Mechanism of Child Protection against Sexual Abuse, Trafficking and Implementation of POCSO and Juvenile System

Mechanism of Child Protection against Sexual Abuse, Trafficking and Implementation of POCSO and Juvenile System

Author(s) Name : Ms. Ritanshi Jain & Dr. Susanta Kumar Shadangi

ISSN: 2582-3655


Child rights, like human rights, come from the idea that all people have fundamental rights that they are born with, and these rights are inalienable and inviolable. They cannot be taken away because of a person’s gender, age, religion, race, ethnicity or other factors.

Everyone has a role to play in protecting children. Parents, Schools, Communities, Police, Courts, Medical professionals, NGOs, Child Welfare Communities, District Child Protection Units, the media among others are responsible for creating an ecosystem safeguards children and enables them to live their childhood fearlessly. It is recognized that special protection must be given to children to ensure full, happy and healthy development without fear of harm or exploitation.


Child Welfare Committee, District Child Protection Unit, Juvenile, Trafficking, Child Sexual Abuse


India is committed to establish an India is committed to establish an effective protection system for her children including policies, procedures and practices intended to prevent child’s wellbeing. The “Directive Principles of State Policy’ enshrined in the Constitution of India make it important for the state to ensure that the tender age of children are not abused and they are not forced by economic necessity. They children are given opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

India has largest child population in the world. As per the 2011 census of India, there are 472 million children below the age of 18 including 225 million girls and 160 million children are in age group of 0-6 years.



Child Trafficking is a crime that exploits girls and boys for numerous purposes including forced labor and sex. Because child trafficking is lucrative and often linked with criminal activity and corruption, it is hard to estimate how many children suffer, but trafficking and exploitation is an increasing risk to children around the world.

According to the report of National Crime Records Bureau published in 2021[1]  out of the total reported victims of Human Trafficking (6,533 victims) 2,877 were children.

The United Nations on November 15, 2000 vide General Assembly resolution 55/25 adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. India become the signatory state of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children on December 12, 2002. It is the first global legally binding instrument with an agreed definition on trafficking in persons. The protocol, although does not exclusively define the term ‘Child Trafficking’ or ‘Child Sexual Abuse’ but still children are in its core focus. The protocol defines ‘Human Trafficking’[2] as   

“Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forcedlabour or services, slavery or practices similar to slavery, servitude or the removal of organs”


Section-2(1)(d) of the POCSO Act, defines “Child”, as any person below the age of 18 years. Child sexual abuse is a broad term used to describe sexual offences against children. It occurs when a person involves the child in sexual activities for his/her sexual gratification, commercial purpose or both.


Stopping Child Sexual Abuse is essential for the country’s welfare. The Indian community should make concerted effort to stop child sexual abuse in the country. It is not only the responsibility of the Government to keep children safe and secure but it is also the responsibility of all of us to ensure a safe and protected environment for our children to enable them to live with dignity and free from any form of violence.

Statistics of the past few years from the Crime in India Report of National Crime Records Bureau (NCRB) suggests that in 80- 90% of the cases, the offender is ‘known’ to the victim. In reports/ researches and surveys conducted by NGOs, it is seen that in a large majority of cases of sexual violence against women and children, the accused is a known person/ acquaintance of victim and family/ close family members including fathers, step-fathers, grandfathers, uncles, cousins, etc. It is one of the biggest myths about child sexual abuse is that strangers, in a park or on a lonely street, are more likely to abuse children. In fact, the situations we need to safeguard our child occur inside or close to our homes, schools, playgrounds etc.

3.1. Physical Contact’ Forms of Abuse

In some cases, there will be clear physical contact between the offender and the child such as penetrative sex, fondling of the child’s genitals or making the child touch the offender’s genitals, touching any part of the child’s body with sexual intent, kissing with sexual intent, etc.

