JUDGMENT : G.B. Shah, J. 1. Present application has been preferred by the applicant-original accused under section 389 of the Code of Criminal Procedure, 1973 to enlarge the applicant on bail pending appeal by suspending his conviction which has been imposed by the learned Special Judge and 3rd Additional Sessions Judge, Nadiad vide judgment and order dated 26.10.2015 passed in Special NDPS Case No. 1 of 2014 whereby he was convicted and sentenced to undergo RI for ten years and to pay fine of Rs. 1,00,000/-, in default, to suffer further RI for two years for the offence punishable under sections 8(c) and 20(b) of NDPS Act. 2. Heard learned advocate, Mr. L.R. Pathan for Mr. Z.L. Khan, learned advocate for the applicant and learned APP, Mr. K.L. Pandya for the respondent-State. 3. Rule. Learned APP, Mr. K.L. Pandya for the respondent-State waives service of rule. 4. Mr. Pathan has submitted that during the trial, the applicant was on bail and there is no allegation that he had tampered with the evidence. Moreover, there is no possibility of this appeal being heard in near future. 4.1 Drawing attention of this Court on the grounds narrated in the main appeal for suspending the sentence, he submitted that the mandatory provisions of sections 42(2), 50and 57 of the NDPS Act had not been complied with by the investigating agency in its right perspective and learned trial Judge has miserably failed to appreciate the said important aspect. He has further submitted that as per the case of the prosecution, it is alleged that two packets of ganja weighing 4.278 kg. were seized from the house of the accused and it has also come on record that as such in the two packets, what had been seized was leaves, seeds and branches and no separate weighing was carried out by the investigating agency and therefore, it was practicably impossible to say what was the actual quantity of ganja seized from the applicant and hence, it was prayed that the applicant requires to be released on bail. 4.2 He has further submitted that the trial court has failed to appreciate that from the evidence of witnesses, it is crystal clear that what had been seized from the applicant contained only leaves, seeds and branches. In this regard, he took this Court through the evidence of P.W. No. 4, Dhananjay Maganbhai Patel, Exh. 4.2 He has further submitted that the trial court has failed to appreciate that from the evidence of witnesses, it is crystal clear that what had been seized from the applicant contained only leaves, seeds and branches. In this regard, he took this Court through the evidence of P.W. No. 4, Dhananjay Maganbhai Patel, Exh. 32, FSL Officer, wherein he has categorically admitted that bhang, ganja and charas are the products from the plants of canabis sativa. He has also admitted that bhangs are prepared from leaves and he is unable to say from which result of test can it be said to be bhang, ganja or charas. He has also admitted that the result of these contraband articles is the same and therefore, it cannot be said for certainty that the muddamal contraband article seized from the applicant was ganja itself. 4.3 In this connection, he has relied on a decision of this Court in the case of Anandi Gandori Thakur Vs. State of Gujarat reported in 2015 (3) Crimes (HC) page 675 wherein it has been held in paragraph 7 as under: "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 P.W. 2 Dipakkumar Jabbarsing (Complainant) examined at Exh. 38, P.W. 4 Ashokkumar Vaghela (FSL Officer) examined at Exh. 42, P.W. 5 Kishorchandra Sahaji examined at Exh. 45, P.W. 8 Lavkush Visambardas examined at Exh. 49 and P.W. 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 Vs. State of Gujarat [2011 Cr.L.R. (Guj.) 585], as well as in the case of Mashribhai Kanabhai Chauhan & Anr. Vs. Further, relying upon the Division Bench judgment of this Court rendered in the case of Pratapbhai Surjibhai Dodiyar Vs. State of Gujarat [2011 Cr.L.R. (Guj.) 585], as well as in the case of Mashribhai Kanabhai Chauhan & Anr. Vs. 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." 5. Drawing attention of this Court on the above referred paragraph, he has submitted that in the said case, the contraband article ganja weighing 21.248 kg was seized from the accused which included branches, leaves and flowers and therefore, as per section 2(ii)(b) of the NDPS Act, in absence of purity test of contraband articles, punishment was scaled down from the one for commercial to the quantity between commercial and small and punishment in proportion to such impure quantity was imposed upon the accused. He has further submitted that in the case on hand, the contraband article ganja weighing 4.278 kg. contained leaves, seeds and branches for which, no purity test was done and therefore, applying the aforesaid ratio to the facts of the present case, punishment should have been scaled down and punishment in proportion to such impure quantity should have been imposed on the applicant by the learned trial Judge and therefore also, the applicant deserves to be enlarged on bail. 6. Learned APP, Mr. Pandya, for the respondent-State has submitted that looking to the oral as well as the documentary evidence on record, as the contraband article of ganja weighing 4.278 kg has been recovered from the applicant and as the said quantity is between commercial quantity and small quantity, the conviction and sentence imposed on the applicant was just and proper and therefore, the applicant need not be enlarged on bail pending his appeal. 7. This Court has considered the rival submissions made by the learned advocates appearing for the respective parties together with the impugned judgment and order of conviction and sentence. 8. If the case of the prosecution is considered as it is, then also, quantity of ganja weighing 4.278 kg was recovered from the possession of the applicant i.e. from the house of the applicant and said quantity contained leaves, seeds and branches. 8. If the case of the prosecution is considered as it is, then also, quantity of ganja weighing 4.278 kg was recovered from the possession of the applicant i.e. from the house of the applicant and said quantity contained leaves, seeds and branches. It is admitted by P.W. No. 4, Dhananjay Maganbhai Patel, FSL Officer, Exh. 32 that bhangs are prepared from leaves but he was unable to say by which test the muddamal recovered can be said to be bhang, ganja or charas. It does not appear from the record as to any purity test of muddamal ganja recovered from the applicant was done or not. In absence of the same, at this stage of deciding the application for bail, it would not be proper for this Court to hold whether the contraband article ganja recovered from the house of the applicant in form of leaves, seeds and branches, in absence of separate weighing, be treated by one step down as observed by this Court in Anandi Gandori Thakur (supra) as, the same may affect the final hearing of the appeal. However, the applicant has brought out a good case for being released on bail. 9. In view of the above, this application is allowed. Pending hearing and final disposal of his Criminal Appeal, conviction imposed on the applicant by the learned Special Judge and 3rd Additional Sessions Judge, Nadiad, vide judgment and order dated 26.10.2015 passed in Special NDPS Case No. 1 of 2014 is suspended and the applicant is ordered to be released on bail on his executing personal bond of Rs. 5,000/- (Rupees Five Thousand only) with one surety of like amount and on conditions that he shall:- (a) not take undue advantage of his liberty or abuse his liberty; (b) maintain law and order; (c) not leave the State of Gujarat without prior permission of this Court; (d) furnish the address of his residence to the Investigating Officer and also to the Court with documentary proof of residence at the time of execution of the bond and shall not change the residence without prior permission of this Court; (e) surrender his passport, if any, to the lower Court within a week. 10. Rule is made absolute. Direct service is permitted.