Delhi District Court
Bses vs . Mukut Pathak Page 1 Of Page 16 on 19 February, 2013
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IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDL SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 27.03.2009
Judgment reserved on : 16.02.2013
Judgment pronounced on : 19.02.2013
Complaint Case No.189/09
PS New Friends Colony, New Delhi
Unique ID 02403R0294972009
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place, New Delhi110019
And its Corporate, Legal and Enforcement Cell
at Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Through Sh.Ashutosh Kumar
(Authorized Representative) ...Complainant
Versus
Mukut Pathak (R/C & User)
Address H.No.87, Sarai Jullena,
New Delhi25
...Accused
Appearances: AR for the complainant
Sh. S.K.Alok, counsel for the complainant
Accused on bail with Sh.Vaibhav Dang, Adv.
JUDGMENT
1 Complaint u/sec.151 of the Electricity Act (hereinafter called as 'the Act') has been filed by the complainant company against accused seeking to summon, try and convict him for the offence punishable U/sec.135 & 138 of the Act and also praying for determination of his civil liability. 2.1 It is the case of complainant that premises bearing H.No.87, Sarai Jullena, New Delhi25 was inspected on 01.06.2007. The premises had metered BSES Vs. Mukut Pathak Page 1 of page 16 2 supply bearing K no.25410A160051 and meter no.27063744. Meter chamber box seals, meter half seals, ultrasonic welding & hologram seals were found tampered and terminal cover seals were found missing. Meter was segregated at the site in the presence of registered consumer's representative Sh.Teekam Chand. Two illegal shunts were found connected for suppressing recording of consumption. Mukut Pathak was found registered consumer of the meter. Connected load of 17.705 KW was assessed for domestic use. IRs bearing no.36647 & 36648 dated 01.06.2007 were pasted on the meter to maintain status quo. Inspection report & load report were prepared at the site. Photographs & visual footage of the inspection were taken and the same were converted into CD subsequently. Show cause notice was sent to the accused for dishonest abstraction of electricity, requesting him to reply by 11.06.2007 and to attend the personal hearing on 18.06.2007, as per provisions of DERC (Performance Standards - Metering and Billing) Regulations, 2002 (hereinafter called as 'the Regulations of 2002'). Accused filed his reply to the show cause notice. However, the assessing officer concluded it to be a case of DAE vide his speaking order dated 31.12.2007. 2.2 On the basis of connected load and applicable tariff, a theft bill of Rs.7,72,926/ was raised. On failure of the accused to deposit the same, present complaint was filed seeking to try and convict Mukut Pathak. Determination of his civil liability was also prepared for.
3 Cognizance of the complaint was taken by the ld. Predecessor court on 27.03.2009. After recording presummoning evidence, accused was summoned to face trial on 23.09.2009.
BSES Vs. Mukut Pathak Page 2 of page 16
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4 On entering appearance, accused Mukut Pathak was admitted to
bail. Notice of accusation U/sec. 251 Cr.P.C. was framed on 11.08.2011, for the offence punishable u/sec.135 & 138 of the Act. Accused pleaded not guilty and claimed trial. Accused admitted being part owner of the premises. However, he denied the segregation of the meter in his presence or in the presence of his representative. Tampering with the meter was also denied. Thus, he claimed trial. 5.1 Complainant, in support of its case, examined five witnesses. Krishan Kumar (PW1) & Prabhash Chand (PW2) were members of the raiding team. Nishikanth Gupta (PW3) was examined to prove the speaking order passed by him. Ashutosh Kumar (PW4) proved filing of the complaint and his authority to pursue the cases. Teekam Chand (PW5), caretaker of the premises was summoned by the complainant to support its case. Krishan Kumar (PW1) & Prabhash Chand (PW2) have both deposed that a 3 phase electronic meter, found installed at the site, was tampered with. Its terminal seals were missing and all other seals were found tampered and refixed. Meter was segregated at site in the presence of representative of accused namely Teekam Chand. Two illegal shunts were found connected to meter. The witnesses proved connected load as 17.705 KW for nondomestic usage, which was for running a Working Womens' Hostel. They proved the documents prepared at site and the CD of photographs/ videography. Documents prepared at site were offered to representative of the accused, who refused to receive the same. It was, further, deposed that electricity supply was restored through the same meter, after reassembling it. 5.2 Krishan Kumar (PW1), on being crossexamined, deposed that load report was prepared on the information provided by Teekam Chand. He did not BSES Vs. Mukut Pathak Page 3 of page 16 4 know if reports were required to be pasted on wall and photographs of the same were to be taken. He did not remember if they had operated the lift to notice if it was serviceable. He did not know if the lift was not under the control and possession of Mukut Pathak. He could not explain as to why meter number is not legible in the photographs, placed on record.
