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TMI Blog2023 (5) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... entation, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver ventured to disown the monuments in Khajuraho and Konarak lest any innocent denizen, drawing upon the licence of past generations that had gazed admiringly at the aesthetics of those resplendently sculptural expressions depicting human bodies in their natural state engaging in nature s primeval urge for survival of the species inducing preservation of genes, not through the mechanical congruence of reproductive cycles, but by anticipation of pleasure playing upon imagination and emotion be led astray. Perhaps, the profundity of this creative urge of Nature for sustaining and evolving of its own creation, not having been adequately captured in the mundane expression of the law invoked by the adjudicating authority, persuaded him that imitation of nature is abhorrent to the State. Nature does not abhor itself nor does nature repudiate imitation of itself but the State may, in its wisdom, denounce profane depiction of nature as obscene and designate agencies as instrument of retribution on its behalf to act resolutely on that which is obscene. Therefore, it is the intent of the State that such proceedings must rely upon, for Nature is not in need of an avenging angel to take the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such immoral influences, and into whose hands a publication of this sort may fall .it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character. and, being obscene as spelt out in the law, must face the punishment prescribed in law notwithstanding any other intent. In the United States of America, the judicial conviction of DM Bennet for mailing of pamphlet authored by Ezra Heywood, as well as disposal of the appeal before the United States Supreme Court against conviction in Rosen v. United States [161 US 29 (1896)], fell back on the Hicklin test for determining obscene, lewd and lascivious' in the Comstock laws. This free run of Hicklin in the American jurisdiction ended with United States v. One Book called Ulysses [72 F 2d 705 (2d Cir 1934)], which coincidentally had been brought to action under the Tariff Act, 1930 authorizing district attorneys to forfeit and destroy imported works that were obscene , holding that the principles enunciated by the trial court, according primacy to a holistic view of literary intent, for invoking protection of freedom of expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objects and, therefore, all about the potential of words or images to influence minds by sight or hearing and the extent to which freedom of expression may be curbed for the purpose. 6. Books, according to John Milton in Areopagitica, .are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them. and that capability of provoking thought, which, in turn, by amenability to replication and dissemination, facilitates ideating without reference to the original, made published material targets of obscenity enforcement with courts upholding action against obscenity but not pornography. Doubtlessly, the intensity that distinguishes the two is weighed down by values and mores and substantial influence inheres in both but the potential for overreach justified restricting the instruments of control stringently to obscenity within stipulative framework. 7. In the Indian jurisdiction, the Hon ble Supreme Court upheld conviction, under section 292 of Indian Penal Code, 1860, in Ranjit D Udeshi v. State of Maharashtra [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst moral values manifested as contemporary community standards and, therefore, neither amenable to a uniformly rigid benchmark in statutory enactment nor to be judged so merely for containing description of carnal intercourse. 9. Material objects, on the other hand, are bereft of such felicity for tangential propagation and objections, if at all, may be provoked only by consequences of acquisition; misuse of a material object, even if engendered in the mind, has no outcome except upon gaining possession and thus circumscribes scope for deeming as obscene by the several tests supra which may, if at all, apply to a picture of the object and not the object itself. The proceedings impugned here were commenced against objects and not against representation of objects. It is not the controversy of threshold of obscenity impinging upon freedom of expression that lies for resolution before us but the hazard of misplaced cognition bearing down upon ordinary trade and commerce which, though no less of a right, may be subject to reasonable regulation that repels constitutional approach ingrained in evaluation of fetters to freedom of speech and expression evident in the upholding of convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o draw also upon section 292 of the Indian Penal Code, 1860 for bridging the deficit in the notification, viz,. lack of any guide to the intent of obscene and which, notwithstanding the deeming in sub-section therein, plagued the decisions on published material begging the question of extent of applicability and availability as trigger. 11. Before resolving that in the factual matrix of the dispute, two issues merit specific consideration at this stage. The appeals of importer and individuals arise from the order of confiscation along with direction for destroying the seized goods and imposition of penalties of varying amounts under section 112 and section 114AA of Customs Act, 1962. Consequent to direction issued under section 129D of Customs Act, 1962 by the competent Committee of Chief Commissioners, the Commissioner of Customs is also before us seeking confiscation of 2925 nos. of allegedly offending goods that, though recalled from the market by the importer upon commencement of investigations and seized under section 110 of Customs Act, 1962 on 16th November 2021 upon intimation by the importer, was inadvertently left unattended in the impugned order and also seeking impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or to determination of prohibition in the negative list of the Foreign Trade Policy (FTP); the ambit of a prohibition, such as in the notification issued under section 11 of Customs Act, 1962 that is not only not referenced to a tariff item but even with no pretence to rigour of description therein as adult sex toys , does not lend itself to legal sanction for invoking section 114AA of Customs Act, 1962. Between the expectation of the adjudicating authority that the goods should have been declared as adult sex toys and the bills of entry having declared those as body massagers without being controverted in toto, there is no scope for alleging that the ingredients of that penal empowerment have occurred. The imposition of penalties under section 114AA of Customs Act, 1962 on the importer, and the individual appellants, is not justified by any stretch in the impugned order and are, forthwith, set aside. 