The statutory presumption of theft arises only in cases where unauthorized means are found to exist, and mere tampering with seals does not lead to a presumption of theft.

1. It is not in dispute that petitioner has a non domestic commercial electric supply from Patna Electric Supply Unit (PESU), the unit of Bihar State Electricity Board (B.S.E.B.). On 18.4.2009 petitioner in writing informed the authorities of PESU that there was some fire at the metering point, it should be looked into immediately. On this information officials of the PESU including the Assistant Engineer, who is one of the authorities specified to make assessments in case of unauthorized use of electricity and theft of electricity visited petitioners premises on 18.4.2009 itself. They found that the two polycarbonate seals of the meter were broken and the hologram of the seal also appeared to be tampered. On basis of this alone, the meter was removed and with these allegations an F.I.R. was lodged claiming that petitioner was indulging in theft of electricity and had caused a loss of Rs. 8,99,000/- to the Board. A provisional assessment for the said amount was served on the petitioner. Petitioner challenged the same before this Court. This Court directed the petitioner that on depositing of Rs. 2 lacs for restoration of line, to file his detailed objections before the Assessing Authority, who would pass appropriate order. Petitioner appeared before the Assessing Authority and pointed out the fact as aforesaid. It also raised the ground that mere broken and/or tampered seal cannot lead to conclusion of tampered meter. Admittedly, it was not found that any artificial device was used to interfere with the metering equipment nor it was found that meter was being bypassed by any means.

2. Here, I may point out the second proviso to Sub-section (sic (1) of Section?) 135 and (s/cthat?) does draw a presumption of theft of electricity but that is limited to cases where artificial means or means not authorized by the Board are found to exist. Here no such allegation being there even the statutory presumption of theft does not arise. Then, merely because seals were found tampered, there is no legal or factual presumption that it would be a case of meter tampering and as such a case of theft of electricity. It was then submitted that the last meter reading was done less than a month back, no report of either meter tampering and/or still tampering in any manner and as such if at all the period of theft could only go as far back as the date of last meter reading while passing the final assessment order by the Assessing Authority. So far as the second contention is concerned, the Assessing Officer brushed it aside holding that the meter reader was not required to verify the seals. I have my serious doubts in this regards. If seals are found broken or tampered with, he is duty bound to report the same information. Not reporting the same would only lead to the presumption that there was no seal tampering when reading was taken. So far as first aspect is concerned, the Assessing Authority has not cared to discuss the same. There is yet third consideration. The meters are electronic meters which record all incidence, including any attempt to tamper, the same, these are stored in the microchip contained therein. If all definite information is available then instead of relying on definite information, can the authorities be permitted to work on conjectures and surmises. In my view, these are questions which had to be considered in their proper perspective.

3. Be that as it may, in terms of Section 135(1-A) and in particular the third proviso thereof, it is provided that the assessment has to be done in accordance with the provisions of the Act. Section 135 itself does not provide the mode and manner of assessment. The mode and manner of assessment is provided under Sub-section (5) of Section 126 of the Act. It is those provisions that would apply. Thus, the assessment is made in terms of Section 126(5), which assessment is appealable in terms of Section 127 to the Appellate Authority. Section 127 does not restrict the appellate jurisdict