'Threat To National Security': Allahabad HC Denies Bail To Chinese National Accused Of Operating Int'l Criminal Network In India

“Before parting, this Court would like to make some observations. The presence of foreign nationals in India as travellers or traders or otherwise is an extant reality. It is true for other countries as well. Legal issues like criminal trials of foreign nationals though arising in domestic jurisdiction of one country have international ramifications. Criminal trial proceedings in the domestic courts of one country can get linked to the legal system and the Government of another country. There is a need for an international framework of laws which is created by consensus among the comity of nations in order to deal with such issues in a fair, transparent and just manner,” the Court said as it urged members of the comity of nations to address the issue.

In his 33-page order, the judge highlighted the challenges faced by Indian judicial authorities in prosecuting foreign nationals, citing jurisdictional issues and the difficulty of ensuring their presence during legal proceedings.

Underscoring that upholding the Indian Constitution and the rule of law is paramount, the Court said that to this end, foreign businesses and individuals must abide by Indian laws and submit to Indian court jurisdiction. Further, the court also warned that allowing foreign nationals immunity would erode India's sovereignty and constitutional framework.

“The memories of foreign entities acting against Indian interests without fear of Indian law are too vivid to be recalled. The exactions of foreign interests working without scruples of international law are too severe to be reprised,” the Court remarked.

The case in brief

The applicant-accused, booked under Sections 419, 420, 467, 468, 471, 120B, 201 IPC and Sections 14(A), 14(B), 14(C), 14 of Foreigners Act and Section 66D IT Act, has been accused of being part of a larger criminal organization and an international crime network that has been committing serious crimes in India.

The applicant was not named in the FIR; however, during investigations, the police authorities unearthed several incriminatory evidence against the applicant, which, according to them, established the applicant's culpability in various offences.

He allegedly entered India on a work visa for Shenzhen Luckin Electronic Technology Co. Ltd. but never worked there. Instead, as per the allegations against him, he illegally worked for a company named HTZN, which worked for extracting chips from e-waste without authorization. His visa had expired, and he resided at an address different from the one on his visa.

He allegedly used HTZN as a front for unlawful activities. HTZN was linked to a network of sham companies engaged in criminal activities, including illegal chip exports, money laundering through gaming apps, and defrauding Indian investors.

Allegedly, the applicant and his accomplices facilitated the illegal entry and exit of Chinese nationals, created fake identity documents, and operated a hotel as a hub for their activities.

The prosecution further alleged that many financial transactions connected HTZN with other fake companies like Sudden Fix Pvt. Ltd., TD Max, and Tiashang Renjion Co. Ltd and the applicant, part of the higher management, was involved in day-to-day operations, revealing his role in an organized international crime network in India.

He moved to the High Court after the trial court rejected his bail plea in November 2022. His primary case was that he was a simple workman who extracted chips in a unit set up by HTZN.

Before the High Court, his counsel argued that the only offence against the applicant (without prejudice to his defence) was that of overstaying the visa, which may constitute an offence under Section 14 of the Foreigners Act, 1946.

On the other hand, opposing his bail plea, Additional Solicitor General of India SP Singh, assisted by Central Government Counsel RPS Chauhan, submitted that the Government of India does not have a treaty arrangement or legal framework with the People's Republic of China, and in case the applicant escapes from India, there is little or no possibility of ensuring his presence in India to face the trial.

The court was also apprised that no credible legal framework or efficacious system exists to secure the presence of Chinese nationals who escape the territory of India while facing criminal trials.

The State Government also voiced concerns about the applicant fleeing India to cheat justice and the Government's inability to ensure his presence in Court.

High Court's observations

At the outset, the Court noted that the foreign nationals facing trials in India are vested with many rights, which ensure procedural fairness and transparency, including the right to a translator to translate the court proceedings into their native language, the right to legal aid, right to a speedy trial right to communicate with their families, etc.

The Court further noted in its order that foreign nationals are entitled to seek bail as per the applicable laws and conditionalities as may be imposed in the facts and circumstances of a case.

Against this backdrop, when the Court examined the accusations against the applicant, it found that the material was credible enough to point to the applicant's culpability in the offences and that there was a strong likelihood that the applicant committed the offence.

“Material discussed above the evidences against the applicant disclosed commission of economic offences and fraud. Furthermore, the applicant appears to be part of a well organized international crime network of Chinese nationals and local accomplices in India… International criminal networks which are managed by Chinese nationals with Indian accomplices as in the instant case significantly impact the national security. Such international crime syndicates create fifth columnists in the host countries. What aggravates the crime further is that many beneficiaries of the crime proceeds are foreigners living abroad who are not even amenable to Indian law and whose identities are effectively concealed” the Court remarked.

On the question of whether there was a likelihood of his committing the crime if released on bail, the Court opined that since the applicant flouted visa conditions, overstayed his visa after its expiry, and carried on criminal activities in the country, he was likely to indulge in the aforesaid nefarious activities if released on bail.

"The applicant along with other Chinese nationals and Indian accomplices indulged in various unlawful activities and laundered money as noticed earlier. The criminal network of the applicant and others helped various Chinese nationals to create fake identity papers, make illegal entry into India and also facilitated their escape. The applicant flouted the visa conditions, and has also over stayed in this country only to carry on the aforesaid unlawful activities and commit criminal offences. The applicant has scant regard for Indian law," the Court noted as it found the applicant to be a flight risk.

In view of this, the Court refused to grant him bail.

Appearances

Counsel for Applicant: Senior Cousnel Vinay Saran, assisted by Advocates Abhas Sharma, Abhishek Srivastava, Pradeep Kumar Mishra, Rajesh Kumar Sharma

Case title - Ryen @ Ren Chao vs. State of U.P 2024 LiveLaw (AB) 473