JUDGMENT 1. - On January 19, 1993 a Customs Preventive Party comprising of PW 1 Prem Kumar Mehra, PW 2, G.D. Saxena, PW 5, Bisheshwar Nath Khurana, PW 6 S.P. Trivedi and P.W. 7 Bhagwan Swaroop, Inspectors of the Customs and Central Excise Deptt. Jaipur, was on checking duties at Abu Road Railway Station. In the course of their checking the compartments of the said train they noticed three passengers, including the present petitioner, sitting in Compartment No. 35516 on seat Nos. 62, 63 and 64. They looked suspicious. On seeing the checking party the petitioner, who is said to be occupying seat No. 64, got, allegedly, somewhat nervous. On query by the officers the three gave out their names as Bal Kishan, Nathu Ram and Mangi Lal (petitioner) and further told that they all were goldsmiths. They had IIIrd Class tickets upto Phalna. Being suspicious about all the three persons the members of the Preventive Party made them de-trained at Phalna Railway Station and took them to Upper Class waiting room and searched their persons in presence of PW 3 Govind Singh Bhardwaj, the Station Master Phalna Rly. Station and PW 4 Vasudev Prasad, Head Constable G.R.P. Police Chowki, Rly. Station Phalna. Nothing incriminating was recovered from the persons of Bal Kishan and Nathu Ram, aforesaid. However, on search of the person of the petitioner, besides two canvass hand-bags, one brass milk container with lid on it was found in his possession. Nothing incriminating was found in the two hand bags but on removing the lid of the brass milk container three cakes of Life Buoy Toilet Soap were found. The uppermost cake of the soap was having normal weight but the lower two cakes were heavier. On enquiry the petitioner is stated to have told that those two heavier in weight cakes contained one bar each of gold of foreign origin. The soap cakes were cut. Each cake was found containing one gold bar. The two gold bars, duly wrapped in papers, were taken out of the soap cakes. They were bearing the following marking. (1) ARGORA SA CHIASSO-10 TOLAS 999.0 FOUNDER ASA ESSAYEOR (2) SWISS BANK CORPORATION-10 TOLAS 999.0 2. The petitioner, on demand, could not furnish any evidence, documentary or otherwise, to show that the two gold bars of foreign origin were genuinely procured by him or lawfully imported into the country. They were bearing the following marking. (1) ARGORA SA CHIASSO-10 TOLAS 999.0 FOUNDER ASA ESSAYEOR (2) SWISS BANK CORPORATION-10 TOLAS 999.0 2. The petitioner, on demand, could not furnish any evidence, documentary or otherwise, to show that the two gold bars of foreign origin were genuinely procured by him or lawfully imported into the country. The officers of the Customs Deptt., therefore, made a belief that the two gold bars, as they were having foreign marking, were of foreign origin and had been imported into the country in violation of the provisions of Section 8(1) of the Foreign Exchange Regulation Act, 1947 corresponding to section 13 of the Foreign Exchange Regulation Act 1973 read with Govt. of India Notification No. 12 (11)/1/48 dated 25.8.48 without general or special permission of the Reserve Bank of India and were subject to the payment of customs duty. Having formed such belief the officers of the Customs Deptt. seized the gold bars Under Section 110 of the Customs Act, 1962 (for short 'the Customs Act'). On being tested by a local goldsmith the gold bars were found of 24 carats purity. Those were, therefore, considered as 'primary gold' also. The IIIrd Class ticket alongwith the Reservation Slip No. 549910 and the three soap-cakes alongwith the brass milk-container were also seized. The papers were then placed before Shri S.K. Ghoshal, the then Collector Central Excise and Customs, Jaipur for sanctioning the prosecutor of the petitioner. Mr. Ghoshal accorded the requisite sanction on December 15, 1978 and authorised PW/8 Amar Singh, the then Assistant Collector, Customs and Central Excise, Ajmer to file the complaint against the petitioner for commission of the offences punishable under section 135(1)(b) of the Customs Act and under section 85(1)(ii) of the Gold (Control) Act 1968 (for short 'the Gold Control Act') in the court of the competent jurisdiction. Such complaint was filed in the court of the learned Magistrate on May 10, 1979 by Sri Amar Singh. The learned Magistrate tried the petitioner on the charges for the aforementioned offences and by his judgment and order dated January 3, 1984 held him guilty for both the offences, as mentioned above. He therefore, convicted him as such and sentenced him to R.I.for three months and fine of Rs. 1000/- for each of the two offences. The sentences of imprisonment were directed to run concurrently. In appeal the learned Addl. He therefore, convicted him as such and sentenced him to R.I.for three months and fine of Rs. 1000/- for each of the two offences. The sentences of imprisonment were directed to run concurrently. In appeal the learned Addl. Sessions Judge, vide his judgment and order dated December 15, 1990 confirmed the judgment and order of the Magistrate. Hence this revision petition under section 397 of the Code of Criminal Procedure 1973 (Cr. P.C.) 3. I heard Mr. R.N. Khandelwal, the learned counsel for the petitioner at considerable length. In the absence of any counsel for and on behalf of the Respondent Mr. Khandelwal extended valuable help to me in minutely examining the records of the two courts below. 