Category Archives: Criminal Procedure

The Gujarat High Court’s Voice Spectrograph Decision – II: Guest Post – Between a Rock and a Hard Place

(In this Guest Post, Abhinav Sekhri carries forward the discussion on the Gujarat High Court’s recent judgment on the constitutionality and legality of voice spectrography).

A Single Judge of the Gujarat High Court handed down the decision in Devani v. State of Gujarat [Spl. Criminal Application Direction 5226 of 2015, decided on 18.01.2017], which formed the basis of the last post on this Blog. To recount, the decision agreed with the Supreme Court’s conclusions in Ritesh Sinha [(2013) 2 SCC 357] that compelling a person accused of an offence to undergo ‘Voice Spectrography’ does not amount to making her a witness against herself. Having held so, Pardiwala, J. then considered whether there was any statutory basis to permit such testing by the police. This was the issue on which the two judges in Ritesh Sinha disagreed, and is now pending before a larger bench for resolution. Pardiwala, J. found no such basis, and thus held that the Petitioner could not be compelled to undergo Voice Spectrography. This brief post follows up on the analysis offered previously and develops those ideas further.

‘Evidence’ in Article 20(3) and the Physical-Mental Divide

To decide whether or not the right against self-incrimination, guaranteed under Article 20(3) of the Constitution, is violated, three questions need to be affirmatively answered. First, that the person concerned is accused of an offence. Second, this person is required to give evidence against herself. And, finally, that the person must be compelled to incriminate herself. In Devani, only the second of these questions arose: Pardiwala, J. had to decide whether the taking of voice samples/exemplars could amount to evidence?

Section 3 of the Indian Evidence Act contains a very broad definition of the term ‘evidence’. Does the same definition apply here? It doesn’t. As Gautam pointed out, the interpretation of this part of Article 20(3) is governed by State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10] which was decided by eleven judges. Deciding whether or not handwriting samples and blood samples were within the pale of Article 20(3), the Supreme Court gave us the term ‘physical evidence’. By prefacing ‘evidence’ in this manner, the Supreme Court excluded blood samples and handwriting samples from the mix. The logic essentially being, that these materials were inherently immutable and were only being used for drawing comparisons with material already collected during the investigation. Enter, Selvi v State of Karnataka [(2010) 7 SCC 263]. Decided by three judges, it considered whether an accused could be compelled to undergo either brain mapping (BEAP), polygraph tests, or narco-analysis. The three judges held that compelling a person accused to undergo any of these would violate the constitutional right under Article 20(3). Now, you may correctly ask, that was it proper to place all three tests in the same bracket? After all, the drugged state of narco-analysis involves persons making statements, as opposed to polygraph tests relying upon physical responses to stimuli (usually questioning). On the issue of polygraph tests, the Court held that such a physical response was as good as a statement. The response involved a unique communicative value, which ordinary ‘physical evidence’ would lack.

I agree that Pardiwala, J. is not entirely correct in narrowly construing the contours of Selvi by suggesting that the decision was solely concerned with what he calls ‘psychiatric evidence’. The problem really is how broad the conclusions in Selvi were, as Gautam pointed out. While it attempts to distinguish Kathi Kalu Oghad, the logic employed for bringing polygraph tests within the confines of Article 20(3) does not hold firm. This is because even in a polygraph test the physical responses are used to compare. There is a set of normal readings taken when the person responds to supposedly harmless questions. After this, the uncomfortable questions are asked, and the readings obtained by both the sets of responses are then compared. There is a way to keep both Kathi Kalu Oghad and Selvi, perhaps. This would look at how the preliminary readings in polygraph tests are also obtained under coercion, as against a case like blood samples where material is obtained wholly independently.

Self-Incrimination and Voice Exemplars

The previous post made important observations about the logic behind Article 20(3) which receives scant attention. Gautam argues that the employment of the ‘physical evidence’ concept was an attempt to balance the dual claims of the crime control vs. due process approach. Developing his thoughts further, one may suggest that Selvi shows a shift from focusing on the crime control aspects to the issues of due process. In Kathi Kalu Oghad, we get a clear idea that the Court saw Article 20(3) as a means to ensure the quality of evidence at trial remained of a sterling quality. While persons may give false testimony under pressure, blood never lies, and so it made no sense to exclude it from the possible evidence that a judge may consider to decide issues at trial. Fifty years later, the three judges in Selvi are at pains to link Article 21 to Article 20(3). There is as much attention placed upon the manner in which the evidence is obtained, rather than solely judging its quality. Thus, the Court appears more willing to look at issues such as particular techniques violating the mental privacy of the accused which it earlier would not rarely consider.

