JUDGMENT

Dunkley, J - The applicant is the owner and occupier of a house known as No. 66, Cheape Road. He receives a supply of electricity from the respondent company, the Rangoon Electric Tramway and Supply Company Limited. There are three meters at his house, which meters are the property of the company and have never been handed over to the custody of the applicant. The meters are enclosed in looked boxes of which the respondent company keeps the keys. Each is sealed, inside its box, by a wire, and it is impossible to obtain access to these wire seals without opening the boxes. In August 1933, it was discovered that the sealing wires were broken. It is alleged that this fact was first discovered by a meter-reader Maung Thein Aung on the 25th August and there is evidence that the seals were in order on the 27th July. It is not suggested that the boxes appeared to have been tampered with, and, in fact, Thein Aung's evidence is that he unlocked the boxes and opened them and then discovered that the seals were broken. He did not make any report of this fact, and the matter came to the notice of the company through an inspection of the meters made by a senior employee in consequence of the unexpected nature of the readings taken by Thein Aung. There is no evidence that any servant of the applicant, or member of his household, had tampered with the meters, and, as the boxes were locked and the keys were in the custody of the respondent company, and there were no signs that the boxes had been tampered with, the inference arises that neither the applicant's servants nor the members of his household were able to get at these seals to break them, and it seems just as probable that a servant of the company had broken the seals. The only fact tending to show that the breaking of the seals was done by a servant of the applicant or member of his household is that in two meters the dials had been turned back so as to show a negative reading of consumption for the past month, but it is admitted that the operation of turning back the dial requires some little expert knowledge of electricity. The applicant proved that he was away from Burma during the whole of the period within which the seals must have been broken. He was prosecuted on complaint of offences under Section 44(c), Electricity Act, 1910, and Rule 106, read with Rule 29, Electricity Rules, 1922. The Magistrate rightly held that the applicant was not guilty of an offence under Section 44(c), but proceeded to impose on him the penalty prescribed by Rule 106. Rule 106 is as follows:

106. Where, in contravention of Rule 29, any seal referred to in that rule is broken, the consumer upon whose premises the seal was placed shall be punishable with fine which may extend to fifty rupees.

2. Rule 29 is in the following terms:

29. A licensee may affix a seal to any meter, maximum-demand indicator, or other apparatus placed upon a consumer's premises in accordance with Section 26 of the Act, and to any cut-out placed upon a consumer's premises in accordance with Rule 38, and no person shall break such seal without giving the licensee, and, where the meter is the property of the consumer, the consumer also not less than forty-eight hours' notice in writing.

3. It is clear that there had been a breach of Rule 29, for the seals on the meters, which are the property of the respondent company and were placed on the applicant's premises under Section 26 of the Act, had been broken by soma person or other, and notice in writing has rot been given by anyone to the respondent company. The person who committed this breach of Rule 29 is not known, but so far as the application of Rule 106 is concerned that does not affect the matter, for the person liable to the penalty under that Rule 13 in any case the consumer. Hence, on the rules as they stand, the conviction of the applicant was correct, and this application has been urged before us on the sole ground that B. 106 is ultra vires of the Governor-General