Rajesh H. Shukla, J.

1. The present appeal is directed against the judgment and order rendered in Special Electric Case No. 14/2005 by the learned Special Judge, Vadodara, dated 26.2.2010 recording the conviction of the accused for offence under Section 39 of the Indian Electricity Act, 1910 (hereinafter referred to as the Old Act) as well as Section 135(1)(a) of the Electricity Act, 2003 (hereinafter referred to as the New Act) and imposing sentence of simple imprisonment for 1 year and fine of Rs. 26,68,198/-, i/d S.I. for 3 months.

2. The facts of the case, briefly summarised, are as follows:

2.1 It is the case of the prosecution that on 24.5.2001 a raid was carried out by the Deputy Engineer and other officers of Gujarat Electricity Board (for short GEB) at Village Sandha and found that the accused was organizing a cricket tournament in the open ground near the lake at village Sandha for which he had unautorisedly taken electric connection by joining wires from the pole and had utilized 11 halogen lamps for the purpose and thereby committed theft of electricity and the complaint was given by the Dy. Engineer for indulging in theft of electricity at exh. 13 and for recovery of fine to the tune of Rs. 8,89,399.13. On the basis of this, the aforesaid case has been registered as required under the New Act and the learned Special Judge framed the charge for the offence under Section 39 of the Old Act r/w Section 135(1) of the New Act and proceeded with the trial.

2.2 In order to bring home the charges levelled against the accused, the prosecution examined the witnesses, inter alia, the complainant, Dy. Engineer, and other officers of GEB who were members of the raiding party and the panch witnesses who have turned hostile.

2.3 After recording of the evidence of the prosecution witnesses was over, further statement of the accused under Section 313 of Cr.P.C. was recorded.

2.4 After hearing the learned APP as well as the learned advocate for the defence, the learned Special Judge, Vadodara recorded the conviction of the accused both for the offence under Section 39 of the Old Act r/w Section 135(1) of the New Act and sentenced him as stated hereinabove imposing huge amount of fine. The fine, though stated to be Rs. 8,89,399.13, ultimately the fine has been imposed to the tune of Rs. 26,68,198/-.

3. It is this judgment which has been assailed, inter alia, on the ground that the conviction of the accused for the alleged offence has been recorded erroneously as the charge itself is defective and untenable and also the conviction and sentence recorded under Section 135 of the New Act would not be sustainable as the New Act was not there at the time of the incident. Further, it has also been contended that there are major contradictions in the evidence of the witnesses including the officers of GEB and the conviction has been recorded on the sole basis of the confessional statement or the statements recorded by the officers of the GEB. It is also contended that framing of the charge under Section 135 of the New Act is illegal as the offence had taken place before commencement of the New Act and the Act would not be applicable. It has also been contended that even for the conviction under Section 39 of the Old Act it is required to be proved that the accused is a consumer and as per the evidence on record, the accused is not a consumer and therefore the learned Judge has committed an error in recording conviction and has also failed to appreciate these aspects as well as the judgments of the Honble Apex Court.

4. As this matter is of the year 2010 only according to serial No. , normally it would not have been taken up. However, the learned Counsel has stated that while preferring this appeal the application for suspension of sentence was filed and this Court vide order dated 14.5.2010 passed an order for suspension of the sentence on the condition that instead of fine of Rs. 26,68,198/-, the basic amount of Rs. 8,89,399.13 shall be deposited. As this is also a sizable amount for an ordinary village person like the accused, he has been in jail and therefore this mater has been taken up in light of the contentions raised and the facts brought to the notice of the court.

5. Learned Counsel Mr. Anandjiwala submitted that as could be seen from the charge, the charge itself is erroneous and defective as the learned Judge has framed the charge for offence both under Section 39 of the Old Act and also under Section 135 of the New Act. He submitted that the date of the offence is 24.5.2001 and the charge was framed on 30.3.2007. He therefore submitted referring to the provisions of both the Acts r/w Section 6 of the General Clauses Act that the New Act will have no application and for that again he referred to Section 58 of the Old Act and submitted that as per the repeal and savings clause, whatever the action which has been taken would be saved by such a Clause and only with the view that while the Old Act is repealed, the action taken would remain valid such a provision is made. He submitted that in any case as per Section 6 of the General Clauses Act which provide with regard to the fact of repeal, it clearly suggests that it will not affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, punishment etc.