The problem with making claims about ‘shifts’ is that there needs to be something more to suggest a trend. Unfortunately, I can offer nothing by way of evidence, and would rather classify Selvi as a one-off event in the largely depressing judicial history of Article 20(3). On each of the three questions that I identified, the Supreme Court has consistently narrowed the scope, only to render this constitutional protection non-existent for large swathes of the criminal law that are today administered by agencies other than the khaki-clad police.

Moving on to considering the particular issue at hand, then. I agree with Gautam that the ‘physical evidence’ conception is not the answer for a conceptually rigorous model for understanding the right against self-incrimination. But I do not think that the issue of voice sample poses any great difficulty to the existing setup and thus calls for reform will not find many takers, yet. If we were to look at this issue of voice samples from the lens of Kathi Kalu Oghad, it would be argued that the voice sample is obtained to compare it with the tape recording. Voice, like handwriting, is quite immutable, making it a fit for the ‘physical evidence’ category. The approach offered by the Selvi would offer the same result. The voice samples here have no communicative quality of their own: they are purely for purposes of comparison with evidence that exists independent of the person. The big flaw in this entire claim is the idea that the human voice is immutable since there is material to suggest otherwise (something that Devani does not fully address). Assuming there is some certainty on that front, it is difficult to argue that the technique of Voice Spectrography would violate Article 20(3).

Creating a Statutory Basis

The second part of the decision is a familiar tale of woe. Pardiwala, J. traverses through the entire gamut of statutes in the field in his search for some basis to ground this technique, only to end his search in vain. He concludes that Voice Spectrography could therefore not be compelled upon an accused, and offers pointers to the State Government on how to remedy the situation before finishing his decision. The tale is familiar because it can be recounted for most investigative developments in India. My blog had earlier considered one example in Section 311-A of the Cr.P.C.; how it took several decades for such a common investigative tool (taking handwriting samples) to receive statutory support, only for it to be riddled with problems.

The Criminal Procedure Code, 1973 is a curious mixture of highly particular rules combined with vague standards. The part on police investigations are a good example. Police discretion on when to investigate a case is couched in vague terms, coexisting with provisions stipulating meticulous rules for things such as inquests. Do we, then, really need a clear statutory basis for what techniques can the police administer? Pardiwala, J. himself suggests that there may not be such a need when he invites the State Government to consider bringing in Rules to permit Voice Spectrography. Regardless of where one stands on the security-liberty paradigm, few would dispute the need for law to keep pace with technology and for the police to have up-to-date investigative tools at its disposal. This raises  questions on whether it makes sense to continue requiring concrete statutory backing for the particular techniques that the police can adopt, in an environment that is notorious for belaboured law reform. The spectre of abuse and misuse looms large though, leaving us with that familiar feeling: of being between a rock and a rather hard place.


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Guest Post: Admissibility of Confessions to the Police: Normalising a State of Exception – II

(In this second post in a two-part series, Manasa Sundar Raman examines how, true to Agamben’s thesis, the “exceptional” remedy of making confessions to the police admissible has spilled over into “normal” judicial practice.)

In the previous post, the scope of right against self-incrimination and its dilution by Kartar Singh and PUCL were discussed. In this post, we will examine how the guidelines issued in Kartar Singh were inadequate to protect the right against self-incrimination resulting in police confessions increasingly becoming a norm.

Dilution subsequent to Kartar Singh

The guidelines suggested to the government in Kartar Singh were without adequate clarity on their applicability to future cases or even their rationale. Predictably, they have suffered dilution by subsequent Supreme Court judgments which condone non-compliance with them and the rules framed under Section 15 of the TADA.

