033-NLR-NLR-V-59-K.-A.-KULATUNGE-Appellant-and-THE-SUPERINTENDENT-ELECTRICAL-DEPARTMENT-WELIG.pdf
GUXASEKARA, J.—Kulatunge v. The Superintendent, Electrical 113
Department, M'eligama Urban. Council –'
1955'Present : Gunasekara, J.K.A. KULATUNGE, Appellant, and THE SUPERINTENDENT,ELECTRICAL DEPARTMENT, WELIGAMA URBAN.COUNCIL,
'Respondent .'.
S. O. 400—M. C. Malara, 34,741.
Electricity Act, JVo. 10 of 1950—Section GG—Cutting electric wire—Ingredients ofoffence—" Unlawfully
In a prosecution under section G6 of the Electricity Act for cutting electricwires the complainant must establish that the accused acted unlawfully whenho cut the wires.
-/^^-PPEAL from a judgment of the Magistrate’s Court, Matara.
E. Chilly, with A. K. Premadasa, for accused-appellant.
Christie Senevirafne, with D. S. Nethsinghe, for complainant-respondent.
. Cur. adv. vult.
February 25, 19o5. Gunasekara, J.—
The appellant was convicted of anoffence punishable under section 66of the Electricity Act, No. 19 of 1950, alleged to have been committed byhim on the 5tli December, 1953, and was sentenced to six weeks’ rigorousimprisonment.-
The section is in the following terms :
“ Whoever unlawfully and maliciously cuts or injures any electricline or works with intent to cut off any supply of energy shall be guiltyof an offence punishable with a fine not exceeding five hundred rupeesor with imprisonment of either description for a term not exceedingsix months or with both such fine and such imprisonment. ”
At the time of the alleged offence the Urban Council of Weligama wassuppling the appellant with electricity for payment, in pursuance of anagreement that they had entered into in April, 1917. The agreementcontains a clause stating that the Council “ reserves the right to connectother consumers to the service main wherever the supply to the originalapph'cant is not affected thereby ,r. In purported exercise of such a rightthe Council connected the house of another of its customers, Edmund, tothe service main supplying the appellant’s house. The new servicemain was fixed to a support on a wall of the appellant’s house and wasstretched over his roof to that of Edmund’s house 90 feet away. .'Thishad been done in the appellant’s absence and in spite of his having on an.'
114 _f._ GUNASEKAJRA, -J-.—Kulatuhgeif. The Superintendent,'Electrical _
V ;.■; Department, Jf'eligama Urban Council – ' 7v ' y* ■
■earheroccasionjobjected to itsjbeing done.' ] He returned home just as the
Council’s workmen had finished their rork and he asked them to. disconnect' the wires thatth'ey had fixed. ~l They refused to do so and he thereupon
cut the "wires (which were'already charged with electricity) at the place
where they had been fixed to.the support. '..-.- . – –
' One of the ingredients of the offence alleged, to have been committed. by the appellant is that he acted “ unlawfully ” in cutting the vires.
– Therefore the conviction cannot stand unless there is proof of facts thatmade it unlawful for him to cut them although they had been attachedto his house in spite of his objection and those who fixed them refused toremove them. His act could not be unlawful unless the Urban Counciland its servants acted lawfully in fixing the service main fpr the supply•of electricity to Edmund’s house..
Section 2 (1) of the Electricity Act provides that (except in certaincircumstances that have no application to the present case) “ no personunless he is authorised in that behalf by a licence granted by the Minister,shall …. for any fee or reward supply electrical energy to anyother person ”, and in terms of section 62 (1) a contravention of this pro-vision is an offence. The respondent was cross-examined at the trialas to whether the Urban Council had a licence to sell electrical energyand he said that it had but that he had “ not brought the licence ”. Inre-examination he repeated his assertion that “ the Weligama UrbanCouncil is a licensee ”, but the licence was not produced. Even thewitness's statements that the Council had a licence did not refer to thetime of the alleged offence but the time of the trial. '
Among the provisions that may rbe included in a licence issued under. the Act, are, as may be expected, provisions relating to “ the authorisedArea of supply ” (section 4), and a licensee is prohibited from supplyingelectrical energy to any person outside that area unless the supply tothat person has been authorized by an order made by the Minister (section10 (4) ). Even if it is assumed that at the material time the Council held alicence to supply electrical energy for payment there is no evidence as towhat was the authorized area of supply at that time or whether Edmund’shouse, or even the appellant’s house, was situated in that area, or whether .the Council was in any manner authorized under the Act to supply elec-trical energy to either house for payment. The “ right to connect otherconsumers to the service main ” which the Council purported to reserveto itself in its agreement with the appellant can only be a right to connectconsumers whom it could supply with electricity without contraveningthe law. In the absence of evidence of the terms of the licence, if indeedthe Council had one which was in force on the 5th December, 1953, theprosecution has failed to establish that the. appellant acted unlawfullywlieivhe cut the wires. —~ .‘
.'I set aside the conviction of the appellant and the sentence passed upon,him'and I acquit him. .‘‘’
Apjical allowed.