Bombay High Court quashes Customs confiscation of body massagers labeled as adult sex toys, challenging subjective import interpretations.
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MUMBAI: Recently, The Bombay High Court has quashed an order by the Commissioner of Customs department, which had confiscated consignments containing body massagers, alleging they could be used as “Adult Sex Toy,” a prohibited item for import.
The bench of Justice Girish Kulkarni and Kishor Sant emphasized the lack of substantial evidence supporting the Commissioner’s claim, stating:
“It was clearly the figment of the Commissioner’s imagination and/or his personal perception that the goods are prohibited items.”
The Customs department considered the body massagers to be potential adult sex toys when they were initially seized on April 6, 2022. In any case, the proprietors of the transfer, distressed by this choice, moved toward the Focal Extract and Administration Duty Redrafting Council, which accordingly upset the Magistrate’s structure. The Commissioner’s point of view was criticized by the tribunal, which characterized it as an imaginative rather than evidence-based assessment.
The Commissioner of Customs decided to contest the tribunal’s ruling by taking the case to the Bombay High Court. However, the court swiftly rejected the Commissioner’s position, describing the findings as “peculiar and clearly exaggerated.”
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This observation pointed to a lack of substantial justification for the confiscation. Importantly, the court emphasized that body massagers are commonly bought and sold in domestic markets, indicating they do not meet the criteria for being deemed prohibited items.
Furthermore, the court criticized the failure of the adjudicating officer to act reasonably in assessing the goods for clearance. Despite relying on Section 292(2) of the Indian Penal Code, which pertains to obscene materials, the court reasoned that body massagers cannot be equated with items explicitly listed under the said section.
Section 292(2) of the Indian Penal Code–
Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.
(Exception)
— This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure—
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in—
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
The Commissioner had defended the confiscation by citing expert opinions suggesting alternative uses for body massagers. However, the court maintained that the mere potential for alternative use does not justify prohibition.
“Merely because the goods could be subjected to an alternative use cannot be the test to hold that they were prohibited,”
– remarked the bench.
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The decision by the Bombay High Court to dismiss the Commissioner’s petition and uphold the tribunal’s order regarding the classification of body massagers is significant. It reaffirms that such items should not be considered adult sex toys and therefore should not be included in the list of prohibited import items.