4. For the purposes of satisfying myself as to the correctness of the findings recorded by the two courts below I critically examined the evidence of all the witnesses who were examined by both the sides at the trial of the petitioner. I found that it stood fully proved from the evidence of eight witnesses examined by the prosecution in this case that on the relevant day, time and place the officers of the Customs and Excise Deptt., Jaipur had reasons to believe that the petitioners had secreted about his person smuggled gold which was liable to confiscation and on the basis of such belief when they apprehended the petitioner and took search of his person two gold bars, having foreign marking and secretly hidden in two Life Buoy Toilet Soap cakes, inside a brass milk container, were recovered from his possession. The evidence consisting of the sworn testimony of PW/1 Prem Kumar Mehra, PW/2 P.D. Saxena, PW 5 Basheshwar, PW 6 S.P. 'frivedi and PW 7 Bhagwan Swaroop, who at the relevant time were discharging their official duties as officers of the Customs and Central Excise Deptt., was quite trustworthy on the factual aspect of the case and has been rightly relied upon by the two courts below. The version given by the officers of the Department stood fully corroborated by the statements made on oath by PW 3 Govind Singh, Station Master and PW 4 Vasu Deo Prasad, Head Constable, G.R.P. The concurrent findings of fact, based as they are on proper appreciation of the evidence by the two courts below, do not call for any interference by this court in exercise of its revisory jurisdiction Under Section 397 Criminal Procedure Code. 5. Mr. Khandelwal has, however, raised certain legal points which, according to the learned counsel, materially affect the worth and value of the concurrent findings of the courts below and thus have a bearing on the final decision in the case. Let us examine such objections of the learned counsel. 6. It was urged by Mr. Khandelwal that the witnesses of the Department were not 'proper officers' within the meaning of the term defined in Section 2 (34) read with Section 100 of the Customs Act and, therefore, the search and seizure affected by them was quite illegal and vitiated the trial. Reliance in this behalf was placed on the Gujarat High Court decision in the case of Union of India Vs. Abdulkadar Abdulgani, 1985 Cr. L.J. 324. With respect to Mr. Khandelwal the argument advanced is misconceived. 7. The term 'proper officer' has been defined in Section 2(34) of the Customs Act in the following words : "Section 2 (34) : 'proper officer', in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Collector of Customs." 8. Section 3 classifies 'the officers of Customs', the term which has been used in the language of Section 2 (34) above, in the following six categories, viz., (a) Principal Collector of Customs, (b) Collector of Customs,' (c) Collector of Customs (Appeals), (d) Deputy Collector of Customs, (e) Assistant Collectors of Customs, and (f) Such other class of Officers of Customs as may be appointed for the purposes of this Act. 9. Section 4(1) says that the Central Government may appoint such persons as it thinks fit to be officers of Customs. 9. Section 4(1) says that the Central Government may appoint such persons as it thinks fit to be officers of Customs. Sub-Sec. (2) provides that without prejudice to the provisions of sub-section (1) the Central Government may authorise the Board, a Collector of Customs or a Deputy or Assistant Collector of Customs to appoint officers of Customs below the rank of Assistant Collector of Customs. Section 5 speaks of the powers of officers of customs and provides that subject to such conditions and limitations as the Board may impose, an officer of customs may exercise the powers and discharge the duties conferred or imposed on him under this Act. This section further provides that an officer of customs may exercise the powers and discharge the duties conferred or imposed under this Act on any officer of customs who is subordinate to him. 10. On reading the definition of the term 'proper officer' as given in Section 2 (34) alongwith the provisions contained in Section 3, 4 and 5 of the Customs Act it is clear that the scope of the term 'officer of customs' is much more wider