2025 (11) TMI 263 - HC - Customs

Seized imported silicone male massagers misdeclared as face rollers not automatically obscene under 1964 Notification, provisional release ordered

HC held that seized imported silicone male massagers misdeclared as face rollers cannot be summarily treated as obscene sex toys prohibited under the 1964 ... Seizure of imported products on the ground that the same are prohibited from import - Silicone Male Massager mis-declared as Face Roller (Beