The affordable billing of one paise per second could not have become a reality had government auctioned 2G licenses as suggested by CAG, Swan Telecom on Thursday told a Delhi court and sought discharge on saying the "hypothetical" loss of Rs 1.76 lakh crore cannot be a ground for its prosecution.

"The act of causing possible and hypothetical loss of Rs 1.76 lakh crore to the state exchequer, which the government is denying, cannot be a ground for criminal prosecution of a company."

"Such issues are policy decisions and the government has to frame policies by keeping in mind the social upliftment of its people and revenue generation and if government would have gone for auction of licenses, then the billing of one paise per second could not have become a reality," Amit Desai, counsel for Swan, now Etisalat DB, told CBI Judge O P Saini.

The courts should not interfere with the policies of the government. The policy can be bad but cannot be "criminal" as the state has to ensure the welfare of citizens besides revenue generation, he contended.

Desai, arguing for the firm which is also an accused besides its promoter Shahid Usman Balwa and director Vinod Goenka, said "the company, being a juristic person, did not commit any criminal act. At best, CBI could have used it for identifying Balwa and Goenka."

"The company on its own did not commit any criminal act and the charge sheet does not specify any such acts," he said.