5.1 Learned Counsel Mr. Anandjiwala referred to the material and evidence on record and the testimony of the witnesses and the documentary evidence. He submitted that there is no evidence that the accused had taken illegal connection and there is nothing on record to suggest that he is the organizer of the tournament. He referred to the testimony of the prosecution witnesses and submitted that the complainant, PW 1 in his testimony at exh. 12 has narrated about the incident and he has stated that at the time of the raid they had found that illegal connection was taken from the 3-Phase line of one Smt. Manjulaben Patel and there were 11 halogen lamps of the capacity of 1000 watt each and the accused was present and he had organized the tournament. He submitted that PW 16, who is also an engineer of GEB, has stated in his testimony at exh. 38, that at the time of raid there were about 10-15 persons present and on inquiry it was learnt that the accused had organized the tournament and thereafter he was summoned. He emphasized this aspect and submitted that even the presence of the accused is not established at the scene of offence and whatever has been stated with regard to organizing the tournament is hearsay. There is no evidence.

5.2 Learned Counsel Mr. Anandjiwala also referred to the testimony of the panch witnesses and has stated that the panchas have not supported and they have been declared hostile. However, learned Counsel Mr. Anandjiwala emphasized about the manner in which the entire case has proceeded and submitted that as per the testimony of PW 15 at exh. 36, who is a PSO at Sinor Police Station and who had made an entry regarding registering the offence at exh. 37, has clearly stated in his testimony that he had made the entry recording the complaint in the station diary. He has clearly stated that at that time no other documents or muddamal was given to him. Learned Counsel Mr. Anandjiwala submitted that as can be seen from the testimony of the witnesses particularly officers of GEB i.e. PW 1, the complainant at exh. 12 as well as PW 9 at exh. 30 and PW 14 at exh. 35 and PW 16, exh. 38 that they are inconsistent and contradicting on material aspects inasmuch as though the panchnama is said to have been prepared on the spot in presence of panchas, it is not corroborated by the testimony of the panch witnesses. Again, he emphasised that the testimony of PW 1 at exh. 12 and PW 9 in his testimony at exh. 30 have stated that the fuse and wires were disconnected, regarding illegal connection the sketch was prepared and PW 9 in his testimony at exh.30 has specifically stated that after taking the statement of the accused and the form at exh. 15 & 16 respectively, the fuse and wires were seized from the place and no other muddamal was recovered whereas, another witness, PW 10, who is a helper, exh. 31 has also stated in the same manner that there were 11 halogen lights fixed on the wooden poles and only wire and fuse were recovered and no other muddamal was recovered whereas other witness has stated about recovery of the halogen lamps and on the basis thereof the checking sheet is prepared, exh. 16 making the calculation as per the formula adopted by GEB for the consumption which is a huge amount.

5.3 Learned Counsel Mr. Anandjiwala further submitted that the panchnama at exh. 25 is said to have been prepared for recovery of the halogen lights and other muddamal from the house of the accused on 28.5.2001. It was emphasised that if other muddamal was recovered if the halogen lights were there at that time how it was not recovered as admittedly stated by the witnesses and after four days it is said to have been recovered from the house of the accused for which the panchnama at exh. 25 has been made. He emphasised that the panch witness, PW 4 in his testimony at exh. 24 has not corroborated the prosecution case and has stated that his signature was merely taken on the prepared panchnama which he had signed without reading.

