Supreme Court of Mauritius, 6 février 2020, 2020 PL2 28 – Pce v Maudarbacus

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Pce v Maudarbacus

2020 PL2 28

POLICE v MAUDARBACUS Bibi Noorjahan

CN:3919/16 IN THE DISTRICT COURT OF PORT LOUIS (2nd Division) In the matter of:

POLICE V MAUDARBACUS Bibi Noorjahan

JUDGMENT

The accused stands charged with the offence of Tampering with CEB installation in breach of Sections 41(2)(b) 3 of the Electricity Act 2005. Accused pleaded not guilty and was represented at trial stage.

Prosecutor called witness no.1, CPL Poteeram, who read and produced defence statement of the accused, marked as Doc A. The witness was duly cross-examined. Prosecution called witness no.2, CPL Goorah, who related that on 01/07/13, he accompanied Mr Purgas at the residence of the accused and noticed that on the first floor, there were three meters, out of which

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two were black in colour and the middle one was white in colour. He added that Mr Purgas needed to check the meter and that the latter told him that the house belongs to the accused. The witness was duly cross-examined. Prosecution then called witness no.3, Mr Nishriananda Purgas, who related that after effecting a visit on locus at No.115 Magon street, Plaine Verte, he noticed that the seals on the mechanism was broken. The lab concluded that the apparatus had been tampered with and that the accused carries the responsibility of the meter. The witness stated that the accused was conveyed to a meeting and that she agreed that she tempered with the apparatus and agreed to pay arrears. The witness stated that he saw accused on locus. The witness was duly cross-examined and produced a document emanating from the CEB and marked as Doc B. The witness was re-examined. Prosecution then called witness no.4, Mr Ootumdev Singh Mohabeer, who related that on 30/04/12, following an inspection carried out at the residence of the accused, he noticed that there was no seal on the apparatus. He drew the attention of his superior officer to this fact and the latter instructed him to place two seals. The witness produced a document to the effect that the meter is in the accused’s name, marked as Doc C. The witness was cross-examined. Prosecution called witness no.5, Mr Jeetendra Seetohul, who produced a report from the CEB, marked as Doc D. The witness explained that the meter was sent to the laboratory and it was concluded that the apparatus was not registering seventy percent of actual consumption, which was abnormal. Upon examining the apparatus, it came to light that the inside part of the apparatus had been tampered with. Parts of it had been filed and there was glue on same. He also added that accused shouldered responsibility for the apparatus. The witness was duly cross-examined. The case was then closed for the prosecution. The case was then closed for the defence. Counsel made a submission. The Court has considered the evidence on record. Section 41 (2) (a)(3) of the Electricity Act 2005 provides as follows:

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(2) Any person who, in any manner, without lawful authority or excuse, the proof of which shall lie on him – (…) (b) by means of any apparatus or device connected to any electrical facilities maintained or operated by a licensee- (i) defrauds the licensee of any fee or charge properly payable for any electricity service; (ii) fraudulently installs or causes to be installed an access to any electrical facilities of a licensee; shall commit an offence and shall, on conviction, be liable to a fine not exceeding 100,000 rupees and to imprisonment for a term not exceeding 5 years. (3) In any proceedings against a customer under this section – (a) the fitting of any device to, the absence of any part from, and the interference with, any installation set up for recording the input, output or consumption of electricity; or (b) the absence of, or interference with, any seal affixed to any meter, shall be evidence that the customer was himself responsible for – (i) abstraction, consumption or use of electricity; (ii) the alteration of the index of any meter or instrument; (iii) the prevention of any meter from duly recording the input, output or consumption of electricity, unless the customer proves to the satisfaction of the Court that he has not been privy to any of the acts specified in paragraphs (a) and (b).”

The Court took note of the following: • The accused denied the charge. • The Court takes note of Doc B, which is purportedly a document (called a Voluntary agreement) emanating from the CEB to the effect that the accused acknowledges that adjustments are to be

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made in order to settle the amount pending for consumption. Clearly, the Court is not willing to construe same as being a confession, given the CEB is not an institution that holds powers to record a confession in line with the parameters set by Law regarding caution and Constitutional rights amongst others. Accordingly, this document is of no interest to the present case. • Doc C also emanates from the CEB. On another note, Court wishes to draw the attention of the CEB to the fact that official documents are to be produced in Court in a proper state, free from hand written annotations and most certainly not printed out on what appears to be scrap paper. This document appears to be some sort of unsigned report of events. Attached to same is some sort of spreadsheet containing figures which are barely visible to the human eye, so that the Court is not even in a position to consider this document. • CPL Poteeram stated in cross-examination that there is no information regarding the person who tampered with CEB installation. This fact was also confirmed by CPL Goorah. • There are three meters in the house, thus indicating that there are several households under a single roof. In the absence of any specific evidence to link the accused personally to the offence, the Court finds that the evidence put forward by the Prosecution is meagre. • The Court is of the view that if the police itself concluded that there is no indication as to who tampered with the installation, this leads to the irresistible conclusion that the participation of the accused in the event is merely hypothetical and does not fall within the sacrosanct principle of beyond reasonable doubt. Accordingly, the Court finds that the Prosecution has failed to prove its case beyond reasonable doubt and dismisses the case.

Mrs Manjula Kumari Boojharut (District Magistrate) Delivered on 06 February 2020