w w w . L a w y e r S e r v i c e s . i n



Jayanta Kumar Das v/s State of Assam


    A.B. No. 1205 of 2017

    Decided On, 27 October 2017

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE UJJAL BHUYAN & THE HONOURABLE MR. JUSTICE PARAN KUMAR PHUKAN

    For the Petitioner: N. Dutta, Som, Advocates. For the Respondent: G.N. Sahewalla, Amicus Curiae, P.P. Baruah, Advocate.



Judgment Text

Ujjal Bhuyan, J.

1. We have heard Mr. N. Dutta, learned Senior counsel assisted by Ms. T. Som, learned counsel for the petitioner and Mr. P.P. Baruah, learned Public Prosecutor, Assam. We have also heard Mr. G.N. Sahewalla, learned Senior counsel who has assisted the Court as the amicus curiae.

2. This anticipatory bail application is before us as per order of Hon'ble the Chief Justice dated 21-07-2017 on the administrative side following an order passed by the learned Single Judge in the present application on 17-07-2017.

3. Submissions made by learned counsel at the Bar have received the due consideration of the Court.

4. Before we advert to the referral order, it would be apposite to briefly narrate the facts of the case.

5. Facts of the case :

Petitioner claims to be a businessman of Barpeta. A first information was lodged before the Officer-in-Charge, CID Police Station, Assam by one Shri Nirmal Baishya, APS, Additional Superintendent of Police, CID, Assam on 07-12-2012 stating that on the basis of specific source information, two trucks were intercepted on NH 37 at Amingaon, Guwahati on 07-12-2012 at about 7 AM. On search of the two trucks, 60 bags of rice of 50 kg. each, total 120 bags, were recovered. It was suspected that the rice was meant for public distribution. On demand, the two drive rs, Md. Rafiqul Islam and Md. Miahsan Ali, produced two road challans showing 17 quintals of Ijong rice in each challan in the name of M/S Das & Singha Wholesel lers of Barpeta. On further examination of the drivers, it revealed that the con signment was owned by the petitioner and was loaded at Patbausi, Barpeta as per instruction of the petitioner for delivery to a godown at Khanapara owned by one Shri Kamal Bhatera. It was stated that petitioner, Shri Kamal Bhatera and such other persons used to collect rice meant for public distribution at Government subsidized rate and sell the same in the open market for wrongful gain, thereby depriving eligible consumers from availing subsidized rice under the public distribution system (PDS).

6. The first information was treated as FIR and on the basis of the same, CID PS Case No. 96/2012 under section 7(1) of the Essential Commodities Act, 1955 was registered.

7. Petitioner had approached this Court for the pre-arrest bail on three occasions earlier. Each time the anticipatory bail applications were rejected. The present application is the fourth anticipatory bail application filed by the petitioner. This time it is specifically pleaded that offences under the Essential Commodities Act, 1955 (briefly the EC Act hereinafter) are bailable. In this connection, petitioner has relied upon a decision of the Madhya Pradesh High Court in the case of Santosh Sahare v. State of MP, Miscellaneous Criminal Case No. 2914/2015 decided on 07-05-2015.

8. On 16-06-2017, when the present anticipatory bail application was moved, learned Single Judge requested Mr. Sahewalla, learned Senior counsel, who was present in the Court, to examine as to whether an offence under Section 7 of the EC Act is bailable. On the next date i.e., on 19-06-2017, Mr. Sahewalla was requested to act as the amicus curie. Following a detailed hearing, the reference order was passed by the learned Single Judge on 17-07-2017.

9. Referral order:

Learned Single Judge in the order dated 17-07-2017 referred to an order dated 02-02-2016 passed by a Single Bench of this Court in AB No. 166/2016 (Hekmat Ali v. State of Assam) and the related order dated 05-02-2016 passed in an interlocutory application IA No. 469/2016.

