M. Santhosh, J.
1. The petitioner has been convicted of an offence under Section 135 (b) (ii) of the Customs Act, 1962 and sentenced to rigorous imprisonment for a period of six months. He has also been convicted for contravening Rule 126 P (2) (ii) of the Defence of India Rules (hereinafter referred to as Rules') and sentenced to rigorous imprisonment for 6 months and also to a fine of Rs. 200/-, in default to undergo rigorous imprisonment for one month. Both the substantive sentences are directed to run concurrently. The appeal filed by the petitioner was dismissed by the learned First Additional Sessions Judge, Belgaum. In this revision, the petitioner challenges the legality and correctness of the convictions and sentences passed on him.
2. The petitioner was travelling on 20-44967 by Poona Bangalore Mail. When the train arrived at Belgaum Railway Station at about 12-30 hours. P. W. 1. Inspector of Central Excise, entered the compartment and on suspicion he questioned the accused and when he touched the person of the accused, he felt some hard substance and thereafter on the reasonable belief that the accused possessed some contraband articles he detained the accused and brought him to the upper class waiting room of the Station and produced him before Sri Nara-hari, Inspector of Central Excise, Belgaum. After securing panchas, the person of the accused was searched and he found in the under-wear pocket. 2 paper bags in which were found 4 pellets of gold having foreign markings. The accused had no permit or any document for possession of the said gold. Thereafter the Superintendent of Central Excise recorded the statement of the accused as per Ex. P-3. After completing the investigation and getting the necessary sanction and consent to prosecute the accused, a complaint was filed against the accused.
3. Sri Chander Kumar, learned Counsel appearing on behalf of the petitioner has not challenged the conviction of the petitioner under Section 135 (b) (ii) of the Customs Act, but has only addressed arguments on the severity of the sentence. So far as the conviction under the Defence of India Rules is concerned, it is contended by the learned Counsel that the Gold Control Order passed under the Defence of India Rules does not apply to smuggled gold. His argument is that Gold Control Rules apply only to licit gold. It is argued that the whole schema of Rules shows that it is intended to control the legal business in gold and not smuggled gold. Various provisions of the Rules dealing with matters of licences and declaration relate to licit gold and not of smuggled gold. It is also argued that there is no provision under the Rules for declaration of smuggled gold and in the very nature of things, smugglers cannot be expected to give declaration about the gold which they have smuggled. It is contended that so far as the smuggled gold is concerned, it would be an offence under the Customs Act and not under the Rules. It is also argued that under Rule 1261 of the Rules, there is no provision requiring a person to make a declaration if he is found to be in possession of smuggled gold. Strong reliance is placed on a decision of the Calcutta High Court in A. M. Sinha v. Prohlad Chandra : AIR1970Cal437 in support of the said contention.
4. The point raised, by the learned Counsel is concluded by two Bench decisions of this Court. In Supdt. of Central Excise v. N.T. Alvi, Criminal Appeal No. 271 of 1965. (Mys) a bench of this Court when an identical point was urged has observed at page 21 of the judgment as follows:
The contention of Sri Mandgi is that the provisions of the Gold Control Act do not apply to smuggled gold. He argues that under the Defence of . India Rules, a person in possession of smuggled gold is not bound to make any declaration under the said Act or the Rules. He contends that the provisions of the Defence of India Rules are not in derogation of the Customs Act. His argument is once a person is convicted under Sec-lion 135 of the Customs Act, he cannot be convicted again on the same facts for an offence under Rule 126-P (2) (ii) of the Defence of India Rules. It is not possible for us to accept the said contention of Sri Mandgi. The definition of 'gold' in Rule 126-A (C) is as follows : 'Gold' means gold, including alloy, whether virgin, melted, remelted, wrought or unwrought in any shape or form, of a purity of not less than nine carats and included any gold coin (whether legal tender or not), any ornament and any other articles of gold. Sub-rule (g) of Rule 126 A defines 'primary gold' as gold in any unfinished form and includes all ingots, bars blocks, slabs, billets shets, pillets, rods and wires. It may be point-ed out that this definition of 'sold' in the Defence of India Rules, does not exclude smuggled gold. We also do not agree with Sri Mandgi that the Rules do not apply to a person in possession of smuggled fold. If that is of the very purpose of gold Control will be defeated ...
