ROFIQUL HOQUEversusTHE UNION OF INDIA & ORS.
- Citation
- 2025 INSC 730
- Decided
- 18 May 2025
- Disposal
- Dismissed
Holding
The Supreme Court held that the Tribunal and High Court correctly applied the burden of proof under Section 9 of the Foreigners Act and that inclusion of the appellant’s name in the draft NRC does not overturn the declaration of foreigner, so the appeal was dismissed.
Summary
The appellant, Rofiqul Hoque, was declared a foreigner by the Foreigners Tribunal in Assam for allegedly entering India after 25 March 1971, a finding upheld by the Gauhati High Court. He challenged the declaration, arguing that his name appeared in the draft National Register of Citizens (NRC) in 2018 and that minor discrepancies in voter list entries and a school certificate should not defeat his claim of Indian citizenship. The Supreme Court examined the burden of proof under Section 9 of the Foreigners Act, noting that the appellant failed to provide cogent documentary evidence of his or his ancestors' entry before the cut‑off date, and the Tribunal’s assessment of the evidence was not perverse or unreasonable. The Court also considered the effect of the draft NRC inclusion, holding that persons already declared foreigners by the competent authority cannot be included in the NRC and such inclusion does not invalidate the declaration. Consequently, the Court found no legal infirmity in the Tribunal and High Court orders and dismissed the appeal, confirming the appellant’s status as a foreigner.
Issues considered
- Whether the findings of the Foreigners Tribunal and the High Court that the appellant is a foreigner suffer from any legal infirmity warranting interference under Article 136 of the Constitution.
- Whether the inclusion of the appellant's name in the draft NRC published in 2018 renders the Tribunal's declaration of him as a foreigner invalid.
Legislation cited
Headnote
Issue for Consideration Once the name of the appellant stands included in the draft NRC, whether the order of the Tribunal, declaring him a foreigner, and of the High Court, affirming the order of the Tribunal, be sustained. Headnotes† Foreigners Act, 1946 – s.9 – Citizenship Identity Cards) Rules, 2003 – r.4A(4) – Appellant was declared foreigner by the Foreigners Tribunal – The High Court upheld the findings of the Tribunal – Whether the findings returned by the Tribunal and the High Court suffer from any legal infirmity as to warrant an
Subjects
Judgment
[2025] 6 S.C.R. 569 : 2025 INSC 730
Rofiqul Hoque
v.
The Union of India & Ors.
(Criminal Appeal No. 2686 of 2025)
19 May 2025
[Sanjay Karol and Manoj Misra,* JJ.]
Issue for Consideration
Once the name of the appellant stands included in the draft
NRC, whether the order of the Tribunal, declaring him a foreigner,
and of the High Court, affirming the order of the Tribunal, be
sustained.
Headnotes†
Foreigners Act, 1946 – s.9 – Citizenship (Registration of
Citizens and Issue of National Identity Cards) Rules, 2003 –
r.4A(4) – Appellant was declared foreigner by the Foreigners
Tribunal – The High Court upheld the findings of the
Tribunal – Whether the findings returned by the Tribunal and
the High Court suffer from any legal infirmity as to warrant
an interference in exercise of this Court’s power u/Art.136 of
the Constitution of India:
Held: Section 9 of the 1946 Act places the burden of proof on the
proceedee to prove that he is not a foreigner – Consequently, the
burden was on the appellant to establish by cogent documents
or other evidence that either he himself had entered the territory
of Assam prior to 25.03.1971 or his ancestors had entered the
territory prior to the said date – The Courts below considered
these documents – The probative value of voter list entries were
discarded – The school leaving certificate was obtained 10 years
after passing from the institution and there appeared no reason
for obtaining it after 10 years – Moreover, the headmaster of the
school was not called for to prove the authenticity of the certificate
of which duplicate was produced – After considering the documents
on record along with the evidence produced, the Tribunal and the
High Court held that the appellant could not discharge his burden
* Author
570 [2025] 6 S.C.R.
