Punjab-Haryana High Court
Punjab State Power Corporation Ltd. And ... vs M/S Akal Foods Pvt Ltd And Anr on 12 January, 2017
Equivalent citations: AIR 2017 PUNJAB AND HARYANA 82
Author: Amit Rawal
Bench: Amit Rawal
CWP No.389 of 2016 {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No.389 of 2016
Date of decision:12.01.2017
Punjab State Power Corporation Ltd. & another ... Petitioners
Vs.
M/s Akal Foods Pvt. Ltd. & another ... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:- Ms. G.S.Gurna, Advocate
for the petitioners.
Mr. M.S.Rana, Advocate
for respondent No.1.
AMIT RAWAL J. (Oral)
The petitioners have approached this Court seeking vindication of the grievance by challenging the order dated 05.06.2015 (Annexure P-4) passed by Sub-Divisional-cum-Additional Deputy Commissioner, Sangrur, who accepted the appeal filed by M/s Akal Foods Private Limited
-contesting respondents, whereby, Punjab State Power Corporation Ltd. (hereinafter referred to as PSPCL), Patiala, was directed to refund the entire amount recovered on the basis of the provisional assessment notice No.1423/25 dated 28.01.2008.
Ms. G.S.Gurna, learned counsel appearing on behalf of the petitioners submits that respondent is a consumer of electricity of petitioner- Corporation. On 25.01.2008, a checking party conducted a raid on the 1 of 11 ::: Downloaded on - 08-07-2017 01:59:50 ::: CWP No.389 of 2016 {2} premises of respondent and found that electricity theft is being committed by using direct connection in the poultry farm. On the basis of said checking report dated 25.01.2008 (Annexure P-1), a provisional order of assessment dated 28.01.2008 (Annexure P-2) under Section 135 of Electricity Act of 2003 was issued and respondent was asked to deposit the assessed penalty charges of Rs.17,54,757/- and if he wants to get the offence compounded, the compounding fees as per the provisions of Section 152(2) of the said Act is to be deposited. Thereafter, respondent filed an appeal against the final assessment order (Annexure P-3 ) before respondent No.2- Sub Divisional Magistrate-cum-Additional Deputy Commissioner, Sangrur which was accepted vide order dated 15.06.2015 (Annexure P-4), thus, the present writ petition.
M.S.Rana, learned counsel appearing on behalf of respondent No.1 filed the written statement in the Court today which is taken on record. He submits that the present writ petition is not maintainable and liable to be dismissed as the petitioners have not approached this Court with clean hands and the submissions made by them are without merit. He further submits that no checking as alleged was done in the presence of the answering respondent. The respondent has been paying the bills regularly and there was no theft of electricity.
I have heard learned counsel for the parties and appraised the paper book.
For the sake of brevity, the provisions of Sections 135 and 126 2 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {3} (6) of the Electricity Act, 2003 read thus:-
Section 135. (Theft of Electricity): 1(1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both: Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
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(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as
4 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {5} the case may be, 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. (1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity: Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity: Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.
(2) Any officer of the licensee or supplier as the case may be,
5 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {6} authorized 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 2 [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 unauthorized use of electricity;
(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.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. (4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be,
6 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {7} to searches and seizure under this Act."
Section 126(6) of 2003 Act.
(6) The assessment under this section shall be made at a rate equal to 1[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 2
(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 authorized."
On co-joint reading of the provisions, sub-section d and e of Section 135 are almost para materia to clause iv and v of sub-section 6 of Section 126 of 2003 Act. The remedy to assail the final assessment order has been provided under Section 127 of 2003 Act. However, Chapter Part V deals with the constitution of Special Court, who is not below the rank of Additional District Judge or District and Sessions Judge. The procedure or power of the Special Court had been prescribed under Section 154 of 2003 7 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {8} Act.
For the sake of brevity, Section 154 reads as under:-
"Section 154. (Procedure and power of Special Court): ---
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under [2 sections 135 to 140 and section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act:
Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court :
Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re-
8 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {9} summon any such witness and after such further examination, cross-examination or re-examination, if any, as it may permit, the witness shall be discharged.
(3) The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.
(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such
9 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {10} person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code of Criminal Procedure,1973, be deemed to have been tendered under section 307 thereof.
(5) The Special Court shall determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.
(6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from 10 of 11 ::: Downloaded on - 08-07-2017 01:59:51 ::: CWP No.389 of 2016 {11} the date of such deposit till the date of payment." It is in the criminal proceedings initiated by the Electricity Board, the Additional District Judge or District and Sessions Judge has the power to determine the civil liability so that Electricity Board may not undergo the rigours of filing of separate suit on the basis of conviction on account of theft of electricity, in essence, the Electricity Board may not have to file a separate suit by paying the court fees. The aforementioned section does not deal with any situation enabling the consumer to challenge the order of theft in any Court, whereas, on the contrary, Section 145 of 2003 Act bars the jurisdiction of the Civil Court, in essence, the consumer cannot be remained remediless. No legislature of any country would render the affected party remediless.
In view of the aforementioned facts, I do not find any illegality and perversity in the impugned order.
Accordingly, the writ petition stands dismissed.
(AMIT RAWAL)
JUDGE
January 12, 2017
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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