3.2. Non-Physical Contact’ Forms of Abuse

Child Sexual Abuse can also occur without contact between the offender and the child such as showing pornographic videos or pictures to the child, using the child in pornographic material, verbal abuse, making lewd gestures to the child, playing sexualized games, stalking the child or chatting with sexual intent with the child over the Internet, etc. The POCSO Act would still apply where the offence is committed by a child the only difference is that the procedure would be as per the Juvenile Justice (Care and Protection of Children) Act, 2015.

3.3.    Commercial Sexual Exploitation of Children

It is defined as the “sexual abuse by the adult along with remuneration in cash or kind to the child or a third person or persons”. It is a process through which the child is treated as a sexual object and as a commercial object. The main forms of CSEC are child prostitution (including child sex tourism), child sexual abuse images and trafficking of children for sexual purposes.

3.4.    Child Sex Tourism

It is the sexual exploitation of children by a person or persons who travel from their home district or home country in order to have sexual contact with children.

Child sex tourists would be domestic travellers or they can be international tourists. It often involves the use of accommodation, transportation and other tourism-related services that facilitate contact with children and enable the perpetrator to remain fairly inconspicuous in the surrounding population and environment. Child sex tourism involves the exchange of cash, clothes, food or some other form of consideration to a child or to a third party for sexual contact. Child Sex Tourists may be married or single, male or female (though the majority are male), foreign or local, wealthy or budget tourists or from a high socio-economic or even disadvantaged background.


No report, be it of Governmental Organizations or of Non-governmental Organizations, can make available the actual or most accurate data relating to the cases of sexual abuses or other form of abuses with the children. The reason behind inability in providing the most accurate data is that most of such cases go unreported because of the silence of the children. Following below may be the reasons behind the children keeping silence in such cases.

  1. Children are afraid that they may be disbelieved.
  2. Children feel a sense of guilt that perhaps it is indeed‘their own fault’ that the abuse occurred.
  3. Every time a child talks about the incident of abuse they may be remembering and reliving the trauma; and children don’t want to remember the abuse.
  4. Children are afraid that the person who groomed and abused them will stop loving them or get in trouble because of them. This is because of manipulations during the ‘grooming’ process and is also true in cases where the offender is a family member.
  5. The child may have been manipulated by the offender into believing that their relationship is normal. Sometimes the child does not realize that it is being abused.
  6. Fear of retaliation and further abuse also forces a child to keep silent.
  7. Generally, children are not encouraged to talk about their feelings and when they do… adults do not listen or believe.

The future of the nation lies in the hands of the Children, who have been recognized as the supremely assets of the nation. Children ought to have been the subject of prime focus of development planning, research, and welfare in India but unfortunately, it has not been so. Despite the Constitutional vision of a healthy and happy child protected against abuse and exploitation, and a National Policy for Children, the majority of children in India continue to live without a cared, protected and meaningful childhood.

India is a signatory to UN Declaration on The Rights of the Child, 1959 which defined and recognized various Rights of the children namely: The right to health and care, the right to protection from abuse, the right to protection from exploitation, right to protection from neglect, right to information, right to expression and right to nutrition etc. have been defined.

The National Policy for Children has reaffirmed the Constitutional provisions for adequate service to children both before and after birth and through the period of growth to ensure their full physical, mental and social development. There is need to give specific importance to children in society. Importance of a child is well recognized since ages. Nowadays children are under tremendous social pressure due to new changing social perceptions. It is often happen that sometimes we are trapped into unwanted situations due to several factors such as economic, peer pressure, social stigmas etc. Children are no exception to it. Indeed, they are at vulnerability of getting involved into the offences and most of the time, this happens due to economic factors, existing social differences, societal burden to prove themselves, and peer pressure.

          Therefore, the questions arises that should we put behind bar such children? Or should we hang them or put them behind bar throughout their life? Certainly, according to the Reformative Theory, the answer will be in negative. On the same line, the states across world have adopted a different mechanism for the children of upto a fixed age. They, who are under this fixed age, are treated differently and are also punished differently for the same offence. This differential treatment system is Juvenile Justice System.    

