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TMI Blog2012 (8) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... ntence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed . The court should consider the individual factors peculiar to each case. These, of course would be the most difficult to anticipate. One relevant factor would be the competency of the individual defendant to present his own case." (emphasis added) ". Accordingly, I am of the opinion that the conviction and sentence of the appellant is vitiated, not on merit but on the ground that his trial was not fair and just. Appellant admittedly is a Pakistani, he has admitted this during the trial and in the statement under Section 313 of the Code of Criminal Procedure. I have found his conviction and sentence illegal and the natural consequence of that would be his release from the prison but in the facts and circumstances of the case, I direct that he be deported to his country in accordance with law and till then he shall remain in jail custody. - Decided in favour of appellant. - CRL.A. 1091 OF 2006 - - - Dated:- 31-8-2012 - LODHA, RAJENDRA MAL DAVE, ANIL R MUKHOPADHAYA,SUDHANSU JYOTI,JJ. For The Appellant : M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears that as a result of different incidents of bomb blasts in Delhi including the present one the intelligence agencies became more active and started gathering information about the incidents of bomb blasts in the city. It came to light that some persons belonging to terrorist organizations were actively operating in the city of Delhi for causing terror by killing innocent people and causing damage to public property by exploding bombs. On the basis of secret information the police raided some houses in different parts of Delhi on 27.02.1998 and from those houses hand grenades and material used for making bombs was recovered in large quantity. The chemicals recovered were sent to CFSL, which confirmed that the same were potassium chlorate and sulphuric acid and were opined to be constituents of low explosives. Some persons were arrested also and during interrogation they had disclosed to the police that they were members of a terrorist organization and their aim was to create terror and panic in different parts of the country by exploding bombs to take revenge for the killings of innocent muslims (sic.) in India and further that they had come to India for Jehad. On 27.02.1998 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not object to holding of identification parade but he refused to joint test identification parade which was fixed for 23-03-98 stating that police had taken his photographs. 5. During the investigation of the present case the debris collected from the place of bomb blast and some damaged pieces of the bus etc. were sent to Central Forensic Laboratory (CFSL) and after examination it was revealed that in the seized material contained explosive mixture of chlorate, Nitrate, Sulphate and sugar were detected. Mixture of these chemicals, as per CFSL, report Ex. PW-34/A, is used for making explosives/bombs and the mixture could have been initiated by the action of sulphuric acid and the mixture was explosive substance . 6. On completion of investigation of the present case the police filed a charge-sheet in Court against four accused persons for the commission of offences under Sections 302/307/120-B IPC and Sections 3 and 4 of the Explosive Substances Act. In due course the four persons were committed to Sessions Court. The learned Additional Sessions Judge vide order dated 18.2.1999 discharged three accused persons namely, Abdul Rehman, Mohd. Maqsood and Ezaz Ahmed while agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents also of the Hon'ble Supreme Court which are reproduced as AIR 1997 SC 1023, 1994 Supp. (3) SCC 321, AIR 1986 SC 991 and 1983 (III) SCC 307. One judgment of Gauhati High Court reported as 1987 (1) Crimes 133, Arjun Karmakar Vs. State of Assam was also relied upon by Mr. Luthra. 46. There can be no dispute about the legal proposition put forward by the learned counsel for the appellant that it is the duty of the Court to see and ensure that an accused in a criminal trial is represented with diligence by a defence counsel and in case an accused during the trial remains unrepresented because of poverty etc., it becomes the duty of the Court to provide him legal aid at State expense. We find from the judgment of the trial Court that this point was raised on behalf of the accused during the trial also by the amicus curiae provided to the accused when his private counsel stopped appearing for him. The learned trial Court dealt with this arguments in para no.101 of the judgment which is as under:- It is next submitted that material witnesses have not been cross examined by the accused and as such, their testimony cannot be read against him. I may add that from the very begi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the aforesaid issue. 6) To answer the aforesaid issue, it is necessary to look at the proceedings of the Trial Court which are as under: 6.7.98 Pr: APP All accused in j/c. All accused stated that they are not in position to engage any lawyer and be provided with a lawyer from legal aid. Legal assistance be provided to all accused from legal aid. All accused requested further time for making scrutiny of documents. Allowed. Put up on 20.7.98 for scrutiny.. Sd/- MM/Delhi 20/7/98 Pr: APP All accused in judicial custody with Sh. V.K. Jain,Adv. Sh. Jain requested time for making scrutiny of documents. Sh. Jain sates that he is applying for further time (illegible)______. Allowed. Put up on 29/7/98 for scrutiny. Sd./- MM/Delhi 20.7.98 29/7/98 Pr: APP All accused in j/c with Sh. V.K. Jain,Adv. from Legal Aid. Shri Jain requests for further time. Allowed. Put up on 6/8/98 for scrutiny. Sd./- MM/Delhi 29.7.98 6.8.98 Pr: APP All accused in j/c with Sh. Vijay Kr. Jain,Adv. Sh. Jain stated that all accused have been supplied with complete copies of documents filed alongwith the chargesheet. Hence provision of Sec. 207 Cr.