WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS.versusM/S. ORION METAL PVT. LTD. & ANR.

                         [2019] 11 S.C.R. 385                           385


    WEST BENGAL STATE ELECTRICITY DISTRIBUTION                          A
              COMPANY LTD. & ORS.
                                 v.
            M/S. ORION METAL PVT. LTD. & ANR.
                  (Civil Appeal No. 6547 of 2019)                       B
                         AUGUST 21, 2019
     [R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
     Electricity Act, 2003: Object and reasons of enactment –
Discussed.
                                                                        C
       Electricity Act, 2003: s.126(6)(b) – Unauthorized use of
electricity – Meaning of – Held: Unauthorized use of electricity
means, the usage of electricity by any artificial means or by a means
not authorized by the concerned person or authority or licensee;
or through a tampered meter; or for the purpose other than for
                                                                        D
which the usage of electricity was authorized; or for the premises
or areas other than those for which the supply of electricity was
authorized – Thus, use of energy through tampered meter is included
in the definition of unauthorized use of electricity.
       Electricity Act, 2003: s.126(1) – Power of authorities to make
assessment under s.126(1) to assess the loss of energy where            E
electricity is used through tampered meter – Held: The authorities
under the Act are empowered to make a provisional and final
assessment by invoking power under s.126(1) of the Act, even in
cases where electricity is unauthorisedly used by way of theft.
      Electricity Act, 2003: s.126(1) – Criminal complaint of theft     F
of energy – Whether criminal complaint and assessment proceedings
under s.126(1) can go simultaneously – Held: Whenever there is
allegation of theft of energy committed by the consumer, even after
lodging a police complaint for commission of such offence, it is
always open for the authorities to make provisional and final           G
assessment to recover loss of energy in exercise of power under
s.126(1) of the Act.



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                                385
386            SUPREME COURT REPORTS                      [2019] 11 S.C.R.


A           Electricity Act, 2003: s.126 and s.135 – Distinction between
      – Held: s.126 forms part of the scheme which authorizes electricity
      supplier to ascertain loss in terms of revenue caused to it by the
      consumer by his act of “unauthorized use of electricity” whereas
      s.135 deals with offence of theft if he is found to have indulged
      himself in the acts mentioned in clauses (a) to (e) of sub-section (1)
B
      of s.135 of Act.
             Electricity Act, 2003: s.126, 135, 154 – Proceedings under
      s.126(1) and under s.154(5) – Held: Power conferred on authorities
      for making assessment under s.126(1) of the Act and power to
      determine civil liability under s.154(5) of the Act, cannot be said to
C     be parallel to each other – In a given case where there is no theft of
      energy, amounting to unauthorized use of energy, in such cases no
      complaint of theft can be lodged as contemplated under s.135 of
      the Act – In such cases for loss of energy, on account of
      unauthorized use of energy not amounting to theft, it is always open
D     for the authorities to assess the loss of energy by resorting to power
      under s.126(1) of the Act – In cases where allegation is of
      unauthorized use of energy amounting to theft, in such cases, apart
      from assessing the proceedings under s.126(1) of the Act, a complaint
      also can be lodged alleging theft of energy as defined under s.135(1)
      of the Act – In such cases, the Special Court is empowered to
E     determine civil liability under s.154(5) of the Act – On such
      determination of civil liability by the Special Court, the excess
      amount, if any, deposited by the petitioner, is to be refunded to the
      consumer – It is a settled principle that to prove the guilt of the
      accused in a criminal proceeding, authorities have to prove the
F     case beyond reasonable doubt and the element of mens rea is also
      to be established – On the other hand, such a strict proof is not
      necessary for assessing the liability under s.126(1) of the Act.
            Electricity Act, 2003: s.154 – Procedure and power of
      Special Court – The Special Court is empowered to convict the
G     consumer and impose a sentence of imprisonment – The Special
      Court, in cases, where a criminal complaint is lodged, is also
      empowered to determine civil liability under s.154(5) of the Act –
      As per s. 154(6) of the Act, in case civil liability so determined by
      the Special Court is less than the amount deposited by the consumer

H
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                        387
            v. M/S. ORION METAL PVT. LTD.

