The prosecution has the burden to produce and prove the Gazette notification for the enforcement of relevant sections of the Act to establish guilt.

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 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). 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