2G spectrum is not my property: Swan's Balwa

New Delhi: Swan Telecom promoter Shahid Usman Balwa today told a Delhi court that all 17 accused cannot be charged for the offence of criminal breach of trust in 2G scam case as spectrum was not “property” which have illegally been disposed off by them.

“Spectrum was just a medium of communication. It is not a property. It remains in the air. It is not like a mineral which I (Balwa) will extract and will become its owner. It is not my property,” senior advocate Vikas Singh, appearing for Balwa, told Special CBI Judge O P Saini.

CBI has sought framing of additional charges under section 409 (criminal breach of trust) of the IPC against former Telecom Minister A Raja and others. If convicted, they may face life imprisonment as maximum punishment. Referring to words property and criminal breach of trust in relation to that property used in the penal provision, the defence lawyer said “spectrum is not the property” which was entrusted to Raja.

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Raja also did not have a dominion over radio waves, he said, adding no offence of criminal breach of trust was made out.

“Spectrum has been dealt with by Department of Telecom (DoT) since 1995 and for the past 15 years neither the government nor DoT considered it as a commodity,” he said.

CBI, in its plea, said Raja and two government servants had a dominion over valuable 2G spectrum in their respective capacities as public servants and they flouted law in award of licenses, which made out a case of criminal breach of trust.

It also sought to try the rest 14 accused, including DMK MP Kanimozhi, Balwa, under the same penal provision by making them a party to the alleged criminal conspiracy hatched by Raja and two other public servants.

The defence lawyer said the fresh allegations by CBI were untenable. “When it is establshied that there is no property, then how can one part with it”?

“Section 409 deals with entrustment of property but when there is no property then how can it be parted with. Spectrum is like a highway which we use to reach our destinations and spectrum is not handed over to anyone. Only the rights (licence) to use it are given,” he said.

Singh also referred to a Supreme Court judgement to drive home the point that spectrum is not a property and said hence, the offence of criminal breach of trust in respect of the spectrum cannot withstand legal scrutiny.

“Where is the property of which we are talking? Spectrum is not a property, it’s just waves in the air,” he said.

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The arguments on behalf of Shahid Balwa remained inconclusive and would continue on October 12.

If Swan Telecom and Unitech Wireless (Tamil Nadu) Pvt Ltd were accused of conspiring with key accused Raja, his private secretary RK Chandolia and former Telecom Secretary Siddhartha Behura in commission of criminal breach of trust, then all other companies, which got spectrum, be also tried for the same offence, Agarwal said.

“Spectrum was allocated to all the firms at the same price of 2001 and if it is a property, then it must be recovered from all those companies are enjoying the stolen property (spectrum)”, he said.

Earlier, senior advocate Sushil Kumar, appearing for Raja, said CBI’s move to invoke the new charge was an attempt to keep all the accused in jail. “The only purpose (for CBI’s move) is to hold them (accused) in custody till the time they (CBI) can. Otherwise, the case is busted and there is nothing in the application,” the counsel had said.

Initially, the accused have been charged under provisions which entail 7 years jail as maximum sentence, he said, adding CBI has moved the plea to keep them in jail for a longer period.

However, CBI prosecutor U U Lalit argued for framing of the additional charges saying as a minister Raja had dealt with natural resources and distributed the spectrum licenses in an “arbitrary and capricious” manner.

“A minister, who is the executive head of the department, holds a trust on behalf of the people. He has to deal with the people’s property in a fair and just manner and he cannot breach the trust reposed on him by the people,” he said.

Except Raja, the other 16 accused, including three companies, Reliance Telecom, Swan Telecom and Unitech, have filed their responses to the CBI application.

PTI