The main legal point established in the judgment is that the prosecution must prove the continuity and integrity of the sample collected from the accused, and the accused must be given an opportunity to explain any incriminating circumstances during their examination under sec. 313 of the Code of Criminal Procedure.

1. Both the appellants, being aggrieved by the judgment dated 6th of October, 2004 passed by the 5th Additional Sessions, West Champaran, Bettiah in Trial No. 06 of 2001 holding them guilty of offence u/s. 23 of the Narcotic Drugs and Psytchotropic Substances Act, 1985 and sentencing them to undergo rigorous imprisonment for twenty years each, have preferred this appeal.

2. According to the prosecution, on the basis of an Intelligence message Ambassador Car bearing registration No. U.M.Y-2527 having plate of "Bharat Sarkar" affixed in its front portion, was intercepted by the Valmikinagar Custom Staff at Valmiki Nagar Custom Check Post on 11th January, 2001 at 6 A.M. On interception two persons, namely, Manoj Kumar Tiwari and Lala Tiwari alias Surya Prakash Tiwari, appellants herein were found travelling in the car. On inquiry Manoj Kumar Tiwari disclosed that he is the driver of the Car who had gone alongwith the other accused to drop the officials of the National Thermal Power Corporation to Kathmandu for official work after taking Bhansar (entry tax) paper and Nepali number plate. According to Manoj Kumar Tiwari his sisters marriage ceremony was scheduled to be held on 20th January, 2001 and to invite his friend who lives at Bagaha both of them had gone towards the Valmikinagar Border.

3. However on search by the Custom officials, in the three secret chambers made in the Car, Charas of Nepali origin wrapped in transparent adhesive tape were found and in presence of the two independent witnesses as also the two appellants, 110 Kilogram of Nepali Charas kept in 20 packets were seized. The Custom officials took out four samples of approximately 25-25 gram each of the contraband recovered and kept that in four different envelopes and sealed the same which contained the signatures of both the appellants, the witnesses and the Seizing Officer. Rest of the Charas, according to the prosecution was kept in two big jute bags and sealed in presence of the witnesses, the appellants and the staff of the valmikinager.

4. According to the prosecution, both the appellants in their voluntarily statement recorded on 11th of January, 2001 accepted their guilt. The Chemical Examiner, Chemical Laboratory, Custom House, Calcutta examined the sample and found the same responding to the test for reginous extract from plant Canva and accordingly opined that it is Charas/Hashish.

5. Accordingly, B.K. Srivastava, Inspector, Preventive Customs Unit, Valmikinagar (P.W.2) laid complaint and both the appellants were produced before the Court on 12th of January, 2001 and remanded to judicial custody. On the basis of the complaint cognizance was taken and ultimately appellants were put on trial.

6. Before charge, the prosecution examined five witnesses, namely, P.W.1 Bhola Nath Upadhyay, P.W.2 Basant Kumar Srivastava, P.W.3 Nirmal Kumar Upadhyay, P.W.4 Naresh Paswan and P.W.5 Ramesh Prasad. The evidence laid before the charge, in the opinion of the learned Judge, constituted offence u/s. 23 of the Narcotic Drugs and Psychotropic Substances Act and accordingly, charge was framed against the appellants under the aforesaid penal provision to which they pleaded not guilty and, as such, evidence after charge followed and further two witnesses, namely, P.W.6 Harish Chandra and P.W.7 Rajvir Singh were examined.

7. In order to bring home the charge beside the complaint (Ext.1) signatures of the appellants and witness Mahesh Prasad Gupta appearing In the seizure memo and detention memo (Ext.2), Panchnama (Ext.3), memo of arrest (Ext.4 and 4/1), voluntary statements of the appellants confessing their guilt (Ext.5), test report (Ext.7) were also placed on record.

8. The defence of the appellants is denial simplicitor and from the trend of the cross examination their defence seem to be that they had quarrel with the Custom Officials and, as such, they have been falsely implicated in the case.

9. From the evidence of P.W.2 Basant Kumar Srivastava and P.W.1 Bhol