5.4 Learned Counsel Mr. Anandjiwala referred to this evidence of PW 4 at exh. 24 and the panchnama at exh. 25 and submitted that it raises a serious doubt as to the manner and method of the entire case and the investigation. He referred to the testimony of PW 8 at exh. 29, who is the Head Constable, and who was present at the time of raid, and has stated in his testimony that the halogen lights were fitted on the poles and the halogen lights and the wires were recovered. Learned Counsel Mr. Anandjiwala submitted that if the police personnel in his testimony has stated with regard to the recovery of this muddamal of halogen lights from the spot, how the panchnama at exh. 15 is shown to have been prepared for the recovery of the halogen lights and other muddamal from the house of the accused after 4 days. He submitted that as stated by PW 9 in his testimony at exh. 30 as well as of other officers, the lights were on when they raided the ground. Admittedly, the muddamal has been recovered, but as stated by the PSO, PW 15 in his testimony at exh. 36, he had made the entry in the station diary recording the FIR and he had not received any other document from the complainant, Mr. Chaudhari, or any muddamal was handed over to him. Learned Counsel Mr. Anandjiwala submitted that the conviction is erroneous and illegal without any material and evidence as regards the charges for the offence. He submitted that there is no evidence whatsoever to establish that the accused was the organizer of the tournament or that he had taken illegal connection and without any evidence he has been convicted solely on the basis of the so-called statement/kabulatnama at exh. 15 said to have been recorded on the spot.

5.5 Learned Counsel Mr. Anandjiwala submitted that whether it could be said to be a confessional statement admissible in evidence is required to be considered in light of the evidence. For that purpose, he again referred to the testimony of the testimony of PW 16 Dy. Engineer, Shri Gulati, at exh. 38 and submitted that he has specifically admitted that he had summoned the accused and he was informed by someone that the accused has organized the tournament and therefore he is believed. He also referred to the testimony of PW 1, exh. 12, and submitted that he has stated in his testimony at exh. 12 that he had recorded the kabulatnama and the statement at exh. 15. The other officer, PW 16 Shri Gulati, who was present, has stated in his testimony at exh. 38 that the statement/kabulatnama was recorded on the spot. However, PW 9 in his testimony at exh. 30, who is also a junior engineer of GEB at Sinor Sub-Division and who was also a member of the raiding party, has stated that the kabulatnama and the statement are recorded in his handwriting which was reduced to writing by him which was dictated by PW 1 and he had recorded what PW 1 Shri Chaudhari had dictated. Learned Counsel Mr. Anandjiwala submitted that if it was dictated by PW 1, which was reduced to writing by PW 9, whether it could be said to be a confessional statement of the accused and whether it can form the sole basis of conviction He submitted that, in fact, it cannot be said to be a confessional statement in strict sense as it has to be established and satisfied that it was made voluntarily without any duress, coercion or threat. Further, it has to be his own statement and not what has been dictated by somebody and reduced to writing by other person merely in the presence of the accused. He also referred to the explanation given by the accused in his statement recorded under Section 313 of Cr.P.C. He, therefore, submitted that this explanation is, on the contrary, finds support from such testimony of witnesses and the documentary evidence. Learned Counsel Mr. Anandjiwala therefore submitted that such a statement cannot be relied upon and even if it is relied upon the learned Judge has failed to appreciate the same.

5.6 He, therefore, submitted that the conviction and the sentence imposed by the learned Judge as per the New Act is erroneous and illegal. He referred to the provisions of Section 151 of the New Act and submitted that cognizance has to be taken on a complaint filed by the authorised officer. He submitted that on 30.3.2007 when the charge was framed, the cognizance could not have been taken as the New Act has not come into force and therefore the conviction is erroneous and illegal.

5.7 Learned Counsel Mr. Anandjiwala referred to and relied upon the Full Bench judgment of this Court reported in : 1974 GLR 725 [LQ/GujHC/1974/46] in the case of Hiralal Nansa Bhavsar and Anr. v. The State of Gujarat in support of his submission that no retrospective effect as far as the pending proceedings are concerned can be given. He has also referred to and relied upon the judgment of the Honble apex court in the case of P.V. Mohammad Barmay Sons. v. Director of Enforcement reported in : AIR 1993 SC 1188 [LQ/SC/1992/542] and emphasized the observation made in para 4,

We find no force in the contention. The effect of the repealed Act by operation of Clause (e) of Section 6 of the General Clauses Act read with Sub-section (2) of Section 81 is that, though the Act obliterates the operation of Act 7 of 1947, despite its repeal, the penalty, liability, forfeiture or prosecution for acts done while the repealed Act was in force were kept alive, though no action thereunder was taken when the Repealed Act was in force. The rights acquired or accrued or the liabilities incurred or any penalty, forfeiture or punishment incurred during its operation are kept alive. Investigations to be made or any remedy which may have been available before the repeal be enforced are also preserved....

