Delhi District Court
State vs Raj Kumar on 26 November, 2013
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL. SESSIONS JUDGE
(NORTHEAST) : KARKARDOOMA COURTS, DELHI
SC No. 61/2008
FIR No. 112/2008
PS Narcotics Branch
Under Section 21 NDPS Act
Case ID 02402R0865612008
State Versus Raj Kumar
S/o Sh. Om Parkash,
R/o H. No. A34, Rani Garden,
Geeta Colony, Delhi.
Date of Institution 24.12.2008
Date of hearing Final Arguments 12.11.2013
Date of Judgment 20.11.2013
J U D G M E N T
1. In the present case, the accused is facing trial for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of 210 grams 'Heroin', containing 11 % diacetylmorphine.
2. The brief facts of the case, as relevant for disposal of the present case are that on 18.11.2008, a secret informer came to PS FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 1/20 Narcotics Branch at about 2.15 p.m. and informed SI Satyawan that the accused, who is indulged in supply of 'Heroin' shall come near Red Light, Shastri Park, Usmanpur Pushta between 3.30 p.m. to 4.00 p.m. and if a raid is conducted, he can be apprehended with 'Heroin' and the customer.
3. Thereafter, the secret informer was produced before SHO, Narcotics Branch, M.L. Sharma and after his satisfaction, he forwarded the information to ACP concerned, Sh. M.S. Dabas, who directed to conduct an immediate raid.
4. It is further stated that SI Satyawan recorded DD No. 15 A at about 2.45 p.m., regarding the secret information and the same was forwarded by the SHO to the concerned senior officers and thereafter, SI Satyawan constituted a raiding party, consisting of HC Mohan and Ct. Sohan Pal and collected his IO bag, field testing kit and electronic weighing machine and left the police station in official vehicle bearing registration No. DL 1CH 5839, driven by Ct. Jogender vide DD No. 16A. On the way, SI Satyawan requested several public persons to join the investigations, but nobody obliged and left without disclosing their names and addresses.
5. It is further stated that the raiding team took position near FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 2/20 the spot and at about 3.35 p.m., the accused came from the side of Khajoori Khas and was identified by the secret informer and after waiting for 34 minutes, at the spot, when he was about to return back, he was apprehended by the police party. Thereafter, the accused was informed about the secret information and was informed about his legal rights and the introduction of the raiding party members was also given to him. Thereafter, a notice U/s 50 NDPS Act was served upon him. The accused refused to get his personal search conducted in the presence of a Gazetted Officer or a Magistrate and thereafter, his personal search was conducted by SI Satyawan, in which, a transparent polythene containing brown colour powder was recovered. On checking, it was found as 'Heroin'. Thereafter, SI Satyawan prepared two samples of 5 grams each, from the recovered Heroin and sealed the samples and the remaining Heroin with his seal of '7APSNBDELHI' and thereafter, prepared the rukka and all the articles alongwith the documents and the rukka were sent to PS Narcotics Branch through HC Mohan Singh, on the basis of which, case FIR No. 112/08 was registered at PSNarcotics Branch, U/s 21 NDPS Act. The investigation of the case, was marked to SI Bhagwan Singh.
FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 3/20
6. It is further stated that HC Mohan Singh handed over the case property and the sample alongwith documents to the SHO, Inspector M.L. Sharma, who affixed his own seal on the pulandas and FSL form and deposited the same at the Malkhana. It is further stated that during investigations, the IO SI Bhagwan Singh recorded statements of the witnesses and visited the spot and arrested the accused. During investigations, the sample was sent to FSL, Rohini for chemical examination and the special reports U/s 57 NDPS Act were sent to the office of DCP concerned and after completion of investigations, the chargesheet was filed and the accused was sent up for trial.
7. Vide order dated 16.02.2009, the charge for the offence punishable U/s 21 (b) of the NDPS Act was framed against the accused, to which, he pleaded not guilty and claimed trial.
8. During the trial, the prosecution has examined the following witnesses:
(i) PW1, HC Mahesh Chand, the Duty Officer, who registered case FIR No. 112/2008,
(ii) PW2, SI Sunil Jain, the Investigating Officer of the present case, FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 4/20
(iii) PW3, ASI Hassan Raza, Reader to ACP, Narcotics Branch, who has proved the receipt of DD No. 15A Ex.PW3/A and Special Reports U/s 57 N.D.P.S. Act, Ex.PW3/E and Ex.PW7/F, at the office of ACP, Narcotics, Sh. Mahender Singh Dabas,
(iv) PW4, HC Mohan Singh, who was a member of the police party, which recovered Heroin from the accused.,
(v) PW5, HC Harinder Singh, who deposited the sample, at FSL Rohini, for chemical examination,
(vi) PW6, HC Mahesh, the MHC(M), at PSNarcotics Branch,
(vii) PW7, Inspector (Retired) M.L. Sharma, SHO, PSNarcotics Branch, and
(viii) PW8, SI Satyawan, the complainant, who recovered Heroin from the accused.
