JUDGMENT : This appeal is directed against the judgment and order of conviction dated 12.10.2007 passed by Presiding Officer, Fast Track Court No.4, Vadodara, in N.D.P.S. Case No.12 of 2005 whereby the appellant was convicted under Sections 8(c) and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (' the NDPS' Act) and was sentenced to undergo 10 (ten) years rigorous imprisonment and fine of Rs.1,00,000/- and in default, to undergo further 2 (two) years rigorous imprisonment. 2. The appeal came to be admitted by Division Bench of this Court (Coram: Hon- ble Mr. Justice as their Lordships the then J. R.Vora and D.N. Patel, JJ.) vide order dated 02.07.2008. 3. At the outset Mr. Gajendra Baghel, learned advocate for the appellant, has fairly submitted that the appellant has already undergone sentence of more than eight years and therefore, he has focused only on the sentence, and the conviction is not challenged in the present appeal. 4. The case of the prosecution is that on 24.09.2005, Dipakkumar Jabbarsinh, unarmed police constable received information that a person, who is sitting in the waiting room of Vadodara Railway Station, is carrying narcotic substance. 4.1 It appears from the record that one Shri Dipakkumar Jabbarsinh, unarmed police constable along with one Shanabhai Punjabhai, police constable, was on duty at Vadodara Railway Police Station on 24.09.2005 and at about 5:00 hours in the early morning, after such information was received, it was verified and accordingly, one Shri Mukundbhai Shanabhai, A.S.I prepared a report and informed Police Inspector of Western Railway at his residence. The information so received was to the effect that one person aged about 35 years, who was handicapped on right leg, wearing gray colour shirt and cream colour trouser is carrying contraband articles in his suitcase and is sitting in the waiting room situated on platform No.1 (towards Mumbai). On the basis of such information received, Police Inspector Shri S. I. Patel, made a note in the police diary of Vadodara Railway Police Station and called two panchas. The panchas were searched and as nothing was found, a panchnama came to be drawn in that regard. It appears that thereafter, raiding party went to waiting room on platform No.1, where the said person was found to be sitting near the STD/PCO booth and that is how the appellant came to be identified. The panchas were searched and as nothing was found, a panchnama came to be drawn in that regard. It appears that thereafter, raiding party went to waiting room on platform No.1, where the said person was found to be sitting near the STD/PCO booth and that is how the appellant came to be identified. Upon inquiry, it was found that the name of the said person was Anandi son of Gandori Thakur, who belongs to Nagava, Thana Itkori, District Chatral, Jharkhand. The appellant was also explained whether he wanted presence of Magistrate or Gazetted Officer during search. Thereafter, the appellant was taken to police chowky situated at Musafarkhana. On search having been made, two tickets were found from the upper pocket of the shirt of the appellant, out of two tickets, one ticket of Kodarama to Kanpur Central dated 22.9.2005 and second was of Kanpur Central to Vadodara dated 22.09.2005, two currency notes of Rs.100/- and two currency notes of Rs.10/- and some papers were also found. On making further search, narcotic substance was found from the suitcase possessed by the appellant. Thereafter, the scientific officer from F.S.L was called and he identified the narcotic substance found from the suitcase of the appellant as ' Ganja' . The police, thereafter, made arrangement for weighing the said substance, which weighed 21.248 kgs., and the F.S.L officer identified the same as Ganja and thereafter, drew two samples of 20 grams each and the said samples were sent for examination after following due procedure. 5. After investigation, charge-sheet came to be filed against the appellant and the case was committed to the Court of Sessions Judge, Vadodara, which was numbered as N.D.P.S. Case No.12 of 2005. Thereafter, trial in connection with the aforesaid offence was held and the charges were framed at Exh:5 for the aforesaid offences. The appellant pleaded not guilty and claimed to be tried and, ultimately after full-fledged trial and after recording oral as well as the documentary evidence, more particularly testimony of prosecution witnesses, the trial Court by the impugned judgment passed the order of conviction and sentence, as stated hereinabove. 6. It may be noted that as learned advocate for the appellant has limited his contentions and argument only qua sentence part, further discussion is not necessary to be made in detail. 