Judgment A.L. Dave, J.—These four appeals arise out of a judgment and order dated 30.4.2004, rendered by Special Judge, Fast Track Court No. 5, Bharuch, in NDPS Case No. 6 of 2003, whereby the appellants in Criminal Appeal Nos. 1289, 1462 and 1602 of 2005 came to be convicted for the offences punishable under Section 21 r/w section 29 and under Section 22 r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act” for short) and they were sentenced to undergo RI for 15 years for each of the offences and to pay fine of Rs. 1,50,000/- each for each of the offences and, in default, to undergo RI for four years. Both the sentences were ordered to run concurrently. The Special Court also confiscated the vehicle- Maruti car bearing Regn. No. GJ-6-AB-8864 used in commission of the offence. The said vehicle is owned by appellant in Criminal Appeal No. 1740 of 2005, who happens to be wife of original accused No. 2. She challenges the confiscation of said Maruti car. 2. Since all these appeals arise out of same judgment and order, they are heard together and disposed of by this common judgment. 3. Original accused Nos. 1 and 3 in Criminal Appeal No. 1289 of 2005 are represented by learned Advocate Mr. Gajendra P. Baghel and original accused No. 2 is represented by learned Advocate Mr. Ramnandan Singh. Criminal Appeal No. 1462 of 2005 is preferred by original accused Nos. 4 and 5 and they are represented by learned Advocate Mr. Rajesh M. Agrawal. Criminal Appeal No. 1602 of 2005 is preferred by original accused No. 6 and he is represented by learned Advocate Mr. Mrudal Barot. Criminal Appeal No. 1740 of 2005 is preferred by wife of original accused No. 2 against the order of confiscation of vehicle as the vehicle is owned by her. For the sake of convenience, in this judgment, the appellants in Criminal Appeal Nos.1289, 1462 and 1602 of 2005 are referred to by their original status of accused before the Trial Court. 4. Learned Advocates appearing for the appellants pressed these appeals mainly on the ground that the contraband seized, even as per the prosecution case, was heroin and FSL report only certifies it to be heroin. 4. Learned Advocates appearing for the appellants pressed these appeals mainly on the ground that the contraband seized, even as per the prosecution case, was heroin and FSL report only certifies it to be heroin. FSL has not undertaken the purity test to suggest the exact quantity of contraband found in the quantity of powder seized and, therefore, the appellants would be entitled to the benefit available to them in light of the decision of the Apex Court in the case of E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, as reported in (2008) 5 SCC 161 . The rest of the contentions raised are not pressed by the learned Advocates appearing for the appellants. 5. Learned APP Mr. K.L. Pandya has opposed all these appeals. According to him, the contraband seized is heroin and the requisite contents are found in the laboratory test and, therefore, the conviction cannot be said to be ill-founded. So far as punishment is concerned, Mr Pandya submitted that, it would be commensurate with the quantity of heroin seized and in the present case it is 3 kgs. Mr. Pandya submitted that the fine is also imposed after due consideration and, therefore, this court may not interfere with the judgment and order of the Special Court. Mr. Pandya further submitted that, though, the FSL report does not disclose the exact percentage of Di-acetyl-morphine content of the seized material, there were certain other substances mixed in the powder, which would support the conviction of the appellants under Section 22 read with section 29 of the NDPS Act. He, therefore, urged to dismiss all the appeals and confirm the judgment and order of conviction and sentence recorded by the Special Court against the appellants. 6. We have examined the record and proceedings and have given our due consideration to the contentions raised. We do not deal with any other contention than the contention regarding the purity test, for the reason that, those contentions are given up by learned Advocates for the appellants. 7. The FSL report is at Exhibit-117. This document would indicate that the laboratory had received the samples in duly sealed and intact condition. We do not deal with any other contention than the contention regarding the purity test, for the reason that, those contentions are given up by learned Advocates for the appellants. 7. The FSL report is at Exhibit-117. This document would indicate that the laboratory had received the samples in duly sealed and intact condition. So far as sample ‘A1’ is concerned, the presence of following substances was revealed: (i) morphine (ii) di-acetyl-morphine (heroine) (iii) mono-acetyl morphine (iv) codeine (v) acetyl-codeine (vi) papaverine (vii) narcotics (viii) thebaine (ix) methoqualone So far as sample ‘B1’ is concerned, the presence of the following substances was found: (i) morphine (ii) di-acetyl-morphine (heroine) (iii) mono-acetyl morphine (iv) codeine (v) acetyl-codeine (vi) thebaine (vii) papaverine (viii) narcotics 8. The report, however, does not state the exact quantity or percentage of these substances noticed in the samples. Now, in this context, if the decision of the Supreme Court, in the case of E. Micheal Raj (Supra) is seen, Their Lordships