Section 36 FCRA: Additional Fine When Article, Currency or Security Is Unavailable

Section 36 of the Foreign Contribution (Regulation) Act, 2010 gives the trial court a specific power to impose an additional fine when property that would otherwise be liable to confiscation is not available for confiscation.

Updated: 27 September 2026 | Foreign Contribution (Regulation) Act, 2010

What Section 36 provides

Section 36 - Power to impose additional fine where article or currency or security is not available for confiscation. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the court trying a person, who, in relation to any article or currency or security, whether Indian or foreign, does or omits to do any act which act or omission would render such article or currency or security liable to confiscation under this Act, may, in the event of the conviction of such person for the act or omission aforesaid, impose on such person a fine not exceeding five times the value of the article or currency or security or one thousand rupees, whichever is more, if such article or currency or security is not available for confiscation, and the fine so imposed shall be in addition to any other fine which may be imposed on such person under this Act.

Meaning and purpose of Section 36

The provision addresses a situation in which an article, currency or security has become liable to confiscation because of an act or omission under the FCRA, but that property cannot actually be produced or made available for confiscation. In that event, and after conviction for the relevant act or omission, the court may impose an additional monetary fine.

The section therefore protects the effectiveness of the confiscation scheme. The inability to confiscate the property does not, by itself, prevent the court from imposing the additional financial consequence authorised by Section 36.

Maximum additional fine: the court may impose a fine up to five times the value of the relevant article, currency or security, or Rs. 1,000, whichever is more. This fine is additional to any other fine that may be imposed under the FCRA.

Conditions for exercise of the power

There must be an act or omission relating to an article, currency or security, whether Indian or foreign.
The act or omission must be of a kind that renders that property liable to confiscation under the FCRA.
The person must be convicted for that act or omission.
The article, currency or security must not be available for confiscation.
The court may then impose the additional fine within the ceiling prescribed by Section 36.

Why the words "notwithstanding anything" matter

Section 36 begins with a non-obstante clause referring to the Code of Criminal Procedure, 1973. A non-obstante clause is language used to give the stated provision overriding operation to the extent of an inconsistency with the law mentioned in that clause. Here, the special power to impose the additional fine is created by the FCRA itself.

Current criminal procedure context

Important current-law note: Section 36 continues to contain an express textual reference to the Code of Criminal Procedure, 1973. The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and repealed the CrPC subject to its saving provisions. Section 8 of the General Clauses Act, 1897 also provides a general rule for construing references to provisions that have been repealed and re-enacted, unless a different intention appears. The application of these provisions to a particular proceeding depends on the facts, including applicable saving provisions.

Relationship with nearby FCRA penalty provisions

Section 36 should be read with the surrounding penalty and enforcement provisions of the FCRA. Section 35 provides punishment for contravention where the Act specifies the relevant offence, while Section 37 deals with contraventions for which no separate punishment has been provided. Section 36 is narrower: it deals specifically with an additional fine when property liable to confiscation is unavailable.

Practical takeaway

Section 36 does not create an automatic fine merely because property is missing. Its operation is tied to conviction, liability of the relevant property to confiscation under the Act, and the property's unavailability for confiscation. The amount remains subject to the statutory ceiling and the court's determination in the case.

This page is a general legal information resource. For a specific FCRA investigation, prosecution, confiscation or compounding matter, the applicable statutory text, notifications, procedural law and facts should be examined together.