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Indian Medical Central Council Act and 1970 | Ayurvedic Enlisted Doctor's Association v. State of Maharashtra, C.A. No. 1337 of 2007 SC

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Indian Medical Central Council Act and 1970 | 2009 (2) KLT SN 5 (Case No.6)

IN THE SUPREME COURT OF INDIA

Justice Dr.Arijit Pasayat and Justice Dr.Mukundakam Sharma

2009-02-27T00:00:00

C.A. No. 1337 of 2007

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

 


1.    Leave granted.

 

2.    In these appeals challenge is to the final judgment of the Bombay

High Court dismissing the writ petitions filed by the appellants while
granting the limited relief to those writ petitioners who hold degree or

diploma in Electropathy or Homeo-Electropathy. Though their writ petitions

were dismissed it was made clear that so far as those who hold degree or

diploma in Electropathy or Homeo-Electropathy may practice in

Electropathy or Electrotherapy without registration as medical practitioners

but they would not be entitled to practice as or claim to be medical

practitioners, doctors etc and they were also not entitled to use any title,

like Dr. or any abbreviations prefixing or suffixing their names which may

indicate that they are doctors or medical practitioners. Three categories of

persons filed the writ petitioners before the High Court. They are as follows:

 

      (i)     The persons who hold either the degree or diploma of
      Vaidya Visharad or Ayurved Ratna or some other equivalent
      degree awarded by Hindi Sahitya Sammelan Prayag or Hindi
      Sahitya Sammelan Allahabad and some other institutions
      whose degree and diplomas are not recognised in Schedule II
      of the Indian Medical Central Council Act, 1970


      (ii)    The persons who claim to be practicising in Ayurved on
      the basis of long experience


      (iii)   The persons who claim to hold degrees or diplomas in
      Electropathy or Homeo-Electropathy.

 

                                                                          2
3.    The present appeals relate to the first and second category. The first

category relate to Civil Appeal Nos.1337/2007, 1338/2007, 1339/2007,

1884/2007, Civil Appeal arising out of SLP(C) No.19079/2007, Civil

Appeal 2769/2007,     2807/2007, 4196/2007, 4982/2007 and the second

category relates to Civil Appeal Nos.3543/2008, 4064/2007 and 2810/2007.

 

4.    Stand of the appellants in essence is that they were registered as

practitioners under the Bihar Development of Ayurvedic and Unani Systems

of Medicine Act, 1951 (in short the `Bihar Act') in terms of the Schedule as

referred to under Sections 22, 23, 24, 25 and 26. Their names were entered

in the register as registered practitioners. Though they did not hold any

degree or diploma or certificate of any recognised institution they possess

sufficient knowledge and skill requisite for educational practice of

medicines, surgery and have acquired certain amount of eminence in the

medical science and also fulfill the conditions imposed by the regulations

made by the Bihar State Council of Ayurvedic and Unani Medicines (in

short the `Council'). They were practicising in different places mostly in

rural places of Maharashtra. Section 21 of the Bihar Act refers to the

maintenance of registers. Section 22 deals with persons entitled to be

 

                                                                        3
registered. Under the said provision every person possessing any of the

qualifications specified in the Schedule shall subject to the provisions

contained in the Bihar Act and on payment of the prescribed fees be entitled

to have his name entered in the register subject to such conditions as the

Council may impose. Undisputedly, the names of the appellants have been

entered in the registers and they have been registered. The Indian Medicine

Central Council Act, 1970 (in short the `Central Act') was introduced in

1970. Prior to that the Maharashtra Medical Practitioners Act, 1961 (in

short the `Maharashtra Act') was enacted and was in force. The appellants

claim that they belong to the third category as enumerated in the Schedule.

The Presidential assent to the Bihar Act was given on 12th September, 1951.

