Bombay High Court Raps Commissioner Of Customs For Prohibiting Import Of Body Massagers Citing Probable Use As 'Adult Sex Toys'

The Bombay High Court has held that the probable or imaginative use of an item cannot be used by customs officials to prohibit it's import on grounds of obscenity. The Court dismissed an appeal filed by the Commissioner of Customs who confiscated imported body massagers on the grounds of possibly being used as “adult sex toys.”

A division bench of Justices GS Kulkarni upheld the May 2023 order of the Central Excise and Service Tax Appellate Tribunal by which it aside the Commissioner of Customs order against DOC Brown Industries LLP in April 2022.

The Commissioner had relied heavily on the opinion of psychologists and gynaecologists who opined that “Caresmith Wave Body Massager” could be subjected to other uses.

“Thus, merely because the goods can be subjected to an alternative use, of the nature, as the Commissioner contemplated, this can never be the test to hold that the goods were prohibited, when they otherwise satisfied the test of goods, which could be imported and sold.”

The court noted that the massager was confiscated citing a 60-year-old notification 'No. 01/1964,' some of whose contents may have lost its efficacy in contemporary times. It stated that the notification prohibited the import of obscene books, pamphlets, papers, writing, drawings, paintings, representations, figures or articles, and objectional descriptions.

Justice G.S. Kulkarni made scathing observations on the Commissioner's approach, calling it "astonishing and too far-fetched" and a product of "vivid imagination."

The court noted, "The findings as recorded by the Commissioner are peculiar and clearly appears to be quite astonishing and too far-fetched, when he reduces in writing his vivid imagination on what an equipment for a body massage would be and more particularly on his perception on the perceived uses, in the context of import in question."

The court emphasized that the Commissioner's approach was based on his personal views, which are unknown to the law. Justice Kulkarni stated, "If what was observed by the Commissioner in the order-in-original is accepted to be the only test, it would amount to accepting personal views of the officer which would be something unknown to law. Such approach is certainly not permissible."

The High Court upheld the tribunal's decision to set aside the Commissioner's orders, observing, that the tribunal was correct in its view when it set aside the orders passed by the Commissioner. The appeal is without merit. It is accordingly rejected, it stated.

Click Here To Read/Download Order