Who is Juvenile?

Juvenile is the term used by the legislature across world for such human beings who fall under a certain age, as fixed by the legislature of the respective state, and are found to be in conflict with the law. A juvenile is treated differently as comparison to the non-juveniles for commission of same offence. There are two fold objectives behind such differentiation; firstly, high reformation possibility in the children; and secondly, the commitment of the states across the world to foster and groom a child’s life in a manner that they become an asset for the state. Whenever, a child commits an offence, it is not the child who fails but it is somewhere the state which fails and it is due to this failure on its part, the state somewhere gives itself an opportunity to discharge its duty and obligation towards providing a better and secure life to a child.

Juvenile Justice System

The juvenile justice systems are designed to cater needs of young children found in conflict with the law. One principal role has been to provide specialized preventive and treatment services for children and young persons as a means of secondary preventions, rehabilitations and improved socialization.

States recognize that children who commit crimes are different from adults: as a class, they are less blameworthy, and they have a greater capacity for change. To respond to these differences, states have established a separate court system for juveniles, and they have created a separate, youth-based service delivery system.

Principles to be followed in administration of the rules:-

  • Principle of presumption of innocence
  • Principle of dignity and worth
  • Principle of Right to be heard:
  • Principle of Best Interest:
  • Principle of family responsibility:
  • Principle of Safety (no harm, no abuse, no neglect, no exploitation and no maltreatment):
  • Positive measures to promote wellbeing of the child, reduce vulnerabilities and aim at development of child’s identity:
  • Principle of non-stigmatizing semantics, decisions andactions:
  • Principle of non-waiver of rights:
  • Principle of equality and non-discrimination:
  • Principle of right to privacy and confidentiality:
  • Principle of last resort:

India has a long historical backdrop in juvenile laws. In ancient India, a parent was supposed not to punish a child who is under five years of age for any offence. The prevailing laws in ancient India believe that a child of such tender age should be nursed and educated with love and affection only. Some Smritis, like the Braha-Yama and the Sankha say that a boy over five and less than eleven, if guilty of some Patakas such as drinking Sura, has not to undergo penance personally but his brother, father or other relatives or friends have to undergo for him and that if, a child is below five years, then whatever the act may be, it is not deemed to be a crime nor a sin and the child consequently is not liable for any punishment or prayaschita. The first codified legislation providing the mechanism for Juvenile Justice System is ‘The Apprentice Act 1850’.This act provided that the children of age group 10-18, if are convicted by the courts, are required to be provided with vocational training as part of their rehabilitation process.

The next codified legislation is ‘The Reformatory Schools Act, 1897’.  This act was having the provision which provided that the children up to the age of 15 may be sent to the reformatory cell.

Post-Independence, India introduced the Juvenile Justice Act, 1986. The act was introduced to meet the principles set by UN for the administration of juvenile justice. This act established a uniform legal framework for juvenile justice. This act later was repelled by the Juvenile Justice (Care and Protection of Children) Act, 2000. The objective behind the 2000 was to rationalize and standardize the approach towards juvenile justice in keeping with the relevant provisions of the Constitution of India and International obligations in this regard. Thereafter, several amendments were introduced in 2000 act. However, all such amendments were made to meet the core principle of the welfare of children. In 2015, India came with another statute which governs the subject matter of juvenile delinquency, the most recent legislature in the list governing the subject matter of Juvenile Justice. The Juvenile Justice (Care and Protection) Act, 2015 came into force in the year 2016 and the act has repelled the earlier act of 2000. The 2015 act came up with certain beneficiary provisions which were not covered by the earlier statute. One of such historical provision is with regard to adoption. This act, however, classified juveniles into two categories viz. Juvenile in the conflict of heinous offences and Juvenile in conflict with non-heinous offences. For the purpose of heinous offences, the one who completes the age of 16 now can be tried as a non-juvenile. Under non-heinous offences, the age limit is still 18 years. This becomes the centre of controversy as same was against the international commitments of India.


