( 1 ) THE petitioners have been convicted under S. 87 of the Mysore Police act, 1963, hereinafter referred to as the Act, and sentenced to a fine of rs. 50 each by the Special First Class Magistrate, Madhugm. in CC. No. 21 of 1971. ( 2 ) THE material facts necessary for the disposal of this petition are these: on 6-1-1971, the Superintendent of Police, Tumkur District (PW. 1) received reliable information that gambling was going on near madhugiri Town. He proceeded to Madhugiri with some beserve Police, Special Branch, Sub-Inspector of Police and head Constable. He came near Harihareswara Temple near Madhugiri at 4-30 P. M. There he directed his men who had accompanied him to change their dress. Then he proceeded to Shandy Maidan. From the shandy Maidan he observed that about 30 to 40 persons had gathered in a dry land belonging to Putta Kamanna. As he proceeded towards those persons, he observed that 20 to 25 persons were standing around the place and the petitioners viz. , 14 in number playing cards and some among them saying Andhar Bahar. The Superintendent of Police surrounded those persons who were playing cards and those who were standing there. All the persons that were standing, ran away but however the petitioners who were engaged in playing the game called Andhar Bahar were apprehended. He seized a cash of Rs. 716-27 P. , playing cards, matches, chappals, etc. and a cycle under Mahazar Ext. D-1. On these facts, the prosecution alleged that the accused were playing a game of chance with stakes in a public place liable to be punished under S. 87 of the Act. Six witnesses have been examined in this case. Except one person, the others are all police officials. PW. 1 is the Superintendent of Police and PW. 2, PW. 3 and PW. 4 are Police Officials working under him. Their evidence is that they found these petitioners playing, a game of chance called Andhar Bahar staking money at about 4-30 P. M. PW. 5, who was present at the time the petitioners were apprehended, has not supported the case of the prosecution. He has deposed that some 5 or 6 persons were playing cards at about 1 or 1-30 P. M. Because he did not support the case of the prosecution he was treated hostile. 5, who was present at the time the petitioners were apprehended, has not supported the case of the prosecution. He has deposed that some 5 or 6 persons were playing cards at about 1 or 1-30 P. M. Because he did not support the case of the prosecution he was treated hostile. There is no dispute in this case about the seizure of the cash and other articles or the apprehension of the accused when they were playing cards. The evidence of the four police officials is that the accused persons were playing a game of chance called Andhar Bahar. They do not say that the accused persons were playing the game in any public street, or thoroughfare or in any place to which the public have or are permitted to have access or in any Race Course. ( 3 ) IT is contended on behalf of the prosecution that the place where the petitioners were playing a game of chance was a place to which the public had or were permitted to have access. There is no proof whatsoever in this case that the place where the petitioners were playing cards, assuming that they were playing a game of chance, was a public place to which the public had access or were permitted to have access. But on the other hand, the evidence of the Supdt. of Police is that the land belonged to one Putta kamanna and it was a dry land. Although the public can go to the land without any objection being raised by Putta Kamanna, the question that arises in this case is whether the dry land belonging to a private individual is a place to which the public have access as a matter of right or are permitted to have access. Casual going into the land as is done in the rural parts is not the same thing as saying that the persons who go to the land have a right to go to that land, unless the evidence points out that at least the owner of the land had permitted free access to the public. Casual going into the land as is done in the rural parts is not the same thing as saying that the persons who go to the land have a right to go to that land, unless the evidence points out that at least the owner of the land had permitted free access to the public. ( 4 ) THERE being no evidence that Putta Kamanna had allowed the public to have free access to the land or in the alternative that they had a right of access to that land, the dry land in which the petitioners were playing the cards on the day in question cannot come within the definition of place to which the public have or are permitted to have access. It is not the case of the prosecution that the petitioners were playing in a public street or throughfare much less in any race course. That being the case even assuming for the sake of argument that the petitioners were playing a game of chance staking money in the private land belonging to Putta kamanna they cannot be held liable under S. 87 of the Act. Gaming per se is not punishable. What is punishable is gaming in a place stated under S. 87 of the Act. As a matter of fact this section begins as "who ever is found gaming in a public street" meaning thereby that the place where the persons play the game of cards with stake must be either a public street, a thoroughfare or any place to which the public have or are permitted to have access or in any Race Course. If that is proved, then only the prosecution will succeed. In this case the very essential ingredient of s 87 of the Act is not proved and on the other hand what has been proved is that the accused were playing cards in a private land. That is not punishable under S. 87 of the Act. ( 5 ) IN the result, I allow this petition, set aside the convictoin and sentence passed by the learned First Class Magistrate, Madhugiri, and acquit the accused. When the petitioners have not committed an offence under s. 87 of the Act, the seizure of money, viz. , Rs. 716-27, the Cycle M. O. 5 and other articles and the confiscation thereof are illegal. When the petitioners have not committed an offence under s. 87 of the Act, the seizure of money, viz. , Rs. 716-27, the Cycle M. O. 5 and other articles and the confiscation thereof are illegal. I therefore direct the return of the cash of Rs. 716-27 to the 1st petitioner, and Cycle m. O. 5 to Madivalappa, who has claimed the cycle in the lower Court. So far as the other articles are concerned, they are of no value and therefore they may be destroyed. --- *** --- .