The requirement of mens rea for the offence under Section 135 of the Electricity Act, 2003, and the need to afford the petitioner an opportunity to raise objections.

Heard learned senior counsel for the petitioner and the learned Additional Advocate General appearing for the respondents. With the consent of both parties, the writ petition is disposed of at the stage of admission itself.

2. The challenge in the present writ petition is to the notice issued by the 2nd respondent dated 29.01.2016. In the notice it has been alleged that during inspection, it was found that the petitioner has committed an offence of theft of energy by way of unauthorised use of electricity for other purpose (under Section 135(1)(e) of the Electricity Act, 2003, i.e. Industrial service connection was utilized for M/s. UCAL FUEL SYSTEMS Ltd., R&D lab and office. It is further alleged that by committing the said offence, the petitioner has dishonestly abstracted, consumed and used energy with an intention to defraud the licensee and it is punishable under Section 135 of the Electricity Act, 2003. The notice further states that the approximate loss, caused by the petitioner due to the dishonest abstraction is assessed at Rs.52,16,931/-, in accordance with the regulation of the Tamil Nadu Electricity Supply Code and a working sheet had also been enclosed with the impugned notice. The petitioner has been called upon to pay the assessed amount, within 7 working days, from the date of receipt of the notice. Further, the notice states that if the petitioner is desirous of filing objection, if any, against the provisional assessment, the same may be sent to the 2nd respondent, within 7 days from the date of the notice and the petitioner may also choose to appear in person or through authorised representative with the relevant documents for enquiry, before the 2nd respondent.

3. At the first instance it has to be pointed out that the impugned order is being only a notice, the same cannot be set aside on the grounds raised by the petitioner. The legal issue would be as to whether the use of electricity for the R&D lab and office, would amount to unauthorised use of electricity and would fall within the mischief of Section 135(1)(e) of the Act. Learned counsel for the petitioner, after elaborately referring to the factual matrix placed reliance on the decision of the Hon'ble Supreme Court in the case of Southern Electricity Supply Company of Orissa Ltd. (SOUTHCO) and anr., vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108 and the decision of this Court in N. Mohammed Farook vs. Union of India, Ministry of Power, New Delhi in W.P. (MD) No.1715 of 2011 dated 20.02.2012, which was rendered following the said decision.

4. The Hon'ble Supreme Court in the case of Sri Seetaram Rice Mill (supra) pointed out the ambit scope of Section 126 of the Act, with reference to the contradiction of the words “unauthorised use”, “means” and the power of the Assessment Officer. The Hon'ble Supreme Court also explained the distinction between the scope of “unauthorised use of electricity”, “service”, “theft of electricity” and it was held that Section 135 deals with the offence of, and penalty for theft of electricity, which falls within the Criminal jurisprudence and mens rea is a constituent of the said offence; whereas Section 126 primarily falls under Civil Law and does not involve mens rea. This Court, in the case of N. Mohammed Farook vs. Union of India, Ministry of Power, New Delhi (supra) took note of the distinction pointed out by the Hon'ble Supreme Court and in the said case, a direction was issued to the Electricity Board, to consider the explanation of the petitioner therein and pass appropriate orders on merits and as per law, taking into account the distinction between Section 126 and 135, as indicated by the Hon'ble Supreme Court in the case of Sri Seetaram Rice Mill (supra).

5. Learned Additional Advocate General submitted that compounding has been done by the petitioner, by accepting that it is for the commercial use and this is evident from the provisional assessment working sheet appended to the impugned notice. Learned Additi