2023 (5) TMI 1311 - AT - Customs

Absolute Confiscation of imported goods - body massager - consideration of the goods as adult sex toy - direction for destroying the seized goods - prohibition on import by notification no. 1/1964-Cus dated 18th January 1964 - imposition of penalties of varying amounts under section 112 and section 114AA of Customs Act, 1962 - HELD THAT - The law frowns, doubtlessly, on the obscene as abundantly clear from section 292 of Indian Penal Code. It is also the law that has stipulated obscenity by deeming provision and has, besides, carved out exceptions in 1925 to give effect to concerns articulated in the International Convention for the Suppression of or Traffic in Obscene Publications under the auspices of the League of Nations. That, however, is the law for domestic enforcement by penalizing offenders engaged in sale of obscene book, pamphlet, paper, drawing, painting, representation, figure or article within the country or across the border in either direction; the criminalizing intent of the law must find reflection in action against book, pamphlet, paper, drawing, painting, representation, figure or article. To limit the remit of notification no. 1/64Cus (NT) dated 18th January 1964 to executive action on imports upon determination of obscene in accordance with the laws penalizing obscenity . The sale of body massagers within the national boundaries have not been subject to prohibition and in discarding the submission to that effect, the adjudicating authority did not appear to have found cause to pause for ascertainment of his authority to determine goods as obscene solely in international transactions while no such restriction is placed on domestic transactions of the same goods. The appellant had made a specific plea of electronic platforms making allowance for sale of these very goods to domestic consumers - To approve of the detriment brought to bear on the impugned goods would amount to subordinating tariff, and trade prohibition, policy of the Central Government to non-tariff interdiction by subordinate officialdom. The adjudicating authority has placed erroneous construction on the words of the statute to draw powers that traverse the moral domain and private concern of persons. To begin with, customs law is enacted to give effect to empowering officials in collection of duties envisaged in Seventh Schedule of the Constitution and the inherent commodity policing at the frontiers, or point of entry, convenienced the legislature to confer power of withholding clearance of prohibited goods; prohibition has to be unambiguously spelt out in the law and, in obscenity law, use is not likely to be a criteria for proscribing and, more so, in circumstances admitting more than one singular and unique use - The apprehension of misuse suggested by shape and features as justification to interdict body massagers that, unlike adult sex toys , are amenable to classification in First Schedule to Customs Tariff Act, 1975, and which the show cause notice does not contest, evokes nightmares of an over-intrusive customs administration which may find potential for forbidden delights in several commonplace articles of commerce. After all, if shape and features were to be the characteristic of obscenity , we would end up living in world bereft of material comforts afforded by inventive genius for most goods in the tariff would be vulnerable to absolute confiscation. In any case, pleasure, and indulgence thereof, which may be anathema to those initiated into life, or term, of celibacy, is of no concern to a customs law and detriment to crossborder transactions on assumption of that concern veers dangerously close to pursuit of moral crusade. It is quite possible the impugned goods may, as suggested by two of the experts on record, well find use as surrogate sex partner or as sex aid' but then, what would not; we do not know and, as it appears, neither does the adjudicating authority for he preferred to refer to the unmentionable as adult sex toy for stimulation and erotic pleasure which, to us, appears to be delightfully vague with overtones of decadence stimulated more by moral, than legal, stipulation. Adults may toy with people and may play with toys but whether toys symbolic of the joy of innocent childhood should go hand in hand with the context even if not under public gaze - that the adjudicating authority adumbrates as obscene may not be without controversy. The finding of the adjudicating authority that the impugned goods merit confiscation is, thus, too wide off the mark, as far as the law invoked therein is concerned, on several counts - Whether that be casuistry or not, it can safely be said that this distinguishment of this human function as an intensely private activity that is not even to be hinted at in polite, cultured society vests public performance, or even representation of it, as obscene , at least for sexual content. It is not for agents of the State to go beyond community standards of morality to determine obscenity and community standards either by cavil of representative of community or in notifications prohibiting import of the impugned goods - have been not accorded due weightage in the impugned order. The deeming definition of obscene , in so far as objects are concerned, alludes to reading, seeing and hearing as the triggers. There is nothing on record, too, to warrant any surmise that the presentation of body massagers in the market place would direct thinking of susceptible minds or of those vulnerable to improper suggestions to conjugal relations that profane nature or calculated to cause offence in others - The impugned proceedings set out to do that which the law did not intend and attempted to justify that adventure without reference to any settled law. That the impugned notification lacked definition of obscene was not unknown to the adjudicating authority is not in doubt as seen from the attempt to fill that gap by reference to deeming provision in the Indian Penal Code, 1860. The appeal of the Commissioner of Customs is dismissed as infructuous.

Summary

Issues Involved:
1. Authority to Destroy Goods
2. Definition and Scope of Obscenity
3. Legality of Confiscation and Penalties
4. Misuse of Imported Goods

Summary:

1. Authority to Destroy Goods:
The adjudicating authority directed absolute confiscation and destruction of the goods. However, the Customs Act, 1962 does not provide any authority to destroy goods at any time. Section 125 of the Customs Act vests confiscated property in the Central Government, which can dispose of such goods only under statutory empowerment or Presidential delegation. The order to destroy the goods was beyond the legal competence of the proceedings and bordered on misappropriation of public property.

2. Definition and Scope of Obscenity:
The case revolved around whether the imported goods, labeled as "body massagers," were obscene. The adjudicating authority equated these goods to "adult sex toys" and deemed them obscene under section 292 of the Indian Penal Code, 1860. The court noted that "obscenity" must be measured against contemporary community standards and is not merely judged for containing descriptions of carnal intercourse. The court emphasized that the goods were material objects, not publications, and thus could not be deemed obscene merely based on their potential use.

3. Legality of Confiscation and Penalties:
The adjudicating authority imposed penalties under section 114AA of the Customs Act, 1962 for incorrect declaration in the bills of entry. However, the court found no allegation of non-declaration and thus no scope for invoking section 114AA. The court set aside the penalties as unjustified. The confiscation of goods under section 111(d) of the Customs Act, 1962 was also found to be based on an erroneous construction of the law. The court held that the goods were not specifically prohibited for import by any notification and that the adjudicating authority had no jurisdiction to determine the goods as obscene solely in international transactions while no such restriction existed for domestic transactions.

4. Misuse of Imported Goods:
The court found that the adjudicating authority's conclusion that the "body massagers" were "adult sex toys" based on their shape and features was unfounded. Expert opinions were divided on the potential use of the goods. The court noted that the use or misuse of an object by an individual is a matter of personal proclivity and that the goods were not prohibited by law. The court emphasized that the apprehension of misuse suggested by the shape and features of the goods did not justify their interdiction under customs law.

Conclusion:
The court set aside the confiscation and penalties imposed on the importer and individuals, finding the adjudicating authority's actions to be beyond legal competence and jurisdiction. The appeal of the Commissioner of Customs was dismissed as infructuous.