IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3490 OF 2004 Girish Raghunath Mehta ... Applicant versus State of Maharashtra and anr. ... Respondents ... Mr. A.P. Mundargi with Mr. S.R. Mishra, for the Applicant. Mr. D.R. More, A.P.P., for the State. Mr. H.V. Mehta, for the Customs Department. ... CORAM : A.M.KHANWILKAR,J. 29th September 2004 P.C.: . Heard Counsel for the parties. The Applicant is charged with offence punishable under sections 15, 29, 8(c) of the N.D.P.S. Act, 1985; and sections 464, 467, 468, 471 of Indian Penal Code. Suffice it to observe that the case of the Applicant is that he is having licence to deal in poppy straw. The licence condition enables the Applicant to stock upto 20,0000 Kgs. of poppy straw. Condition No. 2 permits the Applicant to sell poppy straw to any person within the permissible quantity, which is upto 450 gms. In the present case, the Applicant is charged for having sold poppy straw weighing 30 kgs. to accused No. 2. The limited grievance before this Court is that the Court below has wrongly invoked the rigours of section 37 of the Act while rejecting the bail application preferred by the Applicant. According to the Applicant, however, assuming that the prosecution case is to be accepted as it is, the charge against the Applicant is for having sold 30 kgs. of poppy straw to accused No. 2, which was in breach of section 15 of the Act, which at best is punishable with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to one lakh of rupees. It is further contended that the rigours of section 37 of the Act would apply only when the offence is punishable under section 19 or 24 or 27; and also for offences involving commercial quantity. The Schedule provides for commecial quantity as 50 Kgs. and small quantity as 100 gms. As it is the prosecution case that the Applicant has sold 30 kgs. of poppy straw powder to accused No. 2, from the warehouse and, therefore, has contravened the provisions of the Act, the case is obviously one of sale of article less than the commercial quantity. If it is so, section 37 will have no application. Whereas the Court below has rejected the application preferred by the Applicant mainly applying the rigours of section 37 of the Act, which is obviously impermissible in the fact situation of the present case. Accordingly, the appropriate course, to my mind, instead of going into the merits of the rival contentions for grant of bail, is to relegate the parties before the Special Judge, who, in turn, shall decide bail application No. 111 of 2004 afresh on its own merits in accordance with law in the light of the observations made hereinabove. The learned Special Judge shall decide the said application as expeditiously as possible preferably within one month from the date of receipt of writ of this Court. Application disposed of on the above terms, leaving all questions on merits to be decided by the Special Judge. . Parties to act on the authenticated copy of this order. (A.M.KHANWILKAR,J.)