5.8 He, therefore, submitted that when the New Act had not come into existence at all, the conviction could not have been recorded, nor any charge could have been framed as, even on the date of framing of the charge, the New Act was not brought into effect.

5.9 Learned Counsel Mr. Anandjiwala also submitted referring to the provisions of Section 39 of the Old Act that it provides for theft of energy and the punishment and the fine which is prescribed as not less than Rs. 1,000/- and imprisonment for a term which may extend to 3 years, whereas in the facts of the present case, he has been fined for such a huge amount. He further submitted that no calculation has been made available and there is a jugglery as to the entire episode as well as the calculation regarding the figure which is arrived at. For that purpose, he has also produced, during the course of hearing, some papers to emphasise that even if 11000 kilowatt of electricity is consumed, the total bill for the energy could be around Rs. 3,000/-. He submitted that it was not a 3-phase or HT consumption and even if the halogen lights are taken for the purpose of calculation, it would not be the same as the AC etc. and therefore even liberally calculated, the amount which is shown is absurd and whimsical.

5.10 Lastly, learned C Mr. Anandjiwala submitted that in fact the dispute is of civil nature and to pressurise the persons like the accused in a high handed manner, the entire law has been abused and misused. He submitted that Special Civil Suit No. 125/2002 filed by GEB against the accused is pending before the learned Civil Judge (SD) at Vadodara and if such a conviction is recorded, by which due to non-availability of huge amount or finance he cannot get the benefit of suspension of sentence or bail, it would be a grave injustice. He, therefore, submitted that the present appeal may be allowed.

6. Learned APP Mr. Poojari referred to the testimony of PW 1 at exh. 12 and submitted that the presence of the accused is established as it is revealed that the accused was present and recovery of muddamal was made like wires and fuse in his presence. He again referred to the testimony of PW 1 at exh. 12 and submitted that it is also corroborated by the testimony of other witnesses. He submitted that the discrepancy or the contradiction which has been relied upon is not in fact any discrepancy inasmuch as the accused who might have been there but what was conveyed by one witness, PW 18, is that he was not there and was in a nearby surrounding and therefore he had said that he was called, whereas PW 1 has stated that he was present, meaning thereby he was present at the scene of offence and thereafter he was called before them for the purpose of completing the proceedings. Therefore, he submitted that the presence of the accused is established.

6.1 Learned APP Mr. Poojari further submitted that recovery of muddamal is also established even though the panch witnesses may not have corroborated the same. For that he has referred to the testimony of PW 9 as well as other witnesses, PW 18 and PW 15, PSO and submitted that PW 15 in his testimony at exh. 36 has stated that he had made the entry for registering the offence in the station diary and though he has stated that there were no other papers or muddamal, in fact, the papers of the chargesheet suggest that it was with annexures. He therefore submitted that there might be some discrepancy, but the record would suggest that when the chargesheet was submitted the documents were there on the record

6.2 Learned APP Mr. Poojari also referred to the statements at exh. 13, 15 and 16 of the accused and submitted that the confessional statement recorded by the officers of GEB would be admissible in evidence as it is not before the police officer. He submitted that it has been accepted by catena of judicial pronouncements that such a statement recorded by an officer in course of inquiry would be admissible in evidence and therefore it could be relied upon.

6.3 Learned APP Mr. Poojari submitted that it is evident that the muddamal was seized which would imply that the offence has been committed. He submitted that in any case even if there are some discrepancies, it is evident that when the raiding party visited the place, the wires, fuse and the halogen lamps were found with illegal connection taken from other consumers line and after preparing the panchnama it has been seized. The forms which have been required to be prepared are prepared and the statement of the accused is also recorded which is signed by him. For that purpose, he again referred to the calculation sheet, exh. 16, the statement of the accused at ex. 15 and submitted that it clearly establishes with regard to the theft of energy committed by the accused, who was found present at the scene of offence. He submitted that though it has been submitted that the charge for offence under Section 135 of the New Act as well as the conviction are erroneous, but the charge is also for offence under Section 39 of the Old Act, providing for theft of energy and therefore the conviction is both for offence under Section 39 of the Old Act as well as for offence under Section 135 of the new Act, which can be sustained and suitable order could be passed. He has also referred to the calculation sheet, exh. 16 and other record to support the submission with regard to the amount of fine arrived at and submitted that he has failed to deposit even the basic amount of fine of Rs. 8,89,399.13. He, therefore, submitted, that at least the conviction for offence under Section 39 of the Old Act may be maintained.

