Investigating Officer and non-production of the seized drugs, the conviction under the NDPS, Act can still be sustained, is far fetched." 13. It follows that failure of prosecution to produce alleged contraband in the Court and get marked as prosecution material, is by itself not sufficient to throw out a prosecution case when its recovery from the accused is otherwise convincingly proved. 14. So viewed, failure of the prosecution in the instant case to produce the contraband before the Court and get it marked as material object cannot, in presence of other clinching evidence be of any help to the appellant’s case. 15. The trial Court held the appellants to have been in possession of commercial quantity of Heroine and thereafter proceeded to award minimum sentence prescribed for the offences punishable under Sections 8(c)/21(c) of N.D.P.S Act, 1985. Section 8 (c) of N.D.P.S Act prohibits produce/manufacture/possession/sale etc., of any Narcotic Drugs or Psychotropic Substance. Section 21(a) to (c) prescribe three different punishments for contravention of any of the provisions of the Act or any rules/order made thereunder, including Section 8(c) of the Act, depending upon the quantity of the Narcotic Drug or Psychotropic substance involved in the contravention. In case contravention involves small quantity, the punishment prescribed is rigorous imprisonment for a term which may extent to six months or with fine which may extend to ten Thousand Rupees or both. Where the contravention proved involves quantity lesser than commercial quantity but greater than the small quantity, the punishment prescribed is rigorous imprisonment for a term which may extend to ten years and fine, which may extend to One Lakh Rupees. Where the contravention proved involves quantity lesser than commercial quantity but greater than the small quantity, the punishment prescribed is rigorous imprisonment for a term which may extend to ten years and fine, which may extend to One Lakh Rupees. In case the contravention proved involves commercial quantity, the punishment prescribed is rigorous imprisonment for a term, which shall not be less than ten years but which may extent to twenty years and fine which shall not be less then One Lakh Rupees but may extend to Two Lakh Rupees. 16. In E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (2008) 5 Supreme Court Cases 161, Supreme Court while referring to the Statement of Objects and Reasons concerning N.D.P.S (Amendment) Act 2001 whereby the changes were made in the punishment structure under the N.D.P.S. Act and graded sentences introduced laid down rationale- behind changed punishment structure, as under:- "15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with ditterent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material." 17. Having regard to different layers of punishments prescribed under Section 21 of the Act, it is of utmost importance for the trial Court after holding the accused guilty of contravention of any of the provisions of the Act or any of the Rules, Orders made thereunder i.e., possession of Narcotic Drugs or Psychotropic substance to determine the quantity of such drug or substance involved in the contravention proved against the accused. In the present case the F.S.L expert has not in his report EXPW-JS given percentage of Diacetyle Morphine detected in the samples sent to him for analysis. Learned defence counsel representing the appellants before the trial Court has done well to ask the FSL expert (PW Rohit Koul) in cross-examination whether he had determined the percentage by weight of Diacetyle Morphine in the samples sent to him for analysis. PW Rohit Koul, admitted not to have given percentage by weight of heroine in the samples. Learned defence counsel representing the appellants before the trial Court has done well to ask the FSL expert (PW Rohit Koul) in cross-examination whether he had determined the percentage by weight of Diacetyle Morphine in the samples sent to him for analysis. PW Rohit Koul, admitted not to have given percentage by weight of heroine in the samples. FSL expert has went a step further to state that no person including a F.S.L expert can on physical examination opine whether the substance shown to him is "Heroine" or "Brown Sugar" and such conclusion can be drawn only after such substance is put to chemical analysis. In the circumstances mere mention of recovery of "Brown Sugar" or "Heroine" in the recovery memos, prepared on the spot, must not lead to the conclusion that the substance recovered are 100% by weight Diacetyle Morphine. 18. For the said reason, it can not be said that the samples send to the F.S.L and examined by PW Rohit Koul were of a particular percentage by weight of Diacetyle Morphine/heroine 19. Notification No. S.O 1055 (E) dated 19th of October’ 2001 prescribes/specifies small and commercial quantity of heroin at item no. 56 as under- Sl. No. Name of narcotic drug and psychotropic substance Other non- propriety name Chemical Name Small Quantity (in gm) Commercial Quantity (in gm/kg) 56. Heroin Diacetylemorphine 5 250 gm In order to conclude whether the quantity of Heroin recovered from the appellants and absconding offenders was small, commercial or intermediate quantity, it was necessary to find out on chemical analysis the percentage by weight of heroin/Diacetyle Morphine, in the samples and once the percentage in weight in the samples was available, the exact quantity of heroin present in the recovered substance could be easily worked out. Had such opinion been available to the trial Court, the trial Court would have been in a position to determine whether the quantity of heroin recovered from the appellants and the absconding accused was 250 gm or above so as to label it as commercial quantity. In E. Micheal Raj’s case (supra) 04 Kg of heroin was allegedly recovered from the accused, kept in 02 packets and wrapped in a newspaper. The forensic Laboratory in its report gave the percentage by weight of heroin present in the samples. In E. Micheal Raj’s case (supra) 04 Kg of heroin was allegedly recovered from the accused, kept in 02 packets and wrapped in