Juvenile delinquency laws are characterized by the denature that they prescribe many acts which are regarded as non-criminal if indulged in by elder persons like drinking, smoking, viewing adult films or reading adult literature, etc. The extension of the concept of juvenile delinquency to wider limits has drawn adverse criticism on the ground that it is neither necessary nor desirable to use police and courts in private matters which can be well tackled by family themselves. The first legislation which came in 1850 was the Apprentice Act which provided that children in the age group of 10-18 convicted by courts were intended to be provided with some vocational training which might help their rehabilitation. It was followed by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought to the fore the vital need for treatment of young offenders. The three pioneer statutes (i.e., Acts concerning Madras, Bengal and Bombay) were extensively amended between 1948 and 1959. In 1960, Prevention of Crime and Treatment of offenders are some therapeutic recommendations were adopted. The Central enactment, the Children Act, 1960 was passed. The Children (Amendment) Act was passed in 1978. But the need of a uniform legislation regarding juvenile justice for the whole country had been expressed in various fora, including Parliament but it could not be enacted on the ground that the subject matter of such legislation fell in the State List of the Constitution. To bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, Parliament seems to have exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make law for the whole of India to fulfill international obligations. On 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the LokSabha.


The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. This is an act which aims to: (a) Consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection (Replace Juvenile justice Act, 1986) (b) Provide for proper care, protection, treatment and cater to their development needs (c) Provide a child-friendly approach keeping their best interest in mind while dealing with them. This act sources it’s principles/has its foundations in: (a) The Constitution of India: Article 15(e), 39 (e) & (f), 45, 47 (b) United Nations Convention on Rights of the Child (UNCRC), 1989 (Ratified by India in 1992 (with a reservation on child labour eradication alone)) (c) United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules) (d) United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 This law, brought in compliance of the 1989 UN Convention on the Rights of the Child (UNCRC), repealed the earlier Juvenile Justice Act of 1986 after India signed and ratified the UNCRC in 1992. This Act has been further amended in 2006 and 2010. The Objective of the Act: – To Lay Down a Legal Structure for The Juvenile Justice System in The Country – To Provide a Special Approach to The Protection and Treatment of Juveniles – To outline the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of juveniles – To establish norms and standards for administration of juvenile justice – To establish linkages and co-ordination between the formal system of juvenile justice and voluntary efforts in the welfare of juveniles – To constitute special offences in relation to juveniles and provide punishment.


An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social reintegration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established hereinunder and for matters connected therewith or incidental thereto. It was passed on 7th May 2015 by the LokSabha amid intense protest by several Members of Parliament. It was passed on 22nd December 2015 by the RajyaSabha. The bill allows a Juvenile Justice Board, which would include psychologists and sociologists, to decide whether a juvenile criminal in the age group of 16–18 should try as an adult or not.


Today’s juvenile justice system still maintains rehabilitation as its primary goal and distinguishes itself from the criminal justice system in important ways. With a few exceptions, in most states’ delinquency is defined as the commission of a criminal act by a child who was under the age of 18 at the time; most states also allow youth to remain under the supervision of the juvenile court until age 21. Unlike adult criminal proceedings, juvenile court hearings are often closed to members of the public and records are often confidential, protecting children from carrying the burdens of their delinquent activity into adulthood. There have been a number of changes in recent years. Developmental psychology has been enriched by recent research on the way the adolescent brain, still in development, differs from that of adults. Thus, increasingly, courts consider whether a child is competent to stand trial or whether a child’s confession was voluntary in light of developmental and scientific research about the distinctive characteristics of children and adolescents. There is difference of opinion given by the various authorities in the field and also in the type of offences and behaviour which is included in the juvenile delinquency. The concept of juvenile justice was derived from a belief that the problem of juvenile delinquency and related problem of youth in abnormal situations are not only amenable to the resolution within the framework of the traditional process of criminal law. The juvenile justice systems have been designed to respond to the needs of young offenders. One principal role has been to provide specialized preventive and treatment services for children and young persons as a means of secondary preventions, rehabilitations and improved socialization.


