NAND KISHORE GUPTA Vs. STATE OF U. P.

JUDGEMENT

(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 Sec. 482 Cr. P.C. is filed to quash the order dtd. 8/2/2021 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 Ss. 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 dtd. 25/3/2010 was lodged by opposite party no. 2 bearing Case Crime No. 406 of 2010 under Ss. 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 was printed on the packets. Arrested persons could not show the license. The arrested persons also informed that Nand Kishor Gupta 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 dtd. 31/3/2010 was forwarded to the District Magistrate for initiation of proceeding under Sec. 3(1) of U.P. Gangsters and Anti Social Activities (Prevention) Act. After its approval by District Magistrate vide order dtd. 6/4/2010, Sec. 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 Ss. 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 Sec. 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 Ss. 419 and 420 I.P.C., in the gang chart no other case is mentioned, at the time of approval of gang charge only single case under Ss. 419, 420, 272, 273 I.P.C. and 7/16 of Food Adulteration Act, 1954 is mentioned and approval is granted without obtaining chemical examiner's report, there is no evidence against the applicant for offence under Ss. 16, 17 and 22 of Food Adulteration Act, no sanction has been obtained from District Magistrate for filing the charge-sheet, the name of the applicant-accused has been added on the basis of confessional statement of arrested accused, while proceeding under Gangsters Act has been initiated only against two accused persons without any satisfactory and sufficient explanation. On the aforesaid grounds the discharge was claimed. Learned trial court vide order dtd. 08/2/2021 has rejected the discharge application.