“Minds are like parachutes – they function when open.”
– Justice Hrishikesh Roy[1]
Justice Sanjay Hrishikesh Roy was born on 01-02-1960. He obtained his LL.B Degree from Campus Law Centre, University of Delhi in 1982. Justice Roy started litigating before the Delhi High Court and then shifting his base to the Gauhati High Court. He was designated as senior counsel in Gauhati High Court on 21-12-2004 and sworn-in as an Additional Judge of Gauhati High Court on 12-10-2006 and eventually served as permanent Judge with effect from 15-07-2008. Justice Roy was transferred to the Kerala High Court as its Acting Chief Justice in May 2018 and became its 35th Chief Justice on 08-08-2018. On 23-09-2019, Justice Hrishikesh Roy took oath as a Judge of the Supreme Court.[2]
Justice Roy has made notable contributions to the causes of alternative dispute settlement and legal aid. As the head of the Mediation Monitoring Committee at the Gauhati High Court, he oversaw the production of the film ‘Shako’ (Bridge) which is still used as a training tool in mediation programmes in India. Similarly, when he was the head of the Arunachal Pradesh Legal Services Authority, he led the production of the short film ‘Apne Ajnabi’, a short film on racial discrimination highlighting how legal aid can be extended to victims.[3]
Justice Roy, as an executive head of Assam State Legal Services Authority, implemented the “Reach Out & Respond” programme, to facilitate access to justice for the marginalised sections of Assam. He also spearheaded the training programmes for judicial officers under the Gauhati High Court. For the past 10 years, the news letter ATMAN was regularly published under his editorship for the Gauhati High Court.[4]
♦Did you know? The Supreme Court now has four judges from 1982 LL.B. batch of the Campus Law Centre, University of Delhi – DY Chandrachud, Sanjay Kishen Kaul, S R Bhat and Hrishikesh Roy, JJ.[5]
Notable Judgments at Supreme Court
Union of India v. Manju Arora, 2022 SCC OnLine SC 6
The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she/he has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for their own personal reasons.
Municipal Corpn. of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897
“…adopt an interpretation which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective.”
While deciding the issue, whether e National Green Tribunal has the power to exercise Suo Motu jurisdiction in the discharge of its functions under the National Green Tribunal Act, 2010, the Bench of A.M. Khanwilkar, Hrishikesh Roy* and C.T. Ravikumar, JJ., held that NGT is vested with suo motu power in discharge of its functions under the NGT Act.
“The hands-off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.”
Parveen v. State of Haryana, 2021 SCC OnLine SC 1184
The bench of R. Subhash Reddy* and Hrishikesh Roy, JJ has held that the confessional statements of the co-accused, in absence of other acceptable corroborative evidence, are not enough to convict an accused for conspiracy.
Sai Baba Sales (P) Ltd. v. Union of India, 2021 SCC OnLine SC 1133
In a case where a Project Proponent had adhered to the applicable legal framework for Environmental Clearance (EC) during the concerned period but has been left in the lurch due to changes in the EC regimes, the bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that such Project Proponent cannot be pushed to a precipice and be made to fall.
Jithendran v. The New India Assurance Co., 2021 SCC OnLine SC 983
Reminding the Courts that the Motor Vehicles Act is in the nature of social welfare legislation and its provisions make it clear that the compensation should be justly determined, the bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that a realistic recompense having regard to the realities of life, both in terms of assessment of the extent of disabilities and its impact including the income generating capacity of the claimant.
Kush Kalra v. Union of India, 2021 SCC OnLine SC 1062
Taking a significant step towards gender equality, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., issued interim direction permitting the women candidates to take part in the National Defence Academy (NDA) examination.
Ashok Kumar v. Raj Gupta, 2021 SCC OnLine SC 848
The bench of Justice R. Subash Reddy and Hrishikesh Roy*, JJ has held that in a declaratory suit, where ownership over coparcenary property is claimed, the plaintiff cannot be subjected to the DNA test against his wishes.
“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”
State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821
The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.
“In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous.”
South Indian Bank v. CIT, 2021 SCC OnLine SC 692
In a case where the assessee had not kept their interest free funds in separate account and as such had purchased the bonds/shares from mixed account and the Assessing Officer had made proportionate disallowance of interest attributable to the funds invested to earn tax free income by referring to the average cost of deposit for the relevant year, the bench of Sanjay Kishan Kaul and Hrishikesh Roy*, JJ enquired about the law which obligates the assessee to maintain separate accounts.
