# Nand Kishore Gupta v. State of U.P. & Anr

- **Citation:** (2023) 3 ILRA 500
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Case number:** Application U/S 482. No. 12297 of 2021
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-kishore-gupta-v-state-of-u-p-anr-49863
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 227-The trial
court must apply its judicial mind to determine if
a prima facie case exists under Section 227
CrPC- must go through evidence to see if
sufficient grounds exist to proceed, considering
broad probabilities and evidence effects-can
discharge the accused if the evidence raises
mere suspicion rather than grave suspicionimpugned order bad.
Application allowed. (E-9)
List of Cases cited:

## Text

500 INDIAN LAW REPORTS ALLAHABAD SERIES
has been nothing before the learned
Magistrate to discard the reports submitted
by the CBI.

55. In view of the aforesaid
discussion, in absence of order of sanction
for prosecution of the petitioners for the
offence in question, the order of cognizance
is bad in law and is liable to be set-aside.
Even otherwise, the impugned order, which
would disclose non-application of mind by
the learned Magistrate and without there
being any overwhelming evidence and
material to discard the closure reports filed
by the CBI under Section 173 (2) CrPC,
summoning
the
petitioners,
who
are
retired/serving government officers to face
trial for such a serious offence under
Section 302 read with Section 120-B IPC,
is preposterous and to some extent
outrageous.
The
impugned
order
is,
therefore, set-aside.

56. Accordingly, all the petitions are
allowed.
----------
(2023) 3 ILRA 500
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Application U/S 482. No. 12297 of 2021

Nand Kishore Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

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

Counsel for the Opposite Parties:
G.A., Sri Ashok Kumar Dwivedi
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 227-The trial
court must apply its judicial mind to determine if
a prima facie case exists under Section 227
CrPC- must go through evidence to see if
sufficient grounds exist to proceed, considering
broad probabilities and evidence effects-can
discharge the accused if the evidence raises
mere suspicion rather than grave suspicionimpugned order bad.
Application allowed. (E-9)
List of Cases cited:

1. Yogesh @ Sachin Jagdish Joshi Vs St. of Mah.
(2008) 10 SCC 394

2. P. Vijayan Vs St. of Kerala & anr. (2010) 2
SCC 398

3. Smt. Shiv Kumari Vs St. of U.P. 2012 (78)
ACC 605,

4. Ajay Singh & anr. Vs St. of Chhattishgarh &
anr. (2017) 3 SCC 330

5. P. Vijayan Vs St. of Kerala & anr. (2010) 2
SCC 398

6. Yogesh @ Sachin Jagdish Joshi Vs St. of Mah.
(2008) 10 SCC 394

7. Pancho Vs St. of Har. (2012) (77) ACC
269

8. Sharat Babu Digumarti Vs Government (NCT
of Delhi (2017) 2 SCC 18

9. CBI Vs Akhilesh (2005) 1 SCC 478

10. Pradeep Kumar @ Pradeep Kumar Verma Vs
St. of Bihar & anr. (2007) 7 SCC 413

11. Siyaram alias Shiva Ram Vs St. of U.P. 2022
(118) ACC 877

12. Smt. Shila Devi Vs St. of U.P. & anr. 2022
(119) ACC 482.
(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)
3 All. Nand Kishore Gupta Vs. State of U.P. & Anr.
501

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 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
502 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention) Act has been added without
any evidence, there is no evidence to frame
charge against the accused for the offence
under Sections 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 Sections 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
Sections
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 applicantaccused 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 dated
08.02.2021 has rejected the discharge
application.