5.3 Prabhash Chand (PW2), on being crossexamined, deposed that he was not aware if DERC has laid down any guideline in the year 2002 & 2007. He deposed that they did not remove the meter from premises and send it to laboratory for its analysis, as the violations were apparent to the naked eye. He could not show anything from the record to indicate that meter was segregated in presence of Teekam chand. He admitted that there was another meter installed at the premises but they had not noticed any abnormality in the second meter, therefore, no action had been taken qua the same. He denied the suggestion that the other meter was installed in the name of Sh.Vijay Pathak and that an inspection was conducted qua the said meter also. He was confronted with show cause notice for DAE addressed to Sh.Vijay Pathak, Mark PW2/DA. He also admitted that lift had not been operated at the time of inspection. Wiring in the premises was concealed and it could not be observed by naked eye, as to which meter was supplying energy to lift. Supply was restored through the same meter after segregating and reassembling the meter.
5.4 Nishi Kant Gupta (PW3) proved his speaking order Ex.CW2/6 dated 31.12.2007. He further deposed that consumption pattern was merely 27.28 % of the assessed consumption. Accused had sent a written reply dated 17.06.2007 & denied any tampering of the meter. One Teekam Chand had attended personal BSES Vs. Mukut Pathak Page 4 of page 16 5 hearing on 18.06.2007, on behalf of the accused. He admitted that speaking order is supposed to be passed within 15 days of personal hearing but it was delayed in the present case. He did not verify factual averments made in the reply, as he was not impressed by them and was satisfied with the material made available by Enforcement department. He had not ensured that a copy of consumption pattern was made available to the accused.
5.5 Teekam Singh (PW5), employee of accused, was also summoned by complainant, as a witness. He was confronted with his signatures on the note sheet of assessing officer, Mark PW3/DA. He admitted his signature thereon but explained that the document was blank when he signed it. He admitted ownership of Mukut Pathak qua a part of the building and usage of the premises as Working Girl's Hotel. He admitted his statement having been recorded in a civil suit pending between the parties at Tis Hazari Courts. On being crossexamined by the accused, he proved the entire case of defence. He deposed that on 29.08.2006 a fire broke out in the premises, plastic cover of the meter was burnt in fire. The meter was, therefore, removed segregated and repaired at the site by officials of BSES. However, new meter was not installed despite follow up. On 01.06.2007, he was present at the site when inspection was conducted. During inspection, he was taken to upper floors by the officials of the company and in the meantime some officials segregated meter of Col.M.K.Sharma, installed in the premises and meter in the name of accused was not segregated. He admitted that no shunt was detected in the meter at the time of inspection and there was no tampering of the meter. He admitted that he had not been authorised by accused to attend personal hearing before the assessing officer. He had been deputed only to submit reply on behalf of accused. He was denied opportunity of hearing by BSES Vs. Mukut Pathak Page 5 of page 16 6 the assessing officer. Till Nov2007, meter was recording energy supplied to premises of accused. Ld. counsel for the complainant sought permission to cross examine the witness as he had not supported the case of complainant. He denied the suggestions that meter was segregated in his presence or that shunts were found.
6.1 Incriminating evidence was put to accused Mukut Pathak. He denied tampering or refixing of seals. He also denied segregation of meter at site or presence of illegal shunts therein. He disputed load report & explained that load connected to meters of his brothers was also included in load report. He denied authorising Teekam Chand to represent him before assessing officer. He further stated that accuracy of meter was not checked. Meter was not sent to NABL accredited laboratory. Reply filed by him to the show cause notice had been withheld. Accused sought opportunity to lead defence evidence and summoned Neelesh Chandra - Manager of the complainant company.
6.2 Neelesh Chandra (DW1) produced the summoned record of case ID No.RJ130607C0051, K no.25410 A 160051 and meter bearing no.27063744. Photocopy of the same was placed on record as Ex.DW1/A. 7.1 Sh.S.K.Alok, ld. counsel for complainant has argued that from the testimony of PW1 & PW2, it is established beyond reasonable doubt that the premises was inspected on 01.06.2007, when meter no.27063744 was found to be tampered with. All seals were found broken and refixed. Inspection team segregated the meter and found illegal shunts, soldiered to the meter with a view to suppress recording of consumption. It is argued that entire proceedings were BSES Vs. Mukut Pathak Page 6 of page 16 7 conducted in presence of Teekam Singh - Representative of the accused, who also attended personal hearing before assessing officer. Ld. counsel has, therefore, argued that tampering of meter and conclusion of it being a case of DAE are established beyond reasonable doubt.