Bajranga v. State of M.P., 2021 SCC OnLine SC 27
While setting aside the impugned order of High Court of judicature at Madhya Pradesh for upholding the taking over of possession and eviction under MP Land Revenue Code, 1959, a 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., held that when there was no surplus land there could be no question of any proceedings for take over of the surplus land under the said Act.
“Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.”
Saurav Yadav v. State of U.P., 2020 SCC OnLine SC 1034
“Open category is open to all”
A 3-judge bench of UU Lalit*, S. Ravindra Bhat* and Hrishikesh Roy, JJ., while deciding the petition challenging the appointment of General category female candidates who had secured lower marks as Constables in Uttar Pradesh Police, ruled against the U.P. government and clarified the relationship between horizontal and vertical reservations.
“The open category is not a ‘quota’, but rather available to all women and men alike.”
Rhea Chakraborty v. State of Bihar, 2020 SCC OnLine SC 654
“When integrity and credibility of the investigation is discernible, the trust, faith and confidence of the common man in the judicial process will resonate.”
While invoking the plenary jurisdiction under Article 142, a single judge bench of Hrishikesh Roy,* J., upheld the FIR registered by the Bihar Police and asked Maharashtra Police to hand over the evidence and assist the CBI in the case relating to death of Bollywood actor Sushant Singh Rajput.
Relying on the Judgement in the case of Arnab Ranjan Goswami v. Union of India: 2020 SCC OnLine SC 462, Justice Roy observed that that “transfer of investigation to the CBI cannot be a routine occurrence but should be in exceptional circumstances. One factor which however is considered relevant for induction of the Central Agency is to retain ‘public confidence in the impartial working of the State agencies’”
“When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”
N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617
A 3- judge bench headed by Justice Hrishikesh Roy*, held that the appellants were ineligible for compassionate appointment and observed that for consideration of claim for compassionate appointment, the norms prevailing on the date of consideration of the application should be the basis for consideration of claim and the applicant is disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.
“All government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said norms.”
State of Odisha v. Manju Naik, (2020) 11 SCC 809
“Pension is earned by stint of continuity and longevity of service.”
A 3-judge bench comprising of R Bhanumathi, A S Bopanna and Hrishikesh Roy,* JJ., while deciding the petition challenging the order of the Odisha Administrative Tribunal directing the authorities to consider sanction of invalid pension under the provisions of the Orissa Civil Services (Pension) Rules, 1992, observed that the Pension Rules are to be harmoniously construed in such a manner that there be no clash between different provisions in the said Rules.
The Court observed that “An employee becomes entitled to pension by stint of his long service for the employer and, therefore, it should be seen as a reward for toiling hard and long for the employer.” and held that the minimum qualifying service i.e. 10 years prescribed under the Pension Rules cannot be ignored for the purpose of consideration of invalid pension.
Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733
A 3-judge bench comprising of Sanjay Kishan Kaul, Krishna Murari and Hrishikesh Roy,* JJ., while deciding a criminal appeal challenging the judgement of Chhattisgarh High Court upholding the conviction of the appellant under Sections 302 and 34 of the Indian Penal Code, 1860 and acquittal of the co-accused.
The Court held that the recovery of the alleged weapons of assault on the statement of the accused can be a key evidence to support the prosecution but the recovered articles were not linked to the crime. Moreover, when relevant forensic evidence was withheld by the prosecution, an adverse inference will have to be drawn against the prosecution.
The Court also opined that the Test Identification Parade (TIP) evidence is not substantive evidence but could only be used in corroboration of statements and where TIP is held in the presence of police officers, it is bad under the provision of Section 162 Criminal Procedure Code, 1973.
“When the identifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of section162 of the Code.”
The Court reiterating the principle of Criminal Law
“if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to their innocence, the view favourable to the accused should be adopted”, acquitted the appellant.
