HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No. 7975 of 2002 ORDER: The petitioner is the proprietor of a stone polishing unit established at Owk Village and Mandal. The industry is connected with 43 Horse Power of electric supply. An inspection was conducted on 4.9.2000 at 10.40 a.m. It was found that the petitioner by-passed the meter and directly drew the power from the supply line. On a complaint submitted by the Assistant Divisional Engineer, the Sub-Inspector of Police, A.P.T.S., A.P. Transco Station, registered a case in crime No. 94/2000. The same was tried as ESC No. 4 of 2001 by the Special Court under the Indian Electricity (A.P. Amendment) Act, 2000. The authorities of the Transco estimated the value of pilferage of electricity at Rs. 13,50,693.95ps. Through its judgment dated 19.3.2002, the Special Court convicted the petitioner for the offences under Sections 39 and 44 of the Indian Electricity Act, 1910 (for short ‘the Act’) and sentenced him to undergo Rigorous Imprisonment for one year and fine of Rs. 5,000/- was imposed and the petitioner was directed to undergo rigorous imprisonment for six months, in default of payment of fine. The civil liability of the petitioner was determined at Rs.8,09,637/-. The petitioner feels aggrieved by the same. Learned counsel for the petitioner submits that the very initiation of prosecution against the petitioner is defective inasmuch as it is contrary to Section 50 of the Act. He contends that the Circle Inspector, who filed the charge sheet is not a person mentioned under Section 50 of the Act and thereby the entire prosecution is vitiated. He places reliance upon the judgment of the Supreme Court in Avtar Singh vs. State of Punjab & Others[1] and of this Court in Arekipudi Sankara Rao vs. State of A.P. & Others[2]. He further submits that all the witnesses examined by the respondents were only officials of the department and no independent witness was examined. Certain discrepancies as to the nature of the material objects recovered at the site is also pointed out. Learned counsel contends that in the fixation of civil liability, the Special Court as well as the Authorities proceeded on the assumption that the unit worked continuously for 16 hours and the same is not supported by any evidence. Learned Standing Counsel for the respondents, on the other hand, submits that the Circle Inspector, who filed the charge sheet is very much part of the Transco and is covered by Section 50 of the Act. He contends that the proceedings before the Special Court are summary in nature and all the same, the detailed trial, as per the Criminal Procedure Code was meticulously conducted. He contends that the evidence adduced against the petitioner is consistent and no contradictions were elicited from any of the witnesses. It is also urged that the civil liability was fastened by applying the prescribed formula. The inspection caused on 9.9.2000 at the unit establishment of the petitioner disclosed certain acts of pilferage. Proceedings were initiated as required under law and Crime No.94/2000 was registered. The case was tried by the Special Court in E.S.C. No.4 of 2001. Before the Special Court, on behalf of the respondents, P.Ws. 1 to 5 were examined and Exs. P1 to P10 were filed. Material Objects 1 to 3 were placed before the Court. On his part, the petitioner did not adduce any oral evidence, but has filed Exs.D1 and D2. The allegation against the petitioner is that he has drawn the power supply through separate wires by-passing the meter. M.Os. 1 to 3 are the wires that were said to have been utilised in the process. P.Ws.1 and 2 are the Assistant Divisional Engineer and Assistant Engineer of A.P. Transco, who have participated at the time of inspection. P.w.3 is the Junior Accounts Officer, who decided the civil liability or the cost of the pilferaged electricity. P.W.4 is the Sub-Inspector of Police, before whom a complaint has been submitted by P.W.1. P.W.5 is the Inspector of Vigilance, who investigated into the matter and conducted prosecution. Exs. P1 to P5 are the photographs taken at the site during the course of inspection and Exs. P1a to P5a are the negatives. Ex.P6 is the Inspection notes and Ex.P7 is the inspection report. The complaint is marked as Ex.P8 and certificate issued by P.w.3 is shown as Ex.P9. The F.I.R. in Crime No. 94/2000 is marked as Ex.P10. The police proceedings are marked as Ex.P11 and the sketch of the scene of offence as Ex.P12. The final assessment order is marked as Ex.P13. On behalf of the petitioner, letter dated 2.3.2000 was marked as Ex.D1 and copy of the Abstract of Bill Book as Ex.D2. The first point urged on behalf of the petitioner is that the prosecution initiated is contrary to Section 50 of the Act. The said provision reads as under: “No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order thereunder, except at the instance of the Government or a State Electricity Board or an Electrical Inspector, or of a person aggrieved by the same.” From this, it is evident that the prosecution can be launched at the instance “of