Judgment M. B. SHARMA, J, J. ( 1 ) THE learned Chief Judicial Magistrate (Economic Offences) Rajasthan, Jaipur under his judgment dated 16th July 1984 convicted the accused petitioner u/s. 135 (B) of the Costumes Act, 1962 (for short the Act) and sentenced him to undergo two years Rigorous Imprisonment and to pay a fine of Rs. 2, 000/- or in default of payment of fine to further suffer six months R. I. The learned Magistrate also ordered that so far as the confiscated foreign wrist watches numbering 2545 are concerned, the department has already made an order in respect of them. The accused petitioner filed an appeal against his conviction and sentence and the learned Addi. Sessions Judge, Jaipur city, Jaipurumfer his judgment dated 17th January 1989 partly allowed the appeal. He maintained the conviction of the accused petitioner u/s. 135 (B) of the Customs Act but reduced the sentence to one year Rigorous Imprisonment and to pay a fine of Rs. 2,000/- or in default of payment of fine to further suffer six months Rigbous Imprisonment. I consider it proper to give the facts of the case which are these: ( 2 ) ON 10th April 1972, in persuance, of an information that foreign goods are being carried in a truck which is coming from Bombay a party of customs and Central Excise Officers, Jaipur conducted Nakabandi on Ajmer, Jaipur and Malpura Jaipur routes. At about 23. 00 hours on Ajmer Jaipur route truck DLL 8022 was noticed coming from Ajmer side. On a signal being given, the truck was stopped and on inquiry four persons were found in the truck. Beside the accused petitioner who was the registered owner and is also said to be in possession of the contraband wrist watches, Pooran Chand and Mohan Lal were the drivers and one Had was the khalasi. At that time Pooran Chand, the first driver of the truck was driving the vehicle and the other driver was also sitting on a seat behind him and the petitioner was sitting by the side of the driver and is said to have disclosed himself as the owner of the truck in question. Khalasi was sitting on the top of the truck. It was given out by the driver that he was bringing the truck from Bombay and was proceeding to Delhi. Khalasi was sitting on the top of the truck. It was given out by the driver that he was bringing the truck from Bombay and was proceeding to Delhi. Beside other goods which were covered by the several documents three packages were found which were not so covered and contraband or smuggled goods. The truck was brought to the office of Assistant Collector, Customs and Central Excise situated at C-60, Sarojini Marg, Jaipur for examination. It was kept in the custody of the employees of Customs department on 11th April 1972. At about 8. 00 a. m. in the presence of the independent witnesses namely Sudarshan Kumar, Khem Chand and Shri Jai Gopal, 34 packages of cloth and 68 cables of copper as detailed in challan No. 5221-5222 dated 8th April 1972 as given to M/s. Great India Roadways Bombay were unloaded from the said truck. On examination the aforesaid packages, nothing incaminating was found. . But on further examination of the truck, three more packages wrapped in Ganni bags on which there were marking (1) R. S. Motors Ltd. G. B. 850, (2) R. S. Motors Ltd. , GZBD 1200, (3) R. S. Motors Ltd. GZBD 500 were found. On opening the three gunny bags, they were found containing 2545 wrist watches worth Rs. 2,88,945/ -. These three gunny bags were notfound entered in the above numbered goods challan dated 8th April 1972. The registration certificate of the vehicle showed that the accused petitioner was the registered owner of the vehicle. The accused-petitioner is also said to have been the owner in possession of the said wrist watches numbering 2545. On demand by the customs officers, the accused petitioner could not show any lawful purchase/possession in respect of the said number of wrist watches. The said goods, therefore, were seized u/s. 110 of the Customs Act, on a reasonable belief that the same were illicitly imported to India u/s. 3 (1) and 3 (2) of the Import and (Control) Act, 1947 and Import Control Order, 1955 (as amended ). The said goods, therefore, were seized u/s. 110 of the Customs Act, on a reasonable belief that the same were illicitly imported to India u/s. 3 (1) and 3 (2) of the Import and (Control) Act, 1947 and Import Control Order, 1955 (as amended ). ( 3 ) AN inquiry u/s. 108 of the Customs Act was initiated in connection with the smuggling of the goods and the accused petitioner is said to have made a statement on 11th April 1972, which statement was recorded u/s. 108 of the Act, and in his statement the accused petitioner had admitted that the said wrist watches were handed over by his uncle Raj Kumar to him to carry them to Delhi and deliver them at his residence. He further admitted that he and his uncle reside in the same house at Delhi and Raj kumar Gupta has a firm named as Panchasheel Traders Watch Dealer and Commission Agent situated at 97, New Lajpat Rai Marg, Delhi and deals in watches. The accused-petitioner is also said to have admitted in his statement, that the said 2545 wrist watches were smuggled goods and his uncle had told him not to make the goods receipt (bilty ). The accused-petitioner, therefore, acting upon the advise of his uncle, was carrying the wrist watches to Delhi in the truck. It was only after the sanction and authorisation for prosecution that the afore said complaint was filed. The accused petitioner was tried and after the prosecution evidence the accused was examined u/s. 313, Cr. P. C. to explain the circumstances appearing him in the evidence. A look at statement u/s. 313, Cr. P. C. will show that the accused has denied to be the owner of the truck or taking the above numbered wrist watches in the truck or that the same were smuggled. He stated that his signatures were obtained on the various papers but the same were not prepared in his presence. But it may be said that the petitioner cannot be said to have disputed his ownership of the truck. In the answer to the said question as to what he has to state, the