10. AB No. 166/2016 was filed by the petitioner of that case seeking pre-arrest bail in connection with a police case which was registered under Section 7 of the EC Act. The anticipatory bail application was disposed of by order dated 02-02- 2016 by holding the same to be not maintainable as the offence under Section 7 of the EC Act was not a bailable one.

11. Subsequently, an interlocutory application was filed by the petitioner of AB No. 166/2016 which was registered as IA No. 469/2016 contending that the word not appearing in the order dated 02-02-2016 was due to an inadvertent typographical error; actually, the order was that the offence under Section 7 of the EC Act was a bailable one. By order dated 05-02-2016, the word not as appearing in the order dated 02-02-2016 was deleted and it was ordered that an offence under Section 7 of the EC Act was a bailable one which was directed to be read as part of the order dated 02-02-2016.

12. Thus, as per order dated 02-02-2016 passed in AB No. 166/2016 (Hekmat Ali v. State of Assam), as clarified by order dated 05-02-2016, an offence under Section 7 of the EC Act is a bailable one.

13. Learned Single Judge agreed with the submissions of the learned amicus curiae that it was not indicated in the said order as to why an offence under Section 7 of the EC Act was held to be bailable. Learned Single Judge than discussed the case of Purthviraj Chandrakant Shinde v. State of Maharashtra, (2005) 5 Bom CR 889, where after relevant portion of the said judgment delivered by the Bombay High Court was extracted as under :-

"2. It is the contention of the petitioners that the offences under the Essential Commodities Act, 1955, are bailable offences because the amendment which was carried out in the Act, by Act 18 of 1981 was for a fixed period. That period has expired and, therefore, now the specially inserted word 'non-bailable' in Section 10-A is not there in the Act and, therefore, offence becomes bailable offence.

3. Here it is necessary to note the changes which have taken place in section 10-A of the Essential Commodities Act, 1955. In the beginning, section 10-A was providing that the offences under the Act to be cognizable and bailable. However, by the Act 30 of 1974, amendment was effected. The words 'and bailable' were deleted. So, there remained the provision that the offences under the Act to be cognizable.

4. Obviously, when no provision is made under the special Act, with respect to whether the offences would be bailable or non-bailable, the provisions of the Code of Criminal Procedure, 1973, are attracted. So, the offences under the Essential Commodities Act, 1955, became bailable or non-bailable as per the provisions under the Code of Criminal Procedure, 1973, depending upon provision regarding punishment prescribed under the Act.

5. However, in the year 1981, Act 18 of 1981 was passed to amend certain provisions of the Act. Under the Act of 1981, the offences were made non-bailable by am ending section 10-A of the Essential Commodities Act, 1955. Act 18 of 1981 was at the first instance, for a period of five years. Then, the period was extended up to 10 years. Again by effecting amendment, by Ordinance No. 12 of 1992, the period was extended to 15 years. That means, the amended provisions were to remain in force for a period of 15 years from 1-9-1982, the date on which the Act 18 of 1981 came into force. There is no further amending Act or Ordinance to extend the period of Act 18 of 1981 beyond the first period of 15 years. So, so far as the contention of the learned Counsel for the petitioners, that now the Act 18 of 1981 is not in force and the amendment stands deleted automatically, is quite correct.

6. But merely because the words "and non-bailable" which were inserted in the am ending Act 18 of 1981 stand deleted, it will not be correct to say that all the offences under the Essential Commodities Act, 1955, would be bailable: When the special Act is not making any provision in this respect, then the provisions of the Code of Criminal Procedure, 1973, are required to be made applicable and so, the position which was there during the period from 1974 to 1981 is restored and the offences would be bailable or non-bailable as per the quantum of punishment provided under the Act.

14. Thus the Bombay High Court held that in 1981, Section 10 A of the EC Act was amended and an offence under Section 7 was made non-bailable. This amendment came into effect from 01-09-1982. Initially it was for a period of 5 years; thereafter it was extended for another 5 years and again for a further period of 5 years, total 15 years. However, there was no extension of the amended provision after 15 years and therefore the amendment stood deleted. This would mean that the position which existed prior to 1981 stood revived; consequently, Section 10 A would have to be read as offences under the EC Act are cognizable. It was held that merely because the words non-bailable stood deleted, it would not mean that all the offences under the EC Act would be bailable. An offence would be bail able or non-bailable as per the quantum of punishment provided under the EC Act by applying the provisions of the Code of Criminal Procedure, 1973.

15. Similar view has taken by the Orissa High Court in the case of Usha Sinha v. State of Orissa, (2002) 1 OLR 262, which was also referred to by the learned Single Judge where after relevant portion of the said judgment was extracted as under :-

"8. As stated in the introductory part of this order, in Sadhu Charan Meher (supra) a learned Single of this Court has held that the offences under the aforesaid Act are bailable basing on a decision of the Madhya Pradesh high court in Kedarnath Mallik @ Kedar Mallik v. State of Orissa. As indicated above, we have already held that special provisions including functioning of Special Courts contained in the Essential Commodities (Special Provision) Act, 1981 and the subsequent Ordinances promulgated in that regard are no longer in force since 08.07.1998. As a consequence of this, the provisions of the Principal Act in original stand revived.

9. In order to get at the hand of the issue, it is necessary to refer to some of the provisions contained in the Principal Act as well as different amendments made thereto. In the Principal Aft, initially there was no mention as to whether the offences thereunder were cognizable or bailable. Because it was felt that the offences should be made cognizable and bailable, Section 10-A was first insert ed to the Principal Aft by Essential Commodities (Second Amendment) Act, 1967 ( Act No. 36 of 1967). It was as follows:

"10-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, every offence punishable under this Act shall be cognizable and bailable."

The aforesaid Section 10-A was further amended by the Essential Commodities (Amendment) Act, 1974 (Act 30 of 1974) with effect from 29.8.1974. By this amendment, the words and figures "Code of Criminal Procedure, 1898" were substituted by the words and figures "Code of Criminal Procedure, 1973" and the words "and bail able" were omitted subsequently by the Essential Commodities (Special Provisions ) Act, 1981 (Act No. 18 of 1981) with effect from 2.9.1981 and after the words "cognizable", the words "and non-bailable" were inserted. It is thus clear that by virtue of the aforesaid Act 18 of 1981, the offences were made non-bailable. Act 18 of 1981 along with the Ordinances promulgated in that regard continued to remain in force till they automatically lapsed on 8.7.1998. As a consequence, necessary amendments made thereunder stand deleted and Section 10-A now stands as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable." From this, it does not as a necessary corollary follow that merely because the words "and non-bailable" stand omitted, all the offences under the Principal Act would be bailable. In the absence of any provision in the special statute as to whether the offences there under would be bailable or not, one has naturally to look at the Second Schedule of the Code of Criminal Procedure, 1973 which deals with "Classification of offences against other laws". The said Schedule contains three paragraphs. The first paragraph states that if the offence is punishable with death, imprisonment for life or imprisonment for more than 7 years, it would be non-bailable. There seems to be no penal provision in the Principal Act providing for the above sentences. The second and the third paragraphs of the said Schedule provide that if the offence is punishable with imprisonment for 3 years and upwards but not more than 7 years and if the offence is punishable with imprisonment for less than 3 years or with fine only, it would be non-bailable and bailable respectively. Sections 7, 8, 9 and 10 of the Principal Act deal with imposition of different punishments for offences committed thereunder. Thus the leg all position that emerges is that if any offence committed under the Principal Act is punishable with imprisonment for three years and upwards but not more than 7 years, it would be non-bailable and any offence committed which is punishable with imprisonment for less than three years or with fine only, it would be a bailable one.

