The Calcutta High Court has held that appeals challenging penalties for alleged contraventions of the Foreign Exchange Regulation Act, 1973 (FERA), can be heard as criminal appeals even though they were filed after the enactment of the Foreign Exchange Management Act, 1999 (FEMA).
Justice Ananya Bandyopadhyay overruled the Enforcement Directorate's objection that the appeals should be heard as civil revenue appeals on the High Court's Original Side.
"In view of the statutory scheme of Section 49(4) of FEMA, 1999 read with Section 6 of the General Clauses Act, 1897, and supported by the judicial parity established in CRLA No. 330 of 2008, this Court holds that the present appeals, assailing a penal sanction rooted in FERA contraventions, are maintainable as a Criminal Appeal before this Court. The preliminary objection raised by the respondent regarding maintainability stands overruled," the court ruled.
The appeals filed by Barun Kumar Chattopadhyay, Chandranath Chatterjee, Pradyot Kumar Dutta and Gurupada Chowdhary, challenged the Foreign Exchange Appellate Tribunal's March 5, 2008 judgment dismissing their appeals and upholding an adjudication order dated May 28, 2007 which imposed a penalty of ₹2 lakh on each appellant. The appeals were filed under Section 35 of FEMA while the alleged contraventions originated under FERA.
The Court distinguished the judgment in Union of India v. Jagadish Prasad Nandalal, observing that the decision concerned civil revenue appeals and did not address penal adjudications preserved under Section 49(4) of FEMA read with Section 6 of the General Clauses Act, 1897. It held that the civil revenue procedure prescribed in that case did not apply to the present proceedings.
Relying on Rakesh Jain v. Union of India, the Court noted that statutory savings provisions preserve appellate remedies arising from pre-repeal FERA proceedings, allowing them to continue under the appropriate criminal appellate framework.
The Court also noted that the appellant had initially filed Criminal Appeal No. 582 of 2008 before the Delhi High Court, which on July 31, 2008, permitted withdrawal with liberty to approach the appropriate High Court in West Bengal.
Accordingly the Court rejected the Enforcement Directorate preliminary objections and listed the for hearing on merits on December 11, 2026.
For the Appellants: Advocates Amitabh Shukla, Dipankar Aditya, Prakash Pandey, Aishwarya Priya Raha
For the Respondent: Advocates Vipul Kundalia, Uneaza Ali, Dhirodatto Chaudhuri, Debjani Roy