7.2 Sh.Vaibhav Dang, ld. defence counsel has strongly refuted the case of complainant. First & foremost, it is pointed out that the officials of complainant seem to have followed the Regulations of 2002, whereas, Delhi Electricity Supply Code and Performance Standard Regulations, 2007 (hereinafter called as 'the Regulations of 2007') already stood notified. Segregation of meter, at the site, was in violation of the established procedure. It is also pointed out that the complaint Ex.CW2/1, para9 refers to the Regulations of 2002, show cause notice Ex.CW2/5 refers to Regulations of 2002. It is further pointed out that the speaking order was passed almost 7 months after the date of inspection and almost 6 & ½ month after alleged personal hearing. Alleged tampered meter was neither seized nor produced before the court. The alleged shunts allegedly found connected in the meter were also not seized or produced before the court. Consumption pattern has not been put to the consumer and also not placed on court record. Sh.Dang has further pointed out that Regulation 52 of Regulations of 2007 was violated wantonly. It is argued that on the same day another meter in the same premises belonging to brother of accused was inspected, where Accue check machine was used. There is no explanation as to why Accue check machine was not used in the present case. Sh.Dang has relied upon law laid down in Narender Aggarwal Vs. BSES Rajdhani Power Ltd. reported as 168 (2010) DLT. Ld. Counsel has also relied upon orders passed by the DERC in Raj Pal Vs. BSES Yamuna Power Ltd., Petition No.19/2008 decided on 16.12.2008 and Ajay BSES Vs. Mukut Pathak Page 7 of page 16 8 Kumar Vs. North Delhi Power Limited Petition No.40/2007 decided on 16.05.2011.
7.3 Sh.S.K.Alok in rebuttal arguments submitted that the accused has not challanged the speaking order u/sec.127 of the Act. Violations of Regulations, if any, call for imposition of penalty upon the complainant. The Regulations are only directory not mandatory, which would not vitiate the inspection. It is also submitted that there was no NABL accredited laboratory in June2007, there was thus no occasion to have sent the meter to such a laboratory. Sh.Alok has relied upon law laid down in NDPL Vs. Bhasin Motors Ltd., reported as LPA No.1082 of 2007 decided on 21.01.2013.
8 I have heard the ld. counsels and with their assistance gone through the evidence and material placed on record by the parties. It is not in controversy that accused Mukut Pathak was the user of premises and also the registered consumer of meter installed. Though, it is indicated in the inspection report that consumer was unauthorisedly using electricity for nondomestic use against a domestic connection; yet there is no such pleadings in the complaint and notice of accusation for unauthorised use was also not framed. On the basis of evidence & arguments raised, controversy in the present case can be split into following heads:
(a) Whether the officials of complainant company followed the correct procedure for booking case of Dishonest Abstraction of Electricity?
BSES Vs. Mukut Pathak Page 8 of page 16
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(b) Whether meter bearing no.27063744, installed at the premises of
the accused, was tampered with?
ISSUE No.1
Whether the officials of complainant company followed the correct procedure for booking case of Dishonest Abstraction of Electricity?