or the person, the excess amount so deposited by the consumer or         A
the person, shall be refunded by the licensee or the concerned
person, as the case may be – Merely because the Special Court is
empowered to determine civil liability under s.154(5) of the Act, in
cases where a complaint is lodged, it cannot be said that there is no
power conferred on authorities to make provisional assessment/final
                                                                         B
assessment under s.126 of the Act.
      Allowing the appeal, the Court
       HELD : 1.1 Prior to Electricity Act, 2003, generation and
supply of electricity was governed by the provisions under Indian
Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the        C
Electricity Regulatory Commissions Act, 1998. With the policy
of the Government to encourage private sector participation in
generation, transmission and distribution of energy and with the
objective of distancing regulatory responsibilities from the
Government to the Regulatory Commissions, it was felt that there
is a need for harmonizing and rationalizing the provisions of the        D
electricity by bringing a new legislation. That is how the Electricity
Act, 2003, was enacted and brought into force. In the objects and
reasons, a specific reference is made to incorporate provisions
relating to theft of electricity, to have a revenue focus. A perusal
of Sections 135 and 154 shows that after an inspection of any            E
place or any premises of any consumer, when Assessing Officer
comes to a conclusion that the consumer is indulging in
unauthorized use of electricity, the provisional assessment to the
best of his judgment is to be made in accordance with Section
126(1) of the Act and such provisional assessment shall be served
upon the person in occupation of the premises. After giving an           F
opportunity to file objections to the provisional assessment, the
Assessing Officer is empowered to pass a final order of the
assessment assessing the loss of energy, on account of
unauthorized use of energy. The unauthorized use of electricity
as defined in Section 126(6)(b) of the Act means, the usage of           G
electricity by any artificial means or by a means not authorized by
the concerned person or authority or licensee; or through a
tampered meter; or for the purpose other than for which the usage
of electricity was authorized; or for the premises or areas other

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388            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A     than those for which the supply of electricity was authorized.
      [Paras 9, 11] [395-A-C; 400-D-G]
             1.2 Reading of Section 126 (6)(b)(iii) of the Act shows
      instances of use of energy through a tampered meter is included
      in the definition of unauthorized use of electricity. If that is so,
B     there is no reason, for excluding the power of the authorities for
      making assessment under Section 126(1) of the Act to assess
      the loss of energy, where electricity is used through a tampered
      meter. All instances of unauthorized use of energy may not amount
      to theft of electricity within the meaning of Section 135 of the
      Act, but at the same time, the theft of electricity which is covered
C     by Section 135 of the Act, will fall within the definition of
      unauthorized use of electricity. As per Section 135(1A) of the
      Act, without prejudice to the other provisions of the Act, the
      licensee or supplier, as the case may be, upon detection of theft
      of electricity, is empowered to disconnect the power supply
D     immediately. Further, as per the third proviso to Section 135(1A)
      of the Act, the licensee or supplier, as the case may be, on deposit
      or payment of assessed amount or electricity charges, without
      prejudice to the obligation to lodge a complaint, can restore the
      power supply electricity within 48 hours of deposit /payment of
      such amount. Thus, it is clear that the authorities under the Act
E     are empowered to make a provisional and final assessment by
      invoking power under Section 126(1) of the Act, even in cases
      where electricity is unauthorisedly used by way of theft. When a
      consumer deposits the assessed amount, the licensee or the
      supplier has to restore the power supply. The assessed amount
F     referred to in the aforesaid proviso, relates to assessment which
      is contemplated under Section 126(1) of the Act only. There is
      apparent distinction between Section 126 and Section 135 of the
      Act. Section 126 forms part of the scheme which authorizes
      electricity supplier to ascertain loss in terms of revenue caused
      to it by the consumer by his act of “unauthorized use of electricity”
G     whereas Section 135 deals with offence of theft if he is found to
      have indulged himself in the acts mentioned in clauses (a) to (e)
      of sub-section (1) of Section 135 of Electricity Act. Further, it is
      also clear from Section 154 of the Act, which prescribes procedure
      and power of Special Court, that the Special Court is empowered
H
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                       389
            v. M/S. ORION METAL PVT. LTD.

to convict the consumer and impose a sentence of imprisonment.          A
The Special Court, in cases, where a criminal complaint is lodged,
is also empowered to determine civil liability under Section
154(5) of the Act. As per Section 154(6) of the Act, in case civil
liability so determined by the Special Court is less than the amount
deposited by the consumer or the person, the excess amount so
                                                                        B
deposited by the consumer or the person, shall be refunded by
the licensee or the concerned person, as the case may be. Merely
because the Special Court is empowered to determine civil
liability under Section 154(5) of the Act, in cases where a complaint
is lodged, it cannot be said that there is no power conferred on
authorities to make provisional assessment/final assessment             C
under Section 126 of the Act.[Para 12] [400-H; 401-A-H; 402-A]
       2. From the scheme of the Act, it appears that after
inspection team notices unauthorized use of energy by tampering
the meter, the authorities can disconnect the power supply
immediately and make immediate assessment for loss of energy,           D
by invoking power under Section 126(1) of the Act. The term
“unauthorized use of energy” is of wide connotation. There may
be cases of unauthorized use of energy, not amounting to theft,
which are cases viz. exceeding the sanctioned load or using the
electricity in the premises where its use is not authorized etc.
But at the same time, when there is an allegation of unauthorized       E
use of energy by tampering the meter, such cases of unauthorized
use of energy include ‘theft’ as defined under Section 135 of the
Act. The power conferred on authorities for making assessment
under Section 126(1) of the Act and power to determine civil
liability under Section 154(5) of the Act, cannot be said to be         F
parallel to each other. The High Court has committed an error in
recording a finding, that both proceedings cannot operate
parallelly. In cases where allegation is of unauthorized use of
energy amounting to theft, in such cases, apart from assessing
the proceedings under Section 126(1) of the Act, a complaint also
can be lodged alleging theft of energy as defined under                 G
Section 135(1) of the Act. In such cases, the Special Court is
empowered to determine civil liability under Section 154(5) of
the Act. [Para 14] [403-B-F]