than that of the term 'proper officer'. When an officer of customs is assigned any particular function by the Board or the Collector of Customs which function is to be performed under the Customs Act, the officer of Customs to whom such function has been assigned becomes a 'principal Officer' in relation to that function. Thus the term 'Officer of Customs' includes within its scope the term 'principal Officer' but the vice versa may not be correct. This distinction between the two terms seems to lie in the specific 'assignment' of a particular function by the Board or the Collector of Customs to an officer of customs.Chapter XIII of the Customs Act deals with searches, seizures and arrests. Sections 101 and 104 empower an officer of customs, who has been empowered in that behalf by general or special order of the Collector of Customs, to search suspected persons in certain cases and arrest them. Section 107 confers upon such officers the power to examine certain persons during the course of any enquiry in connection with the smuggling of any goods. Section 107 confers upon such officers the power to examine certain persons during the course of any enquiry in connection with the smuggling of any goods. The powers conferred by these provisions on the 'officer of the Customs' is of that general type which he is required to possess, in order to discharge his duties under the Act as such officer. Therefore, the conferment of such powers on him may be made by a general or special Order of the Collector of Customs. Similar powers, but of different nature, have been conferred on 'proper officer' by Sections 100, 103, 105, 106, 106A, 108 and 110. The nature of the functions to be performed or duties to be discharged under those provisions is, it would appear, somewhat different from those under Sections 101, 104 and 107. Such difference in the nature of functions or duties may require special authorisation or assignment to be made by the Board or the Collector of Customs in favour of a particular officer of customs. Such a difference may be noted on a study of the provisions contained in Sections 103, 105, 106, 106A, 108 and 110 of the Customs Act. In view of the nature of the duties to be performed by an officer of Customs under the Act a presumption Under Section 114 of the Evidence Act for the official acts done in the discharge of his official duties, may be raised. However, screening of the bodies Under Section 103 for detecting secreted goods, search of premises Under Section 105, stopping means of transport and searches thereof Under Section 106, inspecting the goods kept or stored Under Section 106A, summoning persons to give evidence and produce documents Under Section 108, permitting clearance of goods imported by land Under Section 109, seizure f goods documents and things Under Section 110, are duties of somewhat specific and more important nature and may, therefore, need specific assignment or authorisation in favour of some senior, experienced officers of Customs. Such assignment or authorisation, in the facts and circumstances of a case, may be required to be proved by some specific evidence. Under the scheme of Chapter XIII and the aims and object of the Customs Act such an approach to the construction of various provisions therein seems to be quite logical and reasonable as it promotes and advances, the very purpose of that Act. 11. Under the scheme of Chapter XIII and the aims and object of the Customs Act such an approach to the construction of various provisions therein seems to be quite logical and reasonable as it promotes and advances, the very purpose of that Act. 11. In the instant case it was the part of the normal duties of the Inspector-witnesses, who were the members of the Preventive Party, to check the train and the passengers travelling therein in connection with the smuggling of any goods. It is not disputed that at the relevant time the Inspector-witnesses were discharging their duties as 'officer of the Customs'. Conferment of powers Under Section 101, 104 and 107 of the Customs Act, by a general or special order of the Collector of Customs upon them may, therefore, be presumed Under Section 114 of the Evidence Act. 12. In the case of Union of India Vs. Abdul Kadar Abdul Ghani (supra), which was relied upon by Mr. Khandelwal, their Lordships of the Gujarat High Court were concerned, inter alia, with search and seizure of synthetic fabrics, which was alleged to be of foreign origin; made from the residential premises of the accused Under Section 110 of the Customs Act. The search was made and the synthetic fabric having foreign marking was seized by the Superintendent of the Customs Deptt. whereas the same could have been made by a 'proper officer' as required by Section 110. It was on such facts that their Lordships observed at page 333 of the report as under : "Section 110 of