7. In view of rival submissions, it is required to be considered whether the impugned judgment and order can be sustained.

7.1 Learned Counsel Mr. Anandjiwala has, at the outset, referred to the charges stating that it is defective pointing out to the fact that the accused could not have been charged in respect of the offences under the New Act which was not in existence at the relevant time. He has pointedly referred to the fact that the incident has occurred on 24.5.2001. The charge was framed in 2007 and the New Act was brought into force in 2003. He has therefore submitted that the accused could not have been charged under the new Act and the cognizance could not have been taken for the offence under the Act which was not there. The submissions have been made referring to the provisions of Section 135(d) of the New Act with regard to the use of electricity through tampered meter and submitted that this provision was not there at all and therefore he could not have been convicted both under the Old Act as well as the New Act which is required to be appreciated.

7.2 He has referred to and relied upon a judgment of the Full Bench of this Court in the case of Hiralal Nansa Bhavsar and Anr. v. The State of Gujarat reported in : 1974 GLR 725 [LQ/GujHC/1974/46] , in support of his submission that when the cognizance is taken in respect of an offence under an old Act, the trial will have to be under the same Act and conviction also could be recorded as per the law existing then and there cannot be any retrospective effect of the new law. He has also referred to Article 20(1) of the Constitution and submitted that the said Article provides protection against ex-post-facto law. He has submitted that under the First Part no person is to be convicted of an offence except for violating "the law in force" at the time of commission of the act charged as an offence. A law enacted later, making an act done earlier will not make the person liable for conviction under the new law.

7.3 Again, learned Counsel Mr. Anandjiwala referred to Article 20(1) and submitted that the sentence and penalty could not be greater than what might have been inflicted under the existing law even if the new law is brought into force. This aspect is also required to be considered in light of the observations made by the Honble Apex Court in a judgment reported in : AIR 1991 SC 2173 [LQ/SC/1991/425] : (1991)4 SCC 298 [LQ/SC/2018/280] , AIR 1960 SC 923 [LQ/SC/1960/121] and : AIR 1986 SC 293 [LQ/SC/1985/367] : (1986) 1 SCC 445 [LQ/SC/1985/367] .

7.4 Apart from considering the submissions as regards the defect in the charge and the applicability of the New Act, under which the conviction is recorded and the sentence is imposed, even on the basis of the material and evidence whether the conviction could have been recorded for the offence under Section 39 of the Old Act is required to be considered. Therefore, the facts as narrated above and the evidence, including the testimony of the witnesses and the officers of GEB, are required to be considered.

7.5 The case of the prosecution is that the complainant, who is an officer of GEB, along with other officers raided to detect theft of electricity on 24.5.2001 at village Sandha near the village lake where they found in a ground lights were on and the wiring was made illegally taking it from the connection of one consumer named Manjulaben Patel. As per the testimony of the complainant, PW 1, exh. 12, they had gone for checking and when they found that connection is taken from the 3-phase line of one consumer Smt. Manjulaben Patel and from the said LT line pole the fuse and wiring was joined for lighting 11 halogen lamps of 1000 watt each for the purpose of cricket tournament. He has stated that the accused was present at the spot and he had organized the tournament. He also stated that the 2 amp fuse and copper wires and cable were seized, checking sheet was prepared and the muddamal was lodged with the police station when the complaint was lodged at Sinor Police Station the next day.