Under the Central Act, the Central registers in terms of Section 2(1)(d) has

to be maintained. Section 2(1)(j) refers to the State Register. It is submitted

that Section 17 of the Central Act is of considerable relevance. Section 17

(1) refers to possession of medical qualifications included in Second, Third

and Fourth Schedules for enrolment in the State Register of Indian

Medicine. It is pointed out that Section 17(2) refers to recognised medical

qualification.   With reference to Section 14 of the Central Act, it is

submitted that medical qualifications granted by any University, Board or

other medical institution which are included in the Second Schedule shall be

 

                                                                           4
recognised medical qualifications for the purpose of the Act. Section 23 of

the Central Act deals with Central Register and it provides that Central

Council shall cause to be maintained in the prescribed manner a register of

practitioners in separate parts for each of the system of Indian medicine. It

shall contain the names of all persons who are for the time being enrolled on

any State Register of Indian Medicine and who possess any of the

recognised medical qualifications. It is pointed out that merely because the

appellant do not possess the requisite medical qualification that cannot in

any way disentitle them from practicising as same would be violative of

Article 19(1)(g) of the Constitution of India, 1950 (in short the

`Constitution'). Under Section 29 of the Central Act, a person whose name

is included in the Central Register is entitled as a matter of right to practice

in any part of India. Since the names of the appellants find place in the

Bihar State Registers they are, as a matter of right, entitled to be included in

the Central Register. It is submitted that the restriction imposed under the

Central Act from practicing, unless names appear in the Central Register

will be violative of Article 14. With reference to Section 33 of the

Maharashtra Act, more particularly, the first proviso thereof, it is submitted

that the State is empowered to permit any person to practice on certain

criteria being fixed. With reference to Section 37 of the Maharashtra Act

 

                                                                            5
which has been deleted it is submitted that permission was given to those

who were practicising in the rural areas, by deleting the section the

permission has been taken out and such deletion is not sustainable in law.

Even though Section 37 has been deleted, under the proviso to Section 33

the State Government can yet make a provision for giving permission to

persons like the appellants. It is pointed out that the Central Government

also felt the need for giving protection to persons like the appellants and

recommendations were made.

 

5.    It is also submitted that the Madras High Court had given certain

directions which are equitable and the same procedure can be followed in

these cases in case of appellants. In some of the appeals denial is on the

ground that certificates were not found of recognised institutions.

 

6.    Learned counsel for the respondent-State on the other hand submitted

that there was no question of any right to practice. As contended the

educational qualifications prescribed are regulatory measures and they are

reasonable restrictions. It is pointed out that even in the case of Diploma

holders in Veterinary Science, this Court had declined to interfere. They,

according to the respondents, stood on a better footing than the present

 

                                                                       6
appellants. The stand that the appellants have undergone some process of

screening is of no consequence. The prayer that the appellants can be

considered in the light of proviso to Section 33 is also mis-conceived.

 

7.    It is necessary to take note certain provisions.


      BIHAR ACT:

      "21. Maintenance of registers- Subject to any general or
      special order, which may from time to time be made by the
      Council, the Registrar shall maintain a register or registers of
      vaidyas, hakims, surgeons and midwives practicing the
      Ayurvedic or Unani System of medicine in the State of Bihar in
      the prescribed form and it shall be the duty of the Registrar to
      keep the register correct and up-to-date, as far as practicable in
      accordance with the provisions made by or under this Act.

      22. Persons entitled to be registered- (1) Every person
      possessing any of the qualifications specified in the Schedule
      shall subject to the provisions contained in this Act, and on
      payment of the prescribed fees be entitled to have his name
      entered in the register subject to such conditions as the council
      may impose:

             Provided that an application for entry of the name in the
      register of a person whose case is not clearly governed by the
      provisions of this Act or by the rules and regulations made
      thereunder shall be referred to the Council for such decisions as
      it may deem fit.

      (2) Any person aggrieved by the decision of the Register
      regarding the registration of any person or the making of any
      entry in the register may within ninety days of such registration
      or entry appeal to the Council.

 

                                                                           7
(3) Such appeal shall be heard and decided by the Council in
the prescribed manner.

(4) The Council may, on its own motion or on the
application of any person cancel or alter any entry in the
register if, in the opinion of the Council, such entry was
incorrect or was made on account of mis-representation.

SCHEDULE:

3.     Every vaidya or hakim who in the opinion of the Council
possesses sufficient knowledge and skill requisite for the
efficient practice of medicine, surgery or midwifery and enjoys
a certain amount of eminence in the medical science and who
fulfils the conditions imposed by regulations made by the
Council as to length of practice.

Maharashtra Act

"2(n)- `Registered Practitioner' means a practitioner whose
name is for the time being entered in the register.

