IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU.
CCH.33.
PRESENT:
SMT. B.S. JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS),
BENGALURU.
DATED: THIS THE 24th DAY OF August 2022
Crl. Misc.No.7519/2022
petitioner :
(accused No.5)
Mr. Ramalan Sharif @ Asif
S/o B.M. Mohamed,
aged about 30 years,
r/at Kudige Village, Opp
Masjid Quarters Somawar Pete,
Kodagu Dsitrict 571235.
Flat No. 7, 3rd Floor, 5th cross,
vaikuntam Layout AECS layout
Kundalahalli east Bangalore 5600037
(Now is Judicial Custody
Central Prison, Bangalore)
(By Sri MM, Adv.)
V/S.
Respondent :
State by Union of India
Intelligence Officer
Narcotic Control Bureau,
Banglore Zonal Unit,
Bangalore.
(By learned Spl.Public Prosecutor)
Crl.Misc.No.7519/2022
2
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
filed
by
the
petitioner
NCB..No,48/1/19/2021 of
to
enlarge
him
on
bail,
in
BZU., registered for the offences
punishable U/Sec. 8(c), 20(b)(ii)C, 23, 25, 27, 27A, 28, 29 of
N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:
The petitioner herein appeared before the respondent in
NCB office at Bangalore on 3.10.2021 in response to the
summons.
He was arrested and produced before the court.
No incriminating evidence is recovered or found against the
petitioner.
He has not given any voluntary statement.
The
petitioner is very innocent and law abiding citizen. He has not
committed any offence much less the offence as alleged. He
has been falsely implicated by the respondent in this case.
The petitioner is in J.C. since from 1.10.2021.
Now the
investigation is concluded and chargesheet is filed.
further detention in custody is not warranted.
substance is seized from him.
His
No ganja
There is no incriminating
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3
material to connect him to the alleged offence. The Car bearing
No.KA12/MA6697 does not belong to him.
transactions
pertains
to
the
business
of
The bank
two
bakeries
intelligence officer he name and style as Aroma Bakery and the
said bakery is run on the partnership with A.7 and there is no
illegal
transaction.
The
said
bakeries
are
located
at
Kundalahalli, Bengaluru. Further, the daughter of petitioner
is not well. She is suffering from seizure disorder. There is no
one to take care of his daughter. Though the alleged offence is
non bailable, but is neither punishable with imprisonment for
life or death sentence. The procedure contemplated under
N.D.P.S. Act not followed while recovery. If he is detained in
the Central prison his career will be spoiled in the midst of the
other criminals in the prison. Only on the basis of the
voluntary statement of accused Nos.1 to 3 the petitioner herein
is arrayed as accused No.5.
The petitioner is
permanent
resident of the address shown in the cause title. The petitioner
is ready and willing to abide by any conditions imposed by this
court in the event of grant of bail. He is ready to offer surety for
Crl.Misc.No.7519/2022
4
their due appearance before this court. Hence, sought to grant
bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 139 kg, 735 grams of ganja
from the conscious possession of the accused persons. There
are sufficient material available against the petitioner, and the
said offences are punishable with rigorous imprisonment for a
term which shall not be less than 10 years which may extend
to 20 years and shall also be liable to fine. The investigation is
pending. In the event of his release he may tamper with the
prosecution witnesses. Incriminatory articles were seized from
their custody. The supplier of drug is absconding. he has to be
traced.
He
may
involve
himself
in
similar
offences.
Investigating agency by complying the provisions prevailed
under the act has seized the contraband from the petitioner.
The petitioner herein would sell the drugs to the younger
generation which may ruin the career of younger generation.
With these specific pleas sought to reject the bail plea of the
petitioner.
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Crl.Misc.7519/2022
4. Heard the arguments of both sides and perused the
records.
5. The points that arise for my consideration are as here
under:
1. Whether petitioner have made out
sufficient grounds to enlarge him on
bail?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The IO of NCB Bangalore., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On
30.9.2021
the
complainant
received
credible
information that two persons are transporting ganja in a
Maruthi Swift car. After receiving the information he has
informed to his superior officer obtained permission and he
Crl.Misc.No.7519/2022
6
along with panchas and staff went to near the shop by name
Lucy International at Kundalahalli and intercepted a white
colour Maruthi Swift car bearing No.KA 12 MA 6697 wherein
two persons were sitting inside the car. He has enquired the
said persons who revealed their names and address.
On
search of the Car, he found 136.8 Kgs., of ganja. Incriminating
substance was seized under detail mahazar. The accused were
arrested and a detail report
is submitted. Basing on the
report, a case in NCB.Cr.No,48/1/19//2021 of
BZU.,
registered for the offences punishable U/Sec. 8(c), 20(b)
(ii)C,23,25,27,27A,28,29 of N.D.P.S. Act.