4. Learned counsel for the applicant
submitted that the applicant is doing
business of sweetmeat/mawa which is
registered in accordance with law and he
has valid license. The applicant has been
falsely implicated by the opposite party
no.2 and his associates misusing their
power and position. Just after lodging the
F.I.R. opposite party no.2 submitted a
report to the District Magistrate for seeking
recommendation
for
initiation
of
proceeding against the applicant under
Section 3(1) of U.P. Gangsters and Anti
Social Activities (Prevention) Act which
was recommended by him on 06.04.2010
and Section 3(1) of U.P. Act No.7 of 1986
was added. The sample collected by the
Investigating Officer was sent for chemical
examination. The report of Public Analyst
submitted on 27.04.2010 confirms that no
adulteration was reported. Thereafter the
Investigating
Officer
interrogated
prosecution witnesses. He examined first
informant on 08.05.2010, Sub Inspector
Suraj Nath Singh on 24.05.2010 and other
police personnel and Food Inspector Ajit
Kumar Mishra, Shiv Kumar Gupta on
05.06.2010 and Food Inspector Chandra
Bhan, Amardeo Maheshwari, Constable
Amaresh Yadav on 05.12.2010, but their
statement
does
not
corroborate
the
prosecution case and there is considerable
contradiction
amongst
them.
After
05.06.2010 no further investigation was
conducted and on the basis of material
available the Investigating Officer filed
charge-sheet. It is further contended that no
recovery memo was prepared on the spot
and it has no signature of independent
witness. There is no independent witness in
the entire charge-sheet. Learned counsel
further submitted that initially F.I.R. was
lodged under Sections 7/16 of Food
Adulteration Act also while this Act was
repealed by the new Act i.e. Food Safety
and Standards Act, 2006. Once Food
Adulteration Act was replaced by Food
Safety and Standards Act, no F.I.R. ought
to have been lodged under Sections 7/16 of
Food Adulteration Act. Further in chemical
examination no adulteration was found by
the Public Analyst and the Investigating
Officer removed Sections 272, 273 I.P.C.
and 7/16 of Food Adulteration Act and
filed charge-sheet only under Sections 419,
420 I.P.C. and 3(1) of U.P. Gangsters and
Anti Social Activities (Prevention) Act.
When in recovered articles no adulteration
was found, then there was no reason to file
charge-sheet against the applicant. It is
further contended that no offence under
Sections 419 and 420 I.P.C. against the
applicant is made out. In chemical
3 All. Nand Kishore Gupta Vs. State of U.P. & Anr.
503
examination report it is mentioned that
sample in question is only plain cake and
not of milk cake. The applicant never
forged and claimed so called cake to be a
milk cake but at the most it may be a case
of misbranding which is covered by
Section 52 of Food Safety and Standards
Act and can be adjudicated under Section
68 of Food Safety and Standards Act and is
compoundable under Section 69 of the Act.
An order passed under Section 52 is
appealable under Section 70 of the Act
before Food Safety Appellate Tribunal and
second appeal lies to the High Court.
Learned counsel submitted that the Food
Safety and Standards Act, 2006 is complete
Code for that very purpose. This is special
law while Indian Penal Code is general
law. Sections 419 and 420 I.P.C. cannot be
attracted for misbranding. Only a complaint
can be filed in accordance with law and the
provisions provided in Food Safety and
Standards Act. It is also contended that
except confessional statement of coaccused, there is no evidence against the
applicant and confessional statement of coaccused is not admissible in evidence. It is
next contended that there is no cogent,
credible and concrete evidence in support
of prosecution case, even then learned court
below without properly considering facts
and circumstances of the case and without
carefully scrutinizing the material on case
diary has rejected the discharge application.
The impugned order is illegal and has been
passed without application of judicial mind.
While rejecting the discharge application,
learned court below has completely relied
on prosecution case and has completely
ignored and discarded the plea taken by the
applicant without recording any reason of
doing so. Learned court below has failed to
consider that no proper investigation has
been conducted and without collecting
sufficient material, charge-sheet has been
submitted. Learned trial court has also not
considered legal aspect of the matter and
has not recorded any finding on it.
Throughout the case diary there is no
material against the applicant with regard
to his connection with any gang or his
indulgence in gangster activities. The
Investigating Officer has misused his
power and invoked the provisions of
Gangsters Act against the applicant on the
basis of a solitary case which was under
investigation. The whole prosecution case
is false and baseless. The story set up is
cooked one and motivated. The entire
proceedings of the case are illegal,
arbitrary,
unjust
and
manifestly
discriminatory and erroneous. Learned
counsel has placed reliance on following
case laws:

(1) . Smt. Shiv Kumari Versus
State of U.P. 2012 (78) ACC 605,

(2) . Ajay Singh and another
Versus State of Chhattishgarh and another
(2017) 3 SCC 330,

(3) . P. Vijayan Versus State of
Kerala and another (2010) 2 SCC 398,

(4) . Yogesh alias Sachin Jagdish
Joshi Versus State of Maharashtra (2008)
10 SCC 394,

(5) . Pancho Versus State of
Haryana (2012) (77) ACC 269,

(6) . Sharat Babu Digumarti
Versus Government (NCT of Delhi (2017) 2
SCC 18,

(7) . CBI Versus Akhilesh (2005)
1 SCC 478,

(8) . Pradeep Kumar alias
Pradeep Kumar Verma Versus State of
Bihar and another (2007) 7 SCC 413,