17.   REGISTRATION OF PRACTITIONERS.

17 (1) As soon as may be after the appointed day, the Registrar
shall prepare and maintain thereafter a register of practitioners
of Indian Medicine for the State, in accordance with the
provisions of this Act.

(2) The register shall be divided into three parts, namely :

 (i) Part I containing the names of practitioners who possess
any of the qualifications specified in the Schedule;

 [(ii) Part II containing the names of practitioners, whose
names were included in that part immediately before the 1st
day of October 1976;

  (iii) Part III containing the names of practitioners, who on the
30th day of September 1976 were enlisted practitioners and


                                                                     8
who are on that day deemed to have become registered
practitioners under section 18.

   Each part shall consist of one or more sections as the State
Government may specify in this behalf.

  (3) Every person who possesses any of the qualifications
specified in the Schedule shall, at any time on an application
made in the form prescribed by rules, to the Registrar and on
payment of a fee of five hundred rupees be entitled to have his
name entered in the register.

(3A) Notwithstanding anything contained in any law for the
time being in force, every person enrolled on the register
maintained under the Indian Medicine Central Council Act,
1970, but not enrolled on the register maintained under this
Act, shall, on an application and on payment of the fee as
provided in sub-section (3), be entitled to have his name
entered-in the register maintained under this Act.

 (4) The name of every person who on the day immediately
preceding the appointed day stood registered in any register
kept under-
  (a) the Bombay Medical Practitioner's Act, 1938, as in force
in the Bombay area of the State ; or

  (b) the Central Provinces and Berar Ayurvedic and Unani
Practitioner's Act, 1947, as in force in the Vidarbha regon of
the State; or

  (c ) the Medical Act, as in fore in the Hyderabad area of the
State;

shall be entered in the register prepared under this Act without
such permission being required to make an application or to
pay any fee.

 


                                                                   9
  (5) Any person, not being a person qualified for registration
under sub-section (3) or (4), who proves to the satisfaction of
the Committee appointed under sub-section (6) –

  (i) that he had been regularly practising the Ayurvedic or the
Unani system of medicine in the Vidarbha region or the
Hyderabad area of the State, for a period of not less than ten
years immediately before the 23rd day of November 1960 ; or

  (ii) that he was on the 4th day of November 1941 regularly
practising the Ayurvedic or the Unani system of medicine in
the Bombay area of the State, but his name was not entered in
the register maintained under the Bombay Medical
Practitioner's Act, 1938; or

  (iii) that his name had been entered in the list kept under
section 18 of the Bombay Medical Practitioner's Act, 1938, by
virtue of paragraph (ii) or (iii) of sub-section (1) of section 31C
inserted in that Act by the Bombay Medical Practitioner's
(Amendment)Act, 1949, and stood included, on the day
immediately preceding the date of the commencement of the
Maharashtra Medical Practitioner's (Amendment) Act, 1964, in
the list maintained under this Act, by virtue of clause (a) of
sub-section (2) of section 18,

shall, on an application made in the form prescribed by rules,
accompanied by a fee of ten rupees and such documents as may
be prescribed by rules, on or before the 31st day of March
1965, be entitled to have his name entered in the register.


(6) All applications for registration under sub-section (5) shall
be considered by a Committee of three members of the Council
appointed by the State Government. The Committee shall make
enquiry in such manner as may be prescribed by rules. The
Committee shall not entertain any further application from a
person, if an application made by him under clauses (i) or (ii)
of sub-section (5) has already been decided by it.

 


                                                                      10
(7)(a) Any person aggrieved by the decision of the Committee
appointed under sub-section (6) may, within a period of one
month from the date of which such decision is communicated
to him, on payment of a fee of five rupees, appeal to the
appellate authority constituted by the State Government in this
behalf. The appellate authority shall consist of a Chairman who
has for at least seven years held judicial office not lower in
rank than that of a District Judge, one member elected by the
Council, and the Director of Ayurved shall be the ex-officio
member. The decision of the appellate authority shall be final.


(b) Notwithstanding anything contained in clause (a) any
person aggrieved by such decision of the Committee, who has
not already appealed to the appellate authority aforesaid before
the date of the commencement of the Maharashtra Medical
Practitioners' (Amendment) Act, 1964, may on or before the 31
st day of March 1965, on payment of a like fee of five rupees,
appeal to the appellate authority.