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390            SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A           Executive Engineer Southern Electricity Supply
            Company of Orissa Limited (SOUTHCO) & Another v.
            Shi. Seetaram Rice Mill (2012) 2 SCC 108 : [2011]
            15 SCR 211 – relied on.
            The Hotel Adityaz Limited v. Madhya Pradesh Kshetra
B           Vidyut Vitran Company Limited, Bhopal & others AIR
            2016 (NOC) 39 (M.P.) – referred to.
                              Case Law Reference
      AIR 2016 (NOC) 39 (M.P.) referred to                      Para 6

C     [2011] 15 SCR 211                relied on                 Para 13
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6547
      of 2019.
            From the Judgment and Order dated 18.12.2017 / corrected order
      dated 7.2.2018 of the High Court at Calcutta in FMA No. 520 of 2017.
D
           Jaideep Gupta, Sr. Adv., Saurabh Mishra, Abhishek Singh,
      Ms. Aashna, Advs. for the Appellants.
           Gaurav Jain, Ms. Abha Jain, Jaivir Singh,            Advs. for the
      Respondents.
E           The Judgment of the Court was delivered by
            R. SUBHASH REDDY, J. 1. Leave granted.
             2. This civil appeal is filed by the appellant- West Bengal State
      Electricity Distribution Company Limited and others, aggrieved by the
      judgment and order dated 18.12.2017 passed by the High Court of
F     Calcutta in F.M.A. No.520 of 2017 and the corrected order dated
      07.02.2018. By the impugned order, the intra Court appeal preferred by
      the respondent company was allowed by the Division Bench of High
      Court.
            3. Necessary facts, in brief, are as under:
G
             (a) The 1st respondent herein is the consumer of electricity from
      the appellant- West Bengal State Electricity Distribution Company Limited
      & Ors. There is a supply agreement entered into between the parties on
      22.12.2004. The officials of the appellant company served a notice dated
      28.10.2016 upon the 1st respondent, in exercise of power under Class
H
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                            391
v. M/S. ORION METAL PVT. LTD. [R. SUBHASH REDDY, J.]

IV of the West Bengal Electricity Regulatory Commission Electricity          A
Supply Code, 2007 for conducting an inspection in the metering system
of the respondent. The respondent-company is a centralized bulk high
voltage consumer of electricity in the Hooghly region, with a contracted
load of 1450 KVA. After service of notice on the 1st respondent on
28.10.2016, inspection was made by the Superintending Engineer,
                                                                             B
Divisional Engineer, Divisional Engineer (Manager), Assistant Engineer
of Chandanangore Division, in the premises of the respondent herein.
       (b) During the inspection, it was noticed by the inspecting team
that input current is abnormally high from output current at TTB end in
respect of the R & B Phase of PT secondary wires. The inspecting
team on breaking open the TTB has also found some foreign material           C
inside. In view of such discrepancies found during the inspection, the
inspection team was of the view that there was a theft of energy by
tampering the meter by the respondent-company. The three-phase meter
and the metering equipment was seized by the inspecting team by
preparing a seizure list. In view of such discrepancies noticed during       D
inspection, in exercise of power under Section 126(1) of the Electricity
Act, 2003 (for short ‘the Act’), provisional assessment for loss of energy
by un-metered consumption was made by one Mr. B. Saha,
Superintending Engineer/Assessing Officer of the appellant-company.
The provisional assessment was made assessing the value of energy
which was consumed on account of un-metered consumption at                   E
Rs.13,41,17,482-30 paise (Rupees thirteen crores forty one lakhs
seventeen thousand four hundred and eighty two only).
       (c) After inspection, a criminal complaint was also lodged before
the local police by the Superintending Engineer (Commercial), Hooghly
region, of the appellant company, complaining theft of energy by the         F
respondent. In the complaint made by the appellant, it was alleged that
by inserting a foreign material into the meter, the respondent-company
has indulged in theft of energy.
       (d) On the basis of criminal complaint made by the Superintending
Engineer (Commercial), a criminal case has been registered against the       G
respondent-company and the police have submitted a charge-sheet in
the criminal case.
     (e) Aggrieved by the provisional assessment and the consequential
demand, the respondents have filed writ petition in W.P. No.30449(W)
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392            SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A     of 2016 before the High Court, questioning the jurisdiction of the
      Assessing Officer in issuing the provisional assessment and the
      consequential demand for a sum of Rs.13,41,17,482-30 paise. In the
      writ petition, one of the grounds was that the Assessing Officer, who
      prepared the provisional assessment, not being a party to the inspection
      team, had no authority to make the provisional assessment under Section
B
      126(1) of the Act. In the writ petition, it was alleged that provisional
      assessment made was not in accordance with Section 126(1) of the Act,
      as such, such assessment cannot be given effect to.
             (f) Learned single Judge of the High Court, on the ground that the
      appellant-Distribution Company has not produced any material to show
C     that the Assessing Officer was part of the inspection team, has held that
      assessment and consequential demand made in the provisional assessment
      proceedings was not in accordance with Section 126(1) of the Act and
      quashed the same. While allowing the writ petition, the learned single
      Judge has directed the State Government to appoint any member of the
D     inspection team as an Assessing Officer to make fresh assessment.
             (g) Aggrieved by the order of the learned single Judge dated
      15.12.2016, the respondent-writ petitioners have filed intra Court appeal
      before the High Court. Following the directions, as contained in the
      order passed by the learned single Judge, it appears, a Member of the
E     inspection team was appointed as an Assessing Officer by the State
      Government and the said officer has provisionally assessed the value of
      un-metered consumption of electricity and also made final assessment
      after giving opportunity for filing objections.
             (h) The fresh assessment order, which is made in compliance of
F     directions issued by the learned single Judge, is also questioned in the
      pending appeal by filing an interlocutory application by the respondents.
      In view of the said interlocutory application, the Division Bench of the
      High Court has allowed such application permitting the respondents to
      challenge the fresh assessment made pursuant to directions issued by
      the learned single Judge, and passed the impugned order allowing the
G     appeal preferred by the respondents.
            (i) In the intra Court appeal, before the Division Bench, the
      respondents have raised a ground that two parallel proceedings i.e. the
      criminal complaint before the Competent Court and also assessment
      proceedings under Section 126(1) of the Act cannot go simultaneously.
H
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                                393
v. M/S. ORION METAL PVT. LTD. [R. SUBHASH REDDY, J.]