a newspaper. The forensic Laboratory in its report gave the percentage by weight of heroin present in the samples. Having regard to the percentage of weight of the contraband found or in other words, purity of the heroin in the substance, the quantity of heroin recovered from the possession of the accused was worked out to be 60 gm against 250 gm, specified in the Notification of 2001 as commercial quantity. The Apex court after referring to the results of the chemical analysis as regard purity of heroin observed:- "15. [We] find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under Section 21 (c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heorin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one of more neutral substance s, the quantity of the neutral substances is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less server punishment and those who commit grave crimes, such as trafficking in significant quantities, with more sever punishments." 20. Supreme Court referred to the following observations made in Ouseph Alias Thankachan v. State of Kerala, 2004 (4) SCC 447:- "8. Supreme Court referred to the following observations made in Ouseph Alias Thankachan v. State of Kerala, 2004 (4) SCC 447:- "8. The question to be considered by us is whether the psychotropic substance was in small quantity and if so, whether it was intended for personal consumption. The words `small quantity’ have been specified by the Central Government by the Notification dated 23-7-1996. Learned counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each ampoule contained only 2 ml and each ml contains only .03 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification." 21. In the aforementioned case, the appellant was found to be in possession of 110 ampoules of psychotropic substance buprenorphine [Tidigesic ]. On analysis each ampoule was found to have only 0.3 mg of the psychotropic substance. The accused was sentenced to rigorous imprisonment for ten years and asked to pay a fine of Rs. 1 Lakh and in default of fine to undergo simple imprisonment for further period of two years. Hon’ble Supreme Court taking into account the purity level or percentage by weight of psychotropic substance in the recovered substance held that only 66 gm of the psychotropic substance was as per analysis report found in the 110 ampoules of the recovered substance buprenorphine [trade name Tidigesic]. It was held that the quantity so found was less than small specified under the notification and the accused sentenced to imprisonment for period of six months. The Apex Court while dealing with the argument, that as per law laid down in Amar Singh Ramaji Bhai Barot v. State of Gujarat, (2005) 7 SCC 55 entire material found in possession of accused and not content of contraband in the offending material was to be taken into consideration while imposing punishment, observed:- "19. The Apex Court while dealing with the argument, that as per law laid down in Amar Singh Ramaji Bhai Barot v. State of Gujarat, (2005) 7 SCC 55 entire material found in possession of accused and not content of contraband in the offending material was to be taken into consideration while imposing punishment, observed:- "19. Thus, Amarsingh case cannot be taken to be an authority for advancing the proposition made by the learned counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment." 22. Supreme Court reduced ten years rigorous imprisonment and a fine of Rs. 1 Lakh , in default of payment of fine rigorous imprisonment for one more year to six years rigorous imprisonment with a fine of Rs. 20,000/- and in default of payment of fine, rigorous imprisonment for six months. 23. In Samiullah v. Superintendent Narcotic Control Bureau, AIR 2009 SC 1357 , the samples of alleged contraband recovered weighing 2 Kg was found to have 2.6% of heroin. The contraband in 2 Kg seized substance was thus 52 gm. The Apex Court held that the quantity alleged to have recovered in view of the chemical analysis report could be said to be intermediate quantity and rigor of Section 37 of the Act relating to the grant of bail was not justified. 24. From the above case law it emerges that the prosecution to prove that contraband recovered from the accused having regard to its weight was to be taken as small, intermediate or commercial quantity, is required to ask the Forensic expert to return opinion on percentage by weight of the contraband in the sample. It is only after the quantity of actual contraband is known to the trial Court that the trial Court may return its finding whether the recovered contraband is to be taken as small, intermediate or commercial quantity and accordingly awarded the sentence. 25. It is only after the quantity of actual contraband is known to the trial Court that the trial Court may return its finding whether the recovered contraband is to be taken as small, intermediate or commercial quantity and accordingly awarded the sentence. 25. In the present case, as already pointed out, the prosecution has not proved that the contraband recovered from the appellants was commercial quantity and the trial Court without having evidence before it, that the substance recovered from the appellants was having quantity of the contraband liable to be taken as commercial quantity within the meaning of notification No. S.O 1055 (E) dated 19th of October’ 2001 proceeded to sentence the appellants under Section 21(c) N.D.P.S. Act and awarded the minimum sentence of ten years rigorous imprisonment and a fine of Rs. 1 Lakh. The sentence imposed/ awarded, thus is held not to be in accordance with law. 26. For the reasons discussed above, the conviction of the appellants under Section 8(c) read with Section 21 N.D.P.S Act is upheld and maintained. The appellants were arrested on 27th of March 2003 and have been ever since in custody. In the circumstances, the sentence is reduced to the period undergone and a fine of Rs. 20,000/- each. In default of payment of fine the appellants shall undergo further rigorous imprisonment for a period of six months. Criminal Appeal is disposed of accordingly. Trial Court record be sent down.