Kuppuswami Ayyar, J.
1. The petitioners are accused 7 and 8 in C.C. No. 77 of 1945 on the file of the Additional First Class Magistrate of Devakottai. They, along with others, were prosecuted under Section 120-B, Penal Code read with Rule 90-B of the Defence of India Rules, for conspiracy to export gold from British India. The petitioners contended that the prosecution cannot be started without a sanction as required by Section 196-A of the Code of Criminal Procedure. It runs thus:
No Court shall take cognizance of the offence of criminal conspiracy punishable under Section 120-B of the Indian Penal Code, * * * (2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognziable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, unless the Provincial Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the Provincial Government, has, by order in writing, consented to the initiation of the proceedings.
2. The question for consideration is whether the offence with which the petitioners have been charged is an offence in respect of which sanction has to be obtained as required by Section 196-A. The petitioners' contention is that it is a non-cognizable offence, and if it is not a non-cognizable but a cognizable one, it is an offence in respect of which the punishment is only a fine of Rs. 1,000. This contention is not accepted by the learned Public Prosecutor. His case is that it is not a non-cognizable offence but a case of cognizable offence in respect of which the accused are liable to be punished with a sentence of five years' rigorous imprisonment and that consequently no previous sanction is necessary. The offence in this case is, as already stated above, that of exporting gold from British India. Rule 90-B of the Defence of India Rules, as it originally stood, prevented the export of coins and currency notes. In March 1941, the word ' gold ' was added, thereby prohibiting the export of gold from British India. At the time when this was added, the punishment provided for the contravention of this rule was provided in the same rule and it was five years' rigorous imprisonment.' Subsequently, sub-rules 3 to 7 were replaced by one sub-rule which is the present Sub-rule (3). As it stands now, it runs thus:
The restrictions imposed by Sub-rule (2) on the export of money or gold shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly; provided that where in respect of any contravention of this rule the Customs Coliector is of opinion that the penalties provided by the said Act are inadequate, he may make a complaint to a Magistrate having jurisdiction; and the accused person shall, upon conviction, be punishable with imprisonment for a term which may extend to five years or with fine or with both, and the money or gold in respect of which the offence has been committed shall be confiscated by the Central Government and delivered to the Customs Collector for disposal.
All that the amendment enabled was to give those who contravened this rule the benefit of being dealt with under the Sea Customs Act, 1878. It enabled the persons who contravened the rule to compound; it enabled them to be made subject to a penalty instead of being prosecuted, and the penalty was to be levied by the Customs Department official, and the limit of the penalty has been fixed at three times the value of the articles or Rs. 1,000. But at the same time the Amendment retained the punishment for such offences in cases where the Collector thought that the benefits of the Sea Customs Act ought not to be given to a particular offender or a particular offence; and in this case the punishment of rigorous imprisonment of five years on conviction was retained. It cannot therefore be said that by this amendment the sentence awardable for the offence had been reduced; nor can it be said that the person who committed this offence ceased to be liable to be sentenced to five years' rigorous imprisonment. If that be so, the offence is one in respect of which the offender makes himself liable to imprisonment for five years. In all eases in which a maximum punishment is imposed, the offender is liable to the maximum punishment, though that punishment may not be given and the discretion is in the Magistrate or Judge who is to award the sentence. Similarly whether a man is to be prosecuted under this section of the Sea Customs Act is in the discretion of the Customs Collector. But that does not make it any the less an offence liable to be punished with five years' rigorous imprisonment. In this view, the offence is a cognizable one in respect of which the offender is liable to receive a sentence of five' years' rigorous imprisonment. Consequently, Section 196-A of the Code of Criminal Procedure does not necessitate a previous sanction.
3. It is also argued for the petitioners that 'under Rule 128 of the Defence of India Rules only certain offences are picked out in respect of which it is stated that a police officer may arrest without a warrant. That rule had to be made because air those offences in respect of which that rule was made were non-cognizable offences in respect of which the offender cannot be arrested by the police without a warrant, It cannot be taken therefore as exhaustive of all offences punishable under the Defence of India Rules in respect of which a police officer may arrest without a warrant, The petition fails and is dismissed.