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2007 DAILYLAW 2676 (DEL)

MUKESH RASTOGI v. NORTH DELHI POWER LIMITED

2007-10-23

Shiv Narayan Dhingra

body2007
( 1 ) THIS appeal has been preferred against the judgment of Special electricity Court, Rohini dated 8th August, 2007 and order on sentence of the same day whereby the appellant was convicted under Sections 135 and 138 of electricity Act and was sentenced to undergo Simple Imprisonment for period of one year and civil liability of the appellant was fixed under Section 154 (V) of electricity Act to the tune of Rs. 1,00,000/- ( 2 ) THE appellant challenged the order of the Trial Court on the ground that the officials, who inspected the premises of the appellant on 21st december, 2004 were not the Officers duly authorized by the State Government under Section 135 (2) of the Electricity Act. The Government of NCT had issued a notification dated 15th March, 2004 whereby the officers of the rank of Manager and above were designated as authorized Officers for inspection. Since the inspection Report dated 21. 12. 2004 shows that none of the officers, who inspected the premises was of the rank above Manager, the inspection was illegal and conviction based on this inspection was illegal. The second ground taken is that the complainant company i. e. NDPL had not followed the provisions of cr. P. C. relating to search and seizure so much so that the case property which was brought before the Court was not in a sealed pullanda and the pullanda was not bearing the details in respect of the seizure nor it was having the seal of the Officer. The seizure memo Ex. CW-2/d did not mention about the sealing of the property. The third ground taken is that the Trial Court failed to appreciate that description of material used for stealing electricity was different from the case property produced before the Court and that the size, colour and description of the wires allegedly sealed from the property, in question, was not mentioned in the seizure memo. The cut-outs allegedly installed before the meter were neither seized nor brought before the Court. The allegation that the load was running directly through the cut out fuses installed before the meter and illegal wires were directly attached to the meter was not proved beyond reasonable doubt without the seizure of the alleged cut outs. The cut-outs allegedly installed before the meter were neither seized nor brought before the Court. The allegation that the load was running directly through the cut out fuses installed before the meter and illegal wires were directly attached to the meter was not proved beyond reasonable doubt without the seizure of the alleged cut outs. The judgment is also challenged on the ground that the photographs of the premises of the appellant taken by CW/4 were not placed on record till CW 4 was examined and the name of CW-4 Mr. B. P. Navani was not cited in the list of witnesses. ( 3 ) A perusal of the complaint and evidence would show that the premises No. K-1410 Jahangir Puri belonging to the appellant was inspected by the enforcement staff of the NDPL on 21st December, 2004 At the time of inspection, it was found that the electricity was being tapped by connecting wires directly to the LT Main running near the roof of house, parallel to the row of buildings. Tapping of electricity could be seen standing outside the buildings since wires going from LT Main to the building through a window could be seen. The photographs of the spot were taken by the photographer showing wires going from LT Main to the window, from window to meter place then to cut out and from cut out to the house and business place of the appellant. The appellant was residing at first floor and his business was at ground floor. The visit of the enforcement staff is proved by the defence witnesses themselves, who stated that persons from electricity department did come on that day and the appellant was at the spot at that time. At the time of taking photographs of the premises of appellant showing wires from LT Main going into the house of the appellant, the NDPL department mentioned date of inspection, K. Number, Meter Number, address and the name of the appellant on a paper poster and held it before the place where wires from LT Main were reaching to the cut outs and took photograph showing direct supply of electricity to the premises of the appellant. Although the appellant has denied that any photograph was taken or photograph belonged to his house, the appellant has not denied either the premises Number or K. Number or the Meter Number or date of inspection mentioned in this paper poster showing his name as the user. It is his own case that members of NDPL visited the house on that day thus, the inspection of the premises by enforcement staff of the NDPL and the photographs showing his premises cannot be doubted. ( 4 ) IN all cases of theft of electricity, the stolen material is simultaneously consumed by the person involved in theft. Electricity is not such a material which can be kept stored for future use. In normal cases, of theft of articles case property is understood by the stolen material. In excise cases the case property is liquor seized, in case of NDPS the case property is the narcotics drugs seized. In that sense in case of theft of electricity there can be no case property as such, since the stolen property i. e. electricity is simultaneously consumed. The enforcement staff therefore normally seizes the material through which theft is committed. In the present case, the evidences show that the theft was being committed by connecting wires directly to LT Mains and taking those wires upto the cut out and so stolen electricity was being consumed through other end. This entire process of theft of electricity was captured by way of photographs, which have been placed on record. During inspection, the wires were removed. This also stands proved from the testimony of complainant and Defence Witnesses, who stated that members of team had gone to the roof and removed the wires. Although in the testimony of the defence witnesses, it has come that the removed wires were being used for drying clothes. It is not disputed that they were single core PVC Wires which are used for drawing electricity. Such wires are never used for drying clothes because they are much costlier than ordinary steel wires or ordinary plastic ropes available for drying clothes. The plea taken that the single core PVC wires were being used for drying clothes therefore, does not appeal. ( 5 ) FROM the evidence it is apparent that the wires, cut out and the entire material being used for stealing electricity was collected from the spot. The plea taken that the single core PVC wires were being used for drying clothes therefore, does not appeal. ( 5 ) FROM the evidence it is apparent that the wires, cut out and the entire material