IMPORTANT POINT
The prosecution must adhere to mandatory procedural requirements in cases of theft of electricity, and any non-compliance creates reasonable doubt, warranting acquittal.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. A.K. Talukdar, learned counsel for the accused-appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State/respondent.

2. This appeal is directed against the judgment and order dated 22.12.2010 passed by the learned Special Judge-cum-Additional Sessions Judge (FTC), Karimganj in Special Case No. 02/2008, convicting the appellants/accused Nos. 1 and 2 under Section 135(1)(a) of the Electricity Act, 2003 and sentenced them to undergo simple imprisonment for 3(three) months each with fine of Rs.52,000/-and Rs.18,000/-respectively, in default 2(two) months and 1(one) month simple imprisonment respectively.

3. The brief facts of the case is that on 09.04.2008, an inspection was conducted at East Kanishail, Charakuri and Bethail (Umapati) by the Assam State Electricity Board(ASEB) officials and were found that the appellant and three other were utilizing power by unauthorizedly hooking from the L.T. distribution line. Then the electric wires and hooks were seized. On the following day, Sri Niranjan Paul, SDE, Karimganj Electric Division lodged an FIR at Karimganj Police Station against Zain Unddin Choudhury, Abdul Latif and four others who were found utilizing power unauthorizedly. Accordingly, a case was registered vide Karimganj Police Station Case No. 162/2008 under Section 39 of Indian Electricity Act read with Section 379 IPC. Thereafter, charge-sheet has been submitted against 5(five) accused persons including the appellants. As the offence is exclusively triable by the special court, on appearance of the accused/appellants, charge was framed under Section 135(1)(e) of Electricity Act, 2003 and after completion of trial, both the appellants were convicted as aforesaid.

4. It is pertinent to mention here that during pendency of appeal, the appellant Abdul Latif has been expired. Hence, the case against appellant No. 2 Abdul Latif was abated. As such, I have discussed the case against the appellant No. 1 Zain Uddin Choudhury only.

5. The learned counsel for the petitioner has argued that the learned trial court has failed to appreciate that the inspection conducted by the ASEB Officials at night at about 9.45 P.M. on 09.04.2008 and without presence of any adult male member in the house of the appellant which is a case of direct violation of the mandatory provision of Section 135(3) of the Electricity Act, 2003. As such, the conviction of the appellant is not sustainable in law and the same is liable to be set aside.

6. Another contention raised by the learned counsel for the appellant is that the seizure list prepared by the ASEB officials was never handed over to the accused/appellant which is required as per Section 100(4) Cr.P.C. There is no evidence on record to show that any such copy of alleged seizure list was ever handed over to the appellant or any attempt was made to do so by the ASEB officials. As such, the conviction passed by the learned trial court is not sustainable in law.

7. It is also submitted by the learned counsel for the appellant that the appellant No. 1 i.e. Zain Uddin Choudhury is more than 70 years of age. The offence is compoundable in nature. The alternative argument of the learned counsel is that if conviction is sustained, fine may be imposed.

8. In response, learned Additional Public Prosecutor has argued that since the officers and staff of ASEB, who had inspected premises and prepared seizure list, are not police officers and therefore, their report, oral evidence and documents prepared stands proved and are admissible under Sections 91 and 92 of the Evidence Act and the said evidence need not be further corroborated. Situated thus, the judgment and order passed by the learned trial court does not call for any interference by this court.

9. I have considered the submissions made by learned counsel for the parties. It appears from the record that the other persons named in the FIR settled the matter by paying the amount of theft of energy to