petitioner stated that his vehicle was attached with Great India Roadways, Bombay. But it may be said that the petitioner cannot be said to have disputed his ownership of the truck. In the answer to the said question as to what he has to state, the petitioner stated that his vehicle was attached with Great India Roadways, Bombay. ( 4 ) THE accused petitioner, did not examine any witness in defence and the learned Magistrate under his judgment dated 16th July 1984 convicted and sentenced the accused petitioner as aforesaid and his appeal was partly was partly allowed. ( 5 ) IN challenging the aforesaid conviction and sentenced the learned counsel for the petioner has raised a three fold contention as under: (1) that the statement u/s 108 of the Customs Act is inadmissible in evidence and cannot furnish legal and reliable evidence; (2) no expert evidence has been led that 2545 wrist watches were foreign goods or smuggled goods; and (3) that there was no evidence that the Assistant Collector (Customs) had or could have had reasonable belief that the goods are liable to confiscation and, therefore, he could not have searched the goods or the vehicle. Re-1: - Referring to Sec. 108 of the Customs Act, the learned counsel for the petitioner contended that before sub-sec. (1) to Sec. 108 could have been attracted, it was necessary that any inquiry should have been pending before the officer in connection with the smuggling of any goods and according to learned counsel, when the statement was so recorded, no such inquiry was pending and, therefore, the statement is not an admissible evidence. In support of his contention learned counsel has placed reliance on the case of Union of India v. Abdul Kadar Abdul Gani Mamanitlnd Ors. , In me aforesaid case a view has been taken by the Gujarat High Court that the stage of recording of statements under section 108 arises only when an inquiry is started either for confiscation of the goods or for imposing penalty. With due respect the aforesaid view does not appeal tome. That apart the learned Judge on facts arrived at a Conclusion that even if the statements made u/s. 108 of the Act are taken into consideration they do not advance the case of the prosecution. A look at sub-section (1) of section 108 of the Customs Act will show that the inquiry thereunder is an inquiry in connection with the smuggling of any goods. A look at sub-section (1) of section 108 of the Customs Act will show that the inquiry thereunder is an inquiry in connection with the smuggling of any goods. The words used in subsection (1) of section 108 are in any inquiry which such officer is making in connection with the smuggling of any goods. Any gazetted officer of custom alone is empowered to summon any person and to examine him in connection with the inquiry which he is making in respect of smuggling or any goods and the inquiry thereunder has no relation with the confiscation of the goods, which inquiry only starts after a show cause notice has been given. A look at the judgment of Balakrishna C. Chhaganlal Soni v. State of Best Bengal will show that it was a case not only u/s. 108 but also u/s. 197 of the Customs ACL The scope of both the sections is different. In the case of Ramesh Chand Mehta v. The State of West Bengal, the Supreme Court has said that any statement made u/s. 108 of the Customs Act against a person against whom an inquiry is to be made being accused for an offence is admissible. The powers u/s. 108 are analogous to the powers u/s. 107-A of the Sea, Customs Act and in my opinion an inquiry u/s. 108 (1) of the Customs Act is not an inquiry u/s. 124 of the Customs Act as will be clear from sub-section (4) of Section 108 of the Customs Act. The words used in section 107 of the Act are during the course of any inquiry in connection with the smuggling of the goods and same words have been used in Sec. 108 of the Act. The only difference in sections 107 and 108 of the Act is in respect of the powers to record the statements. Whereas section 107 only such of the officer of customs who is empowered in this behalf by general or special order of the Collector of Customs, section 108 vests powers on any gazetted officer of customs. While Section 107 does not speak of issue of summons, section 108 SO speaks. I am, therefore, of the opinion that in the instant case because the Assistant Collector, Customs was an officer who was making the inquiry in connection with the smuggling of the goods. While Section 107 does not speak of issue of summons, section 108 SO speaks. I am, therefore, of the opinion that in the instant case because the Assistant Collector, Customs was an officer who was making the inquiry in connection with the smuggling of the goods. The statement, was recorded u/s. 108 on inquiry and the statement made by the petitioner is relevant and admissible in evidence. ( 6 ) A look at Ex. PW 4 the statement made by the accused petitioner u/s. 108 (1) during the course of inquiry will show that the accused petitioner has clearly admitted that he is the owner of the truck No. DLL 8022 and it was attached with the Great India Roadways, Bombay and it was being plied from Delhi to Bombay and back. It has also been stated that two persons were kept as drivers and one was kept as khalasi. The two drivers and khalasi were also found in the truck at the time when it was searched. It is also clear that the accused petitioner was carrying the smuggled wrist watches for his uncle Raj kumar Gupta, and that it is he (accused) who had actually loaded the three bags containing the smuggled wrist watches. From the statement u/s. 108 (1) of the Customs Act during the inquiry in respect of smuggling of goods, wrist watches in this case, it can be said that it was the accused petitioner who was in conscious possession of the three bages containing the wrist watches which were being in truck to which he was the occupant at the relevant time. A look at the record of the trial court will show that Ex. P. 6 is the goods challan which was also recovered from the truck when the same was searched and it appears from