'Can't Ignore Hostile Indo-China Relations; No Extradition Treaty': Allahabad HC Denies Bail To Chinese National In Visa Forgery Case

A Bench of Justice Arun Kumar Singh Deshwal noted that given the hostile relationship at this moment and the absence of an extradition treaty between the two nations, releasing the applicant would be a risk as it he may flee to China and may not be available during trial as India.

The accused-Xue Fei@ Koei booked under Sections 419, 420, 467, 468, 471, 120B, 201 IPC and Section 14(A), 14(B), 14(C), 14AB, 14C Foreigners Act & 66D IT Act has been accused of the extraction of processors and chips from scrap material and sending them to China along with visa forgery.

Case in brief

Briefly put, two Chinese nationals were arrested while entering India through Nepal. Information revealed during their interrogation which led the police to a Flat in Noida, where the applicant had been residing.

During the search, UP Police recovered a forged passport and an Aadhar card bearing the name 'Laakpa Sherpa' but they contained the applicant's photograph.

It was alleged that Xue Fei had committed forgery in his visa (e-FRRO report) by extending its validity from 2020 to 2022, despite the fact that it had expired in 2020. The flat in Noida was also rented based on these forged documents.

During the investigation, police also discovered a factory of HTZN Technology Pvt. Ltd. in Noida, which was allegedly being run, though indirectly, and was involved in collecting chips and processors from scrap and exporting them to China and after illegally earning money, he was siphoning off the same through crypto currency 

Arguments

Advocate Abhishek Chauhan appeared for the applicant (Xue Fei) was neither a director nor a promoter of the company in question. It was contended that he was falsely implicated solely on the basis of confessional statements of co-accused and witnesses.

It was also argued that no charge sheet had been filed regarding the allegation of siphoning off money or money laundering. Lastly, it was submitted that the applicant has been in jail since June 2022 and with 76 witnesses listed, the trial would take considerable time.

He added that his passport may be impounded by the trial court and certificate of assurance can be taken from the embassy of country of the accused that the under trial accused will not flee from the country and would attend the trial court proceedings.

On the other hand, AGA for the State and Advocate RPS Chauhan (Union of India), opposed the bail plea arguing that the applicant as the 'kingpin' of entire illegal activities. The State submitted that the applicant prepared forged Indian passports and Aadhar cards to carry out his 'nefarious' activities in India which are against the interest of the country.

They added that the applicant is a citizen of China and is involved in illegal activities just to damage the economy of India. Crucially, the State argued that under Section 57(11) Evidence Act, the Court must take judicial notice regarding the hostile relationship with China.

High Court's order

Justice Deshwal, after perusing the record, noted that it is not in dispute that forged documents were recovered from the applicant's possession and while the applicant was not recorded as a Director, statements of witnesses showed he was 'actively involved' in running HTZN Pvt. Ltd. and its subsidiaries.

On the issue of bail, the Court referred to Indi-China relations. The Order stated thus:

"This Court cannot ignore the relationship of India with China by overlooking the mandate of Section 57(11) of Evidence Act and there are chances if the applicant is released on bail, he may leave the country illegally as another co-accused Tansong Dorji has already left and still untraceable".

The Court further remarked that India and China have no extradition treaty, therefore, if the applicant left the country illegally it would not be possible to bring back him to the justice.

Furthermore, the Bench observed that the applicant's visa had expired in 2020 and that if released on bail, he can't be kept free because he has no permission to live in India.

Further, concluding that there is material in the case diary showing the applicant is staying in India on forged documents and is indirectly involved in economic offence as well as the causing threat to the economic interest of India.

Thus, the High Court rejected the bail application. However, considering the applicant's incarceration of about three and a half years, the trial court has been directed to conclude the trial as expeditiously as possible.