9.1 Inspection in the present case was conducted on 01.06.2007. Regulations of 2007 had been notified & published in Delhi gazette on 18.04.2007. The procedure, thus, prescribed and applicable on the date of inspection was the procedure as detailed in Regulations of 2007. The printed documents used by the officials of the complainant company at the time of inspection i.e. Ex.CW2/5 (colly) refer to Regulations of 2002. The relevant portion is reproduced herein below: "The above is prima facie indicative of Dishonest Abstraction of Energy (DAE) rendering you liable for action under the provisions of the Electricity Act, 2003 and Delhi Electricity Regulatory Commission (Metering and Billing) Regulations 2002 ("DERC Regulations")"
9.2 The inspection team, thus, reached the conclusion of dishonest abstraction of electricity on the basis of parameter of Regulations of 2002. In addition to the parameters of Regulations of 2002, employed for reaching the conclusion of DAE, the procedure adopted was not provided for in the Regulations of 2007. Segregation of meter at site is not envisaged in the Regulations of 2002 or Regulations of 2007. Instead Regulation 52 (viii) of Regulations of 2007 specifically mandates the old meter to be tested in an NABL accredited laboratory. Pasting of IRs on the meter is also a procedure provided for BSES Vs. Mukut Pathak Page 9 of page 16 10 in repealed Regulations of 2002. Complainant, thus, followed the said discarded practice in this case. Other violations of Regulations of 2007 pointed out by ld. defence counsel are contained in Regulations 52 (iv), (vi), (ix), (xi) & (xii), Regulation 53 (ii) & (iv). I find substance in the arguments of Sh.Dang that consumption pattern for corroboration of theft of electricity was not looked into before booking the case of DAE or even at the stage of filing the complaint before the court. Another major violation of the Regulations is that the meter was segregated at the site and not sent to the laboratory for testing and analysis. Explanation tendered, by Sh.Alok, ld. counsel for the complainant, is that there was no NABL accredited laboratory in existence at the time of inspection. I find no merits in this argument, as there was no procedure ever prescribed of segregating the meter at the site. In the absence of NABL accredited laboratory the complainant could have sent the meter for testing and analysis to a non accredited laboratory. A consumer can not be made to suffer on account of lapse of the complainant in getting its laboratory accredited from NABL. Failure to paste the copy of inspection report in or outside the premises or photographing the same is provided for with a view to ensure that the report is actually prepared at the site. Mere averment that the consumer or his representative refused to accept the report can be just a lame excuse for not having done the needful. The safeguard has, thus, been provided in the Regulations to protect the interest of consumer. Analysis of meter data downloaded by the third party authorised laboratory 52(xii) is another piece of corroborative evidence envisaged in the Regulations. On the basis of findings as noticed above, I am of the considered opinion that the Regulations of 2007, which had become effective on the date of inspection were given a total gobye by the complainant's officials. In such facts & circumstances, the inspection is held to be vitiated.
BSES Vs. Mukut Pathak Page 10 of page 16
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9.3 The arguments raised by ld. counsel for the complainant that Regulations
are only directory in nature is rejected, being preposterous. Section 50 of the Act provides for state electricity regulatory commissions to specify an Electricity Supply Code to provide for inter alia, measures for preventing tempering of meter, removal of meters, etc. For ready reference Section 50 of the Act is reproduced herein below: "Section 50:The Electricity Supply Code:The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for nonpayment thereof, restoration of supply of electricity, measures for preventing tampering, distress of damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters."
9.4 The Regulations of 2007 are, thus, enacted under this provision of the Act and as subsequently discussed derive force of law from this provision. The Regulation 71 of Regulations of 2007 specifically repeal Regulations of 2002. The procedure, thus, followed of Regulations of 2002 was totally illegal. Regulations of 2007 were formulated by the DERC in consultation and discussion with the distribution companies. Regulations were thereafter tabled before the State Lagislature as required u/sec.182 of the Act and then notified. The complainant and its officials are estopped from taking a plea that Regulations were not brought to their notice or were not to the knowledge of the inspection team. It is established principle of law that Regulations have the force of law and are BSES Vs. Mukut Pathak Page 11 of page 16 12 statutorily enforcible. Regulations being subordinate legislation fill in gaps which the principle legislation misses out. The definition and punishment for the offence of Dishonest Abstraction Electricity is provided in 135 (1) (b) (d) r/w/sec.138 of the Act. However, the Act is silent as regards the manner in which inspection is to be conducted and the parameters to be adopted for arriving at a conclusion of DAE, by the officers of complainant company. To fill in the gap on these aspects Section 50 of the Act provides for subordinate legislation. Regulations of 2007, which are, thus, envisaged under the Act, itself can not be lightly brushed aside by the complainant, claiming the provisions to be directory and not mandatory. Scope and ambit of subordinate legislation has been enunciated by the Hon'ble Supreme Court of India in St.Johns Teachers Training Institute Vs. Regional Director National Council For Teacher Education & Anr. reported as (2003) Volume 3 SCC 321. The relevant portion is reproduced herein below: 10 "A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within th limits of authority conferred by the Act. Rules can not be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that BSES Vs. Mukut Pathak Page 12 of page 16 13 they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statues to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the stature. The process of legislation by departmental regulations saves time and is intended to deal with local departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern day society being complex, it can not possibly foresee every administrative difficulty that may arise after the stature has begun to operate. Delegated legislation fills those needs. The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature. (Emphasis supplied) 11 It will be useful to reproduce here a passage from Administrative Law by Wade & Forsyth (8th Edn., 2000, at p.839) Administrative legislation is traditionally looked upon as a necessary evid, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (at it can be more readily in the case of the judicial BSES Vs. Mukut Pathak Page 13 of page 16 14 power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them in some particular situation."