Supreme Court Reports
of proving that he is not a foreigner, the view taken by them cannot
be held perverse, or manifestly erroneous, or unreasonable, as to
warrant interference under Article 136 of the Constitution of India –
That apart, it is not the case of the appellant that any material/
admissible evidence was ignored or there was misreading of any
of the documents produced by the appellant – Therefore, the view
that the findings returned by the Tribunal and the High Court do
not suffer from any legal infirmity. [Paras 13, 15, 16 and 17]
Foreigners Act, 1946 – s.9 – Citizenship (Registration of
Citizens and Issue of National Identity Cards) Rules, 2003 –
r.4A(4) – Whether on inclusion of the name of the appellant
in the draft NRC published by the competent authority in the
year 2018, the declaration made by the Tribunal, as affirmed
by the High Court, would be rendered invalid:
Held: In view of the decision of this Court in Abdul Kuddus,
consequent to the declaration by the Tribunal that appellant is a
foreigner, the name of the appellant could not have been included in
the draft NRC and, secondly, even if it has been included, it would
not annul the declaration made by the Tribunal – The inclusion of
the name of the appellant in the draft NRC would have no bearing
on the order passed by the Tribunal, affirmed by the High Court,
declaring the appellant a foreigner. [Paras 27 and 28]
Case Law Cited
Abdul Kuddus v. Union of India and Others [2019] 8 SCR 669 :
(2019) 6 SCC 604 – relied on.
Sarbananda Sonowal v. Union of India and Another [2006]
Supp. 10 SCR 167 : (2005) 5 SCC 665 – referred to.
List of Acts
Foreigners Act, 1946; Citizenship (Registration of Citizens and
Issue of National Identity Cards) Rules, 2003.
List of Keywords
Foreigner; Illegal entry in India; Illegal resident; Draft NRC; Traced
ancestry; National Register of Indian citizen in the State of Assam;
Illegal migrants.
[2025] 6 S.C.R. 571
Rofiqul Hoque v. The Union of India & Ors.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2686 of 2025
From the Judgment and Order dated 20.11.2017 of the Gauhati
High Court in WPC No. 2207 of 2017
Appearances for Parties
Advs. for the Appellant:
Pijush Kanti Roy, Sr. Adv., Mrs. Kakali Roy, Rajesh Kumar
Chaurasia, Sujeet Kumar, Devender Singh, Gautam Kumar.
Advs. for the Respondents:
Tushar Mehta, Solicitor General, Ms. Aishwarya Bhati, A.S.G.,
Kanu Agrawal, Shuvodeep Roy, Ms. Prerna Dhal, Ms. Astha Singh,
Ms. Sampa Sengupta Ray, Arvind Kumar Sharma, Shuvodeep
Roy, Saurabh Tripathi, Deepayan Dutta.
Judgment / Order of the Supreme Court
Judgment
Manoj Misra, J.
1. Leave granted.
2. This appeal arises from proceedings1 under the Foreigners Act,
19462, whereunder, vide order dated 04.03.2017, the appellant was
declared foreigner, who entered India illegally after 25.03.1971, by
the Foreigners Tribunal3, Jorhat, Assam. The aforesaid order of the
Tribunal was challenged before the Guwahati High Court4 under Article
226 of the Constitution of India5 through W.P.(C) No.2207/2017, which
was dismissed vide impugned order dated 20.11.2017.
3. Aggrieved by the declaration that appellant is a foreigner and
dismissal of the writ petition challenging such declaration, this appeal
has been filed.
1 Case No.FT/SVR/62/14
2 1946 Act
3 Tribunal
4 High Court
5 The Constitution
572 [2025] 6 S.C.R.
Supreme Court Reports
Facts
4. Before adverting to the issues that fall for our consideration in this
appeal it would be apposite to briefly refer to the relevant facts.
They are as follows:
(i) Based on a preliminary enquiry, the Superintendent of Police
(Border), Sivasagar made a reference to the Tribunal, inter
alia, alleging that the appellant is a foreigner illegally residing
in Assam, India.
(ii) On the aforesaid reference, notice was issued by the Tribunal
calling upon the appellant to show cause as to why he be not
declared a foreigner.
(iii) The appellant contested the notice by filing a written statement on
15.06.2016, inter alia, stating (a) that he is son of Md. Majut Ali,
a resident of Daobhangi village under Gauripur police station in
the district of Dhubri; (b) Joynal Abdin Seikh was his grandfather
and Moriyom Bibi was his grandmother; (c) his own mother’s
name is Sopia Bibi (Begum); (d) his grandfather’s name was
enlisted in the voters list of 1966 whereas his grandmother’s
name was enlisted in the voters list of 1970; (e) he was born
in the year 1996 and as such he is a citizen of India.
