The admissibility of evidence even if illegally collected and the relevance of evidence in criminal cases.

Mukta Gupta, J.

1. The short issue which arises in the present petition is whether a prosecution case can be thrown out at the stage of charge itself on the ground that there was no notification authorizing the concerned officer to carry out the inspection on the date when the inspection was carried out.

2. In these petitions complaints were filed against the Respondents for committing the offence under Section 135 of the Electricity Act, 2003(in short 'the Act') on the basis of raids allegedly conducted by the inspection teams in the premises of the Respondents on 25th September, 2003, 26th February, 2004, 12th March, 2004 and 8th January 2004 respectively. All these inspections were carried out prior to 31st March, 2004 when the notification of the Government of NCT of Delhi (Department of Power) was issued empowering the technical officers of the rank of managers/executive engineers and above in the departments dealing with distribution, commercial and enforcement functions as authorized officers for the purpose of Section 135 of the Act. The learned trial court came to the conclusion that the officers of the complainant could not derive any power under Regulation 25 (i) to conduct a raid on the premises in question on the relevant date under Section 135 of the Act. Since it was held that the inspection in the premises was not made by the authorized officers so all consequential proceedings initiated against the accused persons for the offence punishable under Section 135 of the Act were illegal and the Respondents were discharged.

3. Learned Counsel on behalf of the Petitioner contends that theft of electricity is an offence. The power to inspect a premises is inherent in the distribution licensee that is the Petitioner. Prior to the notification dated 31st March, 2004 there was no requirement for a statutory notification regarding designation of officers authorized to inspect premises. The procedure was that the inspection teams authorized by the department used to conduct inspections and office orders dated 11th July, 1996 and 24th December, 1996 have been placed on record in this regard. It is contended that under Section 135 (2) of the Act, the power of inspection and prosecution is with the licensee/supplier of the electricity that is the Petitioner. It is stated that though the notification authorizing a person of the rank of manager and above to conduct inspection in the present case had been issued on 25th September, 2003, 26th February, 2004, 12th March, 2004 and 8th January, 2009 respectively and till such time the requisite notification was issued by the State Government on 31st March, 2004 it cannot be said that no inspection to detect theft of electricity or pilferage of energy could be carried out by the distribution licensee. According to learned Counsel for the Petitioner the learned trial court failed to appreciate that there cannot be any vacuum in law. Reliance is placed on Rajeev Anand and Ors. v. Union of India and Ors. 72 (1998) DLT 355 to contend that the statutory provision cannot be held to remain a dead letter till such time the procedure is prescribed and in the absence of procedure being prescribed the authority would be required to follow and apply such procedure which is just, fair and reasonable and in consonance with the principles of natural justice.

4. It is further contended that the Respondents cannot be discharged on the ground that the inspection was invalid. This finding has to be arrived at after the evidence is adduced in the trial and after consideration of the entire evidence on record by the learned trial court. Reliance is placed on Mukesh Rastogi v. North Delhi Power Limited 2007 (99) DRJ 108. This Court in the said decision held that even if the inspection was not a valid inspection, the complainant has a right to prove the theft irrespective of the said status of inspection. There is no provision under the DERC (Metering and Billing) Regulations, 2002 stipulating that ins