Precisely, it was the case of the respondents that once a complaint is           A
filed, alleging theft of energy under Section 135(1)(a) of the Act, no
assessment is permissible under Section 126(1) of the Act.
        (j) Before the High Court, it appears that respondents have also
pleaded that the civil liability, if any, of the respondents can be determined
only under sub-section (5) of Section 154 of the Act. While considering          B
the scope of Sections 154, 135(1)(a) and 126 of the Act, the High Court
has held that when a criminal complaint is lodged alleging theft of energy
by the consumer and when supply of electricity is disconnected on
account of such offence alleged, only in cases where restoration of supply
is sought by the consumer, agreeing to deposit the assessed amount of
un-metered consumption, provisional assessment can be made under                 C
Section 126 of the Act. The High Court has drawn a distinction to exercise
power under Section 126(1) of the Act, in cases where consumer seeks
restoration of supply after disconnection and in cases where restoration
of supply is not sought for. The High Court has held that only in cases
where restoration is sought after disconnection, authorities can resort to       D
make assessment under Section 126(1) of the Act, otherwise, the civil
liability can be determined by Special Court only by following the
procedure under sub-section (5) of Section 154 of the Act.
       4. We have heard Mr. Jaideep Gupta, learned Senior counsel
appearing for the appellants and Mr. Gaurav Jain, learned counsel for            E
the respondents.
      5. Having heard the learned counsels on both sides, we have
perused the impugned order and other materials placed on record.
       6. The learned Senior counsel appearing for the appellants has
submitted that the High Court has misconstrued the provisions under              F
Sections 126, 135 and 154 of the Act and erroneously allowed the appeal
and quashed the assessment order made by the appellants under Section
126(1) of the Act. It is submitted by learned Senior counsel that, whenever
there is an allegation of theft of energy by the consumer, even after
lodging a complaint for commission of such offence before the police, it         G
is always open for the appellants to make provisional and final assessment
to recover loss of energy in exercise of power under Section 126(1) of
the Act. Precisely, it is submitted that in all cases covered by Section
135 of the Act, it is open for the authorities to make provisional assessment
under Section 126 of the Act. It is submitted that the power conferred
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394               SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A     under Section 126(1) of the Act to make provisional assessment, will not
      depend, whether consumer seeks restoration of supply or not, after
      disconnection of supply.
              (a) It is submitted that to prove theft of energy before the Special
      Court, case has to be proved beyond reasonable doubt and further the
B     element of mens rea is a sine qua non to prove the guilt of the accused.
      It is submitted that such degree of proof is not required for the purpose
      of assessing loss of energy under Section 126(1) of the Act. Learned
      Senior counsel has also placed reliance on the judgment in the case of
      Executive Engineer Southern Electricity Supply Company of
      Orissa Limited (SOUTHCO) & Another v. Shi. Seetaram Rice
C     Mill1.
             7. On the other hand, learned counsel appearing for the
      respondents, in support of the findings recorded by the High Court, has
      submitted that the unauthorized use of energy and theft of energy are
      two different aspects covered under different provisions of the Act. It is
D     submitted that the power conferred for provisional assessment under
      Section 126(1) of the Act, is confined to cases where there is an allegation
      of unauthorized use of energy and the allegation of theft of energy is to
      be prosecuted only under Section 135(1)(a) of the Act. It is submitted
      that only in cases where authorities prove the guilt of the accused, the
E     Special Court is empowered to determine civil liability under sub-section
      (5) of Section 154 of the Act.
             (a) It is further submitted that once power supply is disconnected,
      where there is a request by the consumer for restoration of power supply,
      the authorities can make assessment under Section 126(1) of the Act. In
F     support of this plea, the learned counsel brought to our notice a judgment
      of the learned single Judge of Madhya Pradesh High Court in the case
      of The Hotel Adityaz Limited v. Madhya Pradesh Kshetra Vidyut
      Vitran Company Limited, Bhopal & others2 . In the aforesaid
      judgment, learned single Judge of the High Court has held that where
      there is an allegation of theft of energy, such cases will fall only under
G     Section 135 of the Act and Section 126 of the Act, as no application.
             8. Before we proceed further, we have looked into the Objects
      and Reasons of the Electricity Act, 2003, and also the relevant provisions
      i.e Sections 126, 135(1)(a), 153 and 154 of the Act.
      1
          (2012) 2 SCC 108
H     2
          AIR 2016 (NOC) 39 (M.P.)
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                                 395
v. M/S. ORION METAL PVT. LTD. [R. SUBHASH REDDY, J.]

