The prosecution must adhere to mandatory statutory provisions regarding searches and seizures; failure to do so undermines the validity of electricity theft convictions.

JUDGMENT :

Gita Gopi, J.

1. The challenge is given to the judgment of conviction and sentence passed by the learned Special Judge, Mehsana on 10.08.2006 in Special Electricity Case No.16/2006, whereby the appellant – accused was found guilty of offence under Section 135 (1)(b) of the ELECTRICITY ACT , 2003 (hereinafter referred to as ‘the Act’ for short) and was sentenced to two years rigorous imprisonment with fine of Rs.2,00,000/-. The default stipulation was that in failure of paying fine amount, the appellant – accused was to undergo further six months simple imprisonment.

2. Learned advocate Mr.Irfan H.Saiyed with learned advocate Mr. O.I. Pathan for the appellant submitted that the witnesses of the Electricity Company had not followed the procedure laid down under the Act. Advocate Mr. Saiyed submitted that the officers of the Electricity Board cannot run away from the mandated provision of Section 135 of the Act, where the whole procedure of conducting search and seizure has been laid down very specifically, where there can be no escape from the statutory provision.

2.1 Advocate Mr. Saiyed submitted that the complaint has to be filed within 24 hours when such act of alleged theft of electricity comes to the notice of the officer of supplier. The search and seizure should be in presence of occupant of the place and in the present matter the case was of a residential house, hence, being a domestic place, no inspection, search and seizure could be carried out between sunset and sunrise, unless the presence of any adult member occupying the premises could be said to be proved.

2.2 Referring to the facts of the matter, learned advocate Mr. Saiyed submitted that the trial Court failed to appreciate that there was no theft of electricity established by the prosecution to held the appellant-accused guilty under Section 135 of the Act.

2.3 Advocate Mr. Saiyed referring to the deposition of the complainant stated that he himself had not carried out any checking, no meter or service wire were recovered from the residential place of the appellant. There was no checking of electric appliances, which were installed in the house and there was no report of meter checking from expert of the laboratory. Advocate Mr. Saiyed stated that the switch, which was alleged to have been used for committing theft of electricity was never recovered by the checking squad, and from the deposition of the complainant the only fact that gets reflected is the allegation of theft of electricity, while the deposition does not state of actual theft of electricity by the accused – appellant. Advocate Mr. Saiyed, thus, stated that the learned Trial Court Judge failed to appreciate the aforesaid aspect and has wrongly convicted the appellant in the matter.

2.4 Referring to the deposition of Hamendra Dahyalal, Junior Engineer, it is contended by learned advocate Mr. Saiyed that the switch, which was alleged to have been used, was not recovered. The witness even was not having the knowledge as to where the switch was installed and without appreciating the aspect, the learned Special