9. After completion of the prosecution evidence, the statement of the accused was recorded U/s 313 Cr.P.C., on 08.03.2013, wherein, he has denied all the incriminating evidence against him and has stated that he is innocent and has been falsely implicated in this case. The accused has not led any evidence in his defence, despite opportunity.
FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 5/20
10. After completion of trial, final arguments were addressed by Sh. Sanjay Kumar, Ld. Additional PP for the State and Ms. Sunita Tiwari, Advocate, for the accused.
11. Ld. APP for the State has argued that the police officials have duly followed the various mandatory provisions of the NDPS Act, and have proved the recovery of 210 grams of Heroin, containing 11 % diacetylmorphine (i.e., a net 23.1 grams diacetylmorphine) from the possession of the accused. He has also argued that the recovery of Heroin was affected from the personal search of the accused and provisions of Section 50 NDPS Act were duly complied by the police officials, before conducting his personal search, as the accused was specifically told about his legal rights and was also told that his personal search can be conducted in the presence of a Gazetted Officer or a Magistrate, if he so desire. He has also argued that PW5 HC Harinder Singh has taken the sample of Heroin from PW6, MHC(M) HC Mahesh on 26.11.2008 and deposited the same at FSL, Rohini and both these witnesses, have categorically stated that the seals of the sample had remained intact, during the period, the case property and the sample remained in their custody. The Ld. APP has further argued that the FSL report Ex.PW2/F also mentions the fact FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 6/20 that the seals were intact and tallied with the specimen seals, as per the forwarding letter (FSL form). He has also argued that the FSL report Ex.PW2/F has also established that the accused was in possession of Heroin containing 11 % diacetylmorphine. He has prayed that the prosecution witnesses have successfully proved its case against the accused for the offence punishable U/s 21 (b) of the NDPS Act and therefore, the accused be held guilty and convicted for the said offence.
12. On the other hand, the Ld. defence counsel has argued that the provisions of Section 50 NDPS Act were not complied by the police officials, properly, as no independent public witness was joined to the entire proceedings and no notice was served by the police officials to the public persons, who refused to join the investigations. She has also argued that the raid was conducted in an official vehicle, bearing registration No. DL 1CH 5839, but no log book of the official vehicle was produced before the Court, during the trial and even its driver Ct. Jogender, was not examined, as a witness. She has further argued that there are several contradictions in the depositions of the prosecution witnesses, which makes the prosecution case, doubtful. She has also argued that SI Satyawan had handed over his seal, after FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 7/20 use to Ct. Sohan Pal. But, Ct. Sohan Pal, who was an alleged member of the raiding team, has not been examined during the trial. The Ld. defence counsel has prayed that the material contradictions in the depositions of the witnesses and discrepancies on record, make the entire prosecution case, doubtful and therefore, the accused be acquitted for the offence punishable U/s 21 (b) of the NDPS Act.
13. I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. APP for the State and the Ld. defence counsel.
14. Perusal of the record shows that PW8 SI Satyawan has categorically stated before the Court that on 18.11.2008, a secret informer came to his office at about 2.15 p.m. and told him about possession of Heroin by the accused and thereafter, the secret informer was produced before SHO, Inspector M.L. Sharma and after his satisfaction, the information was forwarded to ACP, M.S. Dabas, who directed to conduct a raid and to take the legal action. He has further stated that the secret information was reduced into writing vide DD No. 15A at 2.55 p.m. and the same was submitted to Inspector M.L. Sharma, who forwarded the same to the senior officers. Copy of the secret information has been proved on record as Ex.PW1/H. The FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 8/20 receipt of this information at the office of ACP concerned has been proved by PW3 ASI Hasan Raja, who has deposed that DD No. 15A dated 18.11.2008, was received in the office of ACP concerned, vide receipt No. 1593, Ex.PW3/A. PW7 Inspector M.L. Sharma has also reiterated these facts and has categorically stated that he forwarded the copy of DD No. 15A to the office of ACP concerned. All these circumstances indicate that the provisions of Section 43 of the NDPS Act have been duly complied by the police officials.
