The CBI judge has clearly made a fetish of evidence by insisting on their existence in black and white whereas in the facts and circumstances of the case they are there for everyone to see.

The most troubling part of the CBI court verdict of 21 December 2017 in the 2G case is the one under the money laundering law pursued by the Enforcement Directorate (ED). The court has smugly said since no criminality has been established under the first case i.e. the one pursued by the CBI, the second one i.e. the one pursued by the ED also must fail automatically without there being a need for going into the merits of the ED case.

The judge has set store by the words ‘proceeds of crime’ occurring in the money laundering law. When there is no crime, the taint of criminality does not attach to the Rs 200 crore received by Kalaignar TV promoted by Kanimozhi paid by Swan Telecom through obvious but thinly disguised layering, says the judgment. This after he meticulously and laboriously records the money trail! It is disingenuous for anyone to say that Rs 200 crore indeed has been paid through clever layering but it was not proceeds of crime.The judge doesn’t deem it necessary to answer why on earth should such a convoluted ‘layering’ as he himself puts it be attempted when the transaction presumably was normal and straight.

The court said the ED case was entirely based on the CBI chargesheet against the accused, particularly in respect of the generation of “proceeds of crime”. Really? The truth is for once the ED has done a meticulous job of establishing the money trail as implicitly conceded by the judge. In fact, the court has strangely glossed over the key aspect of the scam—transfer of Rs 200 crore to Kalaignar TV—on the ground that the ED has parrot-like repeated the CBI charges. It is the ED which has strengthened CBI’s case. In other words, the judge has missed the elephant in the room -- the obviously dubious transfer of Rs 200 crore to Kalaignar TV. In fact, the ED has provided clinching evidence of wrongdoing at least to nail Kanimozhi if not to nail Raja even though it is for everyone to see that the game plan was the brainchild of DMK of which both Kanimozhi and Raja were and are key members.

The following observations in the first case i.e. the criminal conspiracy case are baffling:

There is no material on record to show that A Raja was the mother lode of conspiracy in the instant case. There is also no evidence of his no -holds -barred immersion in any wrongdoing, conspiracy or corruption.

There is no evidence on record produced before the court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first-come-first-served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of Swan Telecom Pvt Ltd (STPL ) and Unitech group companies, non-revision of entry fee and transfer of Rs. 200 crore to Kalaignar TV (P) Limited as illegal gratification.

Wrongdoing is writ large on the facts of the case. Why else would FCFS be the norm when competence and telecom experience or track record should have been the touchstone for allotting precious natural resources? Why should the cut off date have been advanced except to preempt the deserving from entering the fray? Wrongdoing is also evident from the killing made by the allottees of the licenses who post-haste transferred them for hefty profits? Not a word on the back to back transfer of licenses in the judgment. P Chidambaram called this business acumen. Touché! If denuding the exchequer of its dues is business acumen, God help the nation. Does the judge also share this convenient view that sale of licenses for hefty profits back to back by the allottees was sheer business acumen and not a clever and predesigned game plan to rob the exchequer of its rightful dues?

FCTS and killing made by the allottees are evidence enough to nail Raja. But the court curiously has glossed over them. By absolving the former minister of criminality in the matter of allotment of licenses, it has also absolved Kanimozhi of criminality in bribe taking through various conduits culminating in Kalaignar TV.

The CBI judge has clearly made a fetish of evidence by insisting on their existence in black and white whereas in the facts and circumstances of the case they are there for everyone to see. Alas! He had not missed not one but several elephants in the room! He has also belittled the importance of the Prevention of Corruption Act, 1988 that sets the bar high for public servants to prove their probity. The court ought to have put them through a severe test of proving innocence as mandated by that act instead of letting them escape on flimsy grounds -- non-existence of material on record to nail them.

Conspiracy and collusion are never recorded. Nobody puts his head on the chopping block.