the perusal of it that the truck coming from Bombay and was to proceed to Delhi and the driver was Pooran Chand and owners name is Shyamlal Gupta. It can also be said that the three gunny bags which were containing the wrist watches numbering 2545 were not entered in it whereas other goods were so entered. By referring to the statement of the accused-petitioner u/s. 313, Cr. P. C: it has been saidr that the accused petitioner does not dispute and rather admits that he was the registered owner of the truck. By referring to the statement of the accused-petitioner u/s. 313, Cr. P. C: it has been saidr that the accused petitioner does not dispute and rather admits that he was the registered owner of the truck. Re (2) and (3): ( 7 ) IT was next contended by the learned counsel for the petitioner that there was no evidence that the goods were smuggled goods and watches numbering 2545 had foreign marking and those wrist watches were not prepared in India. The question is as to whether the goods containing foreign marking can be said to be smuggled goods? The smuggling has been defined u/s. 2 (39) of the Customs Act and in relation to any goods means any act or omission which will render such goods liable to confiscation u/s. 111 or section 113. There can be no dispute that the foreign made wrist watches could only be imported in India after duty is paid and it is not the case that they were imported in India after payment of any duty. It was contended by learned counsel for the petitioner that there is no evidence much less expert evidence that the wrist watches, even if it is assumed that they were recovered from the possession of the accused, were foreign made and no such assumption can be made merely because they were having foreign marking on them. In support of his contention learned counsel has referred to the case of U. O. I. v. Mumtazuddin and Ors. . The facts of that case were different. It was a case against acquittal and it is well known that the scope in appeal is very limited. In that case the accused had come out with a defence at the very first opportunity when the goods were seized that a customer had left them in the shop. That case has no application to the facts of the instant case. In the case of State of Gujarat v. Manharlal Ambalal Soni M. P. Thakkar. J. as he then was dealing with a case where 20 bars of gold, each weighing 10 tolas (200 tolas) bearing foreign mark were found from the possession of the accused. And on an argument being advanced that there were not expert evidence that the goods were smuggled goods, said that in case of the goods bearing foreign marking, a presumption u/s. 123 of the Custom Act arises. And on an argument being advanced that there were not expert evidence that the goods were smuggled goods, said that in case of the goods bearing foreign marking, a presumption u/s. 123 of the Custom Act arises. The court said that a presumption u/s. 123 of the Customs Act can certainly be raised under the circumstances though as observed earlier in the present case there is sufficient evidence to hold against the accused even without calling into aid the presumption u/s. 123 of the Customs Act. It was also contended before Thakkar J. by the learned counsel for the accused- respondent that the customs officers who seized the goods could not have entertained reasonable belief that they were smuggled goods and, therefore that presumption would not arise. The learned Judge said, there is no substance is this contention. Having regard to the incription of foreign markings on the gold, the custom officer could have legitimately entertained a reasonable belief that it was smuggled goods. It is not possible to conceive that the custom officers would have believed that it was some yellow matel on which false incription of foreign country was made in order to deceive some one. A custom officer deals with such questions day in and day out. He would be justified in entertaining a reasonable belief that it was smuggled gold. ( 8 ) A look at section 123 of the Customs Act will show that it deals with the Burden of Proof in certain cases: - and where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be (a) in a case where such seizure is made from the possession of any person,- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the wonder thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. Therefore, in this case the goods were seized from the accused petitioner who was the one of the occupants of the truck and was its registered owner and under the circumstances they were beingconveyed in the truck and were having markings of foreign made, it can be said that the officer seized them in the reasonable belief that there are smuggled goods. A presumption u/s, 123 of the Act arose and the burden of proving that they are not smuggled goods shifted on the petitioner and the petitioner has failed to discharge or rebut that burden. In my opinion, the mere fact that there was foreign marking on 2545 wrist watches which were lying concealed in gunny bags which were riot covered by the goods receipt there was and should be and could be reasonable belief that they were smuggled goods and there was presumption u/s. 123 (a) (ii) of the. Customs Act and the petitioner utterly failed to discharge the burden which shifted on him. The result of the above discussion is that I find no merit in this revision petition and the same is hereby dismissed both in respect of conviction as well as sentence because in a case of present nature, in my opinion the sentence does not appear to be excessive. The accused is on bail and he shall surrender to the bail bonds forthwith before the learned trial court and if the accused does not surrender as aforesaid, the learned trial court shall take steps that the accused is apprehended to undergo the sentence awarded to him or any remaining part thereof. The accused was released on bail and if the accused does not srrender to the bail bonds; it shall be considered whether proceedings u/s. 446, Cr. P. C. shall be initiated against him and surety or not. Petition dismissed.