JUDGMENT : S.G. Shah, J. 1. Heard Ld. Advocate Mr. R.M. Agrawal for the appellant and Mr. K.P. Raval, Ld. APP for the respondent. 2. The appellant has preferred above referred Criminal Misc. Application for suspension of sentence on various grounds including technical ground regarding confirmation of conviction considering the volume of narcotic substance in the seized material, submitting that when prescribed period of sentence is only six months for such small quantity and when the appellant is behind the bar for last 18 months, he may be released on bail. Therefore, when the appellant was not released on regular bail by the Coordinate Bench at the relevant time, instead of releasing him on bail, both the parties have agreed to decide the appeal finally and, therefore, appeal is taken up for final hearing considering the fact that otherwise also all cases need to be disposed of at the earliest. 3. The appellant herein has been convicted by the impugned judgment and order dated 22/12/2014 by the Special Judge and Addl. Sessions Judge of Ahmedabad [Rural] at Ahmedabad in NDPS Case No. 2 of 2009. He has been awarded sentence of rigorous imprisonment [RI] of five years for committing offence under sections 8[c] and 17[b] of the Narcotic Drugs & Psychotropic Substances Act [hereinafter referred to as 'the NDPS Act'] and fine of Rs. 50,000/- is also imposed with a condition that for non-payment of fine, he has to undergo simple imprisonment [SI] of one year with direction to give set-off of period of custody during trial. The jail record shows that the appellant has been arrested on 7/1/2009 and convicted on 22/12/2014, but he was released on bail from 20/3/2009 and, therefore, till date the appellant has practically undergone imprisonment of approximately one year, seven months and 20 days. 4. In view of above facts, Ld. Advocate Mr. The jail record shows that the appellant has been arrested on 7/1/2009 and convicted on 22/12/2014, but he was released on bail from 20/3/2009 and, therefore, till date the appellant has practically undergone imprisonment of approximately one year, seven months and 20 days. 4. In view of above facts, Ld. Advocate Mr. Agrawal for the appellant has preliminarily submitted that considering the decision rendered in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau reported in [2008] 5 SCC 161, when total weight of substance recovered does not contain the contraband material, but from such seized material when percentage of narcotic drug contents is about 5 grams only, considering the fact that the material is opium and, therefore, as per item No. 92 of table regarding consideration of quantity of contraband material, when quantity below 25 grams is to be considered as small quantity and above 2.5 kgs is only to be as a commercial quantity, the appellant is entitled to the benefit of above judgment when it is undisputed fact that the total raw material recovered from the appellant is only 185 grams as opium and on its analysis, the forensic science laboratory has categorically confirmed that the percentage of contraband material in such seized material is only 2.96% and, therefore, the entire seized material contains less than 6% anhydrous morphine which can be considered as opium, which is contraband drug. Therefore, considering the provisions of section 17[a] or 18[a] applicable at the relevant time, the maximum punishment would be only six months since contraband material is less than 25 grams. 5. To ascertain such facts, relevant evidence has been scrutinized. It, is undisputed fact that the FSL report categorically confirms that the percentage of anhydrous morphine which is contraband material, is only 2.96% in the seized material, which is having total weight of only 185.500 grams. The prosecution cannot rebut such evidence because in fact it is the evidence adduced by the prosecution itself and, therefore, they have no say against such factual aspect of the matter. The prosecution cannot rebut such evidence because in fact it is the evidence adduced by the prosecution itself and, therefore, they have no say against such factual aspect of the matter. In view of such clarity regarding quantity and quality of the seized material, when accused is entitled to get benefit of the decision rendered in the case of E. Micheal Raj [Supra], I do not wish to burden this judgment by recollecting and discussing the factual details prior to FIR till arrest of the appellant and proceedings thereafter till filing of this appeal because all such facts are otherwise very well described in the relevant pleadings, which are already on record. 