IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.242 of 2006 DATE: 23.11.2011 Between: Azhar Ahmed …… Appellant And The State of Andhra Pradesh through Inspector of Police, Vigilance & APTS, Adilapad P.S. rep. by P.P. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.242 of 2006 JUDGMENT : The appellant/accused was convicted by the lower Court under Sections 39 and 44(aa) of the Indian Electricity Act (in short, the Act) and was sentenced to simple imprisonment of three years under Section 39 of the Act and fine of Rs.1,000/- under Section 44(aa) of the Act. Questioning the same, the accused filed this appeal. 2) It is a case of pilfering of electrical energy in flour mill belonging to Tasadiq Ahmed in Adilabad. P.W-1 who is the then Assistant Engineer (D.P.E), Adilabad made inspection of the premisis on 20.11.2000 at 19.20 hours and found very very slow running of the electricity meter. At the time of inspection, the accused was present and he signed in Ex.P-3 inspection notes prepared by P.W-1. P.W-1 seized M.Os 1 to 4 meter and seals. The seized meter was tested by P.W-2 who was the then Assistant Engineer in M.R.T laboratory, Adilabad. He gave Ex.P-4 M.R.T testing report. P.W-1 sent Ex.P-2 inspection report to his higher authorities and also lodged Ex.P-1 report with P.W- 5 who was the then Inspector of Police, Vigilance, A.P.T.S Police Station, Adilabad. 3) P.W-3 is the then Assistant Accounts Officer, Electricity Revenue Office, Adilabad. He says that on 13.01.1983 service No.5123/Cat-III was released in favour of Tasadiq Ahmed of Adilabad. Ex.P-5 is service release certificate. He says Tasadiq Ahmed is consumer in this case. P.W-4 is the Municipal Commissioner, Adilabad Municipality. According P.W-4, he issued Ex.P-6 ownership certificate on the inspection report given by the revenue inspector. As per Ex.P-6 Tasadiq Ahmed is owner of the house in which the flour mill is located. The lower Court found the accused guilty on the ground that he was running the flour mill and the said fact is evident from his presence at the time of inspection in the flour mill. 4) It is contended by the appellant’s counsel that when the appellant was not owner of the premisis and was not consumer of the service connection connected to the flour mill, he cannot be found guilty simply because he was present in the flour mill at the time of inspection made by P.W-1. The accused is no other than son of Tasadiq Ahmed in whose name service connection for the flour mill stands and in whose name the premisis in which the flour mill is located. Evidence of P.W-5 investigating officer to the effect that as per his investigation one Bojanna is owner of house-cum-flour mill is baseless. Such question should not have been permitted by the lower Court to the investigating officer. Investigation of an Investigating Officer is based only on either statements recorded by him under Section 161(3) Cr.P.C or documents collected by him during investigation. There is no document produced to show that Bojanna is owner of house- cum-flour mill. If the evidence is based on oral statements of witnesses recorded under Section 161(3) Cr.P.C, the said statement is not legal piece of evidence. In any event, the accused should not have been found guilty on the sole ground that he was present in the flour mill premisis at the time of inspection by P.W-1. In the absence of any evidence that it was the accused who physically tampered the meter and in the absence of any evidence that the accused is beneficiary of the tampering of meter, the accused cannot be found guilty either under Section 39 or under Section 44(aa) of the Act. I do not agree with the reasoning and conclusion given by the lower Court. 5) In the result, the appeal is allowed setting aside the convictions and the sentences passed by the lower Court against the appellant/accused and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J November 23, 2011 ksh