Umesh Kumar Sharma v. State of Uttarakhand, 2020 SCC OnLine SC 845
“Transfer of trials from one state to another would inevitably reflect on the credibility of the State’s judiciary”
While deciding a petition filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules for seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand, Justice Hrishikesh Roy*, observed that “Transfer power under section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.” and held that in these type of cases, not only the convenience of the accused is important, but also that of the complainant, witnesses, prosecution and also the larger issue of the trial being conducted under the jurisdictional court need to be taken into account. The Court opined that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.
Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200
“As in all crimes, mens rea has to be established.”
Allowing a Criminal appeal, a 3-bench of NV Ramana, Surya Kant and Hrishikesh Roy,* JJ., overturned the conviction of the appellant under Section 306 of the Indian Penal Code 1860.
The Court observed that to make out the case of abetment under Section 107 IPC, the accused should instigate a person either by act of omission or commission but in the present case there is no direct evidence to show that cruelty was committed by the husband or the in-laws or particular hope or expectation of the deceased was frustrated by the husband or there was wilful neglect of the appellant which led to the suicidal death.
The Court reiterated the necessary ingredients as set out in SS Chheena v. Vijay Kumar Mahajan (2010) 12 SCC 190 and relied on Mangat Ram v. State of Haryana (2014) 12 SCC 595 and observed that
“To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous.”
The Court opined that there is no evidence of any overt act or omission on part of the appellant and the trial court and the High Court had erred in relying on conjecture and speculation in deciding the appellant’s guilt i.e. abetting the suicide of his wife.
Karulal v. State of M.P., 2020 SCC OnLine SC 818
“The testimony of the related witness, if found to be truthful, can be the basis of conviction”
Dismissing a appeal, a 3-bench of NV Ramana, Surya Kant and Hrishikesh Roy,* JJ., upheld the conviction of the appellants under Section 148, 302 r/w 149 IPC.
The Court relied on the judgement in the case of Dalip Singh v. State of Punjab: AIR 1953 SC 364, Khurshid Ahmed v. State of J & K: (2018) 7 SCC 429 and Sushil v. State of U.P.: 1995 Supp (1) SCC 363 and opined that
“…The testimony of the related witness, if found to be truthful, can be the basis of conviction (…) If the witnesses are otherwise trustworthy, past enmity by itself will not discredit any testimony. In fact the history of bad blood gives a clear motive for the crime. Therefore this aspect does not in our assessment, aid the defence in the present matter.”
The Court while discussing the about the witnesses not supported the prosecution case and turning hostile, stated that
“Some witness may not support the prosecution story for their own reasons and in such situation, it is necessary for the Court to determine whether the other available evidence comprehensively proves the charge.”
Bajranga v. State of M.P., 2021 SCC OnLine SC 27
While setting aside the impugned order of High Court of judicature at Madhya Pradesh for upholding the taking over of possession and eviction under MP Land Revenue Code, 1959, a 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., held that when there was no surplus land there could be no question of any proceedings for take over of the surplus land under the said Act.
“Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.”
Jayantilal Verma v. State of MP (now Chhattisgarh), 2020 SCC OnLine SC 944
“Mere presence or absence of a large number of witnesses cannot be the basis of conviction.”
A Division bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., upheld the conviction of her husband even though a large number of witnesses had turned hostile.
The Court while examining Section 106 of Evidence Act, 1872 opined that
“while the initial burden to establish the case would be upon the prosecution, it would be of a relatively light character. There would be a corresponding a burden on the inmates of the house to give cogent explanation as to how the crime was committed. They could not get away by keeping quiet and offering no explanation.”
The Court observed that the quality of witnesses should be the criteria under Section 134 of the Evidence Act, 1872 not the number of witnesses especially when it is common for witnesses to turn hostile in a trial.
The Court held that
“This is not an unusual event in the long drawn trials in India, and absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused.”
Jatinderveer Arora v. State of Punjab, 2020 SCC OnLine SC 952
“When trial is shifted out from one State to another, it would tantamount to casting aspersions on the Court, having lawful jurisdiction to try the case.”
Justice Hrishikesh Roy dismissing six transfer petitions filed by petitioners seeking shifting of criminal cases, pending in different courts in districts of Punjab, to nearby states such as Delhi or Chandigarh, held that there is no threat to the lives of accused or to the fair trial.
The Court held that
“The transfer of trial from one state to another would inevitably reflect on the credibility of the State’s judiciary. Except for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked. The present bunch of cases are not perceived to be amongst such exceptional categories.”