15. Perusal of the record further shows that PW8 SI Satyawan has categorically stated that on the directions of the ACP concerned and the SHO, Inspector M.L. Sharma, he constituted a raiding team consisting of HC Mohan Singh and Ct. Sohan Pal and collected his IO bag, field testing kit and electronic weighing machine and left the Narcotics Cell with the secret informer, in official vehicle bearing registration No. DL 1CH 5839, being driven by Ct. Jogender vide DD No. 16A. Copy of DD No. 16A has been proved on record as Ex.PW1/G.
16. PW8 SI Satyawan has further stated that several public persons were asked to join the investigations, on the way to the spot and on the spot, but nobody obliged and left the spot, without FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 9/20 disclosing their names and addresses.
17. PW8 SI Satyawan has further stated that the accused came to the spot at about 3.35 p.m. and was identified by the secret informer and when the accused started moving from the spot, after waiting for somebody for about 34 minutes, he was apprehended by him with the help of the staff and thereafter, the introduction of the members of the raiding team was given to him and he was told about the secret information and was also told about his legal rights. He has also told that his personal search was to be conducted and if he so desire, the same can be conducted in the presence of a Gazetted Officer or a Magistrate. But, the accused refused all the offers and thereafter, the notice U/s 50 NDPS Act was served upon him. The notice U/s 50 NDPS Act has been proved on record as Ex.PW4/A. The refusal of the accused has been proved on record as Ex.PW4/B. The above circumstances indicate that the provisions of Section 50 NDPS Act have been followed by him, properly.
18. PW8 SI Satyawan has further stated that he took the cursory search of the accused, in which, a transparent polythene packet, containing matiala colour power, was recovered from the left side pocket of his pant and on checking the contents with the help of FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 10/20 the field testing kit, it was found to contain 'Heroin'. Thereafter, it was weighed on electronic weighing scale and its weight came to 210 grams. Thereafter, he prepared two samples of 5 grams each and sealed the same with his seal of '7APSNBDELHI'. The remaining Heroin was also seized in a separate cloth pulanda. Thereafter, he filled up the FSL form and seized all the articles vide seizure memo Ex.PW4/C. He has further deposed that he got prepared the rukka, Ex.PW8/A through Ct. Sohan Pal and thereafter, he handed over the rukka, sealed pulandas, FSL form and carbon copy of the seizure memo to HC Mohan Singh and directed him to hand over the rukka to the duty officer and the remaining articles to the SHO, at PSNarcotics Branch.
19. Testimony of PW8 SI Satyawan finds corroboration from the testimony of PW4 HC Mohan Singh, who has deposed in a similar manner and has reiterated the facts deposed by PW8 SI Satyawan. Both these witnesses were crossexamined by the Ld. defence counsel at length, but no material discrepancy has come on record, to discard their testimonies. Both these witnesses have succeeded in proving the recovery of 210 grams Heroin from the possession of the accused.
20. PW7 Inspector M.L. Sharma has also deposed in the FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 11/20 Court that on 18.11.2008, HC Mohan Singh came to his office and handed over the sealed pulandas, FSL form and carbon copy of the seizure memo to him and thereafter, he affixed his own seal of '1SHONBRDELHI' on the pulandas & FSL form and handed over the same to the MHC(M) HC Mahesh Kumar. He has further stated that MHC(M) made entry in register no. 19 in this regard and thereafter, he lodged DD No. 21A at 7.45 p.m. True copy of DD No. 21A has been proved on record as Ex.PW1/F. HC Mahesh MHC(M) PW6 has also corroborated the testimony of SHO, Inspector M.L. Sharma on all the above points and has also stated that he made entry in register no. 19 at serial No. 883, regarding the deposition of the case property and the sample and documents by SHO, Inspector M.L. Sharma. Photocopy of register no. 19 has been proved on record as Ex.PW6/A.
21. Duty Officer HC Mahesh Chand has also deposed that on 18.11.2008, HC Mohan Singh handed over a rukka to him, on the basis of which, he recorded DD No. 112/2008, U/s 21 NDPS Act. The Kayami DD No. 20A has been proved on record as Ex.PW1/A. Copy of the FIR has been proved on record as Ex.PW1/D. HC Mahesh Chand also made endorsement on the rukka and the same has been proved on record as Ex.PW1/B. He has further stated that after FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 12/20 completion of FIR, he lodged Bandi DD No. 22A, a copy of which has been proved on record as Ex.PW1/E. He has also deposed that the investigation of the case was marked to SI Sunil Jain.