observed that “heroine is an opium derivative as per Section 2(xvi)(e), which says that all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine is an opium derivative.” Thus, the court concluded that the offending substance was an opium derivative and, hence, manufactured drug, the possession of which is in contravention of the provisions of Section 8 of the NDPS Act which prohibits certain operations of the effect that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, etc. In that case, the opium derivative was found in possession of the appellant. The punishment prescribed under Sections 21 and 22 of the NDPS Act provide different parameters for different categories of offences, depending upon the quantity of contraband found, namely, small quantity, commercial quantity or lesser than commercial quantity but more than small quantity. The offence defined under the provisions is in respect of the narcotic drugs or psychotropic substances and when the material seized is found to be carrying only part of the prohibited item, such percentage would be essential for deciding whether it was a small quantity or a commercial quantity or a quantity lesser than the commercial quantity but more than small quantity. When such percentage is not there, the court is unable to decide firmly and confidently that the quantity of material seized was pure quantity of the prohibited item or the contraband or what was the percentage of contraband mixed with some other substances. 9. In the instant case, when the laboratory test has not revealed the percentage, as held by the Apex Court in the case of E. Micheal Raj (Supra), the benefit has to go to the accused. 10. In the instant case, though the appellants are convicted for the offences punishable under Section 21 read with Section 29 and under Section 22 read with Section 29 of the NDPS Act, the evidence produced by the prosecution is incomplete. The Court is, therefore, not sure whether it was a small quantity or a commercial quantity or a quantity lesser than the commercial quantity but more than small quantity. 11. It is difficult to appreciate the contention raised by the learned Advocates for the appellants that while giving benefit, certain aspects will have to be considered whether the contraband seized would be a commercial quantity or a small quantity or whether it would be a quantity lesser than commercial quantity but more than a small quantity or whether it would be a case of small quantity. In absence of any material on record to determine the exact quantity, the quantity will have to be judged from the total quantum of material seized and the manner in which it is brought before the court. The total quantity of contraband seized is 3 kgs and if the pure contraband is smaller quantity, the material seized would be so diluted, then it would be virtually ineffective. We are, therefore, of the view that the benefit of lack of percentage of the contraband in the seized material would go to the accused. The total quantity of contraband seized was 3kgs. It was a mixture of one or more narcotics or other substances and, therefore, the quantity cannot be said to be a commercial quantity. The benefit, therefore, has to go to the accused. In our view, therefore, the case would fall in the category, named as, less than commercial quantity but more than small quantity. 12. We cannot have come to the conclusion that the conclusion of the Special Court is defective as it has not considered all these aspects. The benefit, therefore, has to go to the accused. In our view, therefore, the case would fall in the category, named as, less than commercial quantity but more than small quantity. 12. We cannot have come to the conclusion that the conclusion of the Special Court is defective as it has not considered all these aspects. We may also observe that the appellants, even as per the prosecution case, were only the carriers, who were transporting the contraband owned by somebody to be delivered to somebody. Further, it was argued before us that order of conviction was passed by the Trial Court without giving any audience to the appellants. On this count, the matter could have been sent back by setting aside the order, but instead, we have heard Mr. Ramnandan Singh, learned Advocate for the appellants on this aspect. 13. So far as Criminal Appeal No. 1740 of 2005 is concerned, the appellant is the owner of the vehicle used in commission of the crime. She is the wife of accused No. 2, whose conviction has been confirmed and, therefore, the appellant’s plea of innocence or ignorance about the activity of her husband cannot be accepted. The Appeal, therefore, must fail and deserves to be dismissed. 14. The resultant effect of the foregoing discussion is that Criminal Appeal Nos.1289, 1462 and 1602 of 2005 are partly allowed. The conviction of the appellants for offences punishable under Section 21 read with Section-29 and under Section 22 read with Section 29 of the NDPS Act is confirmed. However, the sentence imposed upon the appellants is reduced to RI for seven years for each of the two offences. The appellants shall pay fine of Rs.1 lac each (Rupees one lac each) for each of the offences and, in default, shall undergo further SI for six months. The substantive sentences shall run concurrently. Criminal Appeal No. 1740 of 2005 is also dismissed.