S.N. Dube v. N.B. Bhoir, for instance, held that even if the Kartar Singh guidelines were not strictly adhered to, it would not affect the admissibility of the evidence. Shockingly, even though the accused had alleged coercion by the police officer, the plea was rejected since no specific instance of coercion was alleged against the concerned police officer. Thus, not only does the court discard the importance of the guidelines, it places the burden on the accused to show his confession was recorded in an atmosphere that was not free.

In Jameel Ahmed v. State of Rajasthan, the confessional statements so recorded by the police were not sent to the CMM or the CJM as required under Rule 15(5) of the Rules, and as per the Kartar Singh guidelines. However, the Court underplays the importance of the Magistrate and the guidelines by stating the CJM or CMM has to merely forward the confessional statement and, hence, the procedural lapse may be overlooked. It goes on to describe the Rules and guidelines as being “only directory and not mandatory.” This way, an important safeguard against the police extrapolating the confession was diluted.

Finally, in Gurdeep Singh v. The State (Delhi Admn.), one can clearly notice the kind of coercive and intimidating circumstances that can be wrought by the preceding rulings. Even though the accused was handcuffed with a policeman holding him in chains and armed guards surrounding the room, the Court dismissed the contention of a confession being non-voluntary stating that these measures were intended and essential for security purposes. As a way of justification, once again, the Court relies on the objects for the enactment of TADA and the necessity of having stringent provisions to assist the prosecution.

From the above case-laws we see how the courts in their enthusiasm to convict terror-suspects, dispense with crucial guidelines issued by Kartar Singh and Rules under TADA. Thereby, even if the ratio in Kartar Singh read with the guidelines have the effect of securing a meagre right against self-incrimination (in reality, it did not), the rhetoric of terrorism has undermined even this.

Characterising the Judicial Response

In most of the above cases, the rhetoric that is used prominently includes the image of the innocent victim of terror. This way the Court is able to depart from the traditional paradigm of a trial where the accused stands against the overwhelming might of the state machinery (and therefore has certain rights such as right against self-incrimination, right to silence, presumption of innocence) to a different paradigm where the accused has wronged the several innocent victims. The role of the trial process under the new paradigm is to strike a balance between the rights of these two individuals. By portraying the State’s citizens as victims of terror, the Court is able to turn a blind eye to his presumption of innocence or right against self-incrimination.

Moreover, this has changed the role of the higher judiciary. As pointed out by Prof. Mrinal Satish and Prof. Aparna Chandra, the judiciary has shifted from being the “sentinel on the qui vive” (as famously observed in State of Madras v. V.G. Row), duty-bound to zealously guard fundamental rights, to a pragmatic mediator that balances competing claims of ‘national security’ and ‘fundamental rights’. The pragmatic mediator attitude can once again be seen when the Court endorses appeals to observe human rights during the investigation and trial stages. This is not done as a reiteration of the State’s legal or moral duty but for instrumental reasons of preventing further terrorism. As a consequence, even in cases where the violations are blatant, there is a tendency for judges to defer to the legislature as it concerns ‘terrorism’ and prescribe guidelines, without actually striking it down.

Admittedly, the judiciary may not possess the same expertise as the legislature or the executive in evaluating counter-terror measures. However, it would be far more respectable and healthy for the rule of law if the judiciary candidly conceded that it is ill-equipped to deal with the problem of terror and, thus, give a wide leeway or ‘margin of appreciation’ to the State in such cases. Accordingly, it could have formulated a lower level of review when the object of the statute was to counter terrorism or read in a national-security exception to Article 20(3). However, we see no such admission of its inadequacy or a well-defined exception to terror-cases. In contrast, in their eagerness to uphold the statute, the judgments simply refer to the legislative competence of the state, echo the State’s high-pitch alarmist attitude to terror and dilute the entirety of the Article 20(3) guarantee.

The above argument can also be illustrated using Article 14 analysis used in Kartar Singh. In evaluating whether it was open for the legislature to make confessions before the police admissible, the judges reduce the issue to one where ‘different mode of proof’ is prescribed by the legislature for a certain class of offences. The rationality behind legislative classification is not questioned at all, instead the analysis is limited to the competence of the legislature to make such a classification without evaluating the rational nexus of such a classification to the object sought to be achieved. In not doing so, the judges leave open the question of whether it would be open for the legislature to make classifications such as ‘sexual offenders’ and ‘other offenders’; ‘white-collar crimes’ and ‘other crimes’ and make confessions before the police selectively admissible for one set? Can different classes of crimes have ‘different modes of proof’? The judgment reduces it to a question of legislative competence.

