Full Judgment
Edgley, J.
1. The petitioner in this case has been convicted under Section 44 (d), Electricity Act. It is contended on his behalf that the judgment of the learned Magistrate contains no sufficient finding to warrant a conviction under this section. With this contention I must agree. The case for the prosecution appears to have been that the petitioner improperly used three points in his workshop for lighting purposes when he was under a contract with the electric supply company to use the energy supplied through these points for industrial purposes only. The learned Magistrate seems to have been of the opinion that it might be presumed that he had used the electrical energy improperly as alleged by the prosecution because he had made certain connexions for the use of electrical energy without the consent of the licensee. In my opinion he has misread Section 44, Electricity Act. This section inter alia imposes a penalty for improperly using the energy of a licensee. The onus would therefore lie on the prosecution to show that there had actually been improper use of the energy. For example, in the case with which we are now dealing, the onus would lie on the prosecution to show that three of the points in the petitioner's workshop had actually been used for lighting purposes and not for industrial purposes. The learned advocate for the Crown places some reliance upon the latter part of the section in so far as it relates to Clause (d), which is to the effect that
if it is proved that any artificial means exist .... for facilitating such improper use as is referred to in Clause (d) .... it shall be presumed, until the contrary is proved that such .... improper use .... has been knowingly and wilfully caused by such consumer.
2. This provision does not exonerate the prosecution from discharging the onus which lies on it to show that there has been improper use of the energy of a licensee, but merely provides that in case there has been such improper use, the consumer himself as defined in Section 2 (c) of the Act will not be able to avoid the liability by saying that the energy was used by some person over whom he had no control. From the findings contained in the judgment it is clear that the requisite onus was not discharged in this case. In this view the conviction cannot be supported. It is therefore set aside and this rule is made absolute. The fine, if already paid, will be refunded.