Further, on the
voluntary statement of accused No.2 on 1.10.2021 he has
further seized 1.920 Kgs., of ganja from the house of accused
No.2.
Thus, in all seized 139.735 Kgs., of ganja.
Now, the
investigation in the case is concluded, final report is filed
before this court. In the final report, 8 accused persons were
prosecuted. Accused No.8 shown to be absconding.
8. It is vehemently argued by the learned counsel for the
petitioner that search and seizure are vitiated by inherent
CCH33
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7
procedural impropriety. The mandatory provisions of law have
not been followed thereby causing serious doubt on the
investigation, search and seizure procedure.
he is no way
connected to the drugs which were seized in the case. The
major portion of investigation is concluded. Further custodial
interrogation is not warranted. There is no recovery from the
present petitioner.
He is having no criminal antecedent.
Basing on the voluntary statement of other coaccused he was
arrested. Thus, he is entitled for bail.
9.
It is argued by the prosecution that the petitioner
have committed heinous offence and it is punishable with RI
upto 20 years. The present petitioner is supplies of ganja. he
is in conscious possession of contraband.
There is nexus
between the present petitioner and the accused Nos.1 to 3 in
the trade of drug peddling. More than 100 Kgs., of ganja is
seized. There is a nonabstente clause in Sec.37 of NDPS Act
and there is a clear embargo to entertain the bail plea of
accused. Thus the petitioner herein is not entitled for bail as
huge quantum of contraband is seized.
The petitioner may
Crl.Misc.No.7519/2022
8
involve in similar offence, if he is released on bail. There are
primafacie material available against him.
10.
I have carefully gone through the rival contentions.
The accused No.1 and 2 were apprehended on 30.9.2021. In
the Car, where accused Nos.1 and 2 were travelling, 139.735
Kgs of ganja is found. During house search of accused No.1,
1.920 kgs of ganja was found.
Basing on the voluntary
statement of accused Nos.1 and 2, summons was issued to
present petitioner, accused No.6.
They were secured on
2.10.2021. In the statement, the present petitioner and
accused No.6 have stated that they had knowledge of drug
trafficking and they were doing drug trafficking for monetary
purpose.
He has stated that he used to give his vehicle for
collection of smuggled drugs. The said drugs are stored in the
house of Aslam where further packing is done. He is paying
Rs.25,000/ to the ganja delivery boys and he is earning
Rs.50,000/ to 60,000/ by doing ganja business. He has also
stated that the other accused in the case are his team
members.
Accused No.1 got accused No.2 and 3 from his
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9
village in Bihar.
The customers were managed by accused
No.8. He is using the white colour Maruti Suzuki Swift Car for
delivery of ganja. Two wheelers were also used.
He is
introducing himself as Rahul @ Rahul Bani to the outsiders by
hiding his real identity.
Basing on the statement of present
petitioner, on collecting sufficient material against the present
petitioner, the investigating agency arrested the accused,
produced before the court and is remanded to judicial custody.
On conclusion of investigation, the investigating agency filed
final report before this court against accused Nos.1 to 8. The
allegation
against
present
petitioner
is
u/Sec.8(c)
R/w.
Sec.20(b)(ii)(c), 27(a), 28 and 29 of NDPS Act.
11.
Learned counsel for petitioner referred to catena of
citations in support of his contentions that, the confessional
statement recorded u/Sec.67 of NDPS Act will remain
inadmissible in the trial of an offence under the NDPS Act. In
view of the Toofan Singh’s case, the statement recorded
u/Sec.67 is inadmissible. He has referred to the judgment of
Hon’ble Apex Court reported in 2022, SCC Online, 47 State by
NCB vs, Pallubid Ahmed and others.
I have carefully gone
Crl.Misc.No.7519/2022
10
through the said dictum. The facts and circumstances in the
dictum differs from the present fact. Further, this court is not
only appreciating the voluntary statement of coaccused, and
the present petitioner, but also looking into the seizure of huge
quantum of contraband in the case.
On looking to the
quantum of contraband seized which is a commercial quantity,
the accused Nos.1 and 2 have spoken about involvement of
present petitioner and other accused in the crime.
The
complainant I.O. has not apprehended the petitioner without
having any material. Basing on the statement of accused Nos.1
and 2, the other accused were apprehended. Accused Nos.1
and 2 were transporting huge quantum of ganja in the Car, the
said car belongs to the present petitioner.
