2011 (7) TMI 433 - HC - Customs

Confiscation of goods on the ground of obscenity - Penalty - goods imported were obscene in terms of the S. 292 (i) of the Indian Penal Code as it appeared to be lascivious and appealed to the prurient interest and that its effect would tend to deprave and corrupt persons who were likely to read see hear and enact the instructions contained or embodied in it - in reply to SCN appellant had given a detailed reply claiming that the word obscene has not been properly defined in the Act and that far more sexually explicit literature and materials were freely available in shops and circulate in the country. As such the charge of obscenity did not lie - Held that - Customs authorities and the Tribunal below have all committed a serious error in holding the relevant goods as obscene so as to render them prohibited articles order of confiscation and imposition of penalty not sustainable in law Appeal allowed.

Summary

Issues Involved:
1. Competence of the authority issuing the show cause notice.
2. Determination of obscenity of the imported goods.
3. Procedural adherence and expert opinion on obscenity.

Detailed Analysis:

1. Competence of the Authority Issuing the Show Cause Notice:
The appellant challenged the competence of the Assistant Commissioner of Customs to issue the show cause notice under S. 122(b) of the Customs Act, arguing that the Assistant Commissioner had no jurisdiction to adjudicate a confiscation proceeding involving goods valued over rupees two lac. The appellant asserted that the notice was bad in law as the Assistant Commissioner required prior approval from an officer not below the rank of Deputy Commissioner of Customs.

The respondents claimed that the Additional Commissioner had authorized the Assistant Commissioner to issue the notice. However, the court found no convincing evidence of such authorization. The Additional Commissioner's order did not address this point, suggesting that the respondents had no answer to this legal objection. The court held that a notice by an incompetent person is bad in law, affecting the importer's rights, and thus, the proceedings initiated on such a notice were vitiated and liable to be set aside.

2. Determination of Obscenity of the Imported Goods:
The main charge against the importer was that the goods were obscene under S. 292(i) of the Indian Penal Code, as they appeared lascivious and appealed to the prurient interest, potentially corrupting those who might read, see, hear, or enact the instructions. The appellant argued that the term "obscene" was not properly defined in the Act and pointed out that more sexually explicit materials were freely available in the country.

The court noted the lack of a precise definition of obscenity and referred to various legal standards and precedents, including the English Obscene Publications Act, 1959, and judgments like The Queen vs. Hicklin and DPP vs. Jordan. The court emphasized that obscenity must be judged by considering the overall effect on the likely audience, and expert opinion can be valuable in such determinations.

The appellant presented an expert opinion from Ms. Ratnottama Sengupta, who concluded that the goods were not objectionable and were meant for adult entertainment. The Tribunal dismissed this opinion, which the court found illogical since the Customs Act does not provide specific parameters for adjudging materials as obscene.

The court concluded that the concerned items, meant for adults, did not reflect anything obscene by prevailing social standards. It held that merely having erotic content or titillating effects does not make an item obscene if not expressed in lurid or filthy language. The court drew parallels with works like Kamasutra, which also contain explicit instructions but are not considered obscene.

3. Procedural Adherence and Expert Opinion on Obscenity:
The appellant argued that the Customs authorities discriminated against them by not clearing similar imported goods. The court found that the Customs authorities and the Tribunal failed to appreciate the settled legal positions and modern concepts of morality. The Tribunal did not provide substantial reasons for considering the items obscene, relying instead on a personalized value judgment.

The court emphasized that moral standards vary and that the apprehension of minors accessing adult materials is not a sustainable logic for confiscation. The court noted that the changing social mores and standards must be considered, and the goods in question did not appear more sexually explicit than many permitted publications.

The court held that the Customs authorities and the Tribunal committed a serious error in holding the goods as obscene and thus, the order of confiscation and penalty was not sustainable in law. The appeal was allowed, and the Customs authorities were directed to release the goods subject to payment of requisite customs duties.

Conclusion:
The court set aside the Tribunal's order and directed the release of the goods, emphasizing the need for adherence to legal standards and the evolving concepts of obscenity in society. The appeal was allowed, and the Customs authorities were instructed to comply within a month.