( 1 ) THE petitioner has been convited of an offence under S. 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 126p (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 20-4-1967 by Poona-Bangalore mail. When the train arrived at Belgaum Railway Station at about 12-30 hours, PW. 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 Narahari, 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 Chandar Kumar, learned Counsel appearing on behalf of the petitioner has not challenged the conviction of the petitioner under s. 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. 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 scheme 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 concerend, it would be an offence under the customs Act and not under the Rules. It is also argued that under Rule 126-I 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, AIR 1970 Cal. 437 in support of the said contention. ( 4 ) THE point raisel by the learned Counsel is concludet by two Bench decisions of this Court. In Superintendent of Central Excise v. Alvi, Cr. A. 271/66, 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 Mandagi 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 S. 135 of the Customs Act, he cannot be convicted again on the same facts for an offence under Rule 126p (2) (ii) of the defence of India Rules. It is not possible for us to accept the said contention of Sri Mandagi. His argument is, once a person is convicted under S. 135 of the Customs Act, he cannot be convicted again on the same facts for an offence under Rule 126p (2) (ii) of the defence of India Rules. It is not possible for us to accept the said contention of Sri Mandagi. The definition of 'gold' in Rules 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 includes any gold coin (whether legal tender or not), any ornament and any other articles of gold. Sub-rule (g) of R. 126a defines "primary gold" as gold in any unfinished form and includes all ingots, bars, blocks, slabs, billets, shets, pillets, rods and wires. Tt may be pointed out that this definition of 'gold' in the Defence of India Rules, does not exclude smuggled gold. We also do not agree with Sri Mandagi that the Rules do not apply to a person in possession of smuggled gold. If that is so the very purpose of Gold Control will be defeated. . . . . " ( 5 ) AGAIN in Superintendent of Central Excise v. U. N. Malliah, (1968) 1 Mys. L. J. 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 126a 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 126a 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 A. M. Sinha v. Prahlad Chandra, (1), 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 126p is in respect of 'legal' gold as opposed to smuggled gold. Customs Act deals with smuggled cold of foreign origin or making, illegally imported into India and penalty including seizure is provided for in the Customs Act. The question of declaraton in respect of that does not arise at all. Prosecution of the accused persons under Rule 126p is therefore uncalled for and their convictions under Rule 126p 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 tc 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 definiton 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 126a 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 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, Chap. 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 Rule 126-I, which specifically states that no person other than a dealer or refiner shall acquire 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 S. 135b (ii) of the Customs Act and also for an offence under S. 126p (2) (ii) of 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 S. 135b (ii) of the Customs Act and also for an offence under S. 126p (2) (ii) of the Rules. Sub-clause (2) of Art. 20 of the Constitution of India and S. 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-cl. (2) of art. 20 of the Constitution and under S. 26 of the General Clauses Act, a person shall not be prosecuted or punished for the same offence more than once. Here the petitioner has not been prosecuted twice for the same offence. The offence under S. 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 S. 111, as such goods had been imported from outside India without paying the necessary duty. The offence under sub-clause (ii) of Rule 126p (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 offences. 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 Inda Rules 126p (2) is different from the offence under S. 135 (b) of the Customs Act. As has been pointed out by the Supreme Court in state of Bombay v. Apte, AIR 1961 SC 578 , if the offences are not the same but are distinct offences the ban imposed bv Art. 20 (2) of the Constitution and s. 26 of General Clauses Act cannot be invoked. As has been pointed out by the Supreme Court in state of Bombay v. Apte, AIR 1961 SC 578 , if the offences are not the same but are distinct offences the ban imposed bv Art. 20 (2) of the Constitution and s. 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 onlv with regard to the prosecution under Rule 126p (2) of the Rules and it does not specify that the prosecution is with regard to sub-cl. (ii) of Cl. (2) of Rue 126p of the Rules. ( 10 ) RULE 126q 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 126h (2) (d) of the Defence of India Rules and the petitioner failed to declare 40 toals 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 R. 126p. (2) of the Rules, in exercise of the powers conferred on him under S. 126q 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 tolas of gold contrary to the provision of Rule 126h (2) (d) which is punishable under Rule 126p (2) of the Rules. Rule 126p (2) includes sub-clause (ii) according to which the petitioner has been convicted. Rule 126p (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. Chati v. State of U. P. , AIR 1951 SC 207 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 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 126q of the Rules. ( 11 ) IT is finally contended by Sri Chander Kumar that this is a fit case in which the provisions of S. 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, AIR 1965 SC 444 , 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 in revision proceedings. Reliance is also placed on a decision of this Court rendered in Criminal revision Petition 330 of 1969 wherein this Court has pointed out that the language of sub-sec. (1) of S. 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 S. 4 of the Probation of Offenders Act. Before a person can be released under S. 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 S. 4 (1) of the Probation of offenders Act. 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 S. 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 271 of 1965 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, I am of opinion that this is not a fit case for the release of the petitioner under S. 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. --- *** --- .