5. Again in Supdt. of Central Excise v. U.N. Malaviya (1968) 1 Mys. LJ 17, the Bench of this Court at page 23 of the judgment has observed as follows:..The learned Magistrate also holds that the definition of 'gold' in Rule 126-A of the Defence of India Rules dealing with Gold Control refers to gold in general and does not include smuggled gold. It is not possible for us to agree with the view of the learned Magistrate to hold that Rule 12G-A of the Defence of India Rules which relates to Gold Control does not apply to smuggled Gold would be to defeat the very purpose of Gold Control. The definition of 'Gold' does not in any way exclude smuggled gold.
6. In : AIR1970Cal437 , it has been observed as follows at paragraph 21 of the Judgment:..Looking at the object of this Control Order and the time and manner in which it came in the Statute Book, it seems that declaration under Rule 126-P is in respect of 'legal' gold as opposed to smuggled gold. Customs Apt deals with smuggled gold of foreign origin or making. illegally imported into India and penalty including seizure is provided for in the Customs Act. The question of declaration in respect of that does not arise at all. Prosecution of the accused persons under Rule 126-P is therefore uncalled for and their convictions under Rule 126-P and the punishment inflicted are set aside.
In the instant case the accused is not charged with having not made any declaration with regard to the smuggled gold. With great respect to their Lordships of the Calcutta High Court, it may be mentioned that though their Lordships referred to the definition of Gold under the Rules, they did not advert to the definition which does not in any way exclude smuggled gold. As already pointed out by the two Bench decisions of' this Court, the definition of gold as per Sub-clause (d) of Rule 126-A does not exclude smuggled gold. It is an inclusive definition and it reads as follows : 'Gold' means gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought in any shape or form, of a purity of not less than nine carats and includes any gold coin (whether legal tender or not) any ornament and any other article of gold : If the intention of the Legislature was to exclude smuggled gold it would have stated so if smuggled gold is excluded from the Gold Control Rules, it would be really putting a premium on smuggled gold and will defeat the very purpose of the Rules. With great respect, their Lordships failed to advert to R. 126-I. Chapter V of the Rules, which deals with various declarations to be made by persons in possession of gold other than ornaments. Reference in particular may be made to Sub-clause (10) of R. 126-I, which specifically states that no person other than a dealer or refiner shall require or have in his possession or under his control any quantity of gold without making the requisite declaration under the Rules. There is therefore, no force in the contention urged by the learned Counsel on behalf of the petitioner.
7. It is next contended that the petitioner cannot be convicted both for an offence under Section 135-B (ii) of the Customs Act and also for an offence under Rule 126-P (2) (ii) of the Rules. Sub-clause (2) of Article 20 of the Constitution of India and Section 26 of the General Clauses Act prohibit the conviction of the petitioner twice. It is stressed that the gist of both the offences is possession of illicit gold. That being the case, the petitioner cannot be convicted twice for the same offence.
8. There is no force in the said contention. Both under Sub-clause (2) of Article 20 of the Constitution and under Section 26 of the General Clauses Act, a person shall not be prosecuted or punished for the game offence more than once. Here the petitioner has not been prosecuted twice for the same offence. The offence under Section 135 (b) (2) of the Customs Act consists of acquiring possession of or in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, as such goods had been imported from outside India without paying the necessary duty. The offence under Sub-clause (ii) of Rule 126-P (2) of the Rules consists of having possession or under his control any quantity of gold in contravention of the provisions of the Rules. From what has been stated above it is clear that the two offences are not one and the same but are different of-fences. This question again is covered by the Ruling of the Bench of this Court wherein it has been pointed out that the offence under the Defence of India Rules, R. 126-P (2) is different from the offence under Section 135 (b) of the Customs Act. As has been pointed out by the Supreme Court in State of Bombay v. Apte : 1961CriLJ725 , if the offences are not the same but are distinct offences, the ban imposed by Article 20 (2) of the Constitution and Section 26 of General Clauses Act cannot be invoked.