State of M.P. v. Chaitram Maywde, 2020 SCC OnLine SC 875
“What greater certificate of incompetence would there be for the legal Department!”
A Division bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., while dismissing a special leave petition filed by the State of Madhya Pradesh with a delay of 588 days held that there could be no greater certificate of incompetence of the Legal Department.
The Court observed that these type of cases are “certificate cases” and are filed with the object of saving officers who may be at fault.
“We have also expressed our concern that these kinds of the cases are only “certificate cases” to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing.”
Union of India v. Deven Yogesh Kanani, 2020 SCC OnLine SC 487
A 3-judge bench comprising of S A Bobde, A S Bopanna and Hrishikesh Roy, JJ., granting partial relief for Centre and Air India, directed Air India to carry out the operation of relief flights with full capacity for 10 days and there after the non-scheduled flights will be operated in accordance with the interim order to be passed by the Bombay High Court
Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC OnLine SC 893
“Delay in delivery of judgments violates Article 21 of the Constitution of India.”
While reminding the High Courts for observing maximum time period for pronouncement of reserved judgment as per Anil Rai v. State of Bihar – (2001) 7 SCC 318, the Court observed that
“Judicial discipline requires promptness in delivery of judgments – an aspect repeatedly emphasized by this Court. The problem is compounded where the result is known but not the reasons. This deprives any aggrieved party of the opportunity to seek further judicial redressal in the next tier of judicial scrutiny.”
Meghachandra Singh v. Ningam Siro, (2020) 5 SCC 689
Overruling the Judgment in the case of Union of India v. N.R. Parmar: (2012) 13 SCC 340, a 3-judge bench of R Bhanumathi, A S Bopanna and Hrishikesh Roy,* JJ., held that seniority cannot be claimed from a date when the incumbent was not borne in service.
Notable Judgments at High Court
Ramankutty v. Pareed Pillai, 2018 SCC OnLine Ker 3542
A Full Bench of Hrishikesh Roy, CJ., P R Ramachandra Menon,* A K Jayasankaran Nambiar, Anil K Narendran and Devan Ramachandran, JJ., while overruling the Judgment in the case of Augustine v. Ayyappankutty: 2015 SCC OnLine Ker 14898, held that any lapse by the owner of the vehicle in relation to possession of a valid fitness certificate would amount to a fundamental breach enabling the insurer to recover the relevant amount from the insured.
“If there was no valid Insurance policy covering the vehicle on the relevant date, which is a basic requirement to identify the insurer and fix the liability, if any, the ‘pay and recover’ principle may not be attracted.”
C.S. Chacko v. Union of India, 2018 SCC OnLine Ker 3497
“Ours is a secular country which permits all citizens to have their freedom of expression and belief, faith and worship and the laws of the country does not compel anyone to choose any particular religion, in preference to another.”
A Division bench comprising of Hrishikesh Roy,* A.C.J and A.K. Jayasankaran Nambiar, J., held that compulsory confession by Church does not violate right to privacy and freedom of religion of Church members.
The Court opined that such intervention by the Court is not constitutionally impermissible as the Church also has constitutionally guaranteed right which is protected under Article 26 of the Constitution.
“We cannot overlook the fact that the respondent churches also have the constitutionally guaranteed rights under Article 26, to manage their religious affairs and it would, therefore, be highly improper for the Court to intervene and declare that confession cannot be made a condition precedent, for enjoyment of any of the spiritual and temporal rights of the member of a Christian church and denial of any such right would thus amount to denial of fundamental right.”
Sukla Deb v. Union of India, 2008 SCC OnLine Gau 315
Awarding a compensation of Rs. 3 Lakh to the petitioner, Justice Hrishikesh Roy held that the State is vicariously liable for the acts of its armed personnel assigned on official duty and principle of strict liability must be followed, where rights of citizen’s are violated through the acts of such armed personnel,
“When the claim of the citizen is based on the principle of strict liability, it may not be justified to deny the vicarious liability of the State against a claim for compensation to redress a grievance of established infringement of right to life of a citizen guaranteed by the Constitution of India. “
Hirendranath Gohain v. Union of India, 2009 SCC OnLine Gau 409
“A lot of time, energy and hard work is invested by an author to create a manuscript for publication and the manuscript not being published is not only a loss for the creator who misses out on seeing his latest work published and read by his readers but it is also a loss for the readers.”