7.6 The testimony of PSO, PW 15 at exh. 36 clearly suggest that he had made an entry for registering the offence in the station diary on 25.1.2001 and the extract thereof is produced at exh. 37. He has stated in his cross-examination that the complainant had not given any other documents with the complaint, nor any muddamal was given/handed over with the complaint. Thus, the complaint states about seizure of the muddamal which is not handed over to the PSO at the time of registering the complaint as stated by the PSO. The complainant, still, has stated in his testimony that he had handed over the muddamal when he lodged the complaint the next day, with the Sinor Police Station. The complainant in his testimony at exh. 12 has stated about the muddamal seized which included 2 amp fuse, copper wires and cable. He has stated that 11 halogen lamps of 1000 watt each were there and therefore on that basis in the checking sheet it is shown as consumption load.

7.7 The testimony of other witnesses, including the testimony of PW 9 who is an officer of GEB, has stated in his testimony at exh. 30 that the fuse and wires were seized from the spot and no other muddamal was seized at that time. PW 10, Helper, in his testimony at exh. 31 has stated that wires and fuse were seized but other cable was not seized. Similarly, he has stated that there were 11 halogen lights fixed with the poles and admittedly it has not been seized at that time on the spot.

7.8 The I.O., PW 17 in his testimony at exh. 39 has stated that on 24.5.2001 police constables Mustaqbhai and Arvindbhai had accompanied the GEB officers. Said Mustaqbhai is examined as PW 7 at exh. 28 and he has also stated about seizure of wire and flood lights. Arvindbhai, who is examined as PW 8 has stated in his testimony at exh. 29 that halogen lights and wires were seized. Therefore, the police witnesses have stated about seizure of even halogen lights on the spot, whereas the officers of GEB who have been examined have stated about seizure of only wires and cables.

7.9 The panchnama at exh. 25 has been made for recovery of the muddamal, halogen lights and other articles from the house of the accused after 3 days which is raising doubt about the genuineness thereof, particularly when the panch witness, PW 4 for the same panchnama in his testimony at exh.24 has stated that he was asked to sign a prepared panchnama, which he had signed. He has denied recovery of any such muddamal in his presence.

7.10 Further, the confessional statement of the accused is said to have been recorded at exh. 15 by PW 1 and it is submitted that it is admissible in evidence as the officer of GEB is not a police officer. Though this proposition is well accepted that a statement recorded by an officer during the course of inquiry or investigation but who is not a police officer shall be admissible in evidence. However, the probative value will have to be considered depending upon the facts of the case and the manner in which such statement has been recorded. It is well accepted that the admissibility of the evidence is one aspect and the probative value which can be attached to such evidence/statement is another aspect. The confessional statement at exh. 15 of the accused is said to have been recorded by PW 1 complainant and thereafter another statement at exh. 16 is also recorded. Whether it can be said to be a confessional statement in light of the testimony of PW 16 at exh. 38 who is also an officer of GEB requires to be considered.

7.11 It is required to be mentioned that he statements recorded under the special statues like the Customs Act, NDPS Act, the confessional statements recorded by an officer is specifically made admissible. Again, though it is admissible in evidence, it is subject to judicial scrutiny. In the facts of the present case, special statute like the Electricity Act, 2003 does not make a specific provision like other statutes, and even if it is considered as admissible in evidence, it has to be subject to scrutiny by the court that it was voluntary, without any coercion or duress. The Honble Apex Court in catena of judicial pronouncements has observed that it has to be established that even if it is recorded under the special statutes,it was voluntary, without any coercion or duress which will be examined depending upon the facts of each case.

7.12 It appears that there is no such provision making it expressly clear in this Act and on top of that the manner in which the so-called confessional statement/kabulatnama is recorded raises serious doubt and it cannot be considered.

7.13 This witness, PW 16 in his testimony at exh. 38 has stated that the complainant had prepared the papers as he had instructed. PW 9 in his testimony at exh. 30 who recorded the said statement at exh. 15 in his hand-writing has clearly stated that it was dictated by the complainant and he has recorded as dictated to him. Therefore, it is evident that it was not a statement made by the accused, but it was dictated by the complainant, PW 1. The complainant PW 1 in his testimony at exh. 12 has sated about having recorded the statement, but the manner in which it is recorded is reflected from the testimony of PW 9 at exh. 30 that it was dictated by the complainant which he had reduced to writing. He has not said that it was dictated as stated by the accused. Both these witnesses are literate and therefore it cannot be said that they may not have properly appreciated the facts. This itself will suggest about the manner in which the entire case has been made out.

