CR.A/1061/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1061 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== SURUBHA RAMBHA VAGHELA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ===================================================== Appearance : MR KIRTIDEV R DAVE for Appellant(s) : 1,MR RAHUL K DAVE for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI CR.A/1061/2007 2/12 JUDGMENT Date : 18/03/2008 ORAL JUDGMENT 1. Appellant is the original accused. He was charged for offence punishable under Section 135 of the Electricity Act, 2003. In the charge framed at Exh.6, it was stated that on 04.05.2005 raiding party of GEB carried out a surprise checking of premises known as the Gayatri Pan Centre where one Yograjsinh Vaghela was present. It was found that in the said premises by unauthorizedly taking connection from the electricity lines of the GEB, power theft was committed by the accused. 2. By the impugned Judgment and order dated 27.7.2007, learned Special Judge, Fast Track Court, Surendranagar convicted the accused and sentenced him to one year of RI and also directed him to pay fine of Rs.1,87,302/-. 3. Before the Trial Court prosecution examined Mahavir Vikrambhai Parmar PW-1, who had lodged the CR.A/1061/2007 3/12 JUDGMENT complaint. In his cross-examination, however, he admitted that he had no personal information about the incident. He further stated that he did not have any evidence to show that Gayatri Pan Centre is of the ownership of the accused-appellant. 4. Dineshkumar Hasmukhbhai Chaudhary PW-2 at Exh.11 was a member of the raiding party. He stated that on 04.05.2005 he was discharging his duty as Deputy Engineer. As per the instructions, he had proceeded to carry out surprise checking. As part of such exercise, he had checked Gayatri Pan Centre situated behind old bus-stand at Lakhtar. The accused was not present at that time. However, Yograjsinh Surbha Vaghela son of the accused was present. It was found that though no electricity connection was granted, 10 Mtr. wire was connected to the Electricity Line of the GEB and unauthorizedly electric bulb, fan, tube-light etc. were being operated. He had filled-up the checking sheet and obtained signatures of the other members of the party. Yograjsinh Surabha Vaghela, however, refused to sign the same. He had also drawn the Rojkam, which CR.A/1061/2007 4/12 JUDGMENT was produced at Exh.13. 4.1 In his cross-examination he stated that on the same day he had checked three shops and the owners were summoned by GEB of all the three shops and cases were filed. He admitted that to show that the shop is of the ownership of the accused, he had neither collected nor seized any material. 4.2 It may be noted that though another person who was part of the raiding party was shown as PW-2, by filing a pursis in this regard, he was dropped as a witness. 5. Hardiksinh Madhavsinh Gohil- PW-3 was examined at Exh.15. He had only registered the complaint lodged by the officers of the GEB. 6. Ketansinh Harubha Zala- PW-4 who had carried out investigation, was examined before the trial Court. He stated that he had recorded the statements of Dineshbhai Chaudhary and Ramjibhai Hirjibhai CR.A/1061/2007 5/12 JUDGMENT Patel on 08.02.2006. Finding that there was sufficient material against accused, he was taken in custody. 6.1 In his cross-examination, he admitted that to show that the shop was of the ownership of the accused, he had not collected any evidence. He admitted that near the shop in question, there are many other shops situated. 7. This is the gist of evidence produced by the prosecution before the trial Court to prove the charge against the appellant. 8. Having perused the evidence on record and having heard the learned advocates appearing for the parties, I find that there was insufficient evidence before the Trial Court to link the accused with the commission of the offence. As noted earlier, the accused was not present at the shop when the raid was carried out. Admittedly, there was no evidence on record to show that accused was either owner or CR.A/1061/2007 6/12 JUDGMENT occupier of the shop from where unauthorized electricity connection was detected. 9. PW-1- Mahavirbhai Vikrambhai Parmar had only lodged complaint and by his own admission, he had no personal knowledge. 10. PW-2 Dineshkumar Harsukhbhai Chaudhary Exh.11 was member of the raiding party. He, however, admitted that to show that the shop belonged to the accused, no evidence was collected. No other eye- witnesses was examined. He also clearly admitted that to show that the shop is of the ownership of the accused, he had not collected any evidence. 11. When the accused was not present when the raid was carried out, when there was no other evidence collected by the Investigating Agency and produced before the Court to show that the accused was the owner or the occupier of the shop from where unauthorized connection was detected, it was not possible to convict him for offence punishable under CR.A/1061/2007 7/12 JUDGMENT Section 135 of the Electricity Act. 12. There was no evidence whatsoever to establish that the accused had committed an offence since the Investigating Agency has collected no evidence to show that the premises either belonged to him or he occupied the same in same capacity or the other. Mere presence of his son by itself would not be conclusive of the involvement of the accused in the offence. 