the Act, as stated a little earlier, empowers only the proper officer to seize the goods if he has reason to believe that any goods are liable to confiscation under the Act. There being no material on record to show that either the Superintendent or the Inspector was the proper officer as per Section 2 (34) of the Act, no presumption Under Section 123 of the Act will be available on seizure of the goods by the Inspector in the presence of the Superintendent. There being no material on record to show that either the Superintendent or the Inspector was the proper officer as per Section 2 (34) of the Act, no presumption Under Section 123 of the Act will be available on seizure of the goods by the Inspector in the presence of the Superintendent. Even if the Superintendent and the Inspector had acted as per oral directions of the Assistant Collector as deposed to by the Superintendent Dhirajlal, then also it will make no difference because a customs officer can be said to be 'proper officer' only if particular functions are assigned to him either by the Board or the Collector of Customs or Addl. Collector of Customs as Collector of Customs includes Additional Collector but does not include Assistant Collector of Customs." 13. It may be noted that the above observations were made by their Lordships in the context of the search made under section 105, 110 of the Customs Act where such actions can be taken by 'proper officer' only. In the instant case the search was made under section 101 read with Section 102(4) which empower the 'officer of customs' to take such a search of the person of a suspected offender of the Customs Act. In view of the discussion made herein above the search made in the present case by the officers of the Customs was a search legally made under the Act. 14. Assuming for the sake of arguments only that the search made in the instant case was illegal, which it, certainly, was not it is worthwhile to point out that the law relating to search and seizure has undergone a sea-change, particularly in the contxt of socio-economic legislation. In the case of State of Himachal Pradesh Vs. Pirthi Chand, 1996(2) SC 37, their Lordships of the Supreme Court, after considering a number of their earlier decisions, observed thus in para Nos. 4 to 7 of the report : "It is to be seen whether the accused has been afforded such a right and whether the authorised officer has violated the mandatory requirement, as a question of fact, has to be proved at the trial. In Pooran Mal Vs. 4 to 7 of the report : "It is to be seen whether the accused has been afforded such a right and whether the authorised officer has violated the mandatory requirement, as a question of fact, has to be proved at the trial. In Pooran Mal Vs. Director of Inspection (Investigation) a Constitution Bench of this Court had held that power of search and seizure, is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. A search by itself is not a restriction on the right to hold and enjoy property, though seizure is a temporary restriction to the right of possession and enjoyment of the property seized. However, the seizure will be on temporary and limited for the purpose of the investigation. The power of search and seizure is an accepted norm in our criminal law envisaged in Sections 96 to 103 and 165 of the Criminal Procedure Code, 1973 (for short 'the Code'). The Evidence Act permits relevancy as the only test of admissibility of evidence. The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of the Constitution to exclude such evidence. The decisions of the American Supreme Court spelling out certain constitutional protections in regard to search and seizure are not applicable to exclude the evidence obtained on an illegal search. Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure. When the test of admissbility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure is not liable to be shut out. Search and seizure is not a new weapon in the armoury of those whose duty is to maintain social security in its broadcast sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restrictions imposed as reasonable measures. It would be seen that the organised traffic in contraband generates deleterious effect on the national economy affecting the vitals of the economic life of the community. