ORDER Mahesh Chandra, J. - This is a Government appeal against the acquittal of Ram Bahadur, Kallu, Ram Kishore, Baleshwar Prasad, Sri Prakash, Ram Nath, Chhadami Lal, Paggal, Gaya Prasad and Rameshwar. All of them had been prosecuted u/s 13 of the Public Gambling Act. 2. The case against them was that they were gambling with stakes of money with the help of cards on a public way in village Phoolpur on the canal patri of district Etawah on 4-7-1964 at about 2.30 a.m. The Respondents pleaded not guilty and alleged that they had been falsely implicated. They stated that they had gone to village Phoolpur at the invitation of one Ram Bahadur. The police party passed from that village and arrested them. 4. The witnesses examined for the prosecution were Bharat Singh (PW1), Mohammad Ahmad (PW2) and Ram Charan (PW3). All of them stated that the accused were found gambling on the canal Patri. The learned Magistrate acquitted them on the ground that the canal Patri was not a public place. 5. Section 13 of the Public Gambling Act runs as follows: A police officer may apprehend without warrant any person found playing for money or other valuable thing with cards, dice, counters or other instruments of gaming, used in playing in game not being a game of mere skill, in any public street, place or thoroughfare situated within the limits aforesaid, or, ..................... It is evident that the gambling must be in a public street, place or thoroughfare. On behalf of the State reliance was placed on UP Act No. XXXIV of 1952 adding an explanation to Section 13 of the Public Gambling Act in its application to U.P. The explanation runs as follows: Explanation--For the purpose of this section "public place" includes any open space situate adjacent to and abutting a public street and not separated therefrom by a boundary wall. 6. By this explanation an open space adjacent to and abutting a public street was also included within the meaning of the word 'public place'. It is, however, obvious that to take the benefit of this explanation it has to be established by the prosecution that the open space was adjacent to and abutted a public street and that it was not separated therefrom by a boundary wall. It was, therefore, necessary for the prosecution to establish that there was a public street close by. It is, however, obvious that to take the benefit of this explanation it has to be established by the prosecution that the open space was adjacent to and abutted a public street and that it was not separated therefrom by a boundary wall. It was, therefore, necessary for the prosecution to establish that there was a public street close by. A canal Patri itself is not a public street. As observed by Wilberforce, J. in Matwala Ram and Ors. v. Emperor AIR 1921 Lah. 141, the canal embankment admittedly belongs to the Government and the public may have access thereon or not according to orders in force. It is certainly not a place dedicated to the use of the public and could not be said to be a public street or a public place within the meaning of the Gambling Act. There is no evidence that any public street was adjacent to or abutted the canal Patri where the accused were found gambling. Nor is there any evidence to show that the canal bank was used as a public thoroughfare or appropriated to the use of the public. In Nawab Muhammad Azmat Ali v. Mt. Lalli Begum (1882) 17 PR 1882) 'public road or place' is said to be "one appropriated to the use of the public". In these circumstances, the prosecution case does not satisfy the essential ingredients of Section 13 of the Public Gambling Act even as extended by the explanation added to that section by the UP Act No. XXXIV of 1952. The acquittal was, therefore, just and proper. 7. Before taking leave of this case, I must express my surprise that the Government had been advised to file such an appeal. 8. The appeal is without substance and is dismissed.