AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL PUBLIC INTEREST LITIGATION NO.13 OF 2010 Mohd. Dastagir Mohd. Saeed @ Babloo. ... Petitioner Vs. The State of Maharashtra & Ors. ... Respondents Mr. A.M. Chimalkar for the petitioner. Mr. P.A. Pol, public prosecutor for the State. Mr. V.A. Thorat, senior counsel with Mr. Harinder Toor and Mr. Dipankar Das i/b M.V. Kini & Co. for respondent 2. Mr. Pakale for Mumbai Municipal Corporation. CORAM: MRS. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATED : 21ST JULY, 2010. P.C.:- (Smt. Ranjana Desai, J.) 1. The petitioner carries on business of retail sale of electronic goods at Musafirkhana, Mumbai. The 1st respondent is the State of Maharashtra. The 2nd AJN 2 respondent is the Divisional Commissioner of the Supply Department of the B.E.S.T. Undertaking (for short, “the BEST”). The BEST is a distribution licensee under the Electricity Act, 2003 duly authorized by the Maharashtra Electricity Regulatory Commission (for short, “the MERC”) to distribute electricity. The BEST supplies electricity to the consumers in the island city of Mumbai i.e. from Colaba (South Mumbai) to Mahim and Sion (North Mumbai). The 3rd respondent is the Commissioner of Police, Mumbai. The 4th respondent is the Senior Inspector of Police, MRA Marg Police Station, Mumbai and the 5th respondent is the Brihanmumbai Municipal Corporation. 2. Shortly stated the petitioner's grievance is that one Mohamed Yakub Hamid Shaikh (for convenience “Mohammed Yakub”) steals electricity from electric meter of his building situated at Kadri Chawl, Musafirkhana, Saboo Siddiqui Road, Mumbai – 400 001. It is further the grievance of the petitioner that the said Mohammed Yakub sells electricity unauthorizedly to various stall AJN 3 owners who have their stalls at the Saboo Siddiqui Road; takes money from them and passes receipts to them. According to the petitioner, raids were conducted at Saboo Siddiqui Road on 18/10/2004 and 6/11/2004. Again raids were conducted in the years 2005 and 2009. However, the BEST is not taking necessary steps pursuant to the raids though it was found that indeed there was theft of electricity. It is the petitioner's case that even the police are not doing their duty. No investigation is done in the pending cases. Cases filed in the court are ending in unmerited acquittals because of the negligence and apathy of the BEST and the police. The petitioner has, therefore, prayed that the respondents be called upon to state why preventive or prohibitive action including prosecution is not taken against the culprits and that they may be directed to file appropriate cases against the culprits. 3. As directed by this court, affidavit in reply is filed by Mr. Subir Ghosh, Chief Vigilance Officer, Electric Supply, AJN 4 BEST. Mr. Ghosh has admitted in the affidavit that theft of electricity is a chronic problem that exists with all the distribution companies engaged in supply of electricity in India. According to Mr. Ghosh, the BEST has been taking stringent measures to curb the menace of theft of electricity and have also achieved substantial success in curbing theft of electricity, however, there are certain constrains which hamper its efforts. The constrains are set out as under : (a) Large number of consumers are in the slums and unorganized and unauthorized establishments such as stalls, hawkers, etc. (b) The complete underground network in old and unorganized habitat structures. (c) Lack of adequate support from police and other authorities. (d) Large scale unauthorized structures and semi industrial hubs in erstwhile slum areas like Dharavi and Antophill. AJN 5 (e) Slow progress in prosecution of theft of electricity cases by the Trial Courts. 4. It is further stated by Mr. Ghosh that for successful prosecution of criminal cases involving theft of electricity adequate support from the police is required. The police are unable to take necessary initiative to investigate and file the charge-sheet in cases involving theft of electricity. They are not able to present evidence before the court. There is delay in prosecution which results in acquittals. 5. Having perused this affidavit, this court gave a direction to register the petition as a criminal public interest litigation petition obviously because though the petition voices primarily a private grievance, it involves question of theft of electricity which is of general public importance. 6. The State of Maharashtra, the Commissioner of AJN 6 Police, Mumbai and MRA Marg Police Station have not filed affidavits but Mr. Pol, learned Public Prosecutor has denied the allegation that while dealing with the theft of electricity cases, the police are lax. He submitted that there is total non-cooperation on the part of the BEST officers and that leads to unmerited acquittals. 