(9) . Siyaram alias Shiva Ram
Versus State of U.P. 2022 (118) ACC 877,

(10). Smt. Shila Devi Versus
State of U.P. and another 2022 (119)
ACC 482.
504 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned A.G.A. contended that
F.I.R. has been lodged against six named
accused including the applicant accused
and substance of prosecution story is that
they were preparing spurious Mawa and
adulterated sweets dangerous for human
life. Various articles have been recovered
and co-accused has been arrested on the
spot.
The
first
informant
and
his
companions have supported the prosecution
case in their statements under Section 161
Cr.P.C. The Investigating Officer has also
recorded the statements of various Food
Inspectors. After thorough investigation
credible and cogent evidence has been
collected showing the complicity of the
accused-applicant and charge-sheet has
been submitted in the relevant sections. It is
further contended that chemical examiner's
report corroborates the prosecution case
that the applicant was involved in business
of
sweetmeats
which
were
not
of
prescribed standards as printed on its
packaging. So, the offence under Sections
419, 420 I.P.C. and under Section 3(1) of
U.P. Gangsters and Anti Social Activities
(Prevention) Act is made out against the
applicant. Considering the evidence and
material available on record cognizance has
been taken on charge-sheet. The discharge
application has rightly been rejected by the
trial court after recording specific finding
that there is sufficient evidence against the
accused-applicant for framing of charge.
The impugned the order dated 8.02.2021
passed by Additional Sessions Judge, Court
No.02 (Gangsters Act), Gorakhpur is just,
legal and proper and it does not suffer from
any illegality or infirmity.

6. The allegations of F.I.R. are that
police party took action on information that
spurious mawa is being prepared for
supplying and preparation of adulterated
and obnoxious sweetmeats. Initially F.I.R.
was lodged under Sections 419, 420, 272,
273 I.P.C. and 7/16 of Food Adulteration
Act, 1954. This fact is uncontroverted that
after lodging of the F.I.R. on 25.03.2021
the Investigating Officer submitted a report
to District Magistrate on 31.03.2021
seeking his approval for implication of the
accused for the offence under Section 3(1)
of U.P. Gangster and Anti Social Activities
(Prevention) Act. Approval was granted on
06.04.2010 and aforesaid section was
added. It is also not disputed that the
sample sent for chemical examination has
not been found to be adulterated. It only
indicates that the sample was not milk cake
but only simple cake. The Investigating
Officer has omitted Sections 272, 273
I.P.C. and 7/16 of Food Adulteration Act,
1954 and has submitted charge-sheet under
Sections 419, 420 I.P.C. and under Section
3(1) of U.P. Gangster and Anti Social
Activities (Prevention) Act. It is also not
disputed that at the time of lodging of the
F.I.R. provisions of Food Adulteration Act
was not in force and it was replaced by
Food Safety and Standards Act, 2006.
Misbranding of food articles has been dealt
with under the provisions of Food Safety
and Standards Act and it is punishable
under Section 52 of the Act. The Act is a
complete Code itself and it being special
law will override provisions of Indian
Penal Code. The proceeding under Section
3(1) of U.P. Gangster and Anti Social
Activities (Prevention) Act has been
initiated on the allegations of the F.I.R. that
the applicant is involved in preparation and
sale of spurious mawa and sweetmeats
obnoxious to human health. Except present
case no other case is shown in the gangchart. The chemical examiner's report has
not corroborated the prosecution case of
adulteration of food articles obnoxious for
health. At the most it only points towards
misbranding.
3 All. Nand Kishore Gupta Vs. State of U.P. & Anr.
505

7. Learned trial court while rejecting
the discharge application by the impugned
order has only narrated the allegations of
prosecution version as per the F.I.R. and
without properly appreciating the evidence
available on case diary has observed that at
this stage the case is not being considered
on merits, only prosecution evidence is to
be considered for framing of charge, it is to
be seen whether on the basis of evidence
available on record, the prima case is made
out or not and even only on the basis of
suspicion charge can be framed, has
rejected the discharge application. Learned
trial court has not dealt with any of the
factual and legal points raised by the
accused-applicant
in
his
discharge
application. Learned trial court has also
failed to appreciate the legal aspect of the
entire matter.

8. It is settled law that trial court
while
considering
the
discharge
application is not acting as mere post
office. It is to sift through evidence in
order to find out whether there is
sufficient grounds to try a suspect, the
court
has
to
consider
the
broad
probability, total effect of evidence and
basic infirmities. The Apex Court in P.
Vijayan Versus State of Kerala and
another (2010) 2 SCC 398 has held that
the words "no sufficient ground for
proceeding against the accused" clearly
show that judge is not a mere post-office
to frame the charge at the behest of
prosecution, but has to exercise his
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution.