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restrictions imposed as reasonable measures. It would be seen that the organised traffic in contraband generates deleterious effect on the national economy affecting the vitals of the economic life of the community. It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.In Radha Kishan Vs. State of U.P. this Court held that the evidence obtained by illegal search and seizure would not be rejected but requires to be examined carefully. In State of Maharashtra Vs. Natwarlal Damodardas Soni , even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the customs officials. In Shyam Lal Sharma Vs. State of M.P. it was held that even if the search and seizure is illegal being in contravention of Section 165, that provision does not have any effect in its application to the subsequent steps taken in the investigation. In State of Kerala Vs. Alasserry Mohd. this Court had held that failure to comply strictly with the statutory provisions by the Food Inspector would not vitiate the trial, and conviction of the accused.It would thus be settled law that every deviation from the details of procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The court is required to scan the evidence with care and to act upon it when it is proved and the court would hold that the evidence would be relied upon." 15. The above observations made by their Lordships of the Apex Court leave no room for doubt that, as held in State of Maharashtra Vs. The court is required to scan the evidence with care and to act upon it when it is proved and the court would hold that the evidence would be relied upon." 15. The above observations made by their Lordships of the Apex Court leave no room for doubt that, as held in State of Maharashtra Vs. Natawar Lal Damodar Dass Soni, 1980(4) SCC 669 , even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the Customs officials. Relevancy being the only test of admissibility of evidence, unless prohibited by any law, evidence obtained as a result of illegal search and seizure cannot be held inadmissible and rejected as such. Weight shall have to be attached to the evidence in support of search and seizure, which may be illegal, no doubt before doing that and acting upon such evidence the court is required to scan the relevant evidence with care and caution. 16. As stated above the evidence of the prosecution witnesses on the point of search of the petitioner and recovery of the gold bars from his possession is quite satisfactory and reliable. The Inspector witnesses were the 'officers of Customs' at the relevant time. It was not unusual on their part to have discharged their official duties in the manner they did. There is nothing in their evidence to disbelieve them. They had no enmity with the petitioner. Their evidence cannot be discarded on the sold ground that they happened to be the officers of the Customs Deptt. and hence had official interest in the success of presecution as held by Himachal Pradesh High Court in the case of Ram Prakash Vs. Nayaya Panchayat, 1967 Cr.L.J. 61, relied upon by Mr. Khandelwal. In Ram Prakash's case a Bench of the Nyaya Panchayat had convicted the petitioner under section 228 Indian Penal Code for its contempt without having any jurisdiction to do so and it was on such facts that the Himachal Pradesh High Court had observed that personal interest means not only private interest but official interest as well. There are no such facts in the instant case. The evidence of the Inspector witnesses stands fully corroborated also by the evidence of the two independent witnesses viz. PW 3 Govind Singh, Station Master Rly. There are no such facts in the instant case. The evidence of the Inspector witnesses stands fully corroborated also by the evidence of the two independent witnesses viz. PW 3 Govind Singh, Station Master Rly. Station Phalna and PW 4 Vasu Deo Prasad, Head Constable, G.R.P., Phalna who were the persons from other departments and were in no manner subordinate to the officers of the Customs Deptt. 17. Here it was urged by Mr. Khandelwal that the two independent witnesses cannot be called independent and impartial as they were in the employment of the State. I fail to see any logic in this argument. The two independent witnesses-One coming from the Police Deptt. and the other from the Railway Deptt. did not cease to be independent and impartial witnesses simply for the reason of their occupying positions in the employment of the Government-Central or State. Their presence at the Railway Station at the relevant time was natural. They were quite responsible Officers of their respective Departments and had no animosity with the petitioner. Their testimony was quite reliable and has been rightly believed and relied upon by the two courts below. 