the Government, State Electricity Board, which incidentally, in this case is the Distribution Company, Electrical Inspector or the person aggrieved by the offence”. This is in contrast to the provision like Section 20 of the Prevention of Food Adulteration Act, which directs prosecution of an offence under that Act can be initiated only with the written consent of the State or Central Government or a person authorised in this behalf by a general or special order. Section 50 of the Act is only to the effect that the prosecution shall not be instituted “except at the instance”. In the present case, the prosecution was instituted at the instance of the successor of a State Electricity Board. The Inspector of Police in the Vigilance Cell of the A.P. Distribution Company is very much part of it. In Arikipudi Sankara Rao’s case(cited supra-2), a learned single judge of this Court took the view that it is only an Inspector appointed in terms of Section 36 of the Act that can initiate prosecution. In this context it needs to be mentioned that the Electrical Inspector appointed under Section 36 of the Act, no doubt, is one of the persons at whose instance, the prosecution can be launched. However, it is difficult to hold that he alone is competent to launch prosecution. It does not appear that the range of persons or authorities, at whose instance, the prosecution can be launched were brought to the notice of this Court or that the point was canvassed. With great respect to the learned judge, who rendered the judgment, this Court finds it difficult to take the observation made therein, viz, “that prosecution must be initiated only by an Electrical Inspector under Section 30 of the Act” as ratio decidendi, or as an authoritative pronouncement. In Avtar Singh’s case (cited supra-1), the Supreme Court explained the purport of Section 50 of the Act. In that case, the accused took a consistent plea at the threshold of the proceedings itself that the prosecution initiated against him is contrary to Section 50. However, the State did not meet that contention. An inference was drawn to the effect that the plea raised by the accused was not contradicted. In the instant case, the petitioner did not raise any plea before the Special Court that the prosecution launched against him is contrary to Section 50. It is no doubt true that that point is urged before this Court. It is not n dispute that the agency at whose instance the prosecution was initiated is certainly one of those mentioned in Section 50. The second point urged on behalf of the petitioner is that the offence alleged against him was not proved at all nor independent witnesses were examined. Basically, it needs to be observed that the proceedings before the Special Court are governed by Section 49(c)(7) of the A.P. Amendment Act, which directs that they shall be summary in nature. Be that as it may, the prosecution examined as many as five witnesses and filed the relevant documents. All of them consistently stated the commission of offence by the petitioner. There was hardly any defence worth its name. No contradictions were elicited from the witnesses. The photographs marked as Exs.P1 to P5 clinchingly prove the existence of objectionable material at the site, used in drawing the power directly. The only suggestion made on behalf of the petitioner was about the length of the wires that were recovered and marked as M.Os.1 to 3. This is hardly of any use to them. The Special Court has discussed the matter on correct lines and arrived at a just and proper conclusion. The conviction ordered against the petitioner does not warrant interference. However, coming to the sentence, this Court is of the view that it can be modified to one for Rigorous Imprisonment for three months and the amount of fine be enhanced to Rs.10,000/-. So far as civil liability fastened on the petitioner is concerned, the Special Court proceeded on the assumption that the unit worked continuously for 16 hours on all the working days. General information collected in the area is said to have been treated as the basis. No effort was made to verify the wages register in order to know whether the factory worked for two shifts. Further the power supply was not continuous. At any rate, a unit of this nature would not work continuously and there are bound to be intervals. This Court is of the view that the working hours can be taken at 10. Hence, the writ petition is partly allowed directing that : (a) The conviction ordered against the petitioner for the offences under Sections 39 and 44 of the Indian Electricity Act be and hereby affirmed. (b) The sentence against the petitioner is modified to be one of Rigorous Imprisonment for three months and fine of Rs.10,000/-, in default, to undergo Rigorous Imprisonment for a further period of three months. (c) The civil liability of the petitioner shall be worked out on the basis that the Unit worked for ten hours and not 16 hours per day. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY,J Date: 11th March, 2010 pnb [1] AIR 1965 SC 666 [2] 2007(2) ALD (Crl.) 775 (AP)