9. In Yogesh alias Sachin Jagdish
Joshi Versus State of Maharashtra (2008)
10 SCC 394, the Apex Court in para-16 has
observed as follows:

"It is trite that the words "not
sufficient ground for proceeding against
the accused" appearing in the Section
postulate exercise of judicial mind on the
part of the Judge to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution.
However, in assessing this fact, the Judge
has the power to sift and weigh the
material for the limited purpose of finding
out whether or not a prima facie case
against the accused has been made out.
The test to determine a prima facie case
depends upon the facts of each case and in
this regard it is neither feasible nor
desirable to lay down a rule of universal
application. By and large, however, if two
views are equally possible and the Judge is
satisfied that the evidence produced before
him gives rise to suspicion only as
distinguished from grave suspicion, he will
be fully within his right to discharge the
accused. At this stage, he is not to see as to
whether the trial will end in conviction or
not. The broad test to be applied is whether
the materials on record, if unrebutted,
makes a conviction reasonably possible."

10. Learned court below has not
considered
each
and
every
relevant
contents of the discharge application and
rejected the same in a cursory manner.
Although while disposing of discharge
application
the
trial
court
may
not
appreciate the defence of the accused, but
at the same time it is incumbent upon the
trial court to consider and adjudicate the
contents and contentions of the discharge
application after perusing the material
available on record. If any specific plea has
been taken, the trial court must consider it
and address the same by speaking and
reasoned order. The trial court may accept
or reject the pleas, but it should be clear
and unambiguous and it should be seen that
506 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial court has applied its judicial mind
while disposing of discharge application.
The trial court while disposing discharge
application by the impugned order has not
considered the relevant contentions and has
rejected the same in a mechanical manner,
therefore, a fresh order is required to be
passed by the trial court on the discharge
application.

11. Accordingly, this application
under Section 482 Cr.P.C. is allowed. The
impugned 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
is hereby set aside. The trial court is
directed to pass a fresh order on the
discharge application of the applicant by a
speaking and reasoned order, expeditiously
strictly in accordance with law, after
affording an opportunity of hearing to the
parties.
----------
(2023) 3 ILRA 506
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2023 &
18.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 37389 of 2022

Dara Singh @ Dara Nishad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Sujeet Kumar, Sri Pramod Kumar
Sahani, Sri Amrendra Nath Singh
Counsel for the Opposite Parties:
G.A., Sri Manoj Kumar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 293-In firearm
cases ballistic expert's opinion is important-Both
firearm and crime cartridge must be recovered
during investigation-Need for ballistic expert
examination depends on case circumstances-If
accused wants to cross-examine ballistic expert,
trial court should allow it-Grounds exist to
summon and examine ballistic expert who gave
opinion-Trial court's order rejecting plea to
examine expert is set aside. Trial court directed
to summon and examine expert witness.
Accused to be allowed to cross-examine.
Application allowed. (E-9)
List of Cases cited:

1. Ramdayal Vs Delhi Coorp., AIR 1970 SC366

2. Bhupinder Singh Vs St. of Pun., AIR , 1988 SC
1011

3. Gulab Vs St. of U.P., 2021 SCC online SC1211

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. आवेदक की ओर से ववद्वान अविवक्ता श्री
अमरेंद्र नाथ वसिंह, श्री प्रमोद कुमार वसिंह और सुजीत
कुमार एविं ववपक्षी सिंख्या-2 की तरफ से ववद्वान
अविवक्ता श्री मनोज कुमार एवम् राज्य की ओर से
ववद्वान अपर शासकीय अविवक्ता को सुना गया तथा
पत्रावली का पररशीलन वकया गया।

2. प्राथी ने िारा 482 दण्ड प्रविया सिंवहता के
अिंतगगत जी. टी. वाद सिंख्या-55 सन् 2007, राज्य
ववरुद्ध दारा वनषाद एविं अन्य अपराि सिंख्या-253,
सन् 2006, अिंतगगत िारा 147, 148, 149, 302
भारतीय दण्ड सिंवहता तथा िारा-3(1), उत्तर-प्रदेश
गुण्डा अविवनयम, थाना बडहलगिंज, वजला-गोरखपुर
में अपर सत्र न्यायािीश न्यायालय सिंख्या-3, ववशेष
न्यायािीश, गुण्डा अविवनयम को वनरस्त करने के
वलए प्रस्तुत वकया गया है।