If at all the
petitioner is no way connected to the crime, what made him to
give his car to the accused Nos.1 and 2 to transport 139 kgs of
ganja. The primafacie material available on record indicates
the role of petitioner in the crime.
12.
He has also referred to the case of Sujith Tiwari vs.
State of Gujarat, reported in 2020 (13)SCC 447 of Hon’ble Apex
11
CCH33
Crl.Misc.7519/2022
Court, wherein, the accused in the said case has been granted
bail by the Hon’ble Apex Court on looking to the facts and
circumstances of the case.
Discussion is made on Sec.37.
Bail granted to accused on imposing stringent conditions. On
looking to the said facts, accused has been granted bail, but
the facts and circumstances in the present case primafacie
indicates involvement of accused in the case.
Therefore, his
bail plea would not be entertained.
13.
He has referred to the Hon’ble High Court in the
case of Abdul Kadar Gouse Peer vs. NCB dated 4.10.2021. In
the said case, petitioner has been granted bail on appreciating
the facts of the said case.
But, the facts in the said case
differs from the present facts. Therefore, with due respect, it
may not be made applicable to the present case.
14.
He has also referred to the Judgment of Hon’ble
Apex Court in Toofan Singh Vs. State of Tamil Nadu, reported
in 2021(4) SCC 1.
In the said case, Hon’ble Apex Court
discussed in detail about the powers of empowered officer and
other aspects.
The investigating officer investigated in the
Crl.Misc.No.7519/2022
12
powers of officer in charge of a police station for the purpose of
investigation of an offence under a special act like NDPS Act is
empowered to file police report under Section 173 of Cr.P.C.,
The power to file a final report u/Sec.173 is an essential
ingredient of the power of a police officer.
The empowered
officer used in Sec.53 is authorised with the powers of
investigation and to file final report.
The officer empowered
u/Sec.53 of NDPS Act are police officers within the meaning of
Sec.25.
The confession statement made before an officer
designated under Sec.42 or Sec.53 of the NDPS Act can be the
basis to convict a person under the NDPS Act, without any
nonabstente clause doing away with Sec.25 of Evidence Act
without any safeguards would result in direct infringement of
fundamental rights contained in Article 14, 20(3) and 21 of The
Constitution.
Distinction also made between investigative
powers of officers designated under Taxation and Railway
Statutes, the statements made by the person before any officer
empowered u/Sec.53 shall merely be “relevant” for the purpose
of proving the truth of any facts contained in the said
statements. Therefore, statements made before the officer
13
CCH33
Crl.Misc.7519/2022
under Sec.53 of NDPS Act, even when relevant u/Sec.53(a)
cannot without corroborating evidence be the basis for the
conviction of an accused.
I have carefully gone through the
verdict of Hon’ble Apex Court.
As I have already discussed
intelligence officer he aforesaid lines that I am not solely
relying on the statements of coaccused in believing the
allegations made against the present petitioner as alleged in
the Final Report, but the material information collected by the
investigating agency as to the active role of present petitioner
in the drug trafficking is the basis to believe primafacie that
there exist a material against the present petitioner in drug
trafficking. Further, the vehicle where the ganja was stored at
the time of apprehension belongs to the present petitioner.
15. At this stage, it is necessary for me to refer to the
judgment of Hon’ble Apex Court in Crl.Appeal No.1043/2021
dated 22.9.2021 in the case Union of India through NCB.,
Lucknow Vs., Mohammed Nawaz Khan wherein the NCB.,
Lucknow has challenged the order of grant of bail to the
accused by the Hon’ble High Court of Allahabad, Lucknow
14
Crl.Misc.No.7519/2022
Bench. In the said case the Hon’ble Apex Court pleased to
make a detail discussion on the criteria to be considered for
grant of bail when the accused is prosecuted under the
provisions of NDPS Act.
At para20 of the judgment the
Hon’ble Apex Court pleased to note that the High Court and
this court are required to apply while granting bail is whether
there are reasonable grounds to believe that the accused has
not committed an offence and whether he is likely to commit any
offence while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb the menace
of drugtrafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed. In the
present case, the High Court while granting bail to the
respondent adverted to two circumstances, namely (i) absence
of recovery of the contraband from the possession of the
respondent and (ii) the wrong name in the endorsement of
translation of the statement under Section 67 of the NDPS Act.