No analysis is presented with respect to Article 20(3). While the intention may have been to dilute the standards for terror-related cases alone, the judgment by not making that intention explicit jeopardises the right as a whole. Even if the Court had chosen to explicitly hold ‘terror cases’ as an exception where it is acceptable for confessions made to the police to be admissible, the substantial dilution of Article 20(3) could have been prevented. The result is that the diluted right to self-incrimination has now become the normalised standard under the Constitution.

Normalisation of police-recorded confessional statements

Over the years, we see that the Courts have become oblivious to the so called “terrorism” exception. Thus, evidence obtained under such exceptional statutes are being used for the trial of regular offences.

In State v. Nalini, the accused was charged with offences both under TADA and IPC. The Court, in paragraph 81 of the judgement held that confessional statements recorded under Section 15 of TADA would apply and become admissible as substantive evidence for all offences including the non-TADA ones. In holding this, it specifically overruled another SC decision (Bilal Ahmed Kaloo v. State of Andhra Pradesh) on point. Further, the evidence so recorded could also be used against the co-accused.

In view of the conflict between the above two cases, the issue was referred to a constitutional bench in State of Gujarat v. Prakash Kumar which upheld the Nalini rationale. It said that the confession statement recorded under Section 15 of TADA is admissible for the offences under any other law which were tried along with TADA offences notwithstanding the fact that the accused was acquitted of offences under TADA in the same trial.

In State of Gujarat v. Mohammad Atik, the issue was whether a confessional statement recorded by a police during investigation under TADA could be used for a completely different trial where investigation was done by a different set of police officers against the same accused. The Court held that in the absence of any statutory inhibition, there is no need to introduce a further fetter against the admissibility of the confessional statement. Thus, there is no cognisance of the fact that a police-recorded confession is admissible in only very exceptional cases. Once admissible, it is treated on par with any other evidence and there is no re-examination of the voluntariness of that evidence in consideration of the circumstances under which it was recorded.

From the above line of cases, we notice a disturbing trend where the Courts adopt a dangerous and cavalier approach to confessional statements recorded by the police. They are unmindful of the exceptional circumstances under which this exception was sought to be created and constitutionally justified. Instead, there is an increasing trend to issue guidelines to be complied with. These too are not rigorously enforced. This way, the extraordinary standards which are judicially condoned for addressing ‘terrorism’ slowly seep into the ordinary criminal justice system, and are normalised.

The blame for this undoubtedly falls on the majority opinion in Kartar Singh. Not only does it depart from the progressive interpretation given to the rights of the accused in Nandini Satpathy, it does not adequately frame admissibility of confessions recorded by the police as a strict exception for terror-cases. Indeed, by making it wholly a question of legislative competence, the legal position is such that if Section 25 and 26 of the Evidence Act were replaced completely by a provision akin to Section 32 of POTA, the existing precedent would make it wholly constitutional. Fortunately, the POTA has been repealed and the legislation which replaces it – the Unlawful Activities (Prevention) Act, 2008 contains no such provision. However, the constitutional guarantee has been undoubtedly diluted.

Concluding Remarks

In view of the progressive interpretation given to the right of accused against self-incrimination at the interrogation stage in Nandini Satpathy, and the absence of any exception to Article 20(3), the judgment of Kartar Singh was grossly regressive. It can even be argued that the judicially created exception for admissibility of confessions made before the police is unconstitutional.

However, even assuming it is constitutional, Kartar Singh, by not carving out a specific and deliberate exception for terror cases and by employing vague rhetoric about the necessity felt by the Parliament has severely diluted the right as a whole. Read with subsequent judgments where confessional statements made in coercive atmospheres have been held to be admissible, it is safe to say that guarantee against self-incrimination has virtually become meaningless.

More alarmingly, Courts show no hesitancy in applying confessions obtained under such extra-ordinary statutes designed to meet exceptional ends in normal criminal justice administration. This results in a normalisation of these standards.