7. 6. It may be noted that as learned advocate for the appellant has limited his contentions and argument only qua sentence part, further discussion is not necessary to be made in detail. 7. Learned advocate for the appellant has submitted that as per the panchnama at Exh:16 as well as other evidence on record, it bornes out that total quantity of ganja seized from the appellant was 21.248 kgs., which is more than commercial quantity (commercial quantity being 20 kgs. as prescribed), was found from the possession of the appellant. Relying upon the deposition of PW:2 Dipakkumar Jabbarsinh (complainant) examined at Exh:38, PW:4 Ashokkumar Vaghela (FSL Officer) examined at Exh:42, PW:5 Kishorchanra Sahaji examined at Exh:45, PW:8 Lavkush Visambardas examined at Exh:49 and PW:11 Janmahamad Fakirbhai Mansuri examined at Exh:62, it was submitted that no purity test is taken by the prosecution and the muddamal ganja weighed 21.248 kgs. also included branches, leaves and flowers, therefore, as per Section 2(ii)(b) of the N.D.P.S Act, in absence of purity test of contraband articles, punishment in proportion to such impure quantity could have been imposed upon the appellant. Further, relying upon the Division Bench judgment of this Court rendered in the case of Pratapbhai Surjibhai Dodiyar v. State of Gujarat [2011 CrLR (Guj) 585], as well as in the case of Mashribhai Kanabhai Chauhan & Anr. v. State of Gujarat, in Criminal Appeal No.1025 of 2008 dated 03.04.2014, it was contended that in absence of purity test, punishment deserves to be scaled down from the one for commercial to the quantity between commercial and small. 8. Learned counsel for the appellant humbly submitted that the appellant is very poor and handicapped and this is the first offence of the appellant and, there is no other antecedents as far as the present appellant is concerned. It was therefore, submitted that the sentence may be reduced to at least undergone. 9. Learned Additional Public Prosecutor for the respondent-State, after perusing the panchnama at Exh:16 as well as the depositions of PWs:2 to 9 as well as the report of Forensic Science Laboratory at Exh:64 has not been able to contend to the contrary. 10. This Court in the case of Pratapbhai Surjibhai Dodiyar (supra) while considering the case of ' heroine' having been recovered from the accused being 766 grams and 205 grams respectively from accused Nos.1 and 2 has observed thus: ' 7. 10. This Court in the case of Pratapbhai Surjibhai Dodiyar (supra) while considering the case of ' heroine' having been recovered from the accused being 766 grams and 205 grams respectively from accused Nos.1 and 2 has observed thus: ' 7. The report, however, does not state the exact quantity or percentage of the substance noticed in the samples. Now, in this context, if the decision of the Supreme Court, in the case of E. Michael Raj, ( AIR 2008 SC 1720 ) (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 to 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. 8. In the instant case, when the laboratory test has not revealed the percentage, as held by the Apex Court in the case of E. Michael Raj (supra), the benefit has to go to the accused. 9. 8. In the instant case, when the laboratory test has not revealed the percentage, as held by the Apex Court in the case of E. Michael Raj (supra), the benefit has to go to the accused. 9. In the instant case, though, the appellants are convicted for the offences punishable under Sections 8(c), 21 and 29 of the NDPS Act, the evidence in the form of FSL report produced by the prosecution is incomplete. It is, therefore, not possible to come to a concrete conclusion whether the contraband seized was a small quantity or a commercial quantity or a quantity lesser than the commercial quantity but more than small quantity. In our view, in light of the decision of the Apex Court, in absence of percentage of the pure quantity of contraband in the seized material, the benefit should extend to the accused. The contraband seized from accused No.1 is 766 grams of brown sugar and accused No.2 is 205 grams of brown sugar. The quantity seized from accused No.2 is a small quantity whereas the quantity seized from accused No.1, being 776 grams, is a commercial quantity. But in absence of purity test and its report, it is difficult to conclude what was the exact quantity of the contraband in the blended substance seized from the appellants respectively. The Special Court therefore erred in sentencing them for 10 years RI and fine of Rs. 1 lac each for the offences punishable under Sections 8(c) and 