Judgment :- 1. Accused in S.T. No.1 of 1968 on the file of the court of the District Magistrate (Judicial) Kottayam is the revision petitioner. He is convicted and sentenced to pay a fine of Rs. 50/-; in default to undergo simple imprisonment for a period of 2 weeks for an offence under S.39 read with S.38 and 44 of the Travancore-Cochin Medical Practitioners Act 1953 (Act IX of 1953). The allegation against him is that he practised allopathic medicine without getting necessary registration or enlistment from the Council of Modern Medicine as required by S.38 of the above Act, (which will hereinafter be referred to as the Act) which is punishable under S.39. 2. The fact that the petitioner practised modern medicine is more or less admitted. Proceeding against the petitioner was initiated on the basis of a written complaint Ext. P1 dated 1-2-1966 from pw. 2 Jacob Abraham who is a registered medical practitioner. pw.1 Registrar, T.C. Medical Council, on receipt of the complaint asked the explanation of the petitioner on 2-3-1966. On 19-4-1966 the petitioner sent up his explanation which is contained in Ex.P4. The petitioner has admitted his practice in Allopathy in his explanation. Thereafter Pwl made a local inspection of the petitioner's dispensary which he conducts at Kumarakam in the name and style of Sreedhar's Dispensary, and prepared Ext. P6 mahazar thereof. During the inspection the petitioner also gave in writing as per Ext. P5 a memorandum to the effect that he practised modern medicine. On completion of the investigation the Government was requested by the Executive Committee of the Council of Modern Medicine to accord sanction to prosecute the petitioner Accordingly sanction was accorded by the Government as per G.O. Rt 3853/67/HLD dated 22-9-1967. The prosecution was laid by Pwl on these allegations on 11.31968. Pw3 Sreedharan and Pw4 Parameswaran Nair are examined to prove that the petitioner practised modern medicine. 3. The prosecution was laid by Pwl on these allegations on 11.31968. Pw3 Sreedharan and Pw4 Parameswaran Nair are examined to prove that the petitioner practised modern medicine. 3. The learned counsel of the petitioner raises the contention that no conviction can be entered against the petitioner as there has been no proof that except S.1 of the Act the remaining sections of the Act have come into force as required by S.1 (3) of the Act, that neither any notification nor Gazette publication is in evidence to prove that the various sections of the Act have come into force, and that in view of the absence of the Gazette Notification in respect of the direction contained in S.1 (3) of the Act it shall be deemed that the provisions of S.38 and 39 have not come into force, that the court below erred in holding that the law laid down in 1966 K.L T. 102 and 1966 K.L.T. 638 has no application to the facts of the instant case and that the lower court has misdirected itself in the application of correct law in the case. 4. The point that arises for determination in the case is whether there is sufficient evidence on record to convict the petitioner under S.39 of the Act. The sustainability of the conviction depends upon the requisite proof as to whether S.38, 39 and 44 of the Act have come into force or not. The S.1 of the Act is quoted in full as follows: 1. Short title, extent and commencement. (1) This Act may be called The Travancore-Cochin Medical Practitioners Act. 1953. (2) It extends to the whole of the State of Travancore-Cochin. (3) This section shall come into force at once; and the remaining provisions of this Act shall come into force on such date or dates as the Government may by notification in the gazette appoint." 5. On a reading of S.1 (3) it is clear that the relevant sections under which prosecution is launched have come into force with effect from a particular date. The prosecution did not let in any evidence to show that there had been material to establish that a Gazette notification was issued in compliance with the provisions of S.1 (3). On a reading of S.1 (3) it is clear that the relevant sections under which prosecution is launched have come into force with effect from a particular date. The prosecution did not let in any evidence to show that there had been material to establish that a Gazette notification was issued in compliance with the provisions of S.1 (3). Even if there is any such Gazette notification bringing into force the various sections of the Act, the court is not bound to make a judicial notice of the same on the strength of S.57 (7) of the Evidence Act. But the question as to whether judicial notice of the Gazette publication can be taken or not does not seem to arise in this case since I find the prosecution did not produce any Gazette notification in the lower court or in this Court. However it may be argued that a Gazette Notification is available and that the same shall be taken into consideration The question that requires to be considered in such a case is whether the court is bound to take judicial notice of the Gazette notification and say that the provisions of S.1 (3) are complied with to enable the court to record a finding that the accused is guilty of the offence with which he is charged. I have already indicated that the production of the Gazette notification is not by itself sufficient compliance of the section. The prosecution has to put in that Notification as an exhibit in the case to enable the court to record a finding that the prosecution has proved the charge against the accused. 