KRISHNA PRASAD Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THE petitioner has low tension industrial service connection LTS-II at Meena Bazar, Guljarbagh, Patna City, Patna granted by the Bihar State Electricity Board. It has a sanction load of 36 H.P. It appears that on 21.8.2009, an inspection was conducted in the premises of the petitioner by Special Task Force of the Board. Pursuant to the inspection, an inspection report, as envisaged under Clause 11.1(a)(iv) of the Bihar Electricity Supply Code, 2007 was prepared, which is Annexure-3 to the writ petition. As per the inspection report dated 21.8.2009, all that was found was that there was excessive load of 2 H.P. after taking into account all bulbs, fans and motors etc. THE inspection report was signed by all inspecting authority and the petitioner as well and a copy of the same was handed over to the petitioner. THEreafter, it appears that late in the night of 25.8.2009 a raid was conducted by the Assistant Engineer and the Junior Engineer of the Board. It may be noticed here that when the earlier inspection was conducted on 21.8.2009 there were three Executive Engineers and these two officers, namely, Assistant Engineer, Kiran Kumar and Junior Engineer, Sanjeet Kumar as well but the present inspection on 25.8.2009 was conducted only by these two Junior Officers along with a Khalasi of the Board. It is not in dispute that before conducting the inspection, they carried with them police force. It is alleged that when they entered into the factory premises for inspection, there was a lot of opposition from the family members including lady members but with the help of police force they were able to detect illegal abstraction of electricity by direct connection bypassing the meter. THEy then prepared a detailed seizure list (Annexure- 4) after seizing various equipments, which were found in the factory including two motorcycles in presence of two independent witnesses, namely, Dilip Kumar and Vinod Prasad. THE seizure and inspection continued for about two hours and ended at about 2:00 AM, On 26.8.2009. THE seizure list having been prepared, it is stated therein that no one turned up to receive the seizure list, as such, in presence of those two independent witnesses the seizure list was allegedly stuck on the factory door. THEreafter the inspecting team left. At about 4 in the afternoon, on 26.8.2009, the said Assistant Engineer then lodges a formal F.I.R. giving rise to Mehdiganj P.S. Case No. 23 of 2009 dated 26.8.2009 under Section 135 of the Electricity Act, 2003 and Sections 147, 342, 353, 332 and 504 of the Indian Penal Code, inter alia, alleging that on coming to know that theft of electricity was being committed by the petitioner, the informant organized a raiding party. When the raiding party went to the factory premises of the petitioner along with the police force, there was a lot of opposition from the petitioner and his family members including lady members. THEre was stone pelting and a serious law and order situation was created. In spite of that they were able to inspect, search and seize all equipments of the factory including wire used for unauthorizedly extracting energy bypassing the meter. As no one turned up, the seizure list was stuck on the door of the factory and they left. What were seized were various motors, machines, equipments, motorcycles and allegedly cable used for tapping electricity. All this was done in presence of two independent witnesses, as named above. THE F.I.R. is Annexure-5. THEreafter, petitioner is served with a energy bill of the same date, that is, 26.8.2009 for Rs. 33,16,995/- signed by the same Assistant Electrical Engineer, showing himself to be the Assessing Officer as well. This bill is said to be based on a provisional assessment.

(2.) PETITIONER filed this writ petition on 17.9.2009, challenging the validity of the inspection and the bill so raised. A counter affidavit has been filed today. In the said counter affidavit, as a matter of fact, it is brought on record that the provisional assessment has been done on 18.11.2009 (long after the writ petition was filed and almost 3 months after the inspection) and was sent by registered post to the petitioner on 20th November, 2009. This provisional assessment is accompanied by a calculation sheet showing how the amount of Rs. 33,16,986/- has been worked out. What is important is, the date of this calculation sheet signed by the same very Assistant Engineer as an Assessing Of- ficer. The date obviously is 27.11.2009, but it has been corrected to 27.8.2009 to show that it was calculated days after the inspection. Another energy bill dated 20.11.2009, being punitive bill, for theft in terms of Section 135 of the Electricity Act is now issued forgetting that a bill for the said amount based on the said allegation had already been issued on 26.8.2009 (Annexure-6). The significance of these facts will be discussed later, but, one thing is apparent that this bill now annexed is bill dated 20.11.2009 to the counter affidavit, bears the signature and date of the same Assessing Officer, which is exactly the same as in the assessment calculation appended to the provisional assessment order except that the month has been overwritten to show August instead of November.

(3.) IN my view, the submissions appear to be correct. No statutory procedures, which were all safeguards for consumers against arbitrary action, were followed. Two Junior Officers conduct a raid in the night with one Khalasi of the Board alleging independent witnesses but later turn up to be none else than employees of Board's own contractor, paid by the Board. Thus, in my view, it would not be safe to permit the Board to proceed to enforce this punitive demand of Rs. 33 lacs when in a duly constituted inspection all that was found 2 H.P. excess load. IN such a situation, as a formal F.I.R. has been lodged till the validity of inspection and the correctness of the allegations are judged by Court of competent jurisdiction, I direct that the provisional punitive bills as served on the petitioner of about Rs. 33 lacs, would not be enforced. It would be the duty of the Criminal Court, as envisaged under Section 154(5) of the Electricity Act, to determine the civil liability if ultimately the petitioner is found indulging in theft.