(7A) If on an application for registration made under clause
(iii) of sub-section (5) or on appeal under sub-section (7), a
person is found eligible for registration, then on his name being
included in the register the entry of his name in the list shall be
cancelled.

(8) The register shall include the following particulars,
namely:
(a) the full name and residential address of the registered
practitioner;

(b) the date of his admission to the register maintained under
this Act; and if he, be a person who was registered on the day
immediately preceding the appointed day, in a register kept
under any of the Acts referred to in sub-section (4), the date of
his admission to that register;

(c) the qualification specified in the Schedule possessed by
him, if any, and the date on which he obtained the qualification
and the authority which conferred or granted it; and


                                                                      11
(d) such further particulars as may be prescribed by rules.

(9) When the register is prepared in accordance with the
foregoing provisions the Registrar shall publish a notice in the
Official Gazette and such newspapers as the Council may
select, about the register having been prepared, and the register
shall come into force from the date of the publication of such
notice in the Official Gazette.

(10)(a) Every registered practitioner shall be given a certificate
of registration in the form prescribed by rules. The registered
practitioner shall display the certificate of registration in a
conspicuous place in his dispensary, clinic or place of practice.

(b) Such certificate shall be valid until it is duly cancelled and
the name of the practitioner is removed from the register under
the provisions of this Act; and every certificate of registration
given before the commencement of the Maharashtra Medical
Practitioners (Amendment) Act, 1972 which is valid on such
commencement shall, subject to the provisions of section 23A,
be valid likewise, and shall continue accordingly.

(c) Where it is shown to the satisfaction of the Registrar that a
certificate of registration has been defaced, lost or destroyed,
the Registrar may, on payment of the prescribed fee, issue a
duplicate certificate in such form as may be prescribed.


Section 33: Prohibition of medical practice by persons not
registered-(1) Notwithstanding anything contained in any law
for the time being in force or in any judgment, decree or order
of any Court, no person other than a medical practitioner whose
name is entered in–
(i) the register maintained under this Act; or

(ii) the register or the list prepared and maintained under the
Bombay Homoeopathic and Biochemic Practitioners Act, 1959
(Bom. XII of 1960) or under any other law for the time being in
force in relation to the qualifications and registration of


                                                                     12
Homoeopathic or Biochemic Practitioners in any part of the
State; or

(iii) the register prepared and maintained under the
Maharashtra Medical Council Act, 1965 ; (Mah XLVI of
1965), or

(iv) the Indian Medical Register prepared and maintained
under the Indian Medical Council Act, 1956 (CII of 1956).
Shall practice any of medicine in the State:

    Provided that the State Government may, by Notification in
the Official Gazette, direct that subject to such conditions as it
may deem fit to impose and the payment of such fees as may be
prescribed by Rules, the provisions of this Section shall not
apply to any class of persons, or to area, as may be specified in
such Notification.
(2) Any person, who acts in contravention of any of the
provisions of sub-section (1) shall, on conviction be punished-
(a) for the first offence, with rigorous imprisonment for a term
which shall not be less than two years but which may extend to
five years and with fine which shall not be less than two
thousand rupees but which may extend to ten thousand rupees;
and

(b) for a second or subsequent offence, with rigorous
imprisonment for a term which may extend to ten years and
with the fine which may extend to twenty-five thousand rupees:

   Provided that, when the contravention continued after the
order of conviction a further fine which may extend to five
hundred rupees, for each day of continuation of such
contravention, may be imposed.

Section 37- Liberty to practice in rural areas-Notwithstanding
anything contained in this Chapter, a person may practice
medicine in any rural area

 


                                                                     13
(i) if he has commenced practice in any village in the said area
prior to a date on which a practitioner registered under the
Bombay Medical Act, 1912 (Bom. VI of 1912) or under the
Bombay Medical Practitioners' Act, 1938 (Bom. XXVI of
1938), (or any law corresponding thereto) or under the Bombay
Homoeopathic Act, 1951 (Bom. XLVIII of 1951), (or other law
in relation to the qualifications and registration of
Homoeopathic or Biochemic Practitioenrs) for the time being
in force, has commenced, and is in regular practice of medicine
in that village, and

(ii) so long as he continues to practice in that village as his
principal place of practice.