18. Mr. Khandelwal next urged that neither conscious possession of the petitioner of the seized goods as smuggled goods was proved nor the goods seized was proved to be 'primary gold' by any expert evidence. Therefore, urged Mr. Khandelwal no presumption under section 123 of Customs Act can be made against the petitioner. Elaborating his argument Mr. Khandelwal submitted that presence of foreign marking on the gold biscuits did not prove their foreign origin and mere possession of the petitioner may be such possession was illegal, does not prove his conscious possession over the seized goods. In this behalf Mr. Khandelwal placed reliance on Asstt. Collector Customs, Baroda Vs. M. Ibrahim Pirjada, 1970 Cr.L.J. 1305 , Union of India Vs. S.H. Mumtazuddin & Ors., 1988(2) Crimes 243 , Asstt. Collector of Customs Vs. Pratap Rao Sait, 1972 Cr.L.J. 1135 , Asstt. Collector of Customs Vs. Roshanlal, 1973 Cr.L.J. 133 , Central Excise Department Vs. V.P. Somasundaram, 1980 Cr.L.J. 533 , G.K. Mazumdar Vs. Mohammed Kasam Mirza, 1967 Cr.L.J. 60 and Union of India Vs. Abdulkadar Abdulgani Masmani (1985 Cr.L.J. 324). I find no force in this argument too. 19. Collector of Customs Vs. Pratap Rao Sait, 1972 Cr.L.J. 1135 , Asstt. Collector of Customs Vs. Roshanlal, 1973 Cr.L.J. 133 , Central Excise Department Vs. V.P. Somasundaram, 1980 Cr.L.J. 533 , G.K. Mazumdar Vs. Mohammed Kasam Mirza, 1967 Cr.L.J. 60 and Union of India Vs. Abdulkadar Abdulgani Masmani (1985 Cr.L.J. 324). I find no force in this argument too. 19. Section 123 of the Customs Act reads as under: "Burden of proof in certain cases.-(1) 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 owner 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. (2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches and any other class of goods which the Central Government may by notification in the Official Gazette specify." 20. A bare reading of the provisions contained in Section 123 informs that where any goods to which that Section applies are seized under the Customs Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods lies inter alia, on the person from whose possession the goods were seized. section 123 creates a rebuttable presumption of any goods, to which that Section applies and which are seized under the Customs Act in the reasonable belief of the same being smuggled goods if the conditions laid down in the Section are fulfilled. Once it is proved that the goods was seized under the Customs Act in the reasonable belief that they are smuggled goods the burden of establishing that the goods seized are not smuggled goods would shift to the person from whom the goods was seized. For raising rebuttal presumption under section 123 it is to be shown that the goods was seized on the basis of the reasonable belief of its being smuggled goods. For raising rebuttal presumption under section 123 it is to be shown that the goods was seized on the basis of the reasonable belief of its being smuggled goods. Once these two facts essential for the application of Section 123 are proved in a given case, presumption under section 123 shall arise and the burden of establishing that the goods seized are not smuggled goods would shift on the person from whom the goods were seized. 21. In the instant case it stands fully established on record that the Inspector witnesses had seized the gold biscuits, having foreign markings on them, from the possession of the petitioner. The officers of the department were on checking duties in the 6 Down Ahmedabad-Delhi Train and in the course of their checking they had noticed the petitioner sitting on seat No. 64 in a compartment. As the witnesses have stated the petitioner had become pale and nervous on seeing them and such condition of the petitioner could have given rise to a reasonable belief to the Inspector-witnesses that the petitioner was possessing smuggled goods. The Inspector witnesses were discharging their duties under the Act and on the reasonable belief that the petitioner was possessing smuggled goods they could have affected a search of his person. On a search made by the witnesses the milk container was found containing 3 Life Buoy Toilet Soap Cake and in the cavities made in two of them the two gold biscuits having foreign marking on them were recovered from his possession and were accordingly seized. Thus the conditions for application of the provisions contained under section 123 stands proved in the present case. Once Section 123 stood applicable to the case of the petitioner the burden of proving that the gold biscuits were not smuggled goods squarely shifted on the petitioner. 22. It is true that the presence of foreign marking on the seized goods does not conclusively prove its foreign origin also. But in arriving at a final decision on the point, the facts and circumstances attending on the recovery and seizure of the goods are required to be taken into consideration. The evidence of an expert on the point is admissible in evidence under section 45 of the Indian Evidence Act but such evidence is not conclusive in nature. But in arriving at a final decision on the point, the facts and circumstances attending on the recovery and seizure of the goods are required to be taken into consideration. The evidence of an expert on the point is admissible in evidence under section 45 of the Indian Evidence Act but such evidence is not conclusive in nature. Such evidence helps the court to appreciate a fact in issue and may be taken into consideration in the application of other evidence, which is relevant and admissible on that issue. The opinion of the expert witness, unless mandated otherwise by a statute, is not conclusive and as such not binding upon a Court. It has to be appreciated like any other relevant evidence on the issue. Its absence does not fatally affect the worth and value of other relevant and reliable evidence on that issue which, in absence of expert evidence, shall have to be appreciated with increased care and caution before acceptance thereof. 