13. Learned APP Ms.Punani submitted that under the provisions of Section 135 of the Electricity Act presumption would arise and that in the present case, such presumption should be drawn. 14. In an order dated 18.12.2007 passed in Criminal Appeal No.1143 of 2007, this aspect was examined by this Court in following manner: CR.A/1061/2007 8/12 JUDGMENT “16. I am unable to uphold the contention of learned APP Ms. Hansa Punani that in facts of the present case, presumption under Section 135 of the Electricity Act, 2003 would arise. Section 135 of the Electricity Act, 2003 makes any dishonest tapping, tampering, damaging, etc. of the electricity connection so as to abstract or consume or use electricity, punishable with imprisonment or fine. Further proviso to Section 135 states that “provided further that if it is proved that any artificial means or means not authorised by the Board or licensee 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.” 17. Term consumer has been defined under Sub- section(15) of Section 2 of the Electricity Act, 2003 which reads as follows : “15. “consumer” means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.” CR.A/1061/2007 9/12 JUDGMENT 18. From the definition of word “consumer”, it can be seen that same is inclusive in nature and besides any person who is supplied with electricity for his own use by a licensee or the Government, also includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee or the Government etc. 19. In the present case, if it is shown that the appellant had connected his premises for the purpose of receiving electricity with the works of Electricity Company, he would be covered under the term consumer as defined under Sub- section(15) of Section 2 of the Electricity Act, 2003. 20. In such a case any unauthorised consumption or use of electricity would give rise to rebutable presumption that such abstraction, consumption or use was dishonestly caused by such consumer. For the purpose of such presumption however, first and foremost thing required is that prosecution establishes that there has been abstraction, consumption or use of electricity by any artificial means or means not authorised by the Board or licensee. To avail of such presumption, prosecution has to establish such abstraction, consumption or use of electricity by the consumer. If this is CR.A/1061/2007 10/12 JUDGMENT proved, the presumption that such use, abstraction or consumption was dishonestly caused by the consumer would arise. This is so because proviso starts with words “if it is proved”. The arising of the presumption therefore, necessarily depends on prosecution proving the existence of artificial means or means not authorised by the Board or licensee for the abstraction, consumption or use of electricity by the consumer. 21. In the present case, I find that very foundation of connecting the appellant with the unauthorised connection of electricity is missing. The presumption under further proviso of sub-section(1) of Section 135 would not be available. 24. Additionally, I also find that even if there was no electricity supply at the time when raiding party had raided the field of the appellant, in view of further proviso under sub- section(1) of section 135 of the Electricity Act, 2003, presumption could arise that there was abstraction, consumption or use of electricity caused by consumer dishonestly. Significantly, such provision as discussed earlier, requires prosecution to prove that there is any artificial means or means not authorised by the Board or licensee exist for CR.A/1061/2007 11/12 JUDGMENT the abstraction, consumption or use of electricity by the consumer. In the present case, raiding party found overhanging wires connected to the panel board which in turn was connected to submersible motor pumps. If this fact was established, presumption that same was meant for dishonest consumption of electricity would straightway arise. Even if at the point of time when raid was carried out, electricity supply was discontinued, same would not absolve the accused from the offence punishable under Section 135 of the Electricity Act, 2003. In the present case, however, I find that prosecution collected no evidence to show that the field on which such unauthorised use was being carried out was of ownership or occupation of the appellant. Independently, also there was no evidence to show that the appellant was responsible for such unauthorised consumption of electricity”. 15. Under the circumstances, I find that the prosecution completely failed to establish that the appellant-original accused had unauthorizedly used the electric power and thereby, committed theft of electricity. Conviction and sentence is therefore, set aside. Appeal succeeds. Fine, if any, paid shall be refunded. CR.A/1061/2007 12/12 JUDGMENT 16. If the appellant is not required in any other offence, he shall be released forthwith. (AKIL KURESHI, J.) ashish//