       9. Prior to Electricity Act, 2003, generation and supply of electricity    A
was governed by the provisions under Indian Electricity Act, 2010, the
Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions
Act, 1998. With the policy of the Government to encourage private sector
participation in generation, transmission and distribution of energy and
with the objective of distancing regulatory responsibilities from the
                                                                                  B
Government to the Regulatory Commissions, it was felt that there is a
need for harmonizing and rationalizing the provisions of the electricity by
bringing a new legislation. That is how the Electricity Act, 2003, was
enacted and brought into force. In the objects and reasons, a specific
reference is made to incorporate provisions relating to theft of electricity,
to have a revenue focus. Part XII of the Act deals with the provisions            C
relating to investigation and enforcement and Part XIV of the Act deals
with the provisions relating to offences and penalties. The Constitution
of Special Courts and procedure and powers of the Special Courts are
covered by Part XV of the Act.
         10. The relevant sections for the disposal of this appeal reads as       D
under:
         “Section 126. Assessment:- (1) If on an inspection of any place
         or premises or after inspection of the equipments, gadgets,
         machines, devices found connected or used, or after inspection of
         records maintained by any person, the assessing officer comes to         E
         the conclusion that such person is indulging in unauthorized use of
         electricity, he shall provisionally assess to the best of his judgment
         the electricity charges payable by such person or by any other
         person benefited by such use.
         (2) The order of provisional assessment shall be served upon the         F
         person in occupation or possession or in charge of the place or
         premises in such manner as may be prescribed.
         (3) The person, on whom an order has been served under sub-
         section (2), shall be entitled to file objections, if any, against the
         provisional assessment before the assessing officer, who shall,          G
         after affording a reasonable opportunity of hearing to such person,
         pass a final order of assessment within thirty days from the date
         of service of such order of provisional assessment, of the electricity
         charges payable by such person.

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396            SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A           (4) Any person served with the order of provisional assessment
            may, accept such assessment and deposit the assessed amount
            with the licensee within seven days of service of such provisional
            assessment order upon him:
            (5) If the assessing officer reaches to the conclusion that
B           unauthorised use of electricity has taken place, the assessment
            shall be made for the entire period during which such unauthorized
            use of electricity has taken place and if, however, the period during
            which such unauthorised use of electricity has taken place cannot
            be ascertained, such period shall be limited to a period of twelve
            months immediately preceding the date of inspection.
C
            (6) The assessment under this section shall be made at a rate
            equal to twice the tariff applicable for the relevant category of
            services specified in sub-section (5).
            Explanation.- For the purposes of this section,-
D           (a) “assessing officer” means an officer of a State Government
            or Board or licensee, as the case may be, designated as such
            by the State Government;
            (b) “unauthorised use of electricity” means the usage of
            electricity –
E
               (i) by any artificial means; or
               (ii) by a means not authorised by the concerned person or
            authority or licensee; or
               (iii) through a tampered meter; or
F             (iv) for the purpose other than for which the usage of electricity
            was authorised; or
               (v) for the premises or areas other than those for which the
            supply of electricity was authorized.”

G           The procedure for ‘theft of energy’ is covered by Section 135 of
      the Act under Part IX. Section 135 of the Act reads as under:
            “Section 135. Theft of Electricity:- (1) Whoever, dishonestly,-
            (a) taps, makes or causes to be made any connection with overhead,
            underground or under water lines or cables, or service wires, or
H           service facilities of a licensee or supplier, as the case may be; or
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                           397
v. M/S. ORION METAL PVT. LTD. [R. SUBHASH REDDY, J.]

