The main legal point established is that the Excise Inspector is competent to prosecute offenders under the Abkari Act without the need for sanction from higher authorities, and the lack of supervision by the Excise authorities over the liquor sold through licensed outlets is a serious concern.

1. Petitioners, 3 in number, seek anticipatory bail since they fear arrest on the allegation that they committed offence u/s.57 A of the Abkari Act (hereinafter referred to as the Act).

2. The allegations made against them in short are as follows:-- Petitioners 1 and 2 were abkari contractors for arrack shops bearing Nos.20 to 30 at Neeleswaram Range. Third petitioner was the manager of the godown. Three samples were taken from the arrack godown 21/87-88 on 11-8-1987. Samples were sent to Chemical Examiner, Government Regional Office at Calicut for analysis. The report received by the Circle Inspector of Excise on 26-2-1988 shows that one sample contained methyl alcohol and other two samples had lesser content of alcohol. Thereupon notice was issued calling upon them to show cause why action including that for cancellation of the licence should not be initiated. Petitioners filed their objections. It is alleged that petitioners 1 and 3 agreed to have the offences relating to the sample being of less or strength compounded. They did not state any thing regarding the presence of methyl alcohol in the sample. As per legal opinion given by Asst. Public Prosecutor offence under S.56(b) alone cannot be compounded since petitioners are found to have committed offences u/ss.56(b) and 57A (3) of the Act.

3. As stated earlier, the sample was taken on 11-8-1987. Circle Inspector of Excise got the Chemical Analyst's report regarding the sample on 26-2-1988. In the affidavit filed by the Circle Inspector of Excise, Hosdurg it is averred that a case was registered as crime 100/88 u/s.56(b) and 57A(3) of the Act against the contractors and godown manager on 27-2-1988. It is also stated that an occurrence report in the case was sent to the Judicial II Class Magistrate, Hosdurg on the same day. No further action for the prosecution of the petitioners was taken by him till date. In the affidavit it is stated that he was asking for sanction from his superiors including the Board of Revenue (Excise) to prosecute the licensees. No sanction from the higher-ups was received till date. It is also stated that petitioners are hot entitled to bail in view of the provision contained in S.57A(4) of the Act.

4. No provision in the Abkari Act was placed before me by the learned Public Prosecutor which enjoins upon the Circle Inspector of Excise to get sanction from his superior officers or the Board of Revenue (Excise) for initiating prosecution before criminal court against offenders under the Act. Learned Public Prosecutor placed before me the Excise Manual to contend that Excise Inspector should take sanction from the higher officials to initiate prosecution against the offenders. The manual placed before me is not shown to have been issued under the provisions of any statute. The manual contains administrative instructions issued by the Department for the guidance of its subordinate officials. Those instructions in the manual cannot over-ride the provisions of the Abkari Act. When Abkari Act does not contemplate sanction from higher authorities the Circle Inspector of Excise who is alleged to have detected the offence and is competent to initiate prosecution ought to have prosecuted the petitioners. The learned Public Prosecutor has no case that an Excise Inspector is not competent to prosecute those who violate the provisions of the Act. In this case the Excise Inspector has not initiated prosecution prima facie in an attempt to have the offence compounded. So the action of the Circle Inspector of Excise, Hosdurg in not initiating prosecution proceedings against the petitioners for offence u/s. 57A of the Act on the ground that he did not get the sanction from the higher authorities is untenable.

5. In Para.13 of the affidavit filed by the Circle Inspector of Excise it is averred that on 14-6-1989 the second petitioner appeared before him and stated that he was not involved in the business of arrack except giving a solvency certificate and powe