10. For the reasons aforesaid, the broad proposition laid down by this Court in Sadhu Charan Meher (supra) that offences under the Principal Act are bailable is not correct. We accordingly answer the issue as follows:

Whether the offence under the Principal Act is bailable or non-bailable has to be judged keeping in view the quantum of punishment provided under the Act in respect of the offence alleged.

Before parting with this Case, we may state that the Division Bench of the Bombay High Court in Purthviraj Chandrakant Shinde v. State of Maharashtra, (2000) 3 CCR 68and the learned Single Judge of the Punjab and Haryana High Court in Som Nath v. State of Haryana, 2001 Crl.L.J. 2723 have taken the same view as above with which we respectfully agree."

16. Thereafter, learned Single Judge directed the matter to be placed before the Hon'ble the Chief Justice on the administrative side to consider placing it before a Division Bench for a definite finding as to whether offences under Section 7 of the EC Act are bailable or non-bailable.

17. Though learned Single Judge did not expressly state that he disagreed with the view of the earlier Single Bench of this Court in the case of Hekmat Ali (supra) that an offence under Section 7 of EC Act is a bailable one and that he agreed with the views of the Bombay High Court and Orissa High Court as extracted above, it can be deduced that he was not in agreement with the view of the earlier Single Bench in Hekmat Ali (supra) when he concurred with the learned amicus curiae that nothing was indicated in the said order as to why an offence under Section 7 of the EC Act was held to be bailable.

18. Hon'ble the Chief Justice passed an order on 21-07-2017 on the administrative side to place the matter before Division Bench II and this is how the reference is before us.

Legislative history of Section 10-A of the EC Act and interpretation:

19. Before we proceed to discuss the legislative history of Section 10-A of the EC Act, it would be useful to briefly note the provisions of Sections 3 and 7 of the said Act.

20. Section 3 of the EC Act deals with the powers to control production, supply, distribution, etc. of essential commodities. Central Government may by order provide for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein subject to the conditions mentioned in Section 3.

21. Penalty for contravention of any order made under Section 3 is provided under Section 7. For certain category of contraventions, Section 7 (1)(a)(i) provides for punishment of imprisonment for a term which may extend to one year and shall also be liable to fine. For the remaining contraventions, the punishment is imprisonment for a term which shall not be less than 3 months but which may extend to 7 years and also be liable to fine though a sentence of imprisonment for a term of less than 3 months may be imposed for adequate and special reasons.

22. Having noticed the above, we may now proceed to deal with Section 10A of the EC Act. Section 10A was not there when the EC Act was originally enacted in the year 1955. It was inserted in the principal Act by Section 9 of the Essential Commodities (Second Amendment) Act, 1967 (Act No. 36 of 1967), which was as follows :-

"9. After section 10 of the principal Act, the following section shall be inserted, namely:-

10-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, every offence punishable under this Act shall be cognizable and bailable."

23. Section 10-A came into force w.e.f. 30-12-1967 and it made every offence punishable under the EC Act to be cognizable and bailable."

24. Section 10-A was amended by Section 7 of the Essential Commodities (Amendment) Act, 1974 (Act No. 30 of 1974) w.e.f. 22-06-1974. As per Section 7, the words and figures the Code of Criminal Procedure, 1898 would stand substituted by the words and figures the Code of Criminal Procedure, 1973 and the words and bailable would stand omitted. Thus, following the amendment in 1974, Section 10-A came to be read as under :-

"10-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable.

25. A significant development had taken place in the year 1978 which appears to have been overlooked by the Bombay High Court as well as by the Orissa High Court or for that matter, even by the Madhya Pradesh High Court whose decision is re lied upon by the petitioner. The Repealing and Amending Act, 1978 (Act No. 38 of 1978) was enacted to repeal certain enactments and to amend certain other enactments. As per Section 2 of the aforesaid Act, the enactments specified in the first schedule were repealed to the extent mentioned in the fourth column thereof. The first schedule included the Essential Commodities (Amendment) Act, 1974 and the extent of repeal was confined to Sections 2 to 12 and 14 thereof as mention ed in the fourth column of the first schedule. This included Section 7 which had amended Section 10A. However, Section 4 of the Repealing and Amending Act, 1978, which is the savings clause, clarified that the repeal of any enactment by the aforesaid Act would not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to.