    (b) tampers a meter, installs or uses a tampered meter, current         A
    reversing transformer, loop connection or any other device or
    method which interferes with accurate or proper registration,
    calibration or metering of electric current or otherwise results in a
    manner whereby electricity is stolen or wasted; or
    (c) damages or destroys an electric meter, apparatus, equipment,        B
    or wire or causes or allows any of them to be so damaged or
    destroyed as to interfere with the proper or accurate metering of
    electricity; or
    (d) uses electricity through a tampered meter; or
    (e) uses electricity for the purpose other than for which the usage     C
    of electricity was authorised,
    so as to abstract or consume or use electricity shall be punishable
    with imprisonment for a term which may extend to three years or
    with fine or with both:
                                                                            D
        Provided that in a case where the load abstracted, consumed,
    or used or attempted abstraction or attempted consumption or
    attempted use –
              (i)      does not exceed 10 kilowatt, the fine imposed
                       on first conviction shall not be less than three
                                                                            E
                       times the financial gain on account of such theft
                       of electricity and in the event of second or
                       subsequent conviction the fine imposed shall not
                       be less than six times the financial gain on
                       account of such theft of electricity;
                                                                            F
              (ii)     exceeds 10 kilowatt, the fine imposed on first
                       conviction shall not be less than three times the
                       financial gain on account of such theft of
                       electricity and in the event of second or
                       subsequent conviction, the sentence shall be
                       imprisonment for a term not less than six            G
                       months, but which may extend to five years and
                       with fine not less than six times the financial
                       gain on account of such theft of electricity:


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398   SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A         Provided further that in the event of second and subsequent
      conviction of a person where the load abstracted, consumed,
      or used or attempted abstraction or attempted consumption or
      attempted use exceeds 10 kilowatt, such person shall also be
      debarred from getting any supply of electricity for a period
      which shall not be less than three months but may extend to
B
      two years and shall also be debarred from getting supply of
      electricity for that period from any other source or generating
      station:
         Provided also that if it is proved that any artificial means or
      means not authorized by the Board or licensee or supplier, as
C     the case may be, exist for the abstraction, consumption or use
      of electricity by the consumer, it shall be presumed, until the
      contrary is proved, that any abstraction, consumption or use of
      electricity has been dishonestly caused by such consumer.
          (1A) Without prejudice to the provisions of this Act, the
D     licensee or supplier, as the case may be, may, upon detection
      of such theft of electricity, immediately disconnect the supply
      of electricity:
          Provided that only such officer of the licensee or supplier,
      as authorized for the purpose by the Appropriate Commission
E     or any other officer of the licensee or supplier, as the case
      may be, of the rank higher than the rank so authorised shall
      disconnect the supply line of electricity:
          Provided further that such officer of the licensee or supplier,
      as the case may be, shall lodge a complaint in writing relating
F     to the commission of such offence in police station having
      jurisdiction within twenty four hours from the time of such
      disconnect:
          Provided also that the licensee or supplier, as the case may
      be, on deposit or payment of the assessed amount or electricity
G     charges in accordance with the provisions of this Act, shall,
      without prejudice to the obligation to lodge the complaint as
      referred to in the second proviso to this clause, restore the
      supply line of electricity within forty-eight hours of such deposit
      or payment;]
H
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                              399
v. M/S. ORION METAL PVT. LTD. [R. SUBHASH REDDY, J.]

      (2) Any officer of the licensee or supplier as the case may be,          A
      authorized in this behalf by the State Government may –
          (a) enter, inspect, break open and search any place or premises
      in which he has reason to believe that electricity has been or is
      being, used unauthorisedly;
          (b) search, seize and remove all such devices, instruments,          B
      wires and any other facilitator or article which has been, or is
      being, used for unauthorized use of electricity;
           (c) examine or seize any books of account or documents which
      in his opinion shall be useful for or relevant to, any proceedings in
      respect of the offence under sub-section (1) and allow the person        C
      from whose custody such books of account or documents are
      seized to make copies thereof or take extracts therefrom in his
      presence.
      (3) The occupant of the place of search or any person on his
      behalf shall remain present during the search and a list of all things   D
      seized in the course of such search shall be prepared and delivered
      to such occupant or person who shall sign the list:
          Provided that no inspection, search and seizure of any domestic
      places or domestic premises shall be carried out between sunset
      and sunrise except in the presence of an adult male member               E
      occupying such premises.
      (4) The provisions of the Code of Criminal Procedure, 1973 (2 of
      1974), relating to search and seizure shall apply, as far as may be,
      to searches and seizure under this Act.”
                                                                               F
      The procedure to be followed by the Special Court constituted
under Section 153 of the Act is prescribed under Section 154 of the
Act.
      Sub-sections (5) and (6) of Section 154 of the Act read as under:
       “(5) The Special Court shall determine the civil liability against a    G
      consumer or a person in terms of money for theft of energy which
      shall not be less than an amount equivalent to two times of the
      tariff rate applicable for a period of twelve months preceding the
      date of detection of theft of energy or the exact period of theft if