22. PW2 SI Sunil Jain has also deposed that the investigation of the case was marked to him on 18.11.2008 and thereafter, he alongwith driver Ct. Jogender went to the spot in the same official vehicle, where SI Satyawan and other officials met him, with the accused. He has further stated that the documents and the custody of the accused was handed over to him by SI Satyawan and he prepared the site plan Ex.PW2/A, at his instance. Thereafter, the accused was arrested by him and his personal search was conducted, in which, the carbon copy of the notice U/s 50 NDPS Act was recovered.
23. PW2 SI Sunil Jain has further deposed that after completion of the investigations, at the spot, he reached the police station at about 9.45 p.m. and the accused was produced before SHO, Inspector M.L. Sharma and he deposited the articles of personal search of the accused with the MHC(M) and lodged DD No. 25A in this regard. MHC(M) PW6 HC Mahesh has reiterated all these facts. He has also proved the photocopy of register no. 19, in this regard, as Ex.PW6/B. The true copy of DD No. 25A has been proved on record FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 13/20 as Ex.PW1/C.
24. SI Sunil Jain has further deposed that he prepared his report U/s 57 NDPS Act and the same was produced before the SHO, Inspector M.L. Sharma, who forwarded the same to the concerned police officials. His report has been proved on record as Ex.PW2/E. The receipt of the report at the office of ACP concerned has been proved on record by ASI Hassan Raja. PW3 ASI Hassan Raja has categorically stated that on 19.11.2008, two reports U/s 57 NDPS Act were received at the office of ACP concerned vide serial No. 1601 and 1602. Copies of the diary entries have been proved on record as Ex.PW3/C and Ex.PW3/D.
25. Perusal of the record further shows that the sample of Heroin was sent to FSL, Rohini for chemical analysis through PW5 HC Harinder Singh on 26.11.2008 on the directions of SHO, Inspector M.L. Sharma. PW5 HC Harinder Singh, PW6 HC Mahesh, MHC(M) and SHO, Inspector M.L. Sharma have all deposed this fact. PW5, HC Harinder Singh and PW6 HC Mahesh have both categorically stated that the samples were not tampered, till the time the same remained in their custody.
26. Furthermore, the sample, which was sent to FSL, Rohini, FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 14/20 for Chemical analysis was duly chemically analysed by Dr. Madhulika Sharma, Assistant Director (Chemistry), FSL, Rohini. Her report, bearing No. FSL2008/C4559 dated 14.01.2009, Ex.PW2/F, is admissible in evidence, by virtue of section 293 of The Code of Criminal Procedure, 1973. As per report, Ex.PW2/F, the sample was examined by chemical tests, chromatography and instrumental methods and found to contain Paracetamol, Caffeine, Acetylcodeine, Monoacetylmorphine, Phenobarbital and Diacetylmorphine.
27. Perusal of the record further shows that the prosecution witnesses have deposed in a consistent and trustworthy manner, regarding the recovery of Heroin from the possession of the accused, its seizure by SI Satyawan, preparation of the samples and deposition of the articles at the Malkhana and sending of the samples to the FSL, Rohini, for chemical analysis and thereafter, receiving of the remnant of the samples, alongwith the FSL Report, at the Malkhana.