(iv) To support his case, the appellant submitted school certificate
(Ext-1); extract of voters list of 1966 in respect of Gauripur
Assembly Constituency (Ext-2); extract of voters list of 1970 in
respect of Gauripur Assembly Constituency (Ext-3); extract of
voters list of 1993 in respect of Gauripur Assembly Constituency
(Ext-4); extract of voters list of 2010 in respect of Gauripur
Assembly Constituency (Ext-5); and extract of voters list of
2016 in respect of Gauripur Assembly Constituency (Ext-6).
(v) Ext-1 was a duplicate school leaving certificate dated 03.05.2014
issued by headmaster of number 1236 Khagrabari LP School
certifying that (a) Rofiqul Hoque is son of Majut Ali (father) and
Sopia Bibi (mother) of Daobhangi village under Gauripur Police
Station; (b) his date of birth is 20.07.1996; and (c) he left the
school on 31.12.2004.
(vi) The Tribunal held appellant to be a foreigner. While holding so
the Tribunal, inter alia, observed that place of residence of Joynal
[2025] 6 S.C.R. 573
Rofiqul Hoque v. The Union of India & Ors.
Abdin as reflected in the voter lists was at variance with what
was claimed by the appellant. For example, in the voter list of
1993 Joynal Abdin was shown as a resident of Kekurchar6 village
whereas the appellant was resident of village Daobhangi. The
Tribunal noted that appellant nowhere stated that his grandfather
shifted from one village to the other. The Tribunal thus opined that
it is difficult to hold that Joynal Abdin Seikh son of Rahim Munshi
of Daobhangi village and Joynal Abdin Seikh son of Rahim Seikh
of Kekurchar village were one and the same person.
High Court’s Analysis of the Evidence
5. In the writ petition preferred against the Tribunal’s order, the High
Court considered the entire evidence produced by the appellant. It
highlighted defects in the evidence led by the appellant, which are
enumerated below:
(i) The school leaving certificate (Ext-1) was an unreliable document,
inter alia, for the following reasons: a) it was duplicate, therefore
not acceptable without proof of loss of original; b) there was no
logical reason for its issuance on 03.05.2014, after 10 years of
appellant having left the school; and c) the headmaster of the
school was not examined to prove its contents.
(ii) The voter list of 1966 (Ext-2) discloses only the name of Joynal
Abdin Seikh son of Rahim Munshi which, in isolation, cannot
be of much help to the appellant.
(iii) The voter list of 1970 (Ext-3), though includes names of Joynal
Abdin Seikh son of Rahim Munshi and Moriyom Bibi wife of
Joynal, discloses age of Moriyom Bibi as 27 years, which is
surprising because if she had been of that age her name would
have been found in the voter list of 1966.
(iv) In the voter list of 1993 (Ext-4), though names of Maziber Ali and
Majut Ali are shown as sons of Joynal Abdin, age of Majut Ali
is shown 30 years, which is surprising for it to have appeared
for the first time at that age.
(v) In the voter list of 1966 Joynal Abdin was shown aged 38 years.
If he had been the same person in the voter list of 1993, his
6 Referred to as ‘Bhekarchar’ in the voter list of 1993.
574 [2025] 6 S.C.R.
Supreme Court Reports
age ought to have been 65 years whereas in the 1993 voter
list, his age was shown as 70 years. The High Court therefore
expressed doubt as to whether Joynal Abdin Seikh as mentioned
in 1966 voter list is one and the same person as mentioned
in 1993 voter list.
(vi) Additionally, the High Court noticed that as per the affidavit of
the appellant, Joynal Abdin Seikh was a resident of Daobhangi
village whereas in the voter list of 1993, Joynal Abdin was shown
as a resident of Kekurchar village, which is altogether different
from the village of which the appellant claims to be a resident.
Further, the High Court noticed that in the 1993 voters list, the
name of the mother of the appellant, namely, Sopia Bibi, is
conspicuous by its absence.