Explanation- For the purposes of this Section, "rural area'
means-

(i) any local area in the Bombay are of the State, which was not
within the limits of a municipal corporation, municipality,
cantonment or notified area Committee on the 1st day of March
1939; and

(ii) any local area in the rest of the State, which is not within
the limits of a municipal corporation, municipality, municipal
committee, town committee, cantonment or notified area
committee on the date of passing of this Act.

irrespective of any change in the designation or description of
such local area at subsequent date."

 

CENTRAL ACT:

2(1)(d)- `Central Register of Indian Medicine' means the
register maintained by the Central Council under this Act.
2(1)(h)- `recognised medical qualification' means any of the
medical qualifications, including post-graduate medical
qualification, of Indian Medicine included in the Second, Third
or Fourth Schedule.


                                                                    14
       2(1)(j)- `State Register of Indian Medicine' means a register or
       registers maintained under any law for the time being in force
       in any State regulating the registration of practitioners of
       Indian medicine."

 


8.     So far as the claim that once the name is included in the register of a

particular State there is a right to practice in any part of the country is not

tenable on the face of Section 29 of the Central Act. The right to practice is

restricted in the sense that only if the name finds place in the Central

Register then the question of practicising in any part of the country arise.

The conditions under Section 23 of the Central Act are cumulative. Since

the   appellants    undisputedly     do    not   possess    recognised     medical

qualifications as defined in Section 2(1)(h) their names cannot be included

in the Central Register. As a consequence, they cannot practice in any part

of India in terms of Section 29 because of non inclusion of their names in

the Central Register. Section 17(3A) of the Maharashtra Act refers to

Section 23 of the Central Act relating to Central Register. Section 17(1)

relates to the register for the State. In any event, it is for the State to see that

there is need for having qualification in terms of Second and Fourth

Schedule. The claim of the appellants is that they have a right to practice in

any part of the country. In terms of Article 19(6) of the Constitution,


                                                                               15
reasonable restriction can always be put on the exercise of right under

Article 19(g). In Dr. A.K. Sabhapathy v. State of Kerela and Ors. (1992 (3)

SCC 147) the case related to Section 38 of the Travancore-Cochin Medical

Practitioners Act, 1953. The Statute is almost in pari materia with provision

to Section 33 of the Maharashtra Act. Though in that case the State

Government had granted exemption, this Court observed that same cannot

be granted. The State Act in that sense was repugnant to the Central Act in

the background of Medical Council Act, 1956.

 

9.    In Veterinary Science, this Court in Udai Singh Dagar v. Union of

India (2007 (10) SCC 306) inter-alia observed as follows:

 

      "41. We, therefore, are of the opinion that even in the matter
      of laying down of qualification by a statute, the restriction
      imposed as envisaged under second part of Clause (6) of
      Article 19 of the Constitution of India must be construed being
      in consonance with the interest of the general public. The tests
      laid down, in our opinion, stand satisfied. We may, however,
      notice that Clause (6) of Article 19 of the Constitution of India
      stands on a higher footing vis-`-vis Clause (5) thereof. We say
      so in view of the celebrated decision of this Court in State of
      Madras v. V.G. Row (AIR 1952 SC 196) wherein it was stated:
      (AIR p.200, para 15)

                   "15 … It is important in this context to bear
            in mind that the test of reasonableness, wherever
            prescribed, should be applied to each individual
            statute impugned, and no abstract standard or


                                                                          16
            general pattern of reasonableness can be laid down
            as applicable to all cases. The nature of the right
            alleged to have been infringed, the underlying
            purpose of the restrictions imposed, the extent and
            urgency of the evil sought to be remedied thereby,
            the disproportion of the imposition, the prevailing
            conditions at the time, should all enter into the
            judicial verdict. In evaluating such elusive factors
            and forming their own conception of what is
            reasonable, in all the circumstances of a given
            case, it is inevitable that the social philosophy and
            the scale of values of the Judges participating in
            the decision should play an important part, and the
            limit to their interference with legislative
            judgment in such cases can only be dictated by
            their sense of responsibility and self-restraint and
            the sobering reflection that the Constitution is
            meant not only for people of their way of thinking
            but for all, and that the majority of the elected
            representatives of the people have, in authorising
            the imposition of the restrictions, considered them
            to be reasonable."

