To prosecute the accused persons on charges of criminal conspiracy, the CBI’s main argument during the 2G trial was that former Telecom minister A Raja had given Swan Telecom and Unitech advance information about issue of the Letter of Intent (LoI) and change of procedure for allocation.
But in his judgment acquitting all the accused in the 2G spectrum case on December 21, Special Judge O P Saini states that “everything happening” in the Department of Telecom (DoT) then was known to several other companies — and that “there was no secrecy and sanctity”.
In his order, Saini said that “everything” taking place in DoT was conveyed by officials concerned to “each company in advance”.
The order states: “Everything was leaking in DoT. There was no secrecy or sanctity. Who is responsible for it? There is no evidence. In such a situation, no blame can be cast on any of the accused alone. In such a scenario where every official information was being leaked, it cannot be argued that a specific information was conveyed to a specific company by a specific individual, unless there is a definite evidence on this point. It is all in the realm of speculation.”
Tata Teleservices knew of issues
The TRAI recommendations came on August 28, 2007, stating that no cap be placed on the number of access service providers in any service area, and that there is a need to ensure spectrum availability to ensure efficient utilisation of spectrum. A Raja, took over at the Telecom ministry in May 2007 — and approved these recommendations on October 17, 2007.
Saini has pointed out that Tata Teleservices Limited (TTSL) knew about the issue of Letter of Intent and the expected change in priority of allocation of spectrum even before Raja approved the TRAI recommendations. The court said that TTSL wrote to the DoT on October 11, 2007, “conveying its understanding that LOIs may be issued soon to eligible applicants.”
The court refers to TTSL’s letter to DoT, which stated: “Our applications for issue of UASL [Unified Access Service License] in the above mentioned circles have been pending with Department of Telecommunications since 21st June 2006. there have been recent press reports indicating that DoT may allocate spectrum based on priority determined by the date of signing of the licence agreement. You will appreciate that if these news reports are true, it will place applicants like us at a serious disadvantage with new applicants who do not have to comply with the onerous requirement of obtaining NDC [no-dues certificate] and who will, therefore, be able to sign the licence immediately and claim eligibility to get spectrum ahead of longstanding applicants like us.”
Saini observed, “This letter shows that as early as 11.10.2007, TTSL knew about issue of LOIs as well as expected change in priority for allocation of spectrum. The company knew about change of priority from date of application to date of payment… Who were its sources in DoT?”
Spice, Idea knew of procedure change
The judgment states, “…Spice and Idea [mobile network operators] had written letters, referred to above, to D S Mathur, [then Telecom] Secretary, about impending change in the procedure for allocation of spectrum, but he did not respond, nor did he deny the impending change. Thus, everything happening in DoT was an open secret. In such a situation, how can one blame any specific individual for providing prior information to the accused companies?”
The court also pointed out that the letter from Spice to the Telecom Commission chairman on November 28, 2011, asking the Commission to “decide its application filed in August 2006”, also indicates that the company knew about the change of procedure of allocation of spectrum.
“We would also like to draw your attention that seniority for spectrum allocation after issuance of licence should be linked to date of application (31.08.2006 in our case),” according to Spice’s letter to the commission in court.
Saini said, “The letter shows that the company had prior knowledge about the change of procedure for allocation of spectrum and requested the Chairman, Telecom Commission, who was D S Mathur at that time, to fix their seniority from 31.08.2006, the date of application for UAS licence to DoT.”
Referring to Idea Cellular’s letter to Mathur on December 27, 2007, Saini ruled that it “shows they had prior knowledge of change in the procedure for allocation of spectrum.”
“Please note that any manipulation of initial spectrum allocation priority, achieved through the device of manipulation of dates of payment demands, would constitute an assault on government policy,” the letter in the judgment states.
CBI probe officer knew of letters
The court has referred to cross-examination of CBI investigating officer (IO) Vivek Priyadarshi, which states that he knew about TTSL’s letters to the DoT. “Letter dated 11.10.2007, written by TTSL, was also in my knowledge during investigation regarding its pending applications for UAS licences for the circles mentioned therein stating that it understood that DoT would soon issue LOIs,” the IO told the court.
Priyadarshi also told the court that he also knew about some companies preparing bank drafts. “The sources of the companies were not mentioned in the letters, these only mentioned that they understood so. I did not investigate these sources. It is correct that some other companies had also prepared bank drafts anterior to 10.01.2008,” he told the court.
The judgment says that Deputy SP Rajesh Chahal deposed before the court, and said, “…some of the applicant companies were aware on 09.01.2008 regarding the fact of issuance of LOIs very soon, but two companies Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) (P) Limited were having this knowledge well in advance in October-November 2007 itself…”
“It is clear that investigating officers are not sure as to how two companies were in know of changed procedure,” the court said.