5.1. The Ld. Advocate Mr. Agrawal has, relied upon the decision rendered in the case of Sharif Mohammad Amir Mohammad Kureshi v. State of Gujarat in Criminal Appeal No. 871/2010 and other connected appeal, whereby it has been directed to the concerned investigating agency to analyze all such seized material for showing percentage of substance in the mixture. While doing so, Division Bench of this High Court has relied upon the case of E. Micheal Raj [Supra] and other subsequent decisions which are referred and discussed in detail in such judgment and, therefore, I do not wish to burden this judgment any further by recollecting all such findings. 5.2. Similarly, the appellant is also relying upon the decision rendered in the case of State of Gujarat v. Shafdarhussain Munirmiya Malek reported in ABC 2013 [II] 175 GUJ, wherein also this Court has, relying upon the case of E. Micheal Raj [Supra], taken a similar view after considering all relevant judgments that if quantity of contraband material is less and thereupon if such material is in small quantity, then irrespective of total quantity of seized material, the conviction is to be considered based upon the qualitative percentage of contraband material only and not quantity of total weight of the seized material. 6. As against that, Ld. APP Mr. Raval has vehemently argued by reading out certain paragraphs from the decision of E. Micheal Raj [Supra] that in such cases when seized material is not raw material but quantitative final material, the percentage of contraband material ascertained in such material cannot be the basis to reduce the quantum of sentence. 6. As against that, Ld. APP Mr. Raval has vehemently argued by reading out certain paragraphs from the decision of E. Micheal Raj [Supra] that in such cases when seized material is not raw material but quantitative final material, the percentage of contraband material ascertained in such material cannot be the basis to reduce the quantum of sentence. It is further submitted that otherwise the entire proceedings and commission of offence as alleged, is proved before the trial Court and, therefore, appeal should be dismissed. 7. As already recorded hereinabove, when the appellant has submitted that though there are other issues on merits, which can be pressed upon for total acquittal of the appellant, when on technical ground of quality of contraband material, now the appellant has undergone sentence for more than 17 months, the appellant is not pressing for complete acquittal and, therefore, all other evidence is immaterial. 8. I have verified the record. On scrutiny of record and on consideration of submissions by both the sides, I am of the opinion that the trial Court has though rightly confirmed that the appellant has committed offence as alleged, so far as sentence part is concerned, the trial Court has failed to appreciate the binding decision of E. Micheal Raj [Supra] when it is not over-ruled thereafter and thereby not extending the benefit of consideration of quantity of contraband material based upon its quality and not merely that the exact material recovered from him. Therefore, I do not wish to enter into minute details of evidence when the appellant is entitled to be released even after considering him as a convict, but considering the quantity of the contraband material as a small quantity, for which prescribed punishment/sentence is only six months at the relevant time. 9. Ld. Advocate for the appellant has also submitted that when contraband material is of small quantity, it would be appropriate for the Court to reduce the amount of penalty/fine. However, I do not think it proper to modify the order of penalty when contraband material is recovered from the appellant and more particularly the appellant is not going to deposit such amount because he has already undergone more than 17 months' imprisonment, which can be considered against both the punishment i.e. six months as basic sentence and almost one year for not making payment of fine. 10. 10. In view of above facts and circumstances, the appeal needs to be partly allowed only on technical ground of considering quantity of contraband material which is certainly less than 'commercial quantity' which could be more than 2.5 Kgs. Therefore, quantity of contraband material is only 6 grams, which is less than 25 grams, which is certainly to be treated as small quantity and when contraband material is small quantity, then conviction under section 17[a] and 18[a] could not be more than six months. Therefore, appeal is partly allowed to the aforesaid extent. Thereby, the impugned judgment is modified to the extent that the conviction under sections 17[b] and 8[c] of the NDPS Act is modified and sentence is reduced from five years to six months under section 17[a] {or even 18[a]}. Rest of the order of conviction shall remain unaltered. However, pursuant to such modification, considering the fact that the appellant has remained in custody for more than 16 months, he shall be released immediately if not required in any other case. 11. In view of the above order, Criminal Misc. Application does not survive and it stands disposed of accordingly.