57 +0530 1 - Shiv Shankar Dubey S/o Keshav Prasad Aged About 48 Years v. 1 - The State of Chhattisgarh Through District Magistrate, District Janjgir Champa Chhattisgarh
Case Details
1 CRA No.105 of 2016 2025:CGHC:24524 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 105 of 2016 AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.06.18 17:31:57 +0530 1 - Shiv Shankar Dubey S/o Keshav Prasad Aged About 48 Years R/o Saragaon, P.S. Saragaon, Civil And Rev. Distt. Janjgir Champa Chhattisgarh. , Chhattisgarh ... Petitioner(s) versus 1 - The State of Chhattisgarh Through District Magistrate, District Janjgir Champa Chhattisgarh. , Chhattisgarh ... Respondent For Appellant For Respondent/State
Legal Reasoning
: Mr. D.K. Gwalare, Advocate. : Mr. R.C.S. Deo, Panel Lawyer Hon'ble Shri Bibhu Datta Guru, Judge 16 .06.2025 Judgment on Board 1. This criminal appeal filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 04.12.2015, passed by the learned Special Judge of the Court constituted under the provisions of the Electricity Act’ 2003 at Janjgir, District-Janjgir-Champa, C.G. in Electricity Criminal Case No.90/15, whereby the appellant/accused has been convicted Under Section 135(1)(a) of the Electricity Act’2003 [(wrongly mentioned as u/s 135 (1-A)] and ordered him to pay a fine of 2 Rs.1,35,000/- with default stipulation. According to the appellant, he has already deposited the said fine amount. 2. Case of the prosecution, in brief, is that on 04/10/2014 the officials of the Electricity Department alleged to have raided the house of the appellant wherein they found that by installing a bypass wire before the installed electricity meter the appellant has unauthorizedly consumed electricity of about 2956 watts. It is alleged that certain Panchnama, inspection report etc. were prepared at the spot and the so called bypass wire was seized. After completing the formalities assessment of the unauthorizedly consumed electricity was done and ultimately written report (Ex.P- 1) was submitted before the Police Station Saragaon, who in turn registered the formal F.I.R. (Ex.P-2) and took up the investigation. In the course of investigation, the documents (Ex.P-3 to Ex.P-6) were seized under (Ex.P-8), 161 Cr.P.C. statements were recorded from the witnesses and after completing the investigation charge- sheet was filed against the appellant. 3. The trial court has framed charges against the appellant for the aforementioned offence and the appellant abjured his guilt and pleaded innocence. 4. In order to bring home the offence, the prosecution examined as many as 8 witnesses. The statement of the appellant under Section 313 of Cr.P.C. was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the 3 accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the learned trial Court has failed to appreciate that the prosecution has not proved the ownership of the appellant of the alleged raided residential house and also failed to appreciate the relevant provisions of the Electricity Act, 2003 and is not justified by solely relying upon the evidence of (P.W.-5) R.K. Acharya, the Executive Engineer, who had conducted the raid). He submits that Section 126 of the Act provides that preparation of an assessment of the unauthorized consumption of electricity but necessarily by an "Assessing Officer designated as such by the State Government. It is respectfully submitted that in the instant case the prosecution has utterly been failed to establish that any such designated assessing officer has made the assessment of the alleged unauthorized huge of electricity. He submits that the learned trial Court ought to have held that the practice and procedure adopted by the officials of Electricity Department was bad-in-law and illegal, as Sub Section (2) of Section 135 of the Act empowers any officer of the electricity department "authorized in this behalf by State Government" to enter, inspect, break open and search any place. Also, looking to the entire evidence adduced by the prosecution, the alleged offence is not made out against the appellants and they have been falsely implicated in the present case. According the learned counsel, the procedure enumerated under the Act, 2003 has not been followed by the authorities. Even the Assessing Officer has also not 4 assessed the alleged theft of electricity in a proper manner. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 6. On the other hand, learned State counsel supports the impugned judgment and submits that there are sufficient evidence available on record to hold that the appellant his guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment against the appellant which does not require for any interference. 7. I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. It would be appropriate to quote the provisions of Section 126 & 135(2) of the Act, 2003, which read as under : 126. Assessment.–(1)If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2)The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3)The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person. 5 (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. (5)If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. (6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5). Explanation.–For the purposes of this section,– (a)“assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b)“unauthorised use of electricity” means the usage of electricity– (i)by any artificial means; or (ii)by a means not authorised by the concerned person or authority or licensee; or (iii)through a tampered meter; or (iv)for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorised. 135. Theft of electricity.-- xxx xxx xxx (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 has been or is being, used unauthorisedly; (b)search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorised use of electricity; 6 (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. xxx xxx xxx 9. PW-7, Shekhar Soni, Assistant Engineer has stated that he has prepared the calculation chart Ex.P-10, However, he has not stated that he has been designated by the State Government as an ‘Assessing Officer’ in terms of Section 126 of the Act, 2003. Likewise PW-5 R.K. Acharya, Executive Engineer stated that he visited the place of the appellant for the purpose of inspection as there is an allegation of theft of electricity. He has also not stated that he has been duly authorized by the State Government to inspect the premises as has been provided under Section 135(2) of the Act, 2003. Proper authorization of the State Government is necessary otherwise the entire the process/action taken by the Electricity Department is void ab initio. 10. In respect of inspection of theft of electricity, the authorities are required to follow the provisions of the BNSS (Cr.P.C.) and as per the said provision, the authorities are required to include an independent person in the inspection team, whereas in the case at hand, no independent person has been included in the said team. 11. From bare perusal of the material available on record, it is quite vivid that as per Section 126 (2) of the Act, 2003, The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in 7 such manner as may be prescribed. However, nothing has been served upon the appellant. It is also noteworthy to mention here that as required under Section 135 (1A), upon detection of theft of electricity, the authorities are required to immediately disconnect the supply of electricity and as per the second proviso to the said Section, the information regarding the theft has to be given to the concerned Police within 24 hours from the time of such disconnection, however, in the present matter, the said report has been made after three months, that too, without giving the cogent and plausible explanation. 12. As per Rule, 12 of the Electricity Rules, 2005, the police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the appropriate or the appropriate commission or any of the Officer authorized by them in this regard. However, from the entire material available on record, it is crystal clear that no Officer of the department has been authorized to inspect the premises of the appellant and assess the value of the theft. From the aforesaid provisions and facts it appears that the procedure adopted by the electricity company is in clear violation of the Act, 2003. 13. The prosecution did not disclose the basis of computing the penalty relating to the consumption of electricity because the assessment has been made as per the panchnama and caluculation sheet which does not reflect the period of consumption of electricity. There are inconsistencies in the statements of the prosecution witnesses. The illegal consumption of electricity by the appellant through ‘hooking’ or 8 ‘tapping’ not proved by the prosecution. The prosecution did not describe the manner in which the ‘hooking’ was accomplished. The description of the source of ‘hooking’ has not been explained. The evidence adduced by the witnesses does not inspire confidence in the mind of this Court. Thus, the imposition of fine without following the due process as enumerated under the Act, 2003 and the procedure undertaken by the officers of the electricity company who are not authorized by the State Government is absolutely illegal and not at all sustainable in the eyes of law. 14. For the foregoing reasons mentioned above, the conviction and sentence imposed by the learned trial Court are set aside. The appellant is acquitted of the said charge. The fine amount imposed by the learned trial Court be refunded to the appellant, if he has already paid.
Decision
15. In the result, the appeal is allowed. SD/- (Bibhu Datta Guru) Judge Gowri/ Amardeep