As regards to the finding of Hon’ble High Court regarding
absence of recovery of the contraband from the possession of
15
CCH33
Crl.Misc.7519/2022
the respondent, we note that in Union of India v. Rattan Mallik,
a twojudge Bench of this Court cancelled the bail of an accused
and reversed the finding of the High Court, which had held that
as the contraband (heroin) was recovered from a specially made
cavity above the cabin of a truck, no contraband was found in
the ‘possession’ of the accused. The Court observed that merely
making a finding on the possession of the contraband did not
fulfill the parameters of Section 37(1)(b) and there was non
application of mind by the High Court. In line with the decision
of this Court in Rattan Mallik (supra), we are of the view that a
finding of the absence of possession of the contraband on the
person of the respondent by the High Court in the impugned
order does not absolve it of the level of scrutiny required under
Section 37(1)(b)(ii) of the NDPS Act.
Further in regard to non compliance of the procedure laid
U/s.42 of NDPS Act, it is held by the Hon’ble Apex Court that
it is a question of fact. Further, at Para30 the Hon’ble Apex
Court pleased to make the following essential elements ought
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Crl.Misc.No.7519/2022
to have been considered by the Hon’ble High Court of
Lucknow.
(i) The respondent was traveling in the vehicle all the way
from Dimapur in Nagaland to Rampur in Uttar Pradesh
with the coaccused;
(ii) The complaint notes that the CDR analysis of the mobile
number used by the respondent indicates that the
respondent was in regular touch with the other accused
persons who were known to him;
(iii) The quantity of contraband found in the vehicle is of a
commercial quantity; and
(iv) The contraband was concealed in the vehicle in which
the respondent was traveling with the coaccused.
By making a detail observation in granting the bail to the
accused held to be incorrect has set aside the impugned order.
The aforesaid recent judgment of Hon’ble Apex Court
clearly highlights on the aspect that what are all the
circumstances to be considered and has to be evaluated by the
court to consider the bail plea of the accused.
16.
On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 139.735 Kgs., of ganja under the seizure
panchanama at the instance of accused Nos.1 and 2. when the
CCH33
Crl.Misc.7519/2022
17
accused Nos.1 an 2 were intercepted in their white Maruthi
Swift car 136.8 Kgs., ganja was seized which was kept in a
white colour gunny bag.
During preliminary enquiry in the
residence of Ramdin Yadav and Aslam CA 1.015 Kgs., of ganja
was found in the house of Aslam. There, one Kamalesh Kumar
was present, who was enquired by the NCB officers. Further,
during the voluntary statement of A2 Aslam 1.920 Kgs., of
ganja was seized from his house.
Accused No.3 was also
arrested. During the further interrogation, information received
about the involvement of A4 to A7. A4 to A7 appeared before
the NCB. Their voluntary statements recorded. In the present
case, at the instance of accused Nos.1 and 2, quantum of
136.8 Kgs., of ganja is seized. As per specification of small and
commercial
quantity
of
narcotic
drug
or
psychotropic
substance issued by Ministry of Finance Department of
Revenue Notification S.O.1055(E) dated 19.10.2001 at at
Sl.No.55 the narcotic drug – Ganja weighing 20 Kgs., is
commercial quantity. In the present case 139.735 Kgs., of
ganja narcotic substance is seized which is a commercial
quantity.
Crl.Misc.No.7519/2022
18
17. At this stage, it is necessary for me to refer to the
judgment of Hon’ble Apex Court reported in (2009) 2 Supreme
Court Cases 624 in Union of India Vs., Rattan Mallik @
Habul.
The Hon’ble Apex Court
made the following
observation at para8 to 10 of the judgment while dealing with
a bail petition in NDPS case:
“While dealing with the bail application the High Court
appears to have lost sight of the mandatory requirements
of Section 37 of the NDPS Act and thus, the order is
clearly unsustainable. The broad principles which should
weigh with the Court in granting bail in a nonbailable
offence have been enumerated in a catina of decisions of
the Supreme Court. When a prosecution/conviction is for
offence(s) under a special statute and that statute
contains specific provisions for dealing with matters
arising thereunder, these provisions cannot be ignored
while dealing with such an application. The respondent
has been convicted and sentenced for offences under the
NDPS Act and therefore, while dealing with his application
for grant of bail, in addition to the broad principles to be
applied in prosecution for offences under the Indian Penal
Code, 1860 the relevant provision in the said special
statute in this regard had to be kept in view.
19
CCH33
Crl.Misc.7519/2022
The aforesaid observation of Hon’ble Apex Court which has to
be looked into while considering the bail plea of petitioner. The
Non obstinate clause in Sec.37 restricts the power of the court
in granting the bail unless the following conditions are
satisfied i.e., the Public prosecutor has been given an
opportunity to oppose the application for such release, and
where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that
he is not guilty of such offence and that he is not likely to
commit any offence while on bail. Here in this case there is an
allegation against the present petitioner that he was doing
drug peddling along with accused Nos.1 to 3.
conscious possession of
From the
accused Nos.1 and 2, 136.8 Kgs.,
quantum of ganja is seized which is a commercial quantity.
