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The judgment in the 2G case reflects the lack of evidence that left the judge with no choice but to demolish the conspiracy theory    

~By Sujit Bhar

Late into his 1,552-page judgment on one of the CBI cases (vs A Raja and Others), CBI Special Judge OP Saini comments: “I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 am to 5 pm, awaiting for [sic] someone with some legally admissible evidence… but… in vain. Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation…”

Read that with the then comptroller and auditor general of India, Vinod Rai’s comment in his book Not Just an Accountant: The Diary of the Nation’s Conscience Keeper, on how he arrived at the incredible notional loss figure of Rs 1.76 lakh crore.

He wrote: “When the Department of Telecommunications (DoT) was in the process of releasing spectrum at that price (Rs 1,651 crore, as discovered in 2001), S Tel… wrote to the prime minister… volunteering to pay an additional revenue share of Rs 6,000 crore. In a subsequent communication… the company enhanced this offer to Rs 13,752 crore over a period of 10 years… There could have been no clearer indication of what the market could bear for allotment of spectrum. Had this price been accepted by the DoT, they would have realised Rs 65,909 crore as against Rs 12,386 crore realised for 122 new licences and 35 licences under dual technology.”

This was the dichotomy within the case. Judge Saini was dealing with a possible aberration of perception, an aberration that threw a government out of power with the repetition of a figure so humongous that it was almost believable.

Judge Saini’s work was cut out—to find the legality of the price realisation process. He couldn’t.

It becomes necessary to look into the legal aspects that the judge considered in arriving at his decision to acquit all 19 accused in the 2G spectrum allotment “scam” case.

There were three cases dealt with, two by the CBI and one by the Enforcement Directorate (ED). The ED has dealt with financial transactions that happened among the accused and companies belonging to them, alleging an attempt to create a money-laundering paper trail that could lead to kickbacks vis-a-vis the “scam”.  Apart from Rai’s observations, this was the main case for the prosecution.

The CBI special court demolished the case.

On page 103 of this order, Judge Saini observes:

“…as per para 5.2 of the complaint, property worth Rs 223.55 crore of DB group of companies and its associates has been attached by ED… However, in view of the acquittal of the accused, necessary order is also required to be passed relating to attached properties.

“Let me take note of the legal position on this issue.

“Clauses 5 & 6 of Section 8 of the Act [Prevention of Money­Laundering Act, 2002] deals with disposal of property,   both in case of conviction as well as acquittal by the Special Court.’’

Special CBI judge OP Saini
Special CBI judge OP Saini

Judge Saini went on to dismiss money-laundering allegations and ordered that all confiscated property be returned. He has also successfully argued against the prosecution about confiscation of property.

The court has, thus, conclusively destroyed the case and, while the Enforcement Directorate has said that it will go into appeal, it would mean a possible reconstruction of the entire case, step by step, all over again. That is a mammoth task, by any yardstick. The CBI initially said it wanted to study the full order before consulting its legal experts and commenting on its next course of action, but pressure from the top changed its mind and it, too, has said that it will go into appeal.

In the CBI cases—generally dealing with the larger picture of price realisation—on pages 15-16, the CBI had mentioned a TRAI notification. It said: “TRAI also observed in its recommendations… that: ‘The allocation of spectrum is after the payment of entry fee and grant of licence. The entry fee as it exists today is, in fact, a result of the price discovered through a market based mechanism…

‘In today’s dynamism and unprecedented growth of telecom sector, the entry fee determined then is also not the   realistic price for obtaining a licence. Perhaps, it needs to be reassessed through a market mechanism.’”

The above paragraph has been underlined by the court, emphasising, possibly, how the price discovery process itself could not have been substantiated.

Photo: UNI
Photo: UNI

“Had this price been accepted by the DoT, they would have realised Rs 65,909 crore as against Rs 12,386 crore realised for 122 new licences and 35 licences under dual technology.”

—Vinod Rai, former Comptroller and Auditor General of India

The CBI allegation is a chain of events that has been connected, presumably yielding a big conspiracy. Those have been detailed, but the judge cited an old judgment to press home his cautious point of view, on page 12. He said: “A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before,   during and after the occurrence can be proved to decide about the complicity of the accused.”

Then, on page 213, the judge quotes other judgments to cement his argument. He says: “In Nalini case, Wadhwa, J pointed out… the need to guard against prejudice being caused to the accused on account of joint trial with other conspirators. The learned judge observed that: ‘… There is always difficulty in tracing   the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy.’”

The pertinent observation of Judge Hand in US vs Falcone was referred to: “…The distinction is especially important today when so many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders.”

The judge has obviously talked about generalisation and its risks and had done his research.

The question has been placed around the price realisation process and one can generally assume that concrete evidence of relation between the price on record and possible price has not been arrived at, or was not feasible to be arrived at.

This nature of argument also destroys the notional value argument that was the plinth of the case anyway. With the telecom sector now mature enough with competition despite all allegations, it would be difficult to reconstruct the old theories of unfairness.

The judge demolishes the very price position of the government and the investigative agencies. On page 394, he says: “Now the question is: Whether   any assessment of availability of spectrum was carried out by DoT or not?  Let me take note of the relevant documents and evidence in this regard.

“The case of the prosecution is that before deciding the date of September 25, 2007, no assessment of spectrum service area wise was carried out…”

Slowly, but surely, the judge destroyed all precincts of the case, helping him arrive at the final judgment.

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