6. In Pyli v. State of Kerala (1966 K.L.T. 102) the prosecution was under S.27 of the Kerala Forest Act, 1961 for an alleged trespass into a Reserve Forest. When any land is declared as a Reserve Forest in accordance with that Act Government will publish in the official gazette the limits of the forest which the Government intended to reserve declaring the same to be reserved from a date to be fixed by such notification and that from the date so fixed the forest shall be deemed to be Reserve Forest. The contention in that case was that the prosecution did not produce any notification that the land alleged to have been trespassed is a Reserve land. The Division Bench of this court upheld the above contention. The contention in that case was that the prosecution did not produce any notification that the land alleged to have been trespassed is a Reserve land. The Division Bench of this court upheld the above contention. Krishnamoorthy Iyer J. who spoke for the Bench said: "It is a pre-requisite for a person to be held guilty under S.27 of the Act that there should be a notification under S.19 duly published in the Gazette. In the absence of such a notification the accused could not be found guilty, for contravention of the provisions of S.27 of the Act. In all the cases which gave rise to these Criminal Revision Petitions neither the notification published under S.19 of the Act nor a copy thereof was produced. The question raised in these Criminal Revision Petitions is whether without the production of the notification issued under S.19 of the Act the conviction under S.27 can be sustained? On behalf of the accused it is submitted apart from proving the commission of the acts mentioned in S.27 of the Act, the prosecution must also prove the existence of a notification issued under S.19 of the Act specifying the limits of the forest which is intended to be reserved from the date fixed in the notification and the publication of the same in the gazette." 7. The above decision was followed up by a later decision in Chandrasekharan v. State (1966 K L T. 638) That was rendered by a Single Judge. In that case the accused sold "rice above the maximum price fixed by the State under the Essential Commodities Act, 1955 Madhavan Nair J. has stated the effect of Government Notification in the following terms: 'True it is that black-marketing is a highly anti-social conduct that deserves severe punishment by courts; but that is no reason to overlook the standard of proof in criminal trials. In order to ascertain the maximum price fixed for a commodity there ought to be on record legal evidence regarding its controlled price. Notifications of the kind in question are not matters for judicial notice but for proof by production of the gazette or otherwise. As no notification fixing the maximum price for the goods is in proof here the prosecution cannot be said to have made out a case against the accused. Notifications of the kind in question are not matters for judicial notice but for proof by production of the gazette or otherwise. As no notification fixing the maximum price for the goods is in proof here the prosecution cannot be said to have made out a case against the accused. The Supreme Court in Salekh Chand v. The State of Uttar Pradesh (A.I.R.1960 S.C. 283) on a similar ground held: "In order to ascertain whether the price of Rs. 9/14/ per bag was beyond the controlled rate of cement there ought to have been on the record legal evidence as to what was the controlled price of a bag of cement fixed under S.6 or S.7 of the U.P. Cement Control Order of 1953 Since there is no legal proof to that effect, it is clear that it has not been established on the evidence as it stands that the sale of cement by the appellants was beyond the controlled price of cement fixed according to law. It was urged on behalf of the State however that this point had not been taken in any of the courts below and that at no time had it been questioned that the controlled price of cement was other than what had been stated by Iswar Sahai. That may be so. If however, it has to be established that the appellant sold the cement beyond the controlled price then there must be legal proof of what that controlled price was at the lime the sale took place. As in this case such evidence is lacking it will be impossible for this court to uphold the conviction there being no legal proof as to what was the controlled price of cement on the date of sale. In our opinion even at this stage such a point can be taken as it would be the duty of this court to see that there was legal evidence as to what was the controlled pries of cement on the date of the sale before it could say that the appellants had been rightly convicted of the offence with which they had been charged. As there is no legal proof of what was the controlled price of cement on the date of the order by the appellants, they could not be convicted of the offence with which they had been charged. As there is no legal proof of what was the controlled price of cement on the date of the order by the appellants, they could not be convicted of the offence with which they had been charged. The appeal is accrodingly allowed and the conviction and sentence passed against the appellants are set aside." 