 

      42. The tests laid down therein viz. the test of reasonableness
      as also general public interest, however, may not ipso facto
      apply in a case involving Clause (6) of Article 19 of the
      Constitution of India."

 


10.   So far as the degrees and diplomas of non-recognised institutions are

concerned this Court had occasion to deal with the issue in Delhi Pradesh

Registered Medical Practitioners v. Director of Health, Delhi Admn.

 


                                                                        17
Services and Ors. (1997 (11) SCC 687). It was inter-alia observed as

follows:


      "5. We are, however, unable to accept such contention of Mr
      Mehta. Sub-section (3) of Section 17 of the Indian Medicine
      Central Council Act, 1970, in our view, only envisages that
      where before the enactment of the said Indian Medicine Central
      Act, 1970 on the basis of requisite qualification which was then
      recognised, a person got himself registered as medical
      practitioner in the disciplines contemplated under the said Act
      or in the absence of any requirement for registration such
      person had been practising for five years or intended to be
      registered and was also entitled to be registered, the right of
      such person to practise in the discipline concerned including
      the privileges of a registered medical practitioner stood
      protected even though such practitioner did not possess
      requisite qualification under the said Act of 1970. It may be
      indicated that such view of ours is reflected from the Objects
      and Reasons indicated for introducing sub-section (3) of
      Section 17 in the Act. In the Objects and Reasons, it was
      mentioned:


              "The Committee are of the opinion that the
            existing rights and privileges of practitioners of
            Indian Medicine should be given adequate
            safeguards. The Committee in order to achieve the
            object, have added three new paragraphs to sub-
            section (3) of the clause protecting (i) the rights to
            practise of those practitioners of Indian Medicine
            who may not, under the proposed legislation,
            possess a recognised qualification subject to the
            condition that they are already enrolled on a State
            Register of Indian Medicine on the date of
            commencement of this Act, (ii) the privileges
            conferred on the practitioners of Indian Medicine
            enrolled on a State Register, under any law in
            force in that State, and (iii) the right to practise in


                                                                         18
      a State of those practitioners who have been
      practising Indian Medicine in that State for not
      less than five years where no register of Indian
      Medicine was maintained earlier."

As it is not the case of any of the writ petitioners that they had
acquired the degree in between 1957 (sic 1967) and 1970 or on
the date of enforcement of provisions of Section 17(2) of the
said Act and got themselves registered or acquired right to be
registered, there is no question of getting the protection under
sub-section (3) of Section 17 of the said Act. It is to be stated
here that there is also no challenge as to the validity of the said
Central Act, 1970. The decision of the Delhi High Court
therefore cannot be assailed by the appellants. We may indicate
here that it has been submitted by Mr Mehta and also by Ms
Sona Khan appearing in the appeal arising out of Special Leave
Petition No. 6167 of 1993 that proper consideration had not
been given to the standard of education imparted by the said
Hindi Sahitya Sammelan, Prayag and expertise acquired by the
holders of the aforesaid degrees awarded by the said institution.
In any event, when proper medical facilities have not been
made available to a large number of poorer sections of the
society, the ban imposed on the practitioners like the writ
petitioners rendering useful service to the needy and poor
people was wholly unjustified. It is not necessary for this Court
to consider such submissions because the same remains in the
realm of policy decision of other constitutional functionaries.
We may also indicate here that what constitutes proper
education and requisite expertise for a practitioner in Indian
Medicine, must be left to the proper authority having requisite
knowledge in the subject. As the decision of the Delhi High
Court is justified on the face of legal position flowing from the
said Central Act of 1970, we do not think that any interference
by this Court is called for. These appeals therefore are
dismissed without any order as to costs."

 


                                                                      19
11.     Above being the position, the High Court was justified in dismissing

the writ petitions. However, the prosecution was lodged in terms of Section

33 for alleged violation of provisions of the Maharashtra Act. Considering

the peculiar facts of the case we direct that the prosecution shall not be

continued in respect of the past infractions. However, from today onwards,

it is open to the authorities to act as provided in the Statute. The appeals are

dismissed subject to the directions relating to the prosecution. Costs made

easy.

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