7.14 Further, even as regards the investigation, it leaves much to be desired when the I.O., PW 17 in his testimony at ex. 39 has stated that he had accepted the facts narrated in the complaint as true and after the arrest of the accused on 28.5.2001, he has not made any further investigation. He has also stated that he has not recorded the statement of any person or any player of the tournament. He has stated that he has not seized or collected the kit of the cricket. The officers of GEB were the panch witnesses. Further, the PSO has stated specifically that he had made an entry for registering the offence and when he received the complaint it was not accompanied by any other papers or muddamal. The I.O. in his testimony at exh. 39 has stated that the PSO had forwarded the complaint with other papers and he had made the panchnama of the scene of offence and recorded the statements and the panchnama made by the officer of GEB was seen and on that basis he arrested the accused on 28.5.2001 and filed the chargesheet. He has not made any investigation as to who had joined the wires illegally inasmuch as such wiring could not have been made by laymen without the help of someone having the training for wiremans course. There is no investigation on this aspect.

7.15 Therefore, accepting the fact that there was illegal connection taken for the lights in the cricket ground, for which muddamal is said to have been recovered, however, there is no cogent evidence as to at whose instance that was done, who had organized and how the illegal connection or wiring was made for lighting in the ground. The accused is said to have organized the cricket tournament. However, a close scrutiny of the evidence of the prosecution witnesses i.e. Officers of GEB, is required to be made.

7.16 The testimony of the complainant, PW 1 at exh. 12 refers to this aspect and has stated that when they raided with regard to the illegal connection, the accused was present and he had organized the tournament and he is said to have recorded the confessional statement/kabulatnama at exh. 15. He has stated that he cannot say as to whether the work for installation of the streetlights in Sandha village was going on. He has also stated that the accused is not a consumer as he has never applied for nay connection and he has also stated that the consumer is one who has applied for an electric connection.

7.17 As against this, the testimony of the Dy. Engineer of GEB, PW 16 at exh. 38 on this aspect reveals otherwise. He has stated in his cross-examination that on inquiry with the village people he was informed by one person that the accused is the organizer of the tournament. He has admitted that whatever was stated to him by that person he had believed and accepted. Further, he has stated that thereafter he had summoned the accused, meaning thereby the accused was not present.

7.18 The submission made by the learned APP that it would be understood as if the accused was present there in the near surrounding and in very near vicinity and he was called for the purpose of proceedings is reading or interpreting in the evidence of the witness which is not stated by the witness. The witness is an officer of GEB and he could have very well said that he was present among other persons when he was making inquiry with other persons and then he called him. However, that is not the case. Assuming for the sake of argument that the accused was present in the near vicinity, again what has been stated by PW 16 in his testimony at exh. 38 is that he made an inquiry with one person and he stated that the accused is the organiser and on that basis he accepted and believed it to be true.

7.19 Assuming further that in such a situation the officer would initially make an inquiry with the people present and then he would ascertain the facts for further proceedings. But, then the testimony of the I.O., PW 17 at exh. 39 requires a close scrutiny as he has stated that when he visited village Sandha on 26.5.2001 for the investigation he has not recorded the statement of the sarpanch or talati. He has not recorded the statement of any player who could be said to be playing in the tournament. Further, he has admitted in the cross-examination that the complaint given by the complainant narrating the facts were accepted by him as truth which would suggest that whatever has been stated in the complaint regarding the manner and occurrence of the incident is accepted as gospel truth. If that was the case, then, there would not have been any need for any investigation. In fact, as an I.O., it was his responsibility to make further investigation in the matter and the investigation would imply that he has to find material and evidence which could be placed in the court for establishment of the guilt of the accused. He has not admittedly done any investigation and has accepted whatever has been stated by the officers of GEB as a gospel truth. This reflects the manner of investigation and the grass-root reality particularly in such GEB cases.