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400             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A           determined whichever is less and the amount of civil liability so
            determined shall be recovered as if it were a decree of civil court.
            (6) In case the civil liability so determined finally by the Special
            Court is less than the amount deposited by the consumer or the
            person, the excess amount so deposited by the consumer or the
B           person, to the Board or licensee or the concerned person, as the
            case may be, shall be refunded by the Board or licensee or the
            concerned person, as the case may be, within a fortnight from the
            date of communication of the order of the Special Court together
            with interest at the prevailing Reserve Bank of India prime lending
            rate for the period from the date of such deposit till the date of
C           payment.
                Explanation.- For the purposes of this section, “civil liability”
            means loss or damage incurred by the Board or licensee or the
            concerned person, as the case may be, due to the commission of
            an offence referred to in sections 135 to 140 and section 150.”
D
             11. A perusal of the aforesaid provisions and on giving a conjoint
      reading of the same, it appears to us that after an inspection of any place
      or any premises of any consumer, when Assessing Officer comes to a
      conclusion that the consumer is indulging in unauthorized use of electricity,
      the provisional assessment to the best of his judgment is to be made in
E     accordance with Section 126(1) of the Act and such provisional
      assessment shall be served upon the person in occupation of the premises.
      After giving an opportunity to file objections to the provisional assessment,
      the Assessing Officer is empowered to pass a final order of the
      assessment assessing the loss of energy, on account of unauthorized use
F     of energy. The unauthorized use of electricity is defined under Section
      126(6)(b) of the Act. It is clear from the aforesaid definition that
      unauthorized use of electricity means, the usage of electricity by any
      artificial means or by a means not authorized by the concerned person
      or authority or licensee; or through a tampered meter; or for the purpose
      other than for which the usage of electricity was authorized; or for the
G     premises or areas other than those for which the supply of electricity
      was authorized.
             12. It is clear from the reading of Section 126 (6)(b)(iii) of the Act
      that instances of use of energy through a tampered meter is included in

H
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                                401
v. M/S. ORION METAL PVT. LTD. [R. SUBHASH REDDY, J.]

the definition of unauthorized use of electricity. If that is so, there is no    A
reason, for excluding the power of the authorities for making assessment
under Section 126(1) of the Act to assess the loss of energy, where
electricity is used through a tampered meter. All instances of unauthorized
use of energy may not amount to theft of electricity within the meaning
of Section 135 of the Act, but at the same time, the theft of electricity
                                                                                 B
which is covered by Section 135 of the Act, will fall within the definition
of unauthorized use of electricity. As per Section 135(1A) of the Act,
without prejudice to the other provisions of the Act, the licensee or
supplier, as the case may be, upon detection of theft of electricity, is
empowered to disconnect the power supply immediately. Further, as per
the third proviso to Section 135(1A) of the Act, the licensee or supplier,       C
as the case may be, on deposit or payment of assessed amount or
electricity charges, without prejudice to the obligation to lodge a complaint,
can restore the power supply electricity within forty-eight(48) hours of
deposit /payment of such amount. Thus, it is clear that the authorities
under the Act are empowered to make a provisional and final assessment
                                                                                 D
by invoking power under Section 126(1) of the Act, even in cases where
electricity is unauthorisedly used by way of theft. When a consumer
deposits the assessed amount, the licensee or the supplier has to restore
the power supply. The assessed amount referred to in the aforesaid
proviso, relates to assessment which is contemplated under Section 126(1)
of the Act only. There is apparent distinction between Section 126 and           E
Section 135 of the Act. Section 126 forms part of the scheme which
authorizes electricity supplier to ascertain loss in terms of revenue caused
to it by the consumer by his act of “unauthorized use of electricity”
whereas Section 135 deals with offence of theft if he is found to have
indulged himself in the acts mentioned in clauses (a) to (e) of sub-section
                                                                                 F
(1) of Section 135 of Electricity Act. Further, it is also clear from Section
154 of the Act, which prescribes procedure and power of Special Court,
that the Special Court is empowered to convict the consumer and impose
a sentence of imprisonment. The Special Court, in cases, where a criminal
complaint is lodged, is also empowered to determine civil liability under
Section 154(5) of the Act. As per Section 154(6) of the Act, in case civil       G
liability so determined by the Special Court is less than the amount
deposited by the consumer or the person, the excess amount so deposited
by the consumer or the person, shall be refunded by the licensee or the
concerned person, as the case may be. Merely because the Special
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402            SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     Court is empowered to determine civil liability under Section 154(5) of
      the Act, in cases where a complaint is lodged, it cannot be said that there
      is no power conferred on authorities to make provisional assessment/
      final assessment under Section 126 of the Act.
             13. In the case of Executive Engineer Southern Electricity
B     Supply Company of Orissa Limited (SOUTHCO) & Another v.
      Shi. Seetaram Rice Mill, reported in (2012)2 SCC 108, this Court has
      considered the scope of Explanation to Section 126(b)(iv) of 2003 Act.
      In the aforesaid case, as there was no allegation of theft, this Court has
      held consumption in excess of sanctioned/contracted load, comes within
      the meaning of unauthorized use of electricity as per Explanation (b)(iv)
C     of Section 126 of Electricity Act, 2003. Drawing a distinction between
      Section 126 to that of Section 135 of the Act, paragraphs 29 and 61 of
      the aforesaid judgment read as under:-
              “29. Thus, it would be clear that the expression “unauthorized
            use of electricity” under Section 126 of the 2003 Act deals with
D           cases of unauthorized use, even in the absence of intention. These
            cases would certainly be different from cases where there is
            dishonest abstraction of electricity by any of the methods enlisted
            under Section 135 of the 2003 Act. A clear example would be,
            where a consumer has used excessive load as against the installed
E           load simpliciter and there is violation of the terms and conditions
            of supply, then, the case would fall under Section 126 of the 2003
            Act. On the other hand, where a consumer, by any of the means
            and methods as specified under Sections 135(a) to 135(e) of the
            2003 Act, has abstracted energy with dishonest intention and
            without authorization, like providing for a direct connection by
F           passing the installed meter, the case would fall under Section 135
            of the Act.
              ...      ... ... ...
              61. Unauthorized use of electricity cannot be restricted to the
G           stated clauses under the Explanation but has to be given a wider
            meaning so as to cover cases of violation of the terms and conditions
            of supply and the Regulations and provisions of the 2003 Act
            governing such supply. “Unauthorized use of electricity” itself is
            an expression which would, on its plain reading, take within its
            scope all the misuse of the electricity or even malpractices adopted
H
W. B. STATE ELECTRICITY DISTRIBUTION COMPANY LTD.                                403
v. M/S. ORION METAL PVT. LTD. [R. SUBHASH REDDY, J.]