9.5 The orders passed by DERC referred to by Sh.Dang also hold that Regulations are not merely directory. The reliance by ld. counsel law laid down in Narender Aggarwal's (supra) case is also applicable to the facts of the present case. The complainant has failed to prove any 'mens rea' attributable to the accused for dishonest abstraction of electricity. Reliance by Sh.Alok on the law laid by L.P.A. Bench in Bhaseen Motors' (Supra) case does not come to the aid of complainant. In para7, thereof, the Hon'ble High Court has held prerequisite of the offence, to be tampering of the meter. As discussed in subsequent paras, this court is of the opinion that meter is not established to be tampered with, beyond reasonable doubt. Para 8 of the judgment, rather supports the case of the accused that mere physical tampering of the meter is not sufficient unless it is corroborated by the consumption pattern.
9.6 For the reasons discussed above, I have no hesitation in holding that the procedure adopted by the complainant for booking the case under DAE was totally violative of the Regulations then inforce. The entire inspection is, thus, vitiated and held to be void. The cardinal principle of procedures being laid down is to ensure that the consumer is protected at the hands of a mighty organisation. The transparency and detachment expected from an accredited laboratory was deprived to the accused in the present case.
BSES Vs. Mukut Pathak Page 14 of page 16
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ISSUE No.2
Whether meter bearing no.27063744, installed at the premises of the accused, was tampered with?
10.1 In support of this question, complainant's case is based on the testimony of krishan Kumar (PW1) and Prabhash Chand (PW2). Both members of the raiding team, who had segregated the meter at site and detected presence of two illegal shunts. Both the witnesses have also deposed that the meter seals were tampered with. In support of their oral testimony, complainant has relied upon some photographs, which it claims contains the photographs of illegal shunts also. The challenge to this evidence is ofcourse to the procedure adopted as discussed in para above. It is also submitted by Sh.Dang that the segregation was not conducted in the presence of consumer or his representative. Moreover, the same is not covered in photography. It is also argued that the meter was not seized and even the alleged illegal shunts were not removed, seized & produced before the court.
10.2 Admittedly, videography/ photographs in support of the testimony of PW1 & PW2, do not cover the presence of Teekam Chand - representative of the accused. Complainant has only placed on record still photographs. There is no videography to establish continuity of proceedings i.e. detection of missing seals and segregation of the meter at the site. The alleged shunts were not removed at the time of inspection, seized & produced in court to establish that the same were actually employed in the meter to suppress recording of consumption. As discussed in para above, there is no evidence of an independent laboratory to support the contention that meter was actually tampered with. Moreover, Teekam BSES Vs. Mukut Pathak Page 15 of page 16 16 Singh (PW5) specially summoned by the complainant has deposed in first paragraph of his crossexamination that on 29.08.2006, a fire broke out in the inspected premises, when plastic seals of the meter had been burnt. Meter was then removed, segregated and repaired at site by officials of BSES. Said meter was never replaced, despite promise to replace the same. This part of testimony of this witness has gone unrebutted and shall be read against the complainant, as the witness was examined by complainant itself. This part of the evidence creates another doubt in the case of complainant. Meter even if held to be tampered with, tampering can not be attributable to accused. Meter was, thus, previously segregated and reassembled by officials of complainant. Thus, no 'mens rea' can be attributed to the accused. I am, therefore, of the opinion that there is no sufficient material before this court to record a conclusive finding that the meter at the premises of the accused was tampered with or deliberately tampered with. Accused is, therefore, afforded benefit of doubt on this count. 11 For the aforesaid reasons as contained, I am of the opinion that complainant has failed to establish beyond reasonable doubt that the meter was deliberately tampered with or that the accused was illegally and unauthorisedly abstracting electricity from a tampered meter. The charge of offence punishable u/sec.135 & 138 framed against the accused has failed. He is accordingly acquitted. Bail bonds are cancelled & surety is discharged.
File be consigned to record room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 19.02.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
BSES Vs. Mukut Pathak Page 16 of page 16
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CC No.189/09
19022013
Present AR for the complainant with
Sh.S.K.Alok, counsel for the complainant
Accused on bail with Sh.Vaibhav Dang, Adv.
Vide separate judgment announced today, accused Mukut Pathak is acquitted of the charges u/sec.135 & 138 of the Electricity Act, 2003.
Bail bonds are cancelled & surety is discharged.
File be consigned to record room.
( NAROTTAM KAUSHAL )
ASJ/SPL.COURT(ELECT.)SOUTH
SAKET COURTS/19022013
BSES Vs. Mukut Pathak Page 17 of page 16