being used for stealing electricity was collected from the spot. However, it is true that the wires used by the appellant for connecting LT Main directly upto the cut out were not produced in the Court. The counsel for the appellant argued that this non-production of the case material is serious lacuna on the part of the complainant and the appeal should be allowed. I consider that this argument must fail. The case against the appellant is of theft of electricity and the Court has to see whether this theft has been proved by cogent evidence or not. Mere non-production of the wires cannot fail the prosecution, if the theft of electricity is proved by cogent evidence otherwise. It must be kept in mind that complaint is filed by NDPL which is basically a distribution company. The officials working in enforcement department are not trained in investigation and since this is new job for them, it may take some time for them to learn the technicalities of investigation. Merely because there is a lapse on the part of the complainant company not to retain or not to produce the wires in the Court through which the electricity was being stolen, cannot fail the case if it is sufficiently proved by other evidences that electricity was being stolen by hooking wires directly to LT Main. In the present case, the evidence of CW2 and CW3 in respect of theft of electricity has gone unchallenged. CW 2 and CW 3 both were the members of enforcement team that had visited the spot. CW 2 and CW 3 had categorically stated that accused was taking supply of the electricity directly from NDPL LT Main through one number single phase two core wire and the electricity was being used for domestic as well commercial purposes. There was meter installed in staircase of the premises and it was lying idle, no load was running through it and a cut out fuse was installed before the meter and supply was coming from LT Main to this cut out through the wires and the supply was going to the premises through this cut out. There was meter installed in staircase of the premises and it was lying idle, no load was running through it and a cut out fuse was installed before the meter and supply was coming from LT Main to this cut out through the wires and the supply was going to the premises through this cut out. CW 2 was cross examined at length, no suggestion was given to the CW 2 that wires were not connected to LT Mains outside the building and from LT mains they were not coming to cut out. There was no suggestion that the electricity supply was not coming through the cut out. The suggestions given were that the cables were being used for drying clothes by the tenant. This defence was rightly not believed by the Trial Court. Similarly CW 3 was not given a suggestion that no wires were connected to LT Main and the supply was not connected directly from LT Main to cut out. Testimony of these two witnesses coupled with testimony of CW 4 and the photographs proved it beyond reasonable doubt that electricity was being stolen directly from LT Main and meter was lying in idle condition. ( 6 ) THE contention of the appellant is that electricity supply was through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly. ( 7 ) I consider that even if the inspection was not a valid inspection, complainant had a right to prove theft of electricity done by the appellant irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a non-crime. Theft of electricity remains a crime irrespective of fact that inspection is valid or not. Supreme Court in state and Ors. v. N. M. T. Joy Immaculate 2004 (5) SCC 729 observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr. P. C. or any other law excludes relevant evidence on the ground that it was obtained under an illegal search or seizure. I, therefore, consider that even if the inspection was not conducted by an Officer as designated under the notification dated 31st march, 2004, the members of the inspection team, who had visited the site and found the electricity being stolen are competent witnesses to depose in the court about the theft of electricity and the manner in which electricity was being stolen. ( 8 ) IT has to be kept in mind that the conclusion of theft by the trial Court cannot be made merely on the basis of an inspection report. If the law had been that the inspection report in itself was conclusive evidence of the theft of electricity and no further evidence was required, it would have been possible for the counsel for the appellant to argue that since the inspection report was the conclusive evidence of theft, the inspection report must strictly comply with the rules. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the Court by cogent evidence therefore, the validity of the inspection report cannot be attached too much of importance. Similarly, non production of the single core PVC wires through which electricity was being stolen is not a serious infirmity in this case since there is sufficient oral testimony supported by photographs showing the theft of electricity. The appellant has stated that the name of the photographer and copies of photographs were not supplied to him before hand. It is submitted by the counsel for the complainant that the photographs were of the premises of the appellant and there was apprehension to the life of the photographer, therefore his name was not disclosed. There is force in the submission. There was a likelihood of the photographer being put to a danger of life. Photographer was not an employee of the complainant company and it was an obligation of NDPL to keep the safety of photographer in mind. However, that these photographs are of the premises of the appellant is proved from the fact that appellant admitted inspection on the day and the appellant witnesses admitted PVC wires being removed by NDPL from the roof of the appellant. The appellant had not given a suggestion that the stairs, the meter up to which were connected through LT Main was not his premises. ( 9 ) I find no force in the appeal and I consider that the appellant has been rightly convicted by the Trial Court under Sections 135 and 138 of electricity Act. The appellant has been sentenced to undergo one year SI. Since, the connected load of the premises of the appellant was found to be below 10 KW, the sentence of the appellant is reduced from one year SI to two months si with a fine of Rs. 20,000/- in default thereof to further undergo SI for two months. The appellant shall, however, be liable to pay the civil liability as assessed by the Trial Court. ( 10 ) THE appeal stands disposed of. 20,000/- in default thereof to further undergo SI for two months. The appellant shall, however, be liable to pay the civil liability as assessed by the Trial Court. ( 10 ) THE appeal stands disposed of. The appellant's surety is discharged. Appellant is directed to surrender before Trial Court today itself.