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served but absent despite service. PW. Ashok Kumar served but sent request that he had to attend a duty and may be exempted today. IO present is discharged for today. Witnesses be summoned again. List the matter for evidence on 2/11/99. Sd./- ASJ/Delhi 4/11/99 (sic.) 2.11.99 Present: As before. PW 14 examined and discharged. No other PW is present except IO Satya Prakash. Mother of Sunil Kr. Sharma is present and submits that he is not in a position to move from bed. Considering her request and there are other number of witnesses to prove the explosion in the bus. Let his name be dropped from the list of witness and need not be summoned. List the matter for RPE on 3.12.99. Sd./- ASJ/Delhi 27/7/2000 Pr: Addl. PP for the State. Accused in J/C. PWs.15 to 17 examined and discharged. PWs. SI Om Prakash and SI Satya Prakash, IOs have sent requests. PWs. Dr. K. Goyal and Dr. Ashok Jaiswal are unserved. Re-summon. Now, List the case for RPE on 25/08/2000. Sd./- ASJ/Delhi 20/9/2000 Pr: Addl. PP for the State. Accused in J/C. PWs.18 19 examined, cross-examined and discharged. No other witness served for today. Now, list the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the State. Accused in J/C. PW-42 PW-43 examined, cross-examined and discharged. No other PW is present. Now to come up for entire R.P.E. on 18.10.02. Sd./- ASJ/Delhi 18/10/02 Pr. Sh. Jitender Kakkar, Addl. PP for the State. Accused in J/C. PW.44 PW.45 examined, cross-examined and discharged. No other PW. is present. Now list the matter for entire RPE on 13/12/02. Sd./- ASJ/Delhi 13.12.02 Present: Accused in judicial custody. Ld. ______ is on leave today. Illigible__ 17/1/2003 for RPE. Sd./- Reader 13.12.02 25/02/03 Pr: Sh. Bakshish Singh, Spl. PP for State. Accused in J/C with counsel. Two PWs. 46 47 have been examined, cross-examined and discharged. No other witness is present. Ld. Spl. PP seeks another opportunity for adducing evidence. In the interest of justice one more opportunity is granted to the prosecution to lead the entire evidence on 26.03.03. Sd./- ASJ/Delhi 26/3/2003 Pr. : Addl. PP Sh. Jitender Kakkar, for the State. Accused in J/C. PW-48 examined, cross examined and discharged. No other PW is present. PW Vinod Kumar has not been served. PW Vinod Kumar along with all the public witnesses be sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arefully reading the evidence of these witnesses recorded by the learned trial Judge. By way of illustration, I have extracted evidence of some of the witnesses recorded on different dates :- PW 1 Darshan Kumar S/o Fakir Chand, Age - 30 years, Driver, R/o B-48, Piragarhi, New Delhi - 43 I was working as conductor in blue line bus No. DL1P3088 and the said bus used to ply from Nangloi to Ajmeri Gate. x x x x x x deferred as defence counsel is not available. PW2 Vijay Kumar s/o Fakir Chand, Age about 28 years, Driver, R/o C-154 Pira Garhi, Relief Camp, Delhi. I am working as driver in blue line bus DL1P 3088 and the sadi bus plies from Ajmeri Gate to Nangloi. x x x x x x Nil opportunity given. PW3 Moin Khan S/o Abdul Rashid Khan, Age - 22 years, service, R/o B- 104, Prem Nagar, Kirari Village, Delhi. x x x x x x by counsel Firoz Khan. PW4 Imtiyaz Khan S/o Rustam Khan, Age - 25 years, Machine Operator, R/o H-10, Man Sarover Park, Riti Road, Shahdrah. x x x x x x Nil Opportunity given. 8). The records would disclose that during the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dawned on the Trial Court to appoint a learned counsel on 04.12.2003 to defend the appellant. The evidences of the prosecution witnesses from 57 to 65 were recorded in the presence of the freshly appointed learned counsel, who thought it fit not to cross-examine any of those witnesses. Before the conclusion of the trial, she had filed an application to cross-examine only one prosecution witness and that prayer in the application had been granted by the Trial Court and the learned counsel had performed the formality of cross-examining this witness. I do not wish to comment on the performance of the learned counsel, since I am of the view that `less said the better'. In this casual manner, the trial, in a capital punishment case, was concluded by the Trial Court. It will, thus, be seen that the trial court did not think it proper to appoint any counsel to defend the appellant/accused, when the counsel engaged by him did not appear at the commencement of the trial nor at the time of recording of the evidence of the prosecution witnesses. The accused did not have the aid of the counsel in any real sense, although, he was as much entitled to such aid during the period of trial. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-`-vis opinion. 11) In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) Vs. State of Gujarat (2006) 3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated : 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. 37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nals, responsible for killing millions of persons, were yet provided counsel. Therefore when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognising what already existed and which civilised people have long enjoyed. 