Allegation: That first come, first served policy was subverted
On the charge that the first come, first served (FCFS) policy was subverted and “twisted to a new policy of first compliance with the LoI”, the court said that FCFS in itself was not followed by the DoT. Seniority of applicants was followed at all stages — issue of LoI, grant of UAS licence, application at DoT for allocation of spectrum. The court noted that witnesses of the licensing branch had deposed that service providers who needed spectrum would approach the concerned DoT wing separately.
None of the witnesses, the court said, had deposed that there was any “conscious effort” on the part of the DoT to ensure that those who applied earlier would be allowed to maintain the lead in the matter of allocation of spectrum, too. “Prosecution did not put any question to any witness from (DoT’s) WPC cell about first come, first served policy. This shows that prosecution knew that two licences are separate and witnesses may not support its case. It shows highly callous attitude… First come, first served process was not an integrated process,” the court said.
The prosecution’s case, the court said, was that FCFS was being followed in a specific and certain manner, but it had failed to produce any evidence for this. “A policy is a standard guide. There should be no confusion as to what steps are required to be taken in implementation of policy. However, in the instant case the policy parameters are not clear. There is no clarity as to whether it was a two-stage process. Clarity and certainty are vital coins of the field of law,” the court observed. The prosecution had tried to needlessly twist the policy by making a two-stage-multi-stage process into a single-stage one, the judge said.
Allegation: That the entry fee was charged at lower, 2001 rates
On the allegation that older rates were charged, the court said that from 2003 to 2007, only 51 licences were issued in 22 service areas across the country. “If such minuscule number of licences were issued from 2003 to 2007 at an entry fee, which was considered to be too low, the enhanced entry fee would have further reduced the number of licence seekers,” the court said.
“There is no material on record to indicate any insistent assertion or objective analysis by anyone for the need of revision of entry fee. It is all general talk. There is no evidence on record that telecom companies were rolling in or wallowing into wealth warranting revision of entry fee.”
The judge also said, “I do not find any merit in the submission of prosecution that the revision of entry fee was not resorted to due to conspiratorial reasons to help the two accused companies to obtain spectrum at as low a price as was discovered in 2001. There is no merit in the submission of prosecution that it amounted to abuse of power by A Raja.”
Allegation: That Raja favoured Unitech and Swan Telecom
The CBI had alleged that former Telecom Minister A Raja knew top DB Group officials Shahid Balwa and Vinod Goenka from the time he was Environment Minister (2004-07) and that he had facilitated the conspiracy to grant UAS licences to the DB Group-promoted Swan Telecom Pvt Ltd and, consequently, the transfer of Rs 200 crore from Dynamix Realty to Kalaignar TV (P) Limited as illegal gratification. Aseervatham Achary, Raja’s former private secretary, had deposed that Balwa and Goenka made more than 20 visits to Raja’s office.
The court ruled that “there is no documentary record produced by the prosecution regarding their (Balwa’s and Goenka’s) visit to the office of the Minister”, and that it was “not inclined to believe the oral statement” of Achary.
“How is it that prosecution could not collect even a single appointment chart or a visitor’s register in which the visit/ meeting of the three accused with the Minister would have been shown?”, CBI Special Judge O P Saini said. “The Investigating Officer could not collect any evidence, oral or documentary, from the Ministry of Environment and Forests regarding the meetings of accused,” he said.
Allegation: That Rs 200 crore bribe was paid to Kalaignar TV
The CBI’s own Deputy Superintendent of Police S K Sinha deposed before the court to prove that an alleged Rs 200 crore illegal gratification meant for Raja had been parked in Kalaignar TV (P) Limited, run by the family of the DMK patriarch M Karunanidhi.
The court rejected the CBI’s argument: “Dy SP S K Sinha deposed that the transactions of transfer of money, onward from Dynamix Realty to Kalaignar TV (P) Limited and its return to Dynamix Realty was sham and dubious… It has to be kept in mind that the role of investigating officer is only to collect evidence. His word, by itself, does not provide proof for commission of any offence. Examination of the IO in the witness box only shows the procedure followed during the investigation and the material collected for proof of offence alleged in the chargesheet. He can, at best, only explain the evidence collected during investigation.”
Allegation: That cut-off was changed to favour Swan, Unitech
Raja had given three reasons to approve September 25, 2007, as the cut-off date: the large number of pending applications, to discourage speculative players, and that telecom regulator TRAI had recommended a time of one month from the receipt of application. “These”, the court said, “are good reasons… (and) the blame cannot be laid at the doors of A Raja alone”. The decision was “not a conspiracy”, but “an administrative step taken up by the officers of DoT in view of receipt of a large number of applications, but was later disowned by them when the issue became controversial”
The court said: “Why did the officers agree to it when they were not sure (of the date)… As per the notes, the discussion about the date of 25.9.07 took place among all important functionaries of DoT and the decision to issue LoI (letter of intent) applications was a well-considered decision of DoT and not that of A Raja alone.”
The court took note of discrepancies in the deposition of then Telecom Secretary D S Mathur, who blamed Raja for bringing forward the cut-off date. When Raja had wanted to issue LoIs to all 575 applications received until October 1, 2007, Mathur told him that there was not enough spectrum, the court said. However, when Raja told him to bring forward the date of cut-off applications, Mathur had “opposed (it) without suggesting anything better”.
On the CBI’s allegation that Raja’s private secretary R K Chandolia had inquired if Unitech’s licence application had been received — which was alleged to be part of the conspiracy — the judge said, “…Chandolia was inquiring about filing of Unitech application… (It is) only by way of oral evidence (which) carries much less credence… Legal position does not support oral evidence.
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