9. It is next contended that the sanction to prosecute the petitioner in the instant case is defective as the same is. not specific. The sanction given in the case is only with regard to the prosecution under Rule 126-P(2) of the Rules and it does not specify that the prosecution is with regard to Sub-clause (ii) of Clause (2) of Rule 126-P of the Rules.
10. Rule 126-Q reads as follows:
No prosecution for any offence punishable under this part shall be instituted against any person except by or with the consent of the (Administrator) or any person authorised by the (Administrator) in this behalf.
Ex. P-5 is the consent given by the Collector of Central Excise, Bangalore, for the prosecution of the petitioner. It states that the petitioner was found to have acquired 40 tolas of gold, not being ornament, except by succession intestate or testamentary or in accordance with the permit granted either by the Administrator or by the Deputy Secretary in the Office of the Gold Control Administrator. Bombay, contrary to the provisions of Rule 126-H (2)(d) of the Defence of India Rules and the petitioner failed to declare 40 tolas of gold as required under Rule 126-I (10) of the Rules. It further states that after 'study of the material before him and satisfying himself that the petitioner is liable to action under Rule 126-P (2) of the Rules in exercise of the powers conferred on him under Rule 126-Q of the Rules consent for the institution of prosecution of the petitioner is given by the Collector. It may be pointed out that in the instant case the consent order has specifically stated that the petitioner was found to have acquired 40 totals of gold contrary to the provision of Rule 126-H (2) (d) which is punishable under Rule 126-P(2) of the Rules. Rule 126-P (2) includes Sub-clause (ii) according to which the petitioner has been convicted. As has been laid down by their Lordships of the Supreme Court in R. R. Chari v. State of U.P. : 1SCR121 the purpose of sanction is to see that the appropriate authorities are satisfied that there is prima facie case for starting prosecution against the accused and it is intended as a safeguard against the frivolous prosecutions. There is therefore force in the contention of the learned Central Government Pleader that the consent given in this case is in compliance with the requirements of Rule 126-Q of the Rules.
11. It is finally contended by Sri Chander Kumar that this is a fit case in which the provisions of Section 4 of the Probation of Offenders Act should be applied in favour of the petitioner. It is pointed out by the learned Counsel that in Rattan Lal v. State of Punjab : 1965CriLJ360 , their Lordships of the Supreme Court have held that the High Court can apply the provisions of Probation of Offenders Act in favour of the accused even in revision proceedings. Reliance is also placed on a decision of this Court rendered in Criminal Revn. Petn. 330 of 1969 (Mys) wherein this Court has pointed out that the language of Sub-section (1) of Section 4 of the Probation of Offenders Act is wide enough to make that Section applicable to any offence which is not one punishable with death or imprisonment for life. It is contended by the learned Counsel that the petitioner is a student and is not a smuggler and he is a first offender and therefore it is a fit case wherein this Court may release the petitioner under Section 4 of the Probation of Offenders Act. Before a person can be released under Section 4 (1) of the Probation of Offenders Act, the court must be of opinion that having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct. The question for consideration is whether there are circumstances including the nature of offences and character of offenders which make it desirable for this Court to release the petitioner under Section 4 (1) of the Probation of Offenders Act. Smuggling is an anti-social act affecting the economy of the State and unless there are special circumstances, it is not desirable for the court to release the offenders under the Probation of Offenders Act. This view has been expressed in Criminal Appeal No. 271 of 1965 (Mys) referred to above. In the instant case, the accused is a goldsmith and he has gone all the way to Bombay to buy the smuggled gold. It is also clear from the evidence that he had hidden this gold in his underwear pocket. From the facts and circumstances of the case, 1 am of opinion that this is not a fit case for the release of the petitioner under Section 4 of the Probation of Offenders Act,
12. For the reasons mentioned above there are no good grounds to interfere in revision with the orders of the Courts below, and this revision petition is dismissed.