(vii) As regards the voters list of 2010, the High Court observed that
here Majut Ali’s age is shown as 45 years whereas in 1993 list
it was 30 years therefore, in the 2010 voters list, it ought to
have been 47 years. Besides above, there was a noticeable
change in respect of the place of residence because in 1993
list, the village of domicile is shown as Kekurchar whereas in
2010 voter list it is Daobhangi.
(viii) In respect of the voter list of 2016, though names of Majut Ali
and Sopia Bibi appeared, there appeared overwriting in the
age of Sopia Bibi where 45 was written over 30. The High
Court, therefore, expressed doubt on the genuineness of the
document itself.
(ix) Based on the above analysis of the evidence, the High Court
observed that “net result of the above discussion is that
petitioner had failed to discharge his burden under section 9 of
the Foreigners Act, 1946 to prove that he was not a foreigner
but a citizen of India”. The High Court further observed: “the
narrative presented by the petitioner suffered from multiple
material contradictions and omissions rendering the same not
only suspicious but highly improbable.” Consequently, the High
Court declined to interfere with the order passed by the Tribunal
dated 04.03.2017.
6. Pursuant to the order of the High Court, the appellant was detained.
After nearly 2 years of the High Court’s order, the appellant filed SLP
[2025] 6 S.C.R. 575
Rofiqul Hoque v. The Union of India & Ors.
(Crl.) No.5598/2019 along with an application seeking permission to
file additional documents.
7. The pleas taken before this Court are (a) that after the order of
the High Court, the appellant had a permanent account number
in his favour, which was issued by the Income Tax Department on
26.12.2017; and (b) that his name appeared at serial no.7 in the
draft NRC published by the competent authority on 30.07.2018,
consequently, he could no longer be considered a foreigner.
8. On 03.07.2019, this Court condoned the delay and issued notices
to the respondents. Thereafter, on 26.07.2019, in view of appellant’s
name figuring in the draft NRC published on 30.07.2018 (wrongly
transcribed as 31.07.2018 in the order), this Court directed release of
the appellant from the Detention Centre, subject to certain conditions.
Submissions on behalf of Appellant
9. The contention of the learned counsel for the appellant is that once
the name of the appellant stands included in the draft NRC, the order
of the Tribunal, declaring him a foreigner, and of the High Court,
affirming the order of the Tribunal, cannot be sustained. Moreover, the
Tribunal and the High Court adopted a pedantic approach in holding
that the appellant had failed to discharge the burden. Otherwise also,
minor discrepancies in the voter list are to be ignored as these entries
are not within the control of the voter. As regards change of place of
residence, it was argued, a citizen of the country is free to travel from
one place to the other and therefore, on mere change of domicile
from one village to the other the nationality cannot be doubted.
Submissions on behalf of respondents
10. Per contra, on behalf of the respondents, it was submitted that a
declaration made by the Tribunal that a person is a foreigner does
not get effaced or annulled by mere inclusion of that person’s name
in the draft NRC because the proceedings of the Tribunal are quasi-
judicial in nature and once a declaration is made by it, the same
can be set aside only by a superior court and not by the Registering
Authority. It was also argued on behalf of the respondents that the
discrepancies in the documents furnished by the appellant by way
of proof of his citizenship were not only in respect of residence of
the persons through whom the appellant claimed to be a citizen but
576 [2025] 6 S.C.R.
Supreme Court Reports
also in respect of the school certificate, which was found doubtful
and bogus. Therefore, as by Section 9 of the 1946 Act burden is on
the proceedee, the finding of the Tribunal cannot be faulted.
11. We have considered the rival submissions and have perused the
materials on record.
Issues
12. Two issues arise for our consideration in this appeal, namely, (a)
whether the findings returned by the Tribunal and the High Court
suffer from any legal infirmity as to warrant an interference in exercise
of this Court’s power under Article 136 of the Constitution of India?
(b) whether on inclusion of the name of the appellant in the draft
NRC published by the competent authority in the year 2018, the
declaration made by the Tribunal, as affirmed by the High Court,
would be rendered invalid?
Discussion/ Analysis
13. Issue (a) - As regards the claim of the appellant that the Tribunal
and the High Court adopted a pedantic approach in discarding the
documents for minor discrepancies and, therefore, their finding
stands vitiated, it be noticed that Section 9 of the 1946 Act places the
burden of proof on the proceedee to prove that he is not a foreigner7.