23. In the instant case the Inspector witnesses appear to have obtained the services of a goldsmith. Bhaktawar Mal by name, to test the purity of the gold and who after testing such purity on 'Kasoti' had opined the purity of seized gold biscuits of 24 carats each and had accordingly issued his certificate, proved as Ex. P. 3 at the trial. But since the said Bhaktawar Mal could not be examined at the trial the certificate issued by him cannot be taken into account. But as stated above the absence of the evidence of the expert does not adversely effect the worth and value of the other evidence on the record available in the statements of the witnesses and supported by the reliable presumption under section 123 of the Customs Act arising in the facts and circumstances of the case. It cannot be lost sight of that the two gold biscuits were found kept in the cavities made in the Soap Cakes which were hidden in the brass milk container. The precaution taken by the petitioner in hiding the seized goods inside the cavities made in the Soap Cakes and then putting the Soap Cakes inside the milk container not only raises a reasonable belief regarding the goods being smuggled goods but also the presence of foreign marking found on the seized gold biscuits further corroborates the fact of their being of foreign origin. Taken all these facts and circumstances of the case and the sworn testimonies of the witnesses together and reading them alongwith the presumption created under section 123 of the Customs Act it can reasonably be held that the petitioner was rightly held guilty of the offence punishable Under Section 135(1)(b)(ii) of the Customs Act and Section 85(1)(ii)(b) of the Gold (Control) Act, 1968. 24. The cases relied upon by Mr. Khandelwal are distinguishable on facts. In the case of Asst. Collector Customs, Baroda Vs. M. Ibrahim Pirjada (supra) the Gujarat High Court had declined to raise the presumption Under Section 123 in respect of 50 bars of gold recovered from the possession of the accused on the ground that the seizure of the gold had not been made under the Customs Act. The seizure of the gold had first been made by the police and thereafter the police had handed over the gold and panchnama to Customs authorities. It was on such facts that the Gujarat High Court took the view that since the seizure was not made under the Act no presumption Under Section 123(1) and (2) regarding the gold seized being smuggled gold can be made. Such are not the facts before me in the instant case and, therefore, the ratio of the decision does not help the petitioner. 25. In the case of Asstt. Collector of Customs Vs. P.R. Saith (supra) exclusive possession of the accused of the contraband goods was not proved and the search was also not conducted in compliance with mandatory provisions of Section 105. It was on such facts that the Kerala High Court took the view that the burden to prove that the goods were not smuggled goods did not shift to the accused as the provisions of Section 123 were not strictly complied with. On the facts of the present case I have found that conditions for the application of the provisions of Section 123 of the Customs Act has been proved in the present case. Therefore, the ratio of this decision too, which follows the Gujarat High Court's decision referred to above, does not help the petitioner before me. 26. In the case of Asst. Customs Collector Vs. Roshan Lal (supra) the accused was tried for having illegally acquired possession of certain contraband precious stones and foreign made Transistors. Therefore, the ratio of this decision too, which follows the Gujarat High Court's decision referred to above, does not help the petitioner before me. 26. In the case of Asst. Customs Collector Vs. Roshan Lal (supra) the accused was tried for having illegally acquired possession of certain contraband precious stones and foreign made Transistors. It was on such facts that the Gauhati High Court took the view that mere possession will not be sufficient to raise presumption against the accused of the guilty knowledge or belief. In the instant case the guilty knowledge or belief on the part of the petitioner stands fully proved by his act and conduct of concealing the gold biscuits in the cavities made in the soap cakes which were kept in the milk container. This case too does not help the petitioner. 