8. The opinions expressed in the above cases are applicable to the facts of the instant case. These are cases in which the prosecution failed to establish one of the ingredients of the offence which it had to establish to make out the offence charged which could be proved only by production of the relevant notification. I have pointed out that the notifications under those circumstances did not fall under any of the clauses of S.57 of the Evidence Act. Isaac J. in Abdulla Haji v. Food Inspector (1967 KLT. 577) distinguished the above decisions from the one he has dealt with. According to the learned judge judicial notice of a Government notification can be taken as it falls within the purview of S.57 (7) of the Evidence Act if it relates to the "functions of persons filling for the time being any public office in any State". That function is not a fact to be established for making out a charge against the accused. The question that arose for consideration before the learned judge was whether the complainant in that case had been authorised by the State Government under S.20(1) of the Prevention of Food Adulteration Act, 1954 to institute prosecution for an offence under the Act by an order issued under the said Act. Isaac J. stated as follows on this question: "The question that arises for consideration in this case is whether the complainant has been authorised by the State Government under S.20(1) of the Act to institute a prosecution for an offence under the Act by any order issued under the said section. This is not a fact to be established for making out the charge against the accused. The question whether the complainant is authorised to institute the prosecution against the accused has no relevancy on the issue whether the accused is guilty of the charge or not. This is a matter which directly comes within Clause.7 of S.57 of the Evidence Act. The question whether the complainant is authorised to institute the prosecution against the accused has no relevancy on the issue whether the accused is guilty of the charge or not. This is a matter which directly comes within Clause.7 of S.57 of the Evidence Act. The fact that a Food Inspector of a Panchayat is authorised by the State Government under S.20(1) of the Act to institute a prosecution for an offence under the Act is one relating to the "functions of persons filling for the time being any public office in any State" within the meaning of Clause.7 of S.57 of the Evidence Act. Under sub-section 7 of S.57 judicial notice has to be taken of the office occupied by a particular individual, if the fact of his appointment is notified in the official Gazette. Such notice can be taken if a Gazette is produced for inspection of the court at the time of the argument in the original, appellate or revisional court just as the law can be perused at any stage under sub-section (1). It is obviously unnecessary for the prosecution to put a copy of the relevant notification on the record of the case as an exhibit". 9. Similar is the view taken in Ramlagan Singh v. State of Bihar AIR. 1960 Patna 243). It runs as follows: "Under sub-section 7 of S.57 of the Evidence Act judicial notice has to be taken of the office occupied by a particular individual if the fact of his appointment is notified in the official gazette. Such notice can be taken if a Gazette is produced for inspection of the court at the time of the argument in the original, appellate or revisional court, just as the law can be perused at any stage under sub-section (1). It is obviously unnecessary for the prosecution to put a copy of the relevant notification on the record of the cases as an exhibit". A concurrent view is held in Dhapat v. State (AIR. 1960 All. 40). In that case the prosecution failed to produce the order of sanction as required by S.29 of the Arms Act for the purpose of prosecution of an offence under S.19 (f) of the said Act. A concurrent view is held in Dhapat v. State (AIR. 1960 All. 40). In that case the prosecution failed to produce the order of sanction as required by S.29 of the Arms Act for the purpose of prosecution of an offence under S.19 (f) of the said Act. It was held that the production of the sanction notification is sufficient for the court to take judicial notice of the same under S.57 (7) of the Evidence Act without any formal proof thereof. 10. In the instant case it is incumbent on the prosecution to produce the gazette notification and prove positively that S.38, 39 and 44 have come into force with effect from any particular date. Unless it is produced and proved it cannot be said that the prosecution has discharged its burden to establish the charge levelled against the accused. Under these circumstances the decisions referred to in 1966 KLT. can be distinguished from the decision in 1967 K.LT. 11. On a consideration of these circumstances I am of the opinion that the prosecution is not sustainable against the petitioner as the prosecution failed to prove the charge against him. The conviction and sentence are both set aside. Fine if any collected will be refunded to the petitioner. The revision petition is allowed. Allowed.