26. Though the savings clause Section 4 clarified that repeal of any enactment would not affect any other enactment in which the repealed enactment had been app lied, incorporated or referred to, the fact remains that by the aforesaid repealing Act, only Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 were repealed and not the Essential Commodities (Amendment) Act, 1974 in its entirety. At this stage, we may refer to section 6 of the General Clauses Act, 1897, which reads as under:-

"6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or in curred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

27. Learned author Justice G.P. Singh in his seminal work Principles of Statutory Interpretation, 14th Edition, has examined the consequences of repeal of a statute. Under the common law rule, the consequences of repeal of a statute are very drastic. Except as to transactions past and closed, a statute after its repeal is as completely obliterated as if it had never been enacted. Another result of repeal under the common law rule is to revive the law in force at the commencement of the repealed statute. This led to lot of confusion. The resultant confusion gave rise to the practice of inserting savings clauses in repealing statutes. However, a general provision was made in section 6 of the General Clauses Act, 1897 which has been extracted above. As a result of the principle of obliteration associated with repeal, continuation of pending proceedings under a repealed statute depends either under the savings clause contained in the repealing Act itself or under section 6 of the General Clauses Act, 1897.

28. Reverting back to the Repealing and Amending Act, 1978, what it had repealed was Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 only and not the entire Act. The savings clause Section 4 says that repeal of the above sections of the Essential Commodities (Amendment) Act, 1974 would not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to. In other words, the repeal as above did not affect the parent Act i.e., the EC Act as it stood prior to the enactment of the statute which was repealed. It would mean that Section 10A of the EC Act, as it was prior to coming into force of the Essential Commodities (Amendment) Act, 1974, stood revived. Logically, following its restoration, Section 10-A of the EC Act, should have read as follows :-

"10-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, every offence punishable under this Act shall be cognizable and bailable."

29. However, section 6(a) of the General Clauses Act, 1897 says that repeal of an enactment shall not revive anything not in force or existing at the time at which the repeal takes effect. Applying this provision, the Code of Criminal Procedure, 1898, would not have stood revived as it was not in existence at the time at which the repeal took effect because it was replaced by the Code of Criminal Procedure, 1973. Therefore, following the repeal, Section 10A of the EC Act would read as under :-

"10-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and bailable."

30. Proceeding further, we find that the Essential Commodities (Special Provisions) Act, 1981 was enacted to make certain special provisions by way of amendments in the EC Act for a temporary period of 5 years. Section 9 dealt with amendment of Section 10-A. It was provided that in Section 10-A of the principal Act, after the word cognizable, the words and non-bailable should be inserted. By the amendment brought in by the Act No. 34 of 1993, 5 years was substituted by 10 years. By a subsequent amendment brought by Act No. 30 of 2001, the period of 15 years was substituted for 10 years w.e.f. 27-08-1992. Section 1(3) provided that the provisions of the Essential Commodities (Special Provisions) Act, 1981 would cease to have effect on the expiry of 15 years from the date of commencement of the said Act, which was notified as 01-09-1982.

31. Thus, the Essential Commodities (Special Provisions) Act, 1981 was a temporary statute and its effect came to an end on expiry of the specified period mentioned in the said Act itself.

32. Though two ordinances were promulgated thereafter viz., Essential Commodities (Special Provisions) Ordinance, 1997 and Essential Commodities (Special Provisions) Second Ordinance, 1998 making offences under the EC Act, except those under Section 7(1)(a)(i), including repeat offences non-bailable, those had lapsed on expiry of the ordinance period. Consequently, Section 10-A as it were prior to coming into force of the Essential Commodities (Special Provisions) Act, 1981 stood revived as under :-

"10-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and bailable."