Consequently, the burden was on the appellant to establish by cogent
documents or other evidence that either he himself had entered the
territory of Assam prior to 25.03.1971 or his ancestors had entered
the territory prior to the said date.
14. In that regard, the appellant traced his ancestry from Joynal Abdin
Seikh by claiming him to be his grandfather. Voter lists were produced
to show that Joynal’s name was there prior to the cut-off date and the
subsequent voter lists reflected that appellant was part of that family.
15. The Tribunal as well as the High Court have considered these
documents and have found that those earlier voter lists relate to
a person located in some other village than the one of which the
appellant claimed to be a resident. In such circumstances, the
appellant ought to have stated in his affidavit, or demonstrated by
7 Sarbananda Sonowal v. Union of India and another, (2005) 5 SCC 665
[2025] 6 S.C.R. 577
Rofiqul Hoque v. The Union of India & Ors.
some documentary evidence, that his ancestors had migrated from
that village to the other village where the appellant was reported to
be residing, but, according to the Tribunal, there was no such claim
by the appellant in his affidavit. Therefore, the Tribunal discarded
the probative value of those voter list entries. Interestingly, the
school leaving certificate on which heavy reliance was placed by
the appellant was also doubted as there appeared no reason for it
to have been obtained 10 years after passing from the institution.
Moreover, the headmaster of the school was not called for to prove
the authenticity of the certificate of which duplicate was produced.
16. For the foregoing reasons, if the Tribunal and the High Court held
that the appellant could not discharge his burden of proving that he
is not a foreigner, the view taken by them cannot be held perverse,
or manifestly erroneous, or unreasonable, as to warrant interference
under Article 136 of the Constitution of India.
17. That apart, it is not the case of the appellant that any material/
admissible evidence was ignored or there was misreading of any of
the documents produced by the appellant. We are, therefore, of the
view that the findings returned by the Tribunal and the High Court
do not suffer from any legal infirmity.
18. Issue (a) is decided in the above terms.
19. Issue (b) - As regards the effect of inclusion of the name of the
appellant in the draft NRC, which was published by the competent
authority in 2018, it would be apposite to notice Rule 4 A of the
Citizenship (Registration of Citizens and Issue of National Identity
Cards) Rules, 2003 8 as inserted by GSR No.803 (E), dated
09.11.2009, with effect from 09.11.2009. Rule 4 A reads thus:
“4A. Special provisions as to National Register of
Indian Citizens in State of Assam – (1) Nothing in rule
4 shall, on and after the commencement of the Citizenship
(Registration of Citizens and Issue of National Identity
Cards) Amendment Rules, 2009, apply to the State of
Assam.
(2) The Central Government shall, for the purpose, of
the National Register of Indian Citizens in the State of
8 2003 Rules
578 [2025] 6 S.C.R.
Supreme Court Reports
Assam, cause to carry out throughout the State of Assam
for preparation of the National Register of Indian Citizens
in the State of Assam by inviting applications from all the
residents, for collection of specified particulars relating to
each family and individual, residing in a local area in the
State including the citizenship status based on the National
Register of Citizens 1951 and the [electoral rolls upto the
midnight of the 24th day of March, 1971].
(3) The Registrar General of Citizens Registration shall
notify the period and duration of the enumeration in the
Official Gazette.
(4) The manner of preparation of the National Register
of Indian Citizens in the State of Assam shall be such
as specified in the Schedule appended to these rules.”
(Emphasis supplied)
20. Sub-rule (4) of Rule 4 A provides that the manner of preparation of
the National Register of Indian Citizens in the State of Assam shall
be such as specified in the Schedule appended to these rules.
21. The Schedule attached to the 2003 Rules is titled “Special Provision
As To Manner Of Preparation Of National Register Of Indian Citizen
In State Of Assam”.
22. Paragraph 3 of the aforesaid Schedule provides as under:
“3. Scrutiny of applications – (1) The scrutiny of
applications received under sub-paragraph (3) of paragraph
2 shall be made by comparing the information stated in the
application form with the official records and the persons,
of whom the information is found in order, shall be eligible
for inclusion of their names in the consolidated list.
