A.F.R.

Judgement Reserved On 16.12.2022

Judgement Delivered on 13.01.2023

Court No. - 88

Case :- APPLICATION U/S 482 No. - 12297 of 2021

Applicant :- Nand Kishore Gupta

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Preet Pal Singh Rathore, Anil Tiwari (Sr. Advocate)

Counsel for Opposite Party :- G.A.,Ashok Kumar Dwivedi

Hon'ble Syed Aftab Husain Rizvi,J.

1.

Heard Sri Preet Pal Singh Rathore, learned counsel for the applicant and

learned A.G.A. for the State of U.P.-opposite party no.1.

2.

This application under Section 482 Cr.P.C. is filed to quash the order dated

8.02.2021 passed by Additional Session Judge, Court No.04/Gangsters Act,

Gorakhpur in G. T. No.148 of 2011 arising out of Case Crime No.406 of 2010 under

Sections 419, 420 I.P.C. and 3(1) of U.P. Gangster and Anti Social Activities

(Prevention) Act, 1986, Police Station Khorabar, Disrict Gorakhpur as well as entire

proceedings of aforesaid case.

3.

First Information Report dated 25.03.2010 was lodged by opposite party no.2

bearing Case Crime No.406 of 2010 under Sections 419, 420, 272, 273 I.P.C. and

7/16 of Food Adulteration Act, 1954 at Police Station Khorabar, District Gorakhpur.

As per the allegations of the F.I.R. a police party led by Inspector, Rajendra Prasad

Pandey on information received from informer that spurious Khoya obnoxious to

health is being prepared in Ahata of Ram Dulare Paswan by Nand Kishor Gupta for

making sweets and supplying it to Gorakhpur city and other cities, conducted a raid

at about 2 p.m., Pramod Kumar, Ramesh Kumar Kewat, Ranjeet Verma, Rameshwar

Giri and Zaiki Verma were arrested. One vehicle U.P. 53 AT 0995 Tata Magic was

also found on the spot on which 11 bundles milk cake, 30 bundles of barfi and

packing box on which Shiv Shanker Sweets Special P.G. Group was scribed and on

the cartons Barfi, Muskan Ka Deshi Ghee, Dry Fruit Kaju and Pistawala Donda

Barfi is printed was recovered. The arrested persons told that they are workers. They

also informed that in process of sweet making Suji mixed with sugar and refined is

used for making spurious Khoya from which milk cake and Doda barfi is prepared

and packed for supplying by Nand Kishor Gupta. Utensils and gas cylinder used for

preparation of spurious Mawa along with Suji, sugar, refined, milk powder, empty

cartons and empty sweetmeat packets were also recovered, no date of manufacturing

1

was printed on the packets. Arrested persons could not show the license. The

arrested persons also informed that Nand Kishor Gupa is involved in business of

manufacturing spurious Khoya and milk cake and Doda barfi prepared from it,

which he used to supply as pure sweetmeat of Desh Ghee and it is harmful for

health. The sample was collected and recovery memo was prepared on the spot. A

report dated 31.03.2010 was forwarded to the District Magistrate for initiation of

proceeding under Section 3(1) of U.P. Gangsters and Anti Social Activities

(Prevention) Act. After its approval by District Magistrate vide order dated

06.04.2010, Section 3(1) of U.P. Act No. 7 of 1986 was also added. The sample

collected was sent for chemical examination. In chemical examination report it was

noted that sample is not adulterated. The Investigating Officer recorded statements

of witnesses and after investigation submitted charge sheet under Sections 419, 420

I.P.C. and 3(1) of U.P. Gangsters and Anti Social Activities (Prevention) Act only.

Before the trial court a discharge application 12-Kha under Section 227 of Cr.P.C.

was filed by accused Nand Kishor Gupta. It is alleged in the application that the

applicant-accused is innocent, there is no evidence on record that accused was

arrested on the spot or anything incriminating was recovered from his possession,

the offence of U.P. Gangsters and Anti Social Activities (Prevention) Act has been

added without any evidence, there is no evidence to frame charge against the

accused for the offence under Sections