      while using electricity. It is difficult to restrict this expression and   A
      limit its application by the categories stated in the explanation. It
      is indisputable that the electricity supply to a consumer is restricted
      and controlled by the terms and conditions of supply, the
      Regulations framed and the provisions of the 2003 Act.”
       14. We also do not find any valid reason for making a distinction         B
as made by the High Court in applying Section 126 of the Act. From the
scheme of the Act, it appears that after inspection team notices
unauthorized use of energy by tampering the meter, the authorities can
disconnect the power supply immediately and make immediate assessment
for loss of energy, by invoking power under Section 126(1) of the Act.
The term “unauthorized use of energy” is of wide connotation. There              C
may be cases of unauthorized use of energy, not amounting to theft,
which are cases viz. exceeding the sanctioned load or using the electricity
in the premises where its use is not authorized etc. But at the same time,
when there is an allegation of unauthorized use of energy by tampering
the meter, such cases of unauthorized use of energy include ‘theft’ as           D
defined under Section 135 of the Act. The power conferred on authorities
for making assessment under Section 126(1) of the Act and power to
determine civil liability under Section 154(5) of the Act, cannot be said to
be parallel to each other. In this regard, we are of the view that the High
Court has committed an error in recording a finding, that both proceedings
cannot operate parallelly. In a given case where there is no theft of            E
energy, amounting to unauthorized use of energy, in such cases no
complaint of theft can be lodged as contemplated under Section 135 of
the Act. In such cases for loss of energy, on account of unauthorized
use of energy not amounting to theft, it is always open for the authorities
to assess the loss of energy by resorting to power under Section 126(1)          F
of the Act. In cases where allegation is of unauthorized use of energy
amounting to theft, in such cases, apart from assessing the proceedings
under Section 126(1) of the Act, a complaint also can be lodged alleging
theft of energy as defined under Section 135(1) of the Act. In such
cases, the Special Court is empowered to determine civil liability under
Section 154(5) of the Act. On such determination of civil liability by the       G
Special Court, the excess amount, if any, deposited by the petitioner, is to
be refunded to the consumer. It is a settled principle that to prove the
guilt of the accused in a criminal proceeding, authorities have to prove
the case beyond reasonable doubt and the element of mens rea is also to
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404              SUPREME COURT REPORTS                      [2019] 11 S.C.R.


A     be established. On the other hand, such a strict proof is not necessary
      for assessing the liability under Section 126(1) of the Act.
            15. For the aforesaid reasons, this civil appeal is allowed and the
      judgment and order dated 18.12.2017 passed by the High Court of
      Calcutta in F.M.A. No.520 of 2017 and the corrected order dated
B     07.02.2018, are set aside. No order as to costs.

      Devika Gujral                                               Appeal allowed.




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