Universal Declaration of Human Rights was the first international document which deals with the issue of child care. Art. 25 of Universal Declaration of Human Rights confirm that a child is entitled to special care and assistance. The International Covenant on Civil and Political Rights through Art. 23 and 24 and International Covenant on Economic, Social and Cultural Rights through Art.10 confirm provisions for the care of the child. The battery of international documents affirms that a child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The UN on November 20, 1989, adopted a convention with the nomenclature ‘Rights of the Child’ (CRC). This convention came into force on September 2, 1990, and till September 29, 2012, it has 193 state parties. It is the first global convention which ensures the protection of children’s civil, political, economic, social and cultural rights. Three optional protocols were added to CRC, to ensure the child rights and their development. The two protocols were adopted by the international community on May 25, 2000, in New York, while the third protocol was adopted on December 19, 1911, by the General Assembly, opened for the signature on February 28, 2012. The third protocol was introduced with the intent to facilitate a procedure for individual complaint from the children. Apart from these, the other global accords which are worthy to consider are Beijing Rules of 1985, Riyadh Guidelines of 1990 and the Havana Rules of 1990. These three were accorded to ensure proper establishment of the juvenile justice system within the state territorial. The Beijing Rules on the age of criminal responsibility states that the concept of the age of criminal responsibility for the juvenile should not be fixed too low an age level, keeping in mind the emotional, mental and intellectual maturity of children. Art.1 of UN convention on Rights of the Child, states that a child means every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier.


India is a state, with no uniform opinion regarding the age of majority. The practice adopted by India is, fix the age of majority in accordance with the nature of the act. However, the majority of statutes lays down eighteen years as the age of majority. Indian Contract Act, Indian Penal Code, Indian Majority Act etc are the acts which set eighteen as the sound age for the majority. Further, in India when a statute is silent on the age of majority, it is governed by the provision of Indian Majority Act and hence, the age is taken as eighteen. The Indian Penal Code lays down that “Nothing is an offence which is done by a child under seven years of age”. Further, the act also says “Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on the occasion”. So, if we take into consideration the criminal responsibility of children in India, then it is worthy to say that a child below the age of seven, is not considered as an accused and when a child crosses the age of seven but is under the age of twelve, then also he may be exempted from responsibility of offence.


The legislature before the act of 2015 dealing with Juvenile Justice was having the age of juvenile as 18 years. In all international treaties and conventions, the age of children is also fixed as 18. However, the age was reduced to 16 years in cases of heinous offences by the 2015 act. Why we fixed the age of majority as 18 years and why worldwide the children upto the age of 18 years are treated as children. The age was fixed to 18 years because of the scientific reason that the human brain continues to develop and the growth of a child continues till he reaches to 18 years. Along with the physical growth, mental growth is equally important, in assessing the maturity of a person below the age of eighteen years. In this regard, the report of Parliamentary Standing Committee on ‘JJCPA Bill, 2014’ is to be taken into consideration. The report read as

“Referring to the report of Indian Jail Committee 1919-1920, the stakeholder submitted that it was well settled that children should not be treated as adult offenders. Referring to figures relating to juvenile crimes, it was pointed out that only 1.2% of total crime in our country was committed by juveniles and out of this, 1.2%, only 7% comprised things like murder and rape. The number was extremely low which could be tackled under the current system. There was no need to push juvenile offenders into the adult criminal system.”

The Ld. Solicitor General in Salil Bali v. Union of India[3] while responding to the assertion that juvenile age should be fixed at sixteen submitted before the Hon’ble Supreme Court that, Parliament consciously fixed 18 years as the upper age limit for treating a person as juvenile and children, taking into consideration the general trend of legislation, not only internationally but within the country as well.

