The existence of an artificial means for abstraction of energy under S. 39 of the Indian Electricity Act, 1910 is not the same as the existence of an artificial means for preventing the meter from duly registering under S. 44 of the Act.

Judgement

BACHAWAT, J. : The two connected appeals raise common questions of construction of Ss. 39 and 44 of the Indian Electricity Act, 1910 and R. 138 of the Indian Electricity Rules, 1956. The appellants in both appeals have been convicted under Ss. 39 and 44 of the Indian Electricity Act, 1910 and R. 138 (b) of the Indian Electricity Rules, 1956. The appellant in Criminal Appeal No. 130 of 1963 has also been convicted under S. 201 of the Indian Penal Code.

2. The Patna Electric Supply Co., Ltd. supplied electrical energy in Patna, Patna city and Dinapur to about 22,000 consumers, of which about 900 were industrial power consumers. The normal wastage of energy in course of transmission was 15 to 16 per cent of the units generated. In 1958, the Chief Inspector of the Company noticed an extra abnormal loss of about 8 per cent which could not be due to wastage in transmission and suspected extensive theft of the Company s electrical energy. Vigorous investigations were started, and after surprise raids and inspections, it was discovered that the meters of several consumers had been tampered with. Both the appellants are industrial power consumers at Dinapur. The Inspectors found that the meters of both the appellants had been tampered with. In respect of both meters they found a seal on the meter cover broken and a sealing nut loosened exposing a stud hole on the meter cover. Through the exposed stud hole it was possible to insert a thin wire, dust or moisture inside the meter and thereby to retard the rotation of the inside disc. In due course, complaints were filed against the appellants.

3. Rule 56 (2) of the Indian Electricity Rules, 1956, requires that the consumer shall use all reasonable means in his power to ensure that no seal affixed to his meter is broken otherwise than by the supplier. If the seal is broken in contravention of R. 56, even the consumer who has not himself broken the seal is punishable under R. 138 with fine, unless he proves that he used all reasonable means in his power to ensure that the seal should not be broken. In the absence of such proof, the liability of the consumer in respect of the breakage of the seal is absolute under R. 138 (b). The appellants were rightly convicted of the offence under R. 138 (b).

4. We may now read the relevant part of S. 44:-

"44. Whoever-

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(c).....prevents any such meter... from duly registering... and if it is proved that any artificial means exist ....for prevention as is referred to in Cl. (c) ....and that the meter is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such .... prevention .......has been knowingly and wilfully caused by such consumer."

5. The exposure of the stud hole permits the insertion of foreign material inside the meter retarding the rotation of the inside disc, and is thus an artificial means for preventing the meter from duly registering the energy supplied. For purposes of S. 44, the existence of such an artificial means raises the presumption that the consumer, in whose custody or control the meter is, wilfully and knowingly prevented the meter from duly registering. To raise this presumption, it is not necessary to prove also that the consumer was responsible for the artificial means or that the meter was actually prevented from duly registering. The appellants did not rebut the presumption, and were rightly convicted under S. 44.

6. The High Court also convicted the appellants of the offence under S. 39. It held that the exposure of the stud hole was an artificial means of abstraction of energy and was prima facie evidence of dishonest abstraction by the consumer. Section 39 reads:

"Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code; and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction."

Whoever