18.
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances.
Hon’ble Apex Court
In the recent judgment of
in the case of State of Kerala Vs.,
Rajesh in (2020) 12 SCC 122 it is observed that “reasonable
20
Crl.Misc.No.7519/2022
grounds” means something more than prima facie grounds. It
contemplates substantial probable causes for believing that the
accused is not guilty of the alleged offence. The reasonable belief
contemplated in the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify satisfaction
that the accused is not guilty of the alleged offence. In the case on
hand, the High Court seems to have completely overlooked the
underlying object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time being in force,
regulating the grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for.
Further in the judgment of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001(7)SCC 673
while considering an appeal against an order of the High Court
allowing the second bail petition of the respondent who was
petitioner under the NDPS Act has held that :
“5. ………….. Negation of bail is the rule and its grant an
exception under subclause (ii) of clause (b) of Section 37(1).
For granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable
grounds for believing that the petitioner is not guilty of the
offences with which he is charged and further that he is not
21
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Crl.Misc.7519/2022
likely to commit any offence while on bail. It has further to be
noticed that the conditions for granting the bail, specified in
clause (b) of subsection (1) of Section 37 are in addition to the
limitations provided under the Code of Criminal Procedure or
any other law for the time being in force regulating the grant
of bail. Liberal approach in the matter of bail under the Act is
uncalled for.”
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:
“3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the petitioner is not
guilty of such offence and that he is not likely to commit any
offence while on bail alone will entitle him to a bail. In the
present case, the petitioner attempted to secure bail on
various grounds but failed. But those reasons would be
insignificant if we bear in mind the scope of Section 37(1)(b) of
the Act. At this stage of the case all that could be seen is
whether the statements made on behalf of the prosecution
witnesses, if believable, would result in conviction of the
petitioner or not. At this juncture, we cannot say that the
petitioner is not guilty of the offence if the allegations made
in the charge are established. Nor can we say that the
evidence having not been completely adduced before the
Court that there are no grounds to hold that he is not guilty of
such offence. The other aspect to be borne in mind is that the
liberty of a citizen has got to be balanced with the interest of
the society. In cases where narcotic drugs and psychotropic
substances are involved, the petitioner would indulge in
activities which are lethal to the society. Therefore, it would
certainly be in the interest of the society to keep such persons
behind bars during the pendency of the proceedings before
the court, and the validity of Section 37(1)(b) having been
upheld, we cannot take any other view.”
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Crl.Misc.No.7519/2022
As per the enunciation of law in the afore said dictums’ it is
clear that no person shall be granted bail unless the two
conditions are satisfied, i.e., the satisfaction of the court that
there are reasonable grounds for believing that the petitioner
is not guilty and that he is not likely to commit any offence
while on bail. In this case, in all 139.735 Kgs., of ganja seized
from the accused Nos.1 and 2. The present petitioner was
doing drug peddling along with accused Nos.1 to 3.
At this
stage, there is primafacie material available against the
petitioner in regard to drug trafficking.
The learned counsel
for petitioner have failed to place any material before this court
that the present petitioner was not connected to drug peddling.
The learned counsel for petitioner has contended that the
daughter of petitioner is not well. Petitioner has to take care of
her and therefore, sought to enlarge the petitioner on bail.
Prior to the arrest of petitioner, according to the statement of
learned counsel for petitioner, his daughter was suffering from
ill health.
At this stage, there are no materials placed on
record to show that the health condition of his daughter is
CCH33
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23
critical.
The daughter of petitioner is having some health
issues for the past several years.
They were taking her for
treatment but there is no serious health issues. It seems to be
a genetic disorder.
Infantile spasms are a form of epilepsy. It
can be caused by problems with the way the brain developed.
The infantile spasms children may lead normal life, if
treatment is given. Thus, the contention raised by petitioner to
entertain
the bail plea on
this ground
would not be
entertained. In the result, I proceed to hold that the petitioner
herein has not made out any grounds to entertain his plea for
bail. Accordingly, I answer point No.1 in the Negative.
19. Point No.2: In the result, I proceed to pass following:
ORDER
The petition filed by the petitioner U/Sec.439 of
Cr.P.C is hereby rejected.
[Dictated to the stenographer, directly on the computer, typed and
computerised by her, corrected, signed and then pronounced by me in
Open Court on this the 24th day of August 2022]
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Crl.Misc.No.7519/2022
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*