Calcutta High Court Holds Appeals Against Saved FERA Penalties Maintainable on Criminal Appellate Side

Preliminary objection rejected

Justice Ananya Bandyopadhyay considered four appeals arising from penalties of ₹2 lakh each imposed in proceedings under the Foreign Exchange Regulation Act, 1973. The Enforcement Directorate argued that appeals filed under Section 35 of the Foreign Exchange Management Act, 1999, should be presented before the Original Side Registry in accordance with rules governing civil revenue appeals. The High Court rejected that procedural objection and held that these matters could be entertained as criminal appeals. The decision concerns maintainability and forum, not whether the penalties themselves were lawful.

Background to the penalties

The adjudication order was passed by the Special Director of the Enforcement Directorate on 28 May 2007. The Foreign Exchange Appellate Tribunal dismissed the appellants' challenges on 5 March 2008. The present proceedings were brought by Barun Kumar Chattopadhyay, Chandranath Chatterjee, Pradyot Kumar Dutta and Gurupada Chowdhary. They sought judicial review of penalties arising from alleged contraventions of the older FERA regime. The fact that FERA had been repealed did not, by itself, eliminate every liability or procedural remedy associated with earlier contraventions.

Savings provisions and character of proceedings

The Court considered Section 49 of FEMA together with Section 6 of the General Clauses Act, 1897. Those savings provisions preserve relevant legal consequences of the repealed legislation. The Court reasoned that use of Section 35 of FEMA as the procedural route for appeal did not transform the penal character of adjudication that originated under FERA. The nature of the underlying proceedings, rather than the label of the later appellate route alone, was central to determining which appellate side could hear the cases.

Distinguishing earlier authorities

The Enforcement Directorate relied on a Special Bench decision in Union of India v Jagadish Prasad Nandalal concerning statutory appeals arising from civil revenue matters. The Court distinguished that authority because the present penalties originated under FERA. It also considered the Supreme Court's treatment of statutory savings in P V Mohammad Barmay Sons v Director of Enforcement and referred to Rakesh Jain v Union of India. The Court noted that appeals by co-accused arising from the same adjudication had been entertained by the Delhi High Court in criminal appellate jurisdiction.

Consistency in appellate treatment

The Court considered it important that closely connected challenges to the same penal adjudication not be treated inconsistently merely because they were pursued in different courts. The ruling preserves access to a forum capable of examining the appeals while maintaining the distinction between the older penal regime and FEMA's later procedural framework. It does not mean every dispute under FEMA is criminal or that all foreign exchange penalties must be challenged on the criminal side. The historical source and saved character of the liability remain important.

Next stage of the litigation

The High Court directed that the four appeals be listed for 11 December 2026 for consideration on the merits. At that stage the parties may address the validity of the original adjudication and the appellate tribunal's decision. No penalty was set aside merely by the maintainability ruling. The case is relevant to practitioners dealing with transitional legislation because it illustrates how repeal, savings clauses and procedural provisions can interact when an older liability is pursued under a newer statute.

Case Details

Barun Kumar Chattopadhyay and others v Special Director, Enforcement Directorate; Calcutta High Court; Justice Ananya Bandyopadhyay; next listing 11 December 2026.

Relevant Bare Act

Foreign Exchange Management Act, 1999; relevant provisions: 35, 49. The specific legal connection is identified from the verified proceedings and is not a claim that every listed provision was interpreted in the decision.