TRAI's expert report on 2G supports our case: CBI to court

"CBI had asked the Telecom Regulatory Authority of India (TRAI) to evaluate the pricing of spectrum after a technical and commercial probe. Even if you take the lowest value (of TRAI), it is not off the mark. In fact, the figures (about the loss), which are modest ones, are in consonance with our figure," Special public prosecutor U U Lalit told Special CBI Judge O P Saini.

The prosecutor, however, refused to use certain parts of the covering letter, written by the TRAI to the CBI, along with with expert committee report as a document, to be relied upon by the agency in support of its case.

The covering letter of the committee's report, written by R K Arnold of TRAI to S K Palsania of CBI, said the auctioning of spectrum was never recommended and its pricing was based on assumption.

"I am making it clear that it's not the document (the covering letter) on which we are relying. There is no question of withdrawing it. I am just saying do not take that document on record at this point of time," Lalit said.

Quoting from the report, Lalit said it was not possible for TRAI to arrive at the "precise value" of the spectrum as it was done with retrospective effect and that too with the help of "meagre" data.

"Valuing spectrum with a retrospective effect is a tricky thing. In 2001, TRAI valued it at Rs 1202.91 crore and in 2008 it was valued at Rs 9500 crore. Later, the figure was revised," he said.

The expert committee report again revised the price and scaled it down from Rs 9,500 crore to 5,444 crore, the prosecutor said, adding it cannot be said TRAI had taken a different view from that of CBI.

"Rather, they (TRAI) had taken a modest view. The figure of Rs 30,000 crore (of CBI) is a rational and correct figure and is not off the mark," Lalit said, adding the agency was bound by "whatever it had said in the charge sheet about the loss."

The prosecutor opposed the plea of Swan Telecom promoter Shahid Usman Balwa that CBI was "subverting" the process of trial by not brining the expert committee's report on record.

"The application does not deserve to be listed even. How can we be directed to use certain documents as our documents? How can you say that we are applying pressure tactics?" Lalit said.

Lalit also defended not using the opinion of the Ministry of Law and Justice that Swan Telecom was not an "associate" of Reliance Telecom Limited.

Opposing the plea of the accused for a direction to place on record the report of the Law Ministry, Lalit said "there can be no such direction to CBI."

"We are not shutting you out. It is just that when something has come and it is not the prosecution's case, then it can be brought on a later stage. But that document cannot be forced to be brought on record at the time of framing of charges," he said.

The court, which was to pronounce its order on framing of charges against 17 accused, including former Telecom Minister A Raja, today did not pass the order.

It would continue to hear arguments tomorrow on behalf of trhe accused on using TRAI's report as part of judicial record.

The counsel for various accused including A Raja, Group Managing Director of Reliance ADAG Gautam Doshi, Swan Telecom, and Reliance Telecom Ltd also advanced their arguments on the findings of TRAI's expert committee.

Raja, who argued himself for about 15 minutes, said "it is complete lawlessness. The matter of pricing of spectrum, entry fees was deliberated upon at the Ministry of Finance, myself (Ministry of Telecom) and Department of Telecom (DoT). Then, why me only (been targeted)?"

"In principle, the agreement was signed between two ministries (Ministry of Telecom and Ministry of Finance) and the DoT," he said, adding CBI was required to prove that the TRAI report only meant for future allocation of spectrum.

He sought to reject the allegations of CBI that the licenses granted by his predecessors in the Ministry was "minuscule" in nature.

"Dayanidhi Maran, Pramod Mahajan and Arun Shourie issued about 56 licenses. I issued 122 licenses. How come this figure of 56 becomes minuscule in relation of 122?," he said.

"I feel proud for my services to the country as because of my efforts the mobile tariff came down. In fact, it was me who said the telecom companies should pay for the spectrum in excess of 6.2 MHz. My prayer is that the TRAI letter must be taken into account," Raja said.

"I used to to fetch money for the government but with the same rope they want to hang me. Is it justified?," he said.

Amit Desai, counsel for Swan Telecom, said CBI cannot be allowed to "pick and choose" the documents as the accused also deserve a fair trial.

"CBI is duty-bound to file the opinion of the Ministry of Law and Justice as they do not have their own opinion," he said.

Desai said the opinion of Law Ministry that Swan Telecom was not an "associate" of Reliance Telecom (RTL) and the investment of RTL in Swan Telecom was below 10 per cent was quite relevant and be placed on record.

"When it suits their case, they say they will place the documents on record but when it does not suit their case, they say they are not relying on it," he said.

"I find it most surprising and shocking that the prosecuting agency comes before this court and says that they are not relying on it (opinion of Law Ministry)," he said.