Analysis :

33. This brings us to the case of State of Tamil Nadu v. Parmasiva Pandian, 2001 Cri. L.J 4772. In that case, Supreme Court was confronted with the question as to whether the Special Court which ceased to be a Special Court under the Essential Commodities (Special Provisions) Act, 1981 but continued as such under the Narcotic Drugs and Psychotropic Substances Act, 1985 had the power to remand an accused who was implicated for an offence under the EC Act.

34. Supreme Court found that the Special Court was constituted at Madurai under the Essential Commodities (Special Provisions) Act, 1981 for speedy trial of cases under the EC Act. Section 11 of the aforesaid Act provided for substitution of Section 12-A by providing for constitution of Special Courts. The aforesaid Act came into force w.e.f. 01-09-1982 and was in force for 15 years; therefore, it ceased to exist in October, 1998. In that case, the offence under the EC Act was allegedly committed by the respondents in February, 2000 long after the Special Court had ceased to exist. The respondents were arrested in February and April, 2000. It appears that the Special Court constituted for trial of cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was authorized to act as the Special Court under Section 12-A of the EC Act as substituted by the Essential Commodities (Special Provisions) Act, 1981. After the aforesaid Act lapsed by efflux of time, the Special Courts ceased to exist. Thereafter, the position that used to prevail before the Essential Commodities (Special Provisions) Act, 1981 was enforced, stood restor

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ed and the Judicial Magistrates who were previously competent to try EC Act cases got back the jurisdiction to deal with such cases. 35. Therefore, Supreme Court took the view that the substituted Section 12A of the EC Act brought in by the Essential Commodities (Special Provisions) Act, 1981 ceased to exist after the aforesaid Act lapsed by efflux of time and the original Section 12-A that existed prior to coming into force of the aforesaid Act stood restored. 36. By applying the same logic, Section 10-A which existed prior to coming into force of the Essential Commodities (Special Provisions) Act, 1981 stood restored after the aforesaid Act lapsed by efflux of time. We have already discussed the effect of the Repealing and Amending Act, 1978 on Section 10A of the EC Act. Consequently, after the Essential Commodities (Special Provisions) Act, 1981 lapsed by efflux of time, Section 10A of the EC Act stood restored as under :- "10-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and bailable." 37. Madhya Pradesh High Court in Santosh Sahare (supra) did not take note of the Repealing and Amending Act, 1978 and its impact on Section 10-A. However, it was held that in the absence of any provision showing the offence to be non-bailable, the offence would continue to be bailable in view of Schedule II of the Code of Criminal Procedure, 1973. 38. A Single Bench of this Court in Kailash Kumar Agarwalla v. State of Assam, 2004 (2) GLT 347 referred to the case of Parmasiva Pandian (supra) and held that Section 7 of the EC Act is bailable. This decision was rendered on 31-05-2004. Since then this Court had proceeded on the basis that offences under the EC Act are bailable. The Single Bench in Hekmat Ali (supra) only followed this precedent by reiterating that an offence under Section 7 of the EC Act is a bailable one. 39. Conclusion : Having regard to the above and upon thorough consideration of the matter, we are of the considered opinion that the view taken by this Court in Kailash Kumar Agarwalla (supra) and followed subsequently including in the case of Hekmat Ali ( supra) is the correct interpretation of the legal position vis-a-vis Sections 7 and 10-A of the EC Act. With utmost respect, for the reasons indicated above, we are unable to agree with the views expressed by the Bombay High Court in the case of Purthviraj Chandrakant Shinde (supra) and by the Orissa High Court in Usha Sinha (supra). 40. Therefore, we hold that Section 10-A of the EC Act, as it stands restored, makes an offence under Section 7 of the EC Act bailable. Reference is answered accordingly. 41. Registry shall now place the matter before the concerned Single Bench for disposal of the anticipatory bail application in terms of the answer given in the reference.
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