The National Crime Record Bureau Report published in 2021 revels certain important data which is compiled hereunder.

Table 1[4]


Table 2[5]

Murder (s. 302 IPC)899
Culpable Homicide (s. 304 IPC)68
Rape (s. 376 IPC)1,218
Attempt to Commit Rape (s. 376/511 IPC)29

Table 3[6]

Murder (s. 302 IPC)24273877
Culpable Homicide (s. 304 IPC)13542
Rape (s. 376 IPC)12340939
Attempt to Commit Rape (s. 376/511 IPC)526

The child is the incarnation of diversity and if guided with care and love then, asset and if not, then a destruction. It is concluded that by reducing the age from eighteen to sixteen the legislature not only goes in contradiction with laws of the land but also force the vulnerable group of this land to remain in vulnerability. The report of the Nation Crime Record Bureau Report published in 2021 clearly indicates that the large numbers of juveniles are between the age group 16-18 years. By taking the age from 18 to 16 years the legislature is not fair to the children who need most care and attention. The legislative intent behind the Juvenile Laws is somewhere not fulfilled by the 2015 act of India as much as it consider the children of 16 years as non-juvenile in cases of heinous offences. It is not hidden that the 2015 act was enacted by the legislature to satisfy the will and voice of common people which rose after the Nirbhaya incident of Delhi.  The 2015 act is also contrary to the international commitments of India. Indeed, the age group of sixteen to eighteen is a crucial life stage in anyone’s life. Therefore, they requires great care and protection. Days were there when we adopt the retributive approach, nowadays we are living in an age of reformative theory. Remanding a juvenile in prison for a long period is neither reformative nor a welfare decision. It not only destructs the child but also destructs the nation.

One of the major issues, which is to be flagged out and which is evident of the fact that the legislature has not applies its wisdom to the best while bringing the 2015 act, is Consensual Sex between the girls and boys between the age of 16-18 years. On one hand, the legislature to his wisdom believes that a girl of below 18 years is not competent to give consent for sex whereas on the other hand, the legislature believes that a child below 18 years is competent enough to commit the offence of rape.

            It is suggested that the Child Trafficking can be ended by saving the children works to combat child trafficking through prevention, protection and prosecution. By supporting livelihoods we help families avoid the need to have their children work. By raising awareness of trafficking we reduce the number of children being trafficked. By rehabilitating survivors, we help them rebuild their lives. By protecting unaccompanied refugee children, we keep them from the clutches of traffickers.


  1. NalwaSuman and KohliDevHari, Commentary on Juvenile Justice Act, 2ndEd. 2016, Universal Law Publishing Co.
  2. Dr H.O, Agarwal, Human Rights, 16thEd. 2016, Central Law Publication
  3. S.N. Mishra, Indian Penal Code, 12thEd. 2016, Central Law Publication
  4. R.N. Choudhry, Law Relating to Juvenile Justice In India (The JJCPA, 2000), 1stEd. 2005, Orient Publishing Company
  5. MukeshYadavand PoojaRastogi, Paper Titled ‘Age of Criminal Responsibility of Juvenile in India vis-àvis. Global Scenario: A Critical Review’ J Indian Acad Forensic Med. July-September 2013, Vol. 35, No.3, ISSN 0971-0973
  6. Dr. B.K. Das, Paper Titled ‘Juvenile Justice System in India’, Indian Journal of Research, Paripex, Vol 5, Issue 5, ISSN 2250-1991
  7. Salil Bali v. Union of India(2013) 7 SCC 705
  8. Crime in India 2021, Statistics Volume- I, National Crime Record Bureau, Ministry of Home Affairs
  9. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,


[2] Article 3 (a), The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,

[3](2013) 7 SCC 705


[5]Table representing figures of ‘Commission of Serious Offences by Juvenile

[6]Table showing ‘Age Wise Distribution of Juveniles found in Conflict with Law’

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