28. It has been held by the Hon'ble High Court of Delhi in the case titled as Bilal Ahmed Vs. State, reported as 2011(1)JCC 27, as under: "10. I also do not find any merit in the contention that the form FSL was not deposited in the malkhana or that the same was not sent to the CFSL. PW3 Inspector Jeevan Singh has FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 15/20 stated that the form FSL was filled and the pulanda was taken into possession vide Seizure Memo Ex. PW3/A. He took the pulanda and the FSL form in his possession along with the seizure memo and deposited the pulanda and FSL form along with a copy of the seizure memo in the malkhana on 2nd May, 1999 at around 10 p.m. The testimony of PW3 Inspector Jeevan Singh also finds support from the testimony of PW 9 Bhagmal Singh who also states that the samples and pulanda were deposited with him duly sealed with the seal of R.K. and J.S. He made the entry in the register No.19, Ex. PW9/A. The contention that the form FSL was not sent to CFSL Chandigarh, is unfounded. The CFSL report Exhibit PX states that "Seals were intact, and tallied with specimen seals impressions". The seals on the samples cannot be tallied except with the specimen seals on the FSL form. Thus, even without specifically stating that form FSL has been received with the samples, this endorsement clarifies that the form FSL was received. Delay in sending parcel to the CFSL is not fatal especially when as per the CFSL report, the seals are intact and tallied with the specimen seals. In State of Rajasthan v. Daul @ Daulat Giri MANU/SC/0881/2009 : 2009 (14) SCC 387 it was held:
1. The factual scenario goes to show that Jaswant Singh (PW.1), the I.O., seized the articles on 15/6/1995. The search memo is Ex. P.4 and the specimen impression of the seal Ex. P.5. PW.1 deposited the seized articles and sample with Bhanwarlal (PW.8) who was the Malkhana InCharge in the Malkhana register in Ex. P.15A. PW.8 handed the material to Surendera Singh (PW.5) for depositing the sample in FSL. PW.5 reached the Superintendent of Police office and gave the samples to Jamnalal at FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 16/20 10.00 a.m. and received back the samples from Jamnalal at 5.00 p.m. and also obtained forwarding letter which is Ex. P.12 and is dated 20/6/95. PW.5 submitted the samples to FSL and obtained acknowledgment receipt it is Ex. P.13. The role of Jamnalal is very limited; that is receiving sample at 10.00 a.m. and handing samples back at 5.00 p.m. It is not understandable as to how the nonexamination of Jamnalal in any way affected the veracity of the prosecution version. The High Court came to an attempt and unsustainable conclusion that because Jamnalal was not examined "possibility of the sample having been tampered with could not be ruled out".
The conclusion is unsustainable in view of the FSL report which clearly stated that the seals were intact and matched with the specimen seals.
11. In Hardip Singh v. State of Punjab MANU/SC/7956/2008 : 2008 (8) SCC 557 it was held:
16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the Appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of opium from the possession of the Appellant, which fact is also corroborated by a higher officer, namely, SS Mann, DSP who was also examined at length during the trial.
The said recovery was effected in the presence of the said SS Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium.
FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 17/20
17. The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1, was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW 5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of Chemical Examiner, Amritsar on 30.9.1997 through ASI Surinder Singh, (PW3). It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the Appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the Appellant. The aforesaid contention, therefore, also stands rejected."
(emphasis supplied by me)
29. In the present case also, SI Satyawan has categorically stated that after recovery of Heroin, he prepared the samples & sealed the samples with his seal of '7APSNBDELHI'. He has categorically stated that the sample parcels and the case property were taken into possession vide seizure memo Ex.PW4/C and he handed over the three sealed parcels, form FSL, carbon copy of the seizure memo and rukka to HC Mohan, with the directions of hand over the rukka to the Duty FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 18/20 Officer and remaining articles to the SHO. HC Mohan handed over three sealed parcels, form FSL and carbon copy of the seizure memo to SHO, Inspector M.L. Sharma, who affixed his own seal of '1SHONBRDELHI' and put the FIR number and the particulars of the case on the above articles and deposited the same with the MHC(M). PW7 Inspector M.L. Sharma has also stated that he had affixed his seal of '1SHONBRDELHI' on all the three sealed pulandas and form FSL and deposited the case property & the documents at the Malkhana. FSL Report dated 14.01.2009, also mentions that the samples seals were intact and were tallied with the specimen seals, as per forwarding letter (FSL form). In view of the depositions of these witnesses and the documentary evidence, on record, it cannot be said that the samples were tampered.
30. Perusal of the record further shows that all the prosecution witnesses have corroborated the testimonies of each other, on all the material points. Perusal of the testimonies of the prosecution witnesses indicates that the various provisions of The N.D.P.S. Act, 1985, have been duly complied by the police officers. Even in their crossexaminations, no material discrepancy has come on record, to discard their testimonies or to make the prosecution case FIR112/2008 PSNarcotics Branch ASJ/Special Judge NDPS (N/E) Page 19/20 doubtful. However, there are some minor discrepancies in the depositions of the witnesses, but, in the considered opinion of this Court, the same are not fatal to the present prosecution case, as some minor discrepancies are bound to creep in the testimonies of the witnesses, when the witnesses depose before the Court in a natural manner and after a lapse of long time. All the prosecution witnesses have duly proved the recovery of 210 grams Heroin from the possession of the accused.
31. In view of the above discussion, I am of the considered opinion that the prosecution has successfully proved its case against the accused, for the offence punishable U/s 21 (b) of the N.D.P.S. Act. Therefore, the accused is hereby held guilty and convicted for the offence punishable U/s 21 (b) of the N.D.P.S. Act.
Let the convict be heard on the point of sentence, on the next date of hearing.
Announced in the open court Brijesh Kumar Garg on this 20th day of November, 2013. Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
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