7.20 It is required to be mentioned that the investigation in such cases leaves much to be desired while registering cases against a consumers for alleged irregularity inasmuch as whatever has been stated by the officers of GEB is accepted for registering the cases. Therefore, it is desirable that some guidelines are issued with regard to the precautions to be taken and the procedure for further investigation making it clear that there should be compliance of the Electricity Rules and the procedure which are required to be followed in such cases under the Cr.P.C. and it would be necessary to observe such requirements or procedure before a person could be tried for the offence.

7.21 Further, even the calculation sheet with regard to assessment of electricity is required to be considered and the manner in which it is prepared for making such assessment is also required to be considered. In the facts of the present case, as stated above, even if consumption of electricity for 11 halogen lamps is considered, still, it would not be consumption for Rs. 8.89,399.13. Further, according to the provision of law, the penalty provided and calculated is three times that amount, i.e., Rs. 26,68,198/-. This itself would reflect how it would have practical impact in reality if such calculations are accepted. There has to be some kind of method or procedure which can be said to be fair. However, it is for the legislature to provide by suitable amendment or for the concerned authority by providing suitable guidelines.

7.22 In light of the discussion made hereinabove, the appeal stands allowed. The judgment and order dated 26.2.2010 rendered in Special Electric Case No. 14/2005 by the learned Special Judge, Vadodara, recording the conviction of the accused is quashed and set aside.

7.23 Before parting, it is required to be noted that the present case is not only for conviction under the New Act which has been enacted to prevent the menace of theft of energy. The Honble Apex Court has in a judgment reported in : 2007(1) GLR 643 in the case of Jagmodhan Mehatabsing Gujaral and Ors. v. State of Maharashtra has expressed concern over the issue and therefore in light of this, the New Act has been enacted. The aforesaid case before the Honble Apex Court was under Section 39 of the Old Act and the Honble Apex Court has suggested for imposing heavy fine. It appears that in that context the new legislation has been made, i.e. the New Act, providing for penalty at a higher rate. Even in that case also, the Honble Apex Court has considered about proper adjudication and, therefore, on one hand, while legislative provision is required to be considered regarding fine, on the other, the basic principles regarding grant of bail or suspension of sentence has to be considered.

7.24 It will have to be appreciated and noted that while providing for such provision or harsh penalty, which, as discussed above, has resulted in not only harassment but injustice, it will certainly have to be examined in light of Article 21 of the Constitution of India. Prevention of the menace of the evil of theft of energy is in its place, but the guarantee of life and liberty of the citizen including of the accused will have to be considered and both the claims have to be balanced.

7.25 It may not be out of place to mention that even for a heinous crime the right of the accused under Article 20 and 21 are considered and the concept of fair trial is also evolved. If these provisions are there which are so abused and misused could also be a matter of concern for appropriate action to be taken. The court is conscious that mere harshness of the penalty or the sentence or operation of law is harsh will not be a ground for any deviation or showing any leniency. But a situation is created where, though otherwise a person is sentenced for a fixed term where normally the suspension of the sentence would be granted, but for the aspect of payment of fine which is imposed under the new statute and the person/accused is not able to pay the fine, would languish in jail without trial or without any opportunity. The court with its burden may not be able to take up the hearing of the appeal even if it is filed which will create a situation which calls for some kind of indulgence which will protect and maintain equilibrium between the two rival claims of the accused as well as the prosecution. The provisions of Section 389 stands on a different footing and even if the conviction is recorded, the aspect of sentence under Section 389 has to be considered with regard to the guidelines laid down by the Honble Apex Court in catena of judicial pronouncements including the observations made in a judgment in the case of Suresh Kumar and Ors. v. State (NCT of Delhi) reported in : (2001) 10 SCC 338 [LQ/SC/2000/1466] and also the judgment reported in the case of Kamal v. State of Haryana reported in (2004) 13 SCC 526.

7.26 Therefore, in view of the discussion made hereinabove, the present appeal stands allowed. The judgment and order dated 26.2.2010 rendered in Special Electric Case No. 14/2005 by the learned Special Judge, Vadodara, recording the conviction of the accused is hereby quashed and set aside. The amount of fine paid, if any, may be adjusted towards the dues.