Swan Telecom today sought its discharge from the 2G case by claiming in a Delhi court that it cannot be held a co-conspirator with former Telecom Minister A Raja as besides it, many firms, including Tata Teleservices and Datacom, were also ready with demand drafts of Rs 1659 crore to get licenses.
"There is nothing sinister in CBI's allegations that only Swan Telecom had a prior knowledge about the requirement of a DD of Rs 1659 crore to get the 2G licenses. Many companies such as Tata, Idea Cellular, Spice and Unitech were also ready with the drafts on January 10, 2008."
"The recommendations of Telecom Regulatory Authority of India (TRAI) that existing entry fees of Rs 1659 crore should not be revised and the fact the government had accepted the recommendations were the information in public domain. Then, how can it be said that Raja conspired with it and gave it the prior information on amount of the DD," advocate Amit Desai, appearing for Shahid Usman Balwa-promoted firm, told Special CBI Judge O P Saini.
He also cited news reports to support his argument that the fact that a DD of Rs 1659 crore would be required to be deposited as entry fees was known to all and sundry.
"How can the knowledge of media about it was innocent and the same knowledge to the Swan Telecom (now Etisalat DB) becomes criminal," Desai, who argued for almost 11 hours in the last two days, said.
Concluding the arguments, he said "a person, who could be termed as a representative of the government, must appear here as a witness to support CBI's claim that the state incurred a huge loss when the Prime Minister is on record as saying that it did not suffer any loss."
Desai came in defence of Attorney General G E Vahanvati who as Solicitor General of India had earlier given opinions on a press release and on the proposed changes in the letter of intent (LoI) to be issued to successful telecom firms.
"The Solicitor General (SG) should not have been made a witness in the case," he said adding the SG, like any other lawyer, had given opinions as he had been appearing for the Department of Telecom (DoT) before telecom regulator TDSAT and the Delhi High Court.
The SG concurred with changes made by A Raja in draft LoIs, by which the compliance of LoIs was made a condition for grant of licenses instead of date of applying for them.
"Omission or changes" in the government policies cannot fall under the realm of criminal law and moreover, CBI cannot form its opinion in "hindsight" to say that Swan Telecom was an ineligible firm which conspired to cause loss to the state.
"There are conflicting statements in the charge sheet which has been dumped by CBI in this court. CBI cannot question the government policies to infer or attribute criminal motive on Swan Telecom," Desai said.
Desai justified the changes, brought about by Raja, in the first-come-first served (FCFS) policy by which firms, complying with LoI's terms first, got the license first.
Earlier, under the FCFS policy, the seniority of a telecom company was decided on the date of application.
"An unprecedented situation had emerged in the telecom sector as 575 applications were received by the DoT for grant of licenses and the change in the FCFS policy was brought to ensure fairness and equity," he said.
Even if we assume that the change in the policy was bad, it cannot make the change a criminal act," he said.
Differences of opinion among various government officials and functionaries cannot be the subject matter of criminal trial, Desai said.
"TRAI, while recommending non-revision of entry fees of Rs 1659 crore for companies, advised against auctioning the spectrum as the government intended to increase tele-density in rural areas, that too at affordable price", he said.
On the contrary, later the Finance Secretary had advised revision of entry fees, he said.
Then, the Comptroller and Auditor General (CAG) of India, in the hindsight, held that the government incurred a loss of Rs 1.76 crore as it did not go the auction, he added.
It also came to light some DoT officials differed on the proposed changes in the FCFS policy, he said, adding "such differences cannot be adjudicated upon in a criminal trial."
So far as the priority issues of applying telecom firms were concerned, they had to be decided by the DoT and the minister and it did not require to be decided by the Empowered Group of Ministers (EGoM), he said, adding no criminality could be inferred from it.
Moreover, Raja had informed the Prime Minister on the proposed changes in FCFS policy in his letter on December 26, 2007.
To constitute the offence of conspiracy, CBI is required to come up with some serious facts which indicate that the accused had a common intention commit an offence, he said adding "CBI is re-writing the complete story that too in hindsight. They should collect evidence instead of questioning the government policies."
Desai rejected the allegation that Swan Telecom and its promoter Shahid Usman Balwa and Director Vinod Goenka had conspired with Raja to bag licenses for lucrative Delhi circle.
"In 2008, Delhi was no more a lucrative circle, rather it was a saturated market with as many as eight existing telecom operators competing for consumers," he said and referred to the charge sheet to drive home the point.
"It is the most unique case where CBI has prima facie failed to substantiate the allegation that the accused abused their respective official positions to cause wrongful loss to the state," he said.
Dealing with the allegation that Swan Telecom was the front company of Reliance Telecom Ltd (RTL), Desai said the Ministry of Corporate Affairs had already certified the share holding pattern of the company.
CBI had alleged initially that RTL held 9.9 per cent share in Swan Telecom and rest 90.1 per cent shares were with another firm and this was done to circumvent then DoT policy which debarred existing CDMA player to venture into GSM technology.
Shahid Balwa came into picture after Reliance ADAG, then a CDMA player, was allowed to venture into GSM technology, it alleged.
Desai concluded his arguments saying CBI's allegation could be termed as a procedural lapse which cannot be decided in a criminal court.
The court is likely to hear tomorrow the arguments on behalf of Sanjay Chandra, Managing Director of Unitech Wireless (Tamil Nadu) Ltd.
So far, Raja, his personal secretary R K Chandolia, former Telecom Secretary Siddharth Behura, Shahid Balwa and Vinod Goenka have advanced their arguments against framing of charges.