(Manasa is a Vth Year student at the National Law School of India University)

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Guest Post: Admissibility of Confessions made to the Police: From Exception to the Norm – I

(Previously on this blog, we have discussed Giorgio Agamben’s theory of the state of exception, according to which “extraordinary laws” ostensibly meant for “extraordinary times”, characterised by concentration of power in the executive, bypassing of parliamentary oversight, and incremental erosion of procedural safeguards, gradually become “normalised” parts of the existing legal landscape. In a two-part series, Manasa Sundar Raman discusses the use of extraordinary law to achieve the gradual normalisation of confessions made to police officers, that were originally considered inadmissible under the Indian Evidence Act.)

One of the chief goals of any liberal democratic Constitution, including India’s, is to guard against the growth and abuse of police power of the state and corrosion of civil liberties. Yet, it is no secret that in the recent decades, basic constitutional guarantees have increasingly come under threat and have been justified in the name of counter-terrorism. Despite struggling to define “terrorism”, most counter-terror legislations and judgments that interpret them, comfortably place terrorism as an exceptional or extraordinary crime that justifies infringements on civil liberties that are otherwise prohibited.

Characteristically, counter-terrorism legislations give enormous and overriding powers to the executive. Further, in accordance with the extraordinary concern that is sought to be addressed by such laws, they also have extraordinary provisions in procedural aspects such as bail, arrest, detention, confessions, sentencing etc. A recurring ‘extraordinary’ feature in these statutes is the admissibility of confessions made to police during interrogation.

Such extraordinary provisions inevitably lead to constitutional concerns. However, over the years, it can be observed that the judiciary is inclined to save them, paying undue deference to the government rather than declaring them as being unconstitutional. The judgments in this regard invoke the stereotypical imagery of brutalities, fear psychosis and loss of life inflicted by terrorism. This is used as a ground in itself to undermine constitutional guarantees.

In this context, one can consider the extent of deference given to legislative wisdom by the judiciary when these statutes permit confessions made to police as being admissible in trial and are challenged for being violative of Article 20(3). It is my thesis that the judiciary, by allowing for the so-called extraordinary statutes to undermine the right under Article 20(3) without constitutional basis, has gradually aided in the erosion of the right for ‘ordinary’ situations, as well. Therefore, admissibility of confession to police officer is no longer a shocking exception, but well on its way to becoming the norm.

Right against Self-Incrimination in India

Prohibition against self-incrimination is undoubtedly one the cardinal principles of criminal law. Under Article 20(3) of the Indian Constitution, the safeguard, framed as a right, extends to all accused persons to not be compelled to be a witness against themselves.

The Article 20(3) guarantee is further codified under Sections 161, 162, 163 and 164 of the Criminal Procedure Code, 1973 and such guarantees are also present in statutes pre-dating the Constitution in the form of Section 25 and Section 26 of the Indian Evidence Act, 1872. Additionally, India has also, without any reservations, ratified the ICCPR which under Article 14 provides for the right against self-incrimination “in full equality”.

The extent of the right against self-incrimination was fully recognized by the Supreme Court in Nandini Satpathy v. P L Dani. In this case, the court relied on Miranda v. Arizona, to extend the embargo against compulsion in testimony to the investigation stage as well. Further, the judgment recognises that compulsion may come in many forms i.e. not just by way of physical torture, but also in the form of psychic pressure or a coercive atmosphere. Most importantly, the decision holds the right under Article 20(3) and under the Criminal Procedure Code to be co-terminus in their protection. Thus, such strong language used by Nandini Satpathy was merely one step behind holding that provisions enabling the admissibility of confessions recorded by the police would be unconstitutional. However, we notice that subsequent judgements on Article 20(3) regress from this holding and dilute the protection altogether.

Judicial Response to Art. 20(3) challenges to Extraordinary statutes

The Terrorists and Disruptive Activities (Prevention) Act, 1987 (“TADA”) was introduced in May, 1985 as a temporary and extraordinary measure to deal with insurgent movements felt in several areas in India. However, over the years, it was notified in almost all states and became infamous as one the most abused laws.

Many provisions of the TADA, including Section 15 were challenged before a constitutional bench in Kartar Singh v. State of Punjab. Section 15 of the TADA provided that a confessional statement recorded by a police officer is admissible as evidence. In a 3-2 split, the Court upheld the section.