27. In the case of Excise Department Vs. P. Somasundaram (supra) the evidence of expert witness who had opined that each of the 50 biscuits seized from the possession of the accused was of 24 carat purity and was of foreign origin because of the marking and fineness, was held inadmissible. On the basis of their earlier decision in the case of Government of India Vs. Mohammed Ishaq, 1979(2) Kant. L.J. 191 the Karnataka High Court took the view that the seized goods was not proved to be gold so as to attract the presumption Under Section 123 of the Customs Act. Such are not the facts in the case before me. Herein it is an undisputed fact that the petitioner was a goldsmith by profession and that in the statement recorded Under Section 107 of the Customs Act (Ex.P.2) he had admitted that he had purchased gold from a 'Dalal' at Ahmedabad. Such a statement made by the petitioner to P.W. 1 Sh. P.K. Mehra, Customs Inspector Under Section 107 of the Customs Act clearly speaks that the seized goods was gold. Merely because an expert witness was not produced it the present case the entire evidence on the record cannot be brushed aside. 28. In the case of Union of India Vs. Abdulkadar Abdulgani Masmani (supra) the goods seized was synthetic fabrics having foreign origin. Merely because an expert witness was not produced it the present case the entire evidence on the record cannot be brushed aside. 28. In the case of Union of India Vs. Abdulkadar Abdulgani Masmani (supra) the goods seized was synthetic fabrics having foreign origin. The goods had been seized from the residential premises of the accused by such officers who were not found to be proper officer as per section 2(34) of the Customs Act and, therefore, presumption Under Section 123 was held to be not available to the prosecution. The Gujarat High Court further held that since the statement of the accused was not recorded by a proper officer the same was not admissible in evidence. As stated above, search in the present case was made Under Section 101 and 102 and not under Sections 105/110 of the said Act. The statement of the petitioner was recorded by Sh. Mehra, Inspector in the course of the investigation being conducted by him and was a statement recorded Under Section 107 and not Under Section 108 of the Customs Act. The said statement, wherein the petitioner had clearly stated to have purchased the gold biscuits through a 'Dalal' at Ahmedabad, was made during the course of the investigation conducted by PW 1 P.K. Mehra, Inspector. It was a voluntary statement and can be relied upon. In this behalf the decision of the Supreme Court in the case of Bal Kishan Soni Vs. State of West Bengal, 1974 Cr.L.J. 280 , may be usefully referred to wherein it was held that the object of Section 107 located in the neighbourhood of the Section 108 indicates that while the normal process of inquiry is facilitated by Section 108, investigatory emergencies are taken care of by Section 107. Since the confession made by the petitioner Under Section 107 is corroborated in all material particulars by the statements of other prosecution witnesses the same affords help to raise a presumption Under Section 123 of the Customs Act. 29. In the case of Union of India Vs. S.H. Mumtajuddin and Ors. (supra) the Calcutta High Court had held that the conscious possession of contraband goods by the accused is an essential condition for constitutiong an offence Under Section 135(b)(ii) of Customs Act. 29. In the case of Union of India Vs. S.H. Mumtajuddin and Ors. (supra) the Calcutta High Court had held that the conscious possession of contraband goods by the accused is an essential condition for constitutiong an offence Under Section 135(b)(ii) of Customs Act. I fully agree with the view taken by the Calcutta High Court and on facts of the present case I hold that conscious possession of the contraband goods by the petitioner stands fully established in the present case by his intentionally hiding the gold biscuits in cavities made in the soap cakes, which again were hidden in the brass-milk-container. 30. In view of the discussion made herein above I am satisfied that the impugned judgment and order as made by the two Courts below suffer from no vice of invalidity, illegality or impropriety. The Courts below have critically examined the entire evidence on the record, which evidence has also been found satisfactory by me, and they have rightly held the petitioner guilty of the offences Under Section 135(1)(b)(ii) of the Customs Act and Section 85(1) (ii)(b) of the Gold (Control) Act, 1968. The sentence also, awarded to him for those offences, calls for no interference by this Court. There is thus no force in the petition and it deserves to be dismissed as such. 31. Consequently, this petition fails and is hereby dismissed.Revision dismissed. *******