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Judgment
Heard counsel for the applicant, Sri Gaurav Maurya, Advocate holding brief of Sri Sunil Kumar Dubey, Advocate appearing on behalf of the Opposite Party No. 2 and perused the record.
The contention of the counsel for the applicant is that the applicant was running a cold-storage and was given an electricity connection for running the said cold-storage. Subsequently, on 28.6.2005, a bill was sent for payment. The applicant contested the said bill on the ground that same was excessive and contrary to the rules, and approached this Court by filing a Writ Petition No. 43294 of 2005, which was disposed off vide order dated 15.7.2005 directing the applicants to deposit a sum of Rs. 3,50,000/- and approach the concerned authority, who were directed to decide the objection after giving an opportunity of hearing. The representation of the applicant stood rejected vide order dated 8.9.2005. The applicant once again approached this Court and challenged the order dated 8.9.2005 by means of a Writ Petition No. 61552 of 2005. In the said writ petition, an order came to be passed on 7.10.2005, which is on record as Annexure No. 2, in which specific order were passed directing the restoration of the electricity of the petitioner. The said order was passed in the presence of counsel for the respondents, but the same was not probably communicated to the opposite parties despite the fact that the order was passed in the presence of their counsel. Copy of the said order dated 7.10.2005 was submitted to the concerned sub-station Sahpau.
It is, thus, alleged that on 10.10.2005 at about 9.00 p.m., the electricity was restored and was stopped on 6.30 a.m. the next day, as such, the applicant filed a contempt petition before this Court. Annoyed against the said action of initiating the contempt proceeding, the Opposite Party No. 2 lodged the FIR purported to be under Sections 135 and 138 of the Electricity Act, 2003 stating therein that on 10.10.2005 and 11.10.2005, on the basis of MRI report, it was discovered that the applicant had connected the electricity illegally and used the electricity illegally and thus, the offence was committed by the applicant. The matter was investigated by the police authority and final report was filed on 28.11.2005 before the Court concerned. Aggrieved against the said final report, a protest petition was filed on 12.12.2006 mainly on the ground that MRI report was not perused properly by the Investigating Officer. On the said protest petition, an order dated 18.7.2007 came to be passed summoning the applicant under Section 135 of the Electricity Act. The said order is under challenge.
The contention of the counsel for the applicant is that no case whatsoever was made out for summoning the applicant under Section 135 of the Electricity Act. He argues that even if all the contentions are accepted to be true, no offence can be said to be made out under Section 135 of the Electricity Act. Section 135 of the Electricity Act is quoted hereinbelow:
"135. Theft of Electricity.-[(1) Whoever, dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty-four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment;] (2) [Any officer of the licensee or supplier as the case may be, authorised] in this behalf by the State Government may-
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity 3 [has been or is being], used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which 1 has been, or is being, used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."
On a perusal of the said section, a query was made to counsel for the Opposite Party No. 2 as to which act, alleged against the applicant, can be termed as offence warranting summoning of the applicant under Section 135 of the Electricity Act. He could not give any satisfactory reply.
On a perusal of the scope of Section 135 of the Electricity Act, none of the ingredients stood satisfied before the Magistrate warranting the summoning of applicant under Section 135 of the Electricity Act in exercise of powers as has been done by the Magistrate by means of the impugned order. Even otherwise also in terms of the order passed by the High Court in the present case, the electricity ought to have been connected on 7.10.2005. Thus, there is nothing on record to demonstrate that on 10.10.2005 and 11.10.2005, there was any unauthorised electricity connection as alleged in the FIR.
On both the counts, as recorded above, the proceedings are liable to be quashed. Accordingly, the application is allowed and the entire criminal proceedings of Case No. 16 of 2006 (Rajiv Gupta Vs. Shyama Cold Storage), under Section 135 Electricity Act pending before Additional District and Session Judge, Hathras including the order dated 18.7.2007 are quashed.