13. With the impugned order having, thus, travelled beyond adjudicatory jurisdiction in ordering destruction unauthorizedly, by imposing penalty unjustifiably and not having distinguished obscenity from pornography, the challenge remaining in the appeals of M/s Doc Brown Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 2,500 per piece. The communication of importer, M/s Doc Brown Industries LLP, vide letter dated 26th July 2021, intimating the goods to be full body massager made of medical grade silicone that, for avoiding skin irritation, is soft to touch, also furnished the product catalogue and sales invoices; it was also informed that the said goods are sold online by Amazon and Flipkart as sports massager and body massager at about ₹ 1,599 per piece. Reasonably certain now that the said article could also be employed as adult sex toy , and prohibited for import by notification 01/1964-Customs dated 18th January 1964, searches were conducted at the office and warehouse of the importer yielding 131 and 168 pieces respectively that were seized under section 110 of Customs Act, 1962 on 7th August 2021. Thereafter, container TRHU 608011 with 5000 pieces of product, corresponding to above-referred bill of entry that first drew the attention of customs authorities, and container GESU 6333997, for which bill of entry no. 4739227/19.07.2021 had been filed, were taken up for examination on 18th August 2021; 5000 pieces of wave body massager (purple) model CS 639 and 1000 pieces of wave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gan and their opinions are all about use which fail to agree upon susceptibility to infection; and whether use is determinant of obscene is the Big A .. here! 17. Learned Counsel for appellants contended that there is nothing obscene about body massager imported solely with intent for sale as equipment for massage-induced relaxation of muscles and that there is no reason for import of such articles, deployed, often enough, on epidermal trigger points in therapy for relieving myofascial pain, to be the subject of prohibition in any notification issued under section 11 of Customs Act, 1962. Describing the product, he submitted that the design of the operating system has positioned the controls midway which, as a distracting intrusion by difficulty of reach in the midst of more pressing pre-occupation, is certainly inconvenient in being put to use for such purpose that suggested itself to the adjudicating authority. According to him, similitude with products sold on electronic trading platforms sufficed for Commissioner of Customs (Appeals), Chennai to hold, in re Ahmed Yousuf [2020 (374) ELT 141 (Commr.Appl.], that the impugned goods did not offer scope for invoking obscenity law. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it in section 292 of Indian Penal Code, 1860, he pointed out the analysis rendered in the impugned order was not flawed at all. He urged us to allow the appeal of the Commissioner as it was evident that failure to order confiscation of a part of the seized consignment was plainly attributable to inadvertence and that the show cause notice did propose confiscation of the whole of the seized goods. 19. In the impugned order, the adjudicating authority has reported that the assessing officer was of the opinion that the massager , also usable as adult toy , was liable to confiscation under section 111(d) of Customs Act, 1962 stemming from prohibition on import by notification no. 1/1964-Cus dated 18th January 1964 and, hence available consignments cleared and uncleared were seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wave Body Massager are Adult Sex Toys and are, therefore, prohibited goods which cannot be released into the Country for consumption and therefore, are required to be absolutely confiscated. herein, in concluding that, despite appearances, redemptory grace from exclusive deployment for therapeutic procedure available to such articles is to be denied owing to expert opinion of physiotherapist and gynaecologist. That progression has convinced the adjudicating authority that stimulation and erotic pleasure , even if derived in strict privacy, is frowned upon by the State of which he is the designated representative. 20. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of independent India, has not entirely erased as seen from the adjudicating authority having had to refer to the Indian Penal Code, 1860 without being able to invoke that. There is, thus, legislative intent of not only segregating the jurisdictions but, in equating domestic and international trade in obscene , also implies primacy assigned to the impact of trade on residents of the country by enacting detriment at par with breach in domestic trade. 23. We also gather that those discussions of the colonial administration did also consider the option of empowering customs officials through subordinate legislation so as to distance government policy from executive action which, probably, informed the structuring of prohibition of obscenity through notification under Customs Act, 1962. From a perusal of section 47 of Customs Act, 1962, it is clear that customs law is concerned with collection of appropriate duty and enforcement of prohibition. Articles amenable to classification in the First Schedule to Customs Tariff Act, 1975 are to be deemed as freely importable unless specifically excluded by Foreign Trade Policy or any other statute in force; no such authority for considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not present themselves to us. The stand of the adjudicating authority, based on perceived potential of the impugned goods as surrogate for sexual congress that not only is biologically unproductive but also in pursuit of pleasure as an end without even a pretense to biological conformism, does not lend itself to coverage as obscene from uncontroverted claim of usage as massage aid and from lack of specific proscription in the impugned, or any other, notification. Without empowerment under notification prohibiting import of an object, arrogation by customs official of authority to interdict use to which such object may be put is beyond jurisdictional competence. Pleasuring - of self or another with, or without assistance of, devices or objects may take many forms and, as long as it is indulged in without intentional exhibitionism, can scarcely be the remit of regulation by the State except possibly in Orwellian, or similar, fiction. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be unthinkable for the State to consider intruding on engaging of stimulation for pleasure, whether alone or otherwise, in private except in circumstances of complaint of non-consensual or involuntary participation that then assumes the hue of a crime. Among some people of traditional mores, even in contemporary times, indulgence in such activity, or even mimicking of such, may be considered as sin an expression more suited to ecclesiastical denouncement. Animals mate and humans have sex a distinction born from capacity for thought and articulation and from the presumption that the former is a Pavlovian response to nature s incentive while the latter may be an end in itself with nature s intent being of peripheral concern. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enity has been judicially perused across jurisdictions, even across generations, and pronounced to be deficient in defining obscenity ; hence, the insistence on evaluation by the yardstick of community standards which the Hon ble Supreme Court, in re Ranjit D Udeshi, has held all decisions, from re Hicklin on, to have been founded upon. 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. However, that the particular provision did not contemplate the consequence of use, or misuse, that the stipulation of appeal to prurient interest and tends to deprave and corrupt could not occur without possession or that there should have been a finding that the impugned goods are lascivious was glossed over in pursuit of stamping out stimulation and erotic pleasure likely to be advanced by the impugned goods. Despite this evident non-application of law and untenable reasoni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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