The judgment is prefaced with the historical background and circumstances that led to the enactment of the TADA. For a large part, the Supreme Court dwells on the legislative competence of the State to enact such a law. It then proceeds to hold the section as valid under Article 14 on the basis of the legislative classification that differentiates between ‘terrorists and disruptionists’ and ‘ordinary criminals’. Rejecting the reliance on State of W.B. v. Anwar Ali Sarkar, it reasons that classification of offences is constitutional as long as they are legislatively defined and not left to the arbitrary and uncontrolled discretion of the executive. The issue with this reasoning is that the Court refuses to dig deeper into the rationality of the legislative classification itself. Even assuming that there is an intelligible differentia between the ‘terrorists and disruptionists’ as determined by the police and ‘ordinary criminals’, the Court fails to elaborate on the rational nexus between such a difference and lesser degree of constitutional protection against self-incrimination.

Further, it holds the procedure to be just and fair under Article 21. In the reasoning for this, the majority cite a National Police Commission report that recommends that confessions made to the police to be made admissible so that it will “remove the present feeling of the police that they have been unjustly discriminated against in law”! Thereafter, once again the Court invokes the spectre of terrorism. It paints terror and disruptions as those which endanger the sovereignty and integrity of the country, the normal life of the citizens, and by linking it to the difficulty in obtaining evidence, upholds it entirely.

There are several things that are inexplicable and downright absurd in the Court’s reasoning in saving Section 15. First, it is beyond comprehension why the entire reasoning is based on Article 14 and 21 even though the Court earlier admits that Article 20(3) concerns were implicated by such a provision. There is absolutely no analysis on the extent of protection guaranteed by Article 20(3) and to what degree can it be infringed, if at all. Admittedly, the Court issues guidelines for recording of a complaint of torture by Magistrate if the accused so complains. However, it omits to state the consequence of torture on the probative value of the ‘confession’. Further, the judges limit their understanding of involuntary confessions to those made under torture. There is no mention of other methods by which a confession may be extracted such as by inducement or threats. As rightly pointed out in Nandini Satpathy, compelled testimony is not limited to those made by “physical threats or violence” alone but also as a response to “psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods” as well. Therefore, there is no way for the Court to determine if the accused did in fact make the confession freely and voluntarily. Second, the judges acknowledge truth of custodial torture to obtain evidence and then shockingly, in the same breath, turn a blind eye to it by invoking the imagery of terrorists being a threat to the nation’s sovereignty.

Thus, despite powerful dissents by Justice Ramaswamy and Justice Sahai, it is unfortunate that the majority chooses to substitute constitutional analysis with rhetoric on barbarity of terrorism. The saving grace of the majority judgment is the guidelines issued by the majority such as appearance of the accused before the Magistrate and forwarding the confessional statement recording. Ostensibly, the guidelines were aimed at ensuring the voluntariness of the confession and as a protection mechanism against torture. However, this rationale is not explicitly mentioned, perhaps because it would become an implicit admission of the constitutional infirmities of the section.

The TADA was subsequently repealed but was re-incarnated as the Prevention of Terrorism Act, 2002. Section 32 of the POTA, akin to Section 15 of the TADA, allowed for admissibility of confessions made to a police officer. However, Section 32 in sub-sections (2) to (5) statutorily incorporated the guidelines issued in Kartar Singh. In PUCL v. Union of India it was argued that the since the accused has to be produced before the Magistrate within forty-eight hours, there is no reason why the police are authorised to collect confessions. The Supreme Court rejected this contention stating that a similar provision was upheld in Kartar Singh and also pointed out that it incorporates the guidelines issued therein. Once again, the Court falls into the trap of excessive deference to the determination of “necessity” by Parliament, by characterising this encroachment of a fundamental right as an issue of policy rather than principle. Moreover, just as in Kartar Singh, the Court makes no reference to the fact that the recording of confession by the police is an exceptional case, departing from the well-established rules under Evidence Act, Criminal Procedure Code and norms under Article 20(3). Thus it is uncertain from the reasoning whether the Court does view Section 32 as a justified derogation from Article 20(3) in view of terrorism or if recording of confession by police is normally allowed even for regular offences under Article 20(3).

(Manasa is a Vth year student at the National Law School of India University)

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