Calcutta High Court (Appellete Side)
Sk. Bablu @ Sk. Ambar vs The State Of West Bengal on 31 March, 2023
31.03.2023
Court No.35
Item No. 15 CRA 169 of 2011
Sk. Bablu @ Sk. Ambar
Vs.
The State of West Bengal
Ms. Sibangi Chattopadhyay
... Amicus Curie
Mr. Pravas Bhattacharya,
Mirza Firoj Ahmed Begg. ... for the State
Impugned, in this appeal is the judgment and order of sentence
of Judge, 2nd Special Court at Purulia dated 09.03.2011 passed in
Electric G.R. Case No. 29 of 2007. The appellant/convict was tried for
an offence punishable under Section 135 (1) (a) of the Electricity Act,
2003.
The learned Court found the appellant guilty of the offence as
alleged, convicted him for such an offence and sentenced him to pay a
fine of Rs.10,000-/ as per Section 248 (2) Cr.P.C, 1973, in default of
which he would suffer simple imprisonment for ten months.
The appellant being aggrieved and dissatisfied with the said
judgment of the trial Court filed the present appeal. However the
appellant is not represented in this case. Hence, Ms. Sibangi
Chattopadhyay has been appointed as Amicus Curie to assist the
Court. State is represented.
The prosecution case started pursuant to lodging of the FIR being
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Raghunathpur Police Station Case No. 30/2007 dated 23.06.2007
under Section 135 (1) (a) of the Electricity Act, 2003. The de facto
complainant, i.e, the Assistant Engineer, Raghunathpur (O & M) alleged
in the said FIR that during inspection by a team comprising himself and
other three officials of the department, on 22.06.2007 at about 8.00 p.m
in the night, the team detected theft of electricity by the present
appellant at his residential premises. Allegedly the team detected
consumption of unauthorized amount of electricity by the appellant by
illegal hooking from the nearest L.O.T, overhead line of WBSEDCL. It is
stated in the FIR that the said premises though was previously
connected through a meter but the electricity line to the same was
disconnected due to non-payment of outstanding dues. The following
equipments said to have been seized in the operation :- (1) Lamp 8 nos.
(2) Fan - 3 nos (coiling) (3) T.V 20 and (4) T.V Black 1 no. Those have
been described as hooking devices. It is stated that seizure list was
prepared. Accordingly the de facto complainant has alleged an offence
punishable under Section 135 (1) (a) of the Electricity Act, 2003 against
the present appellant.
Investigation proceeded and ultimately upon finding the prima
facie material against the accused person/appellant, charge sheet was
submitted. The Court frame charges against the appellant on
12.03.2008, under the aforestated provision of law and the trial
commenced. Five witnesses have been examined. P.W 1 is the de facto
complainant. P.W 2 is the Senior Linesman (Higher Grade), who was the
inspection team member. P.W 3 is the staff of Raghunathpur Group
Electric Supply, who was also a inspection team member. P.W 4 is the
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inhabitant of the village where the resident of the appellant situated.
He has been cited possibly as independent witness. P.W 5 is the
investigating officer.
Section 135 of the Electricity Act, 2003, has provided for
punishment for an offence of theft of electricity. The relevant portion is
extracted, as herein bellow :
(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
*******************
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.
Such being the provision of law, the prosecution in this case shall
have to prove to the standard of beyond all reasonable doubts,
involvement of the appellant, in tapping with the overhead line, to
abstract, consume and use electricity. Keeping in mind these
ingredients of offence, let the evidence of the case be gone into.
Before going into the ocular evidence of the witnesses, it would be
beneficial if discussion be made at the outset regarding material
evidence in this case. Hooking materials are said to have been seized,
during the operation. Seizure list as said to have been prepared by the
officer (P.W 1) has been identified by him and marked exhibit in this
trial. Unfortunately the prosecution has not been able to produce in
Court the seized article in support of the ocular as well as documentary
evidence as regards the seizure. The seizure list is also not in
compliance with law in order to be reliable enough as a corroborating
evidence. Thus at the outset, it is noted that in this trial the
prosecution has not been able to prove the seizure of the alleged
hooking materials, by any cogent evidence much less of any evidence
beyond scope of any doubt.
Thereafter the substantive evidence advanced by the prosecution
witnesses may be looked into. P.W 1, 2 and 3 being the inspection
party members, have supported the prosecution case. They have stated
to have visited the place of occurrence, i.e, the residence of the
appellant, conducted inspection there and to have found unauthorized
consumption of electricity by the appellant by the means of hooking
from the over head line. The sole witness examined as an independent
witness from the locality, i.e, P.W 4 has however not corroborated the
ocular evidence of P.W's 1, 2 and 3 as above. Even then on the strength
of the evidence of the said three witnesses, who have been discharging
the duty of inspection in terms of their official discourse, appellant's
guilt might have been found as proved, had the seizure in this case
been proved beyond all reasonable doubts. The seizure as well the
inspection, visitation to the residence of the appellant and finding
incriminating material there from are all part of the same transaction,
where in view of one part thereof having not been proved, the other part
of same transaction cannot be construed to have been substantial
established by the prosecution.
In such view of the fact the decision of the trial Court in the
impugned judgment that the evidence of the witnesses, would
unerringly point out to the guilt of the accused person and its order
convicting him for the offence as alleged, is not found to be based on
prudent reasons and careful consideration of the evidence. Instead the
same is appearing to be dehors due consideration of the evidence on
record and the applicable laws. This renders the impugned judgment of
the trial Court to be improper and the findings to the perverse which are
required to be interfered into by this appeal Court.
It is also worth noting in this appeal that the appellant having
been assessed of unauthorisedly useing electricity and defalcating
rates, of an amount of Rs.5453/-, has already remitted the said amount
against the assessment bill, with the department. In view of the
compoundable nature of the offence alleged against the accused person,
the said fact is also taken into account in this appeal.
Considering all above the impugned judgment and order of
sentence of Judge, 2nd Special Court at Purulia dated 09.03.2011
passed in Electric G.R. Case No. 29 of 2007, is found liable to be set
aside. Hence, the same is set aside, the appellant is found not guilty of
the offence under Section 135 (1) (a) of the Electricity Act, 2003 and is
hereby acquitted his release form the bail bond with immediate affect.
Before parting, the Court appreciates the able assistance put in
by the Ld. Amicus Curie in this case. Let the High Court Legal Services
Committee take necessary steps to pay fees to the learned Amicus
Curiae in accordance with the scale applicable to "Category-A" lawyer
in its panel. The same may be paid within a period of one month from
the date. A copy of this order be immediately forwarded to the Secretary,
High Court Legal Services Committee, for doing the needful.
CRA 169 of 2011 is allowed, connected application, if any, is
disposed of.
Urgent certified website copies of this order, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
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RAI Digitally signed by
RAI
CHATTOP CHATTOPADHYAY
Date: 2023.04.05
ADHYAY 11:29:38 +05'30'
(Rai Chattopadhyay, J.)