Awarding a compensation of Rs. 1,50,000 (Rupees one lakh fifty thousands), a 3-judge bench comprising of Jasti Chelameswar,* C.J., Hrishikesh Roy* and Ranjan Gogoi,* JJ., held that a direction for payment of compensation can be ordered when there is negligence on the part of postal authorities which led to loss of the petitioner’s notes and manuscripts resulting in curtailment of his precious fundamental rights guaranteed under article 19(1)(a) of the Constitution.
“The manuscripts of the petitioner are creative and intellectual works and such works are meant to be enjoyed and appreciated by the potential readers of the petitioner. These works contained the author’s thoughts and expressions meant for his readers and in the process, the petitioner was exercising a precious right akin to a right of freedom of expression, the protection of which is guaranteed by the Constitution of India.”
Harendra Kumar Deka v. State of Assam, 2008 SCC OnLine Gau 652
“While on one hand the State is bound to protect a law abiding public servant it also has a duty to bring to book the public servants who acted in excess of the authority conferred on him by law.”
A Division bench comprising of Jasti Chelameswar,* C.J. and Hrishikesh Roy, J., giving expression ‘death in police custody’ a wider meaning, held that the personnel of the police forces of Assam are not entitled to the protection under Armed Forces (Special Power) Act.
The court, by avoiding technical interpretation of law, treated the death as a death occurred in police custody and held
“The expression “amounts to death in police custody” is significant. On the facts like the one on hand the deceased may not have been technically in the custody of the police but in the circumstances the death of Prakash Deka amounts to death in police custody. Any other interpretation, in our view, would be inconsistent with the scheme of Section 78.”
The Court clarifying the law on exercise of special powers of the armed forces held that
“The members of the armed forces causing the death of another person must (1) be of the opinion that it is necessary to do for the maintenance of public order; (2) to give such due warning as the situation demands/permits that deadly force is likely to be employed; and (3) employment of deadly force is permissible against only those persons who are acting in contravention of any law or order for the time being in force which prohibits the assembly of five or more persons or prohibits the carrying of weapons or of things capable of being used as weapons or prohibits the carrying of fire arms, ammunition or explosive substances.”
The Court while explaining Section 197 of Criminal Procedure Code, 1973 held that
“Section 197, CrPC while conferring the protection to the public servants from unjustified prosecution creates a Corresponding legal obligation on the State to constantly monitor the actions of the public servants, more particularly in the context of the commission of offences. Whenever there is an allegation of commission of an offence by public servants, such as the one in the instant case, the State is bound to examine all relevant facts and form a rational opinion whether the concerned public servant should be prosecuted or not.”
Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800
A Division Bench of Hrishikesh Roy,* CJ. and A K Jayashankaran Nambiar, J. upheld the order of Single Judge and opined that observed that the College shall not stand in the way of the students seeking inter-college transfer to another self-financing college.
The Court relied on the judgement in the case of K.S. Puttaswamy v. Union of India: (2017) 10 SCC 1 and held that
“Freedom to choose the college of his/her choice for pursuit of their studies is according to us, an aspect of the Fundamental Right to privacy, guaranteed under Article 21 of the Constitution.”
B.S. Syamkumar v. State of Kerala, WP(C) No 7193 of 2019
While allowing the writ petition, a division bench of Hrishikesh Roy* and A.K. Jayasankaran Nambiar, JJ. directed the political parties to use only eco-friendly material for election campaigns – not to use PVC flex boards and other non-bio-degradable material
†Editorial Assistant, EBC Publishing Pvt. Ltd.
* Judge who has penned the judgment.
[1] ATMAN – A Biannual News Bulletin of the Gauhati High Court http://ghconline.gov.in/Document/6thyr-11thissue-Sept-14.pdf
[2] https://main.sci.gov.in/chief-justice-judges
[3] https://www.scobserver.in/judges?id=hrishikesh-roy
[4] https://www.firstpost.com/india/four-new-judges-appointed-to-sc-profiles-of-justices-krishna-murari-sr-bhat-v-ramasubramanian-and-hrishikesh-roy-7375401.html
[5] https://www.scobserver.in/judges?id=hrishikesh-roy
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