14) In the case of Hussainara Khatoon and Others v. Home Secy., State of Bihar (1980) 1 SCC 98, it is held : 6. Then there are several undertrial prisoners who are charged with offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or being too poor they are unable to furnish bail. It is not uncommon to find that undertrial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf. Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , observed in Gideon v. Wainwright : Not only those precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That Government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our State and national constitutions and laws have laid great emphasis on procedural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to time that, neither at the time when the blinded prisoners were produced for the first time before the Judicial Magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners. The records of the Judicial Magistrates show that no legal representation was provided to the blinded prisoners, because none of them asked for it nor did the Judicial Magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost. The only excuse for not providing legal representation to the blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it. The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail. It is difficult to understand how this state of affairs could be permitted to continue despite the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also attaches when the accused is for the first time produced before the Magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time. 6. But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pty formality which may be not by merely appointing a counsel whatever his calibre may be. When the law enjoins appointing a counsel to defend an accused, it means an effective counsel, a counsel in real sense who can safeguard the interest of the accused in best possible manner which is permissible under law. An accused facing charge of murder may be sentenced to death or imprisonment for life and consequently his case should be handled by a competent person and not by a novice or one who has no professional expertise. A duty is cast upon the Judges before whom such indigent accused are facing trial for serious offence and who are not able to engage a counsel, to appoint competent persons for their defence. It is needless to emphasis that a Judge is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct conclusion. A defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence. The absence of proper cross-examination may at times result in miscarriage of justice and the Court has to guard against such an eventuality. (17)The prompt disposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to. (19) The learned counsel for the respondent-State, Sri Atri contends that since no prejudice is caused to accused in not providing a defence counsel, this Court need not take exception to the trial concluded by the learned Sessions Judge and the conviction and sentence passed against the accused. I find it difficult to accept the argument of the learned senior counsel. The Cr. P.C. ensures that an accused gets a fair trial. It is essential that the accused is given a reasonable opportunity to defend himself in the trial. He is also permitted to confront the witnesses and other evidence that the prosecution is relying upon. He is also allowed the assistance of a lawyer of his choice, and if he is unable to afford one, he is given a lawyer for his defence. The right to be defended by a learned counsel is a principal part of the right to fair trial. If these minimum safeguards are not provided to an accused; that itself is prejudice to an accused. It is worth to notice the observations made by this Court in the case of Rafiq Ahmad alias Rafi vs. State of U.P. (2011) 8 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always depend on the facts and circumstances of a given case. Therefore, the court has to ensure that the ends of justice are met as that alone is the goal of criminal adjudication. (20)In view of the above discussion, I cannot sustain the judgments impugned and they must be reversed and the matter is to be remanded to the Trial Court with a specific direction that the Trial Court would assist the accused by employing a State counsel before the commencement of the trial till its conclusion, if the accused is unable to employ a counsel of his own choice. Since I am remanding the matter for fresh disposal, I clarify that I have not expressed any opinion regarding the merits of the case. (21)In view of the above, I allow the appeal and set aside the conviction and sentence imposed by the Additional Sessions Judge in Sessions Case No.122 of 1998 dated 03.11.2004 and the Judgment and Order passed by the High Court in Crl. Appeal No. 41 of 2005 dated 04.08.2006 and remand the case to the Trial Court for fresh disposal in accordance with law and in the light of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim without scrutiny only because the crime is serious and allegedly committed by the citizen of a country with which this country has no cordial relation. 4. According to the prosecution, as usual in a winter evening of 30th December, 1997 at 6.20 P.M., a Blue-line bus carrying passengers was on way to Nangloi from Ajmeri Gate, Delhi and when stopped at Rampura bus stand on Rohtak Road to drop the passengers, an explosion took place inside the bus in which four passengers died and 24 persons sustained serious injuries. 