21 and 29 of the NDPS Act respectively. In view of the fact that the evidence regarding purity is not collected by the prosecution, it cannot be said that the entire 776 grams of brown sugar seized from the accused No.1 was 100% brown sugar. It would, therefore, be appropriate that the quantity is treated by one step down i.e. quantity which is less than the commercial quantity but more than the small quantity, the punishment prescribed for is rigorous imprisonment for a term which may extend to 10 years and a fine which may extend to Rs.1 lac. The appellant ' accused No.1 has been in jail since 21st August, 2004. The appeal, therefore, deserves to be partly allowed and while confirming the conviction of the appellant No.1 under Sections 8(c) & 21 of the NDPS Act, his sentence is reduced to 6 years rigorous imprisonment with a fine of Rs. The appellant ' accused No.1 has been in jail since 21st August, 2004. The appeal, therefore, deserves to be partly allowed and while confirming the conviction of the appellant No.1 under Sections 8(c) & 21 of the NDPS Act, his sentence is reduced to 6 years rigorous imprisonment with a fine of Rs. 50,000/- and, in default, to undergo SI for six months.' 11. Similarly this Court in the case of Mashribhai Kanabhai Chauhan & Anr. (supra), relying upon the case of Pratapbhai Surjibhai Dodiyar (supra), has observed in paragraph No.9 as under: ' 9. A bare perusal of definition contained in section 2(iii) (b) indicates that seeds and leaves not accompanied by flower tops cannot constitute ganja. Inclusion of such constituents as ganja would represent its inaccurate quantity and cannot be treated as pure ganja. Thus Pratapbhai (supra) squarely applies to the facts of the case and the sentence imposed by the trial court upon the appellant deserves modification.' 12. On perusal of the deposition of PW.2 Shri Dipakkumar Jabbarsinh examined at Exh.38, who was Unarmed Police Constable, has stated in his cross-examination that the mudammal, which was recovered from the appellant was Ganja. Similarly, PW:2 Shri Shanabhai Pujabhai examined at Exh:41, who was Unarmed Police Constable has also stated in his cross-examination that the mudammal, which was recovered from the appellant was Ganja. It is also found from the deposition of PW.8 Lavkush Visambardas examined at Exh.49, who weighed the muddamal seized from the appellant at the railway station, that the samples which were drawn were in the form of seeds, grass and branches. On perusal of the deposition of PW.4 Ashokkumar Vaghela examined at Exh.42 Scientific Officer of FSL in his cross-examination, has stated that ganja recovered from the brown coloured suitcase was having moisture, green coloured flowering and putting and small branches of leaves were present. Same thing is also admitted by the said witness in his cross-examination. It may be noted that the said witness has further deposed that percentage of flowers or other articles was not taken. Even the report of the FSL at Exh.64 also indicates that the sample sent for examination was containing flowers and branches. 13. Same thing is also admitted by the said witness in his cross-examination. It may be noted that the said witness has further deposed that percentage of flowers or other articles was not taken. Even the report of the FSL at Exh.64 also indicates that the sample sent for examination was containing flowers and branches. 13. Considering the definition of word ' ganja' , as defined under Section 2(iii) (b) of the N.D.P.S Act, as well as considering the judgments of this Court in the case of Pratapbhai Surjibhai Dodiyar (supra), as well as in the case of Mashribhai Kanabhai Chauhan & Anr. (supra), it transpires that seeds and leaves accompanied with flower tops cannot constitute ganja and the same cannot be treated as pure ganja. The ratio laid down by this Court in the aforesaid two cases would squarely apply to the facts of the present case and therefore, the quantity which was seized from the appellant would stand reduced betweeen commercial to small quantity. 14. In view of the foregoing, the order of conviction is hereby confirmed. However, the sentence imposed vide judgment and order dated 12.10.2007 rendered by Presiding Officer, Fast Track Court No.4, Vadodara, in N.D.P.S. Case No.12 of 2005 against the appellant is reduced to 9 years rigorous imprisonment instead of 10 years rigorous imprisonment and the fine is kept as it is and, default period is reduced from 2 years to 6 months relying upon judgments of Pratap-bhai Surjibhai Dodiyar (supra) and Mashri-bhai Kanabhai Chauhan & Anr. (supra). The appeal is thus partly allowed. Appeal partly allowed.