7. We feel that rather than indulging in blame game, the BEST, the State, the Police and the MMC should look to the future and try to work out a strategy to deal effectively with the electricity theft cases. We are heartened to note that learned counsel for the BEST, the State, the Police and the MMC have shown a very positive approach and they are prepared to take initiative to persuade their respective clients to chalk out a plan to prevent thefts of electricity and to bring to book those who indulges in thefts of electricity. 8. On the last occasion, we had asked all the counsel to have a joint meeting to discuss the issue of theft of AJN 7 electricity. We are informed that a meeting was held in the office of learned public prosecutor in which higher officers of the police department and the BEST participated. Learned Public Prosecutor informs us that it was decided to have a separate Special Cell to deal with electricity theft cases. Learned Public Prosecutor further informs us that for the purpose of creation of a Special Cell, it is necessary for the higher officers of the BEST to get in touch with the Commissioner of Police, Mumbai. Mr. Thorat, learned senior counsel for the BEST states that in that behalf already a request is made by the General Manager of the BEST to the Commissioner of Police, Mumbai vide his letter dated 2/7/2010. If that is so, we request the Commissioner of Police, Mumbai to arrange meeting between him and the Chief Vigilance Officer of the BEST to discuss the proposed creation of a Special Cell of the Mumbai Police to deal with the electricity theft cases and to work out modalities of the proposed joint endeavour to effectively eradicate the manace of theft of electricity. We request Mr. Pakale, learned counsel for the AJN 8 MMC to ensure that a higher officer of the MMC remains present at the meeting. Learned Public Prosecutor has assured us that he will render necessary assistance. Looking to the importance of the issues involved, we request learned Public Prosecutor to get in touch with learned counsel for the MMC, the BEST and the Commissioner of Police, Mumbai and arrange the proposed meeting at the earliest. We must at this stage sound a note of caution. Special Cell is often created but it does not produce desired results. Care should, therefore, be taken to supervise its working and periodical review of its performance. 9. In the meantime, if the police find unauthorized stall owners stealing electricity, they should immediately make it known to the concerned officers of the MMC who shall then take steps in accordance with law. We feel that this problem will be solved to a large extent if, while giving electricity connection to the hawkers, the BEST ascertains whether the MMC has given NOC to the hawkers or not. AJN 9 10. Another vital aspect also needs to be examined. Section 153 of the Electricity Act, 2003 provides for establishment of Special Courts. A grievance is made that Special Courts are not established as yet by the State Government. The data made available to us by the Registrar (Inspection I), High Court, Mumbai, on 26/7/2010 indicates that as on 1/6/2010, only 63 cases are pending in Mumbai. Three Additional Sessions Judges at main seat at Mumbai, two each at Sewri and Dindoshi have been assigned the said work. If the pendency of cases increases, the State Government may constitute Special Court or may notify as many Additional Special Judges as may be required to deal with the cases under Section 153 of the Electricity Act, 2003. 11. We hope and trust that joint effort of the MMC, the BEST and the police succeeds in achieving the desired target. AJN 10 12. That takes us to the personal grievance of the petitioner. Learned Public Prosecutor on instructions from API Ravindra Wani of MRA Marg Police Station has given us a list of cases pending against Mohammed Yakub. As on today, a case registered in respect of CR No.1592 of 2005 under Sections 135 and 138 of the Electricity Act, 2003 is pending against him in the 30th Magistrate's Court at Ballard Pier, Mumbai. It is in respect of the raid conducted in the year 2005. Learned Public Prosecutor states that API Wani has assured him that the said case will be properly attended to and the police shall try to get it disposed of expeditiously. Mr. Thorat, learned counsel for the BEST states that the BEST will give all the necessary assistance to the police in respect of the said case. Learned Public Prosecutor states that other cases pending against the said Mohammed Yakub will also be similarly dealt with with the assistance of the BEST. Mr. Thorat learned counsel for the BEST states that the BEST officers will cooperate in respect of other cases also. According to learned Public Prosecutor there are several AJN 11 cases registered against the petitioner. If that is so, they may also be dealt with in similar manner and brought to their logical conclusion. 13. The petition is disposed of in the above terms. [MRS. RANJANA DESAI, J.] [V.K. TAHILRAMANI J.]