(2) The names of persons who have been declared
as illegal migrants or foreigners by the competent
authority shall not be included in the consolidated list:
Provided that the names of persons who came in the
State of Assam after 1966 and before the 25th March,
1971 and registered themselves with the Foreigner
Registration Regional Officer and who have not been
[2025] 6 S.C.R. 579
Rofiqul Hoque v. The Union of India & Ors.
declared as illegal migrants or foreigners by the
competent authority shall be eligible to be included
in the consolidated list.
(3) The names of persons who are originally inhabitants of
the State of Assam and their children and descendants, who
are Citizens of India, shall be included in the consolidated
list if the citizenship of such persons is ascertained beyond
reasonable doubt and to the satisfaction of the registering
authority;
(4) The Local Registrar of Citizens Registration may, in
case of any doubt in respect of parental linkage or any
particular mentioned in the application received under
sub – paragraph (3) of paragraph 2, refer the matter to the
District Magistrate for investigation and his decision and
Local Registrar of Citizens Registration shall also inform
the same to the individual or the family;
(5) The Local Registrar of Citizens Registration may, in
respect of a person who- (a) was residing in a place other
than the State of Assam up to the midnight of the 24th day
of March, 1971; or
(b)has shifted from one district to another within the State
of Assam up to the midnight of the 24th day of March, 1971,
verify information relating to such person through inter-
state correspondence, or, as the case may be, through
inter-district correspondence.”
(Emphasis supplied)
23. Sub-para (2) to paragraph 3 makes it clear that the names of persons
who have been declared as illegal migrants or foreigners by the
competent authority shall not be included in the consolidated list.
24. Admittedly, the draft NRC was published in 2018 and by that time,
the appellant had already been declared a foreigner by the Tribunal.
25. Interpreting the consequence of such declaration, a three-Judge Bench
of this Court in Abdul Kuddus vs. Union of India and others9, held:
9 (2019) 6 SCC 604
580 [2025] 6 S.C.R.
Supreme Court Reports
“11. It is obvious to us that the persons covered by the
sub-para (2) to para 3 of the Schedule i.e. persons who
have been declared to be illegal migrants or foreigners
by the competent authority fall in a separate and distinct
class and in such cases, no enquiry or investigation is
required to be conducted in terms of sub-para (4). Such
persons cannot, in terms of the specific language used in
sub-para (2) to para 3 of the schedule, be included in the
National Register of Citizens. The reason as is evident is
that their citizenship status has already been determined
by the competent authority. A person once declared an
illegal migrant or a foreigner cannot claim or put forth the
claim to the citizenship of India on the basis that he/she
has been residing in the state of Assam”.
26. In Abdul Kuddus (supra), this Court also expounded the expression
“competent authority”, as used in sub-para (2) of para 3 of the
Schedule to the 2003 Rules, in the following terms:
“22. ... The Foreigners Act and the Citizenship Act
including the Rules framed under the two Acts have to be
read harmoniously as both the Acts are inter-related and
sister enactments. Pertinently, the rules framed under the
Citizenship Act are subordinate legislation. The expression
competent authority used in sub-para (2) to para 3 of the
Schedule to the 2003 rules would obviously and without
a doubt has reference to the duly constituted authority
under the Foreigners Act. …
Thus, the competent authority referred to in sub-para
(2) to para 3 of the Schedule would be, without a
doubt, the Tribunal constituted under the Foreigners
Act i.e. 1964 Order”.
(Emphasis supplied)
27. In view of the decision of this Court in Abdul Kuddus (supra), firstly,
consequent to the declaration by the Tribunal that appellant is a
foreigner, the name of the appellant could not have been included in
the draft NRC and, secondly, even if it has been included, it would
not annul the declaration made by the Tribunal.
[2025] 6 S.C.R. 581
Rofiqul Hoque v. The Union of India & Ors.
28. For the reasons detailed above, the inclusion of the name of the
appellant in the draft NRC would have no bearing on the order
passed by the Tribunal, affirmed by the High Court, declaring the
appellant a foreigner.
29. Issue (b) is decided in the above terms.
30. In light of the discussion above, and our conclusions on the issues
referred to above, we are of the view that there is no merit in this
appeal. The same is, accordingly, dismissed. The release order which
was passed at an interim stage stands discharged. Consequently,
the appellant shall be treated and dealt with as a foreigner. Pending
applications, if any, stand disposed of.
Result of the case: Appeal dismissed.
†
Headnotes prepared by: Ankit Gyan
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