5. A case under Section 302, 307 and 120-B of Indian Penal Code and Section 3 and 4 of the Explosives Substances Act was registered on the same day. During the course of investigation, one Darshan Kumar, the conductor of the aforesaid blue line bus disclosed to the investigating agency that one passenger boarded the bus from Paharganj with a rexine-bag saying that he would go to Nangloi. He kept the rexine-bag underneath the seat where he was sitting but got down at Karol Bagh leaving the rexine-bag. Further investigation brought to light that some persons belonging to terrorist organizations are operating in the Capital and their object is to create an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. However, on the same day, P.W.2- Vijay Kumar was examined and discharged. On the next date fixed in the case i.e. 3rd June, 1999 two witnesses namely; P.W.3- Moin Khan and P.W.4- Imtiaz Khan were examined and discharged. But cross-examination of P.W.1- Darshan Kumar did not take place at the request of the defence counsel. The next date relevant is 20th July, 1999 when the appellant was represented by his counsel and on that date, P.W.5- Ganesh Sharma, P.W.6- Basant Verma and P.W.7- Manohar Lal were examined and discharged. Thereafter, the case was adjourned to 30th August, 1999 and from that date till 1st October, 2003, though the appellant was not represented by any counsel, altogether 56 prosecution witnesses were examined to prove the charges against him. Obviously in the absence of the counsel the truthfulness or otherwise of their evidences were not tested by cross-examination. 7. It is relevant to note that the Trial Court, during all this long period, did not realize that the appellant was not represented by any counsel and it is on 4th December, 2003 the appellant brought to the notice of the Trial Court that for the last several dates, the counsel appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness is fit to be rejected. The appellant in the present case was denied this right only because he himself was not trained in law and not given the assistance of a lawyer to defend him. Poverty also came in his way to engage a counsel of his choice. 9. Having said so, it needs consideration as to whether assistance of the counsel would be necessary for fair trial. It needs no emphasis that conviction and sentence can be inflicted only on culmination of the trial which is fair and just. I have no manner of doubt that in our adversary system of criminal justice, any person facing trial can be assured a fair trial only when the counsel is provided to him. Its roots are many and find places in manifold ways. It is internationally recognized by covenants and Universal Declaration of Human Rights, constitutionally guaranteed and statutorily protected. 10. Article 14 of the International Covenant on Civil and Political Rights guarantees to the citizens of nations signatory to that covenant various rights in the determination of any criminal charge and confers on them the minimum guarantees. Article 14 (2) and (3) of the said covenant read as under: Article 14. xxx xxx xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. 12. These salutary features forming part of the International Covenants and Universal Declaration on Human Rights are deep rooted in our constitutional scheme. Article 21 of the Constitution of India commands in emphatic terms that no person shall be deprived of his life or personal liberty except according to the procedure established by law and Article 22 (1) thereof confers on the person charged to be defended by a legal practitioner of his choice. Article 39 A of the Constitution of India casts duty on the State to ensure that justice is not denied by reason of economic or other disabilities in the legal system and to provide free legal aid to every citizen with economic or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations. If an accused too poor to afford a lawyer is to go thorough the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just. The right to be heard in criminal trial would be inconsequential and of no avail if within itself it does not include right to be heard through counsel. One cannot lose sight of the fact that even intelligent and educated men, not trained in law, have more than often no skill in the science of law if charged with crime. Such an accused not only lacks both the skill and knowledge adequately to prepare his defence but many a time looses his equilibrium in face of the charge. A guiding hand of counsel at every step in the proceeding is needed for fair trial. If it is true of men of intelligence, how much true is it of the ignorant and the illiterate or those of lower intellect! An accused without the lawyer faces the danger of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been held guilty and sentenced to death in a trial which was not reasonable, fair and just, the next question is as to whether it is a fit case in which direction be given for the de novo trial of the appellant after giving him the assistance of a counsel. I have given my most anxious consideration to this aspect of the matter and have no courage to direct for his de novo trial at such a distance of time. For an occurrence of 1997, the appellant was arrested in 1998 and since then he is in judicial custody. The charge against him was framed on 18.02.1999 and it took more than five years for the prosecution to produce its witnesses. True it is that in the incident four persons have lost their lives and several innocent persons have sustained severe injuries. Further, the crime was allegedly committed by a Pakistani but these factors do not cloud my reason. After all, we are proud to be a democratic country and governed by rule of law. The appellant must be seeing the hangman's noose in his dreams and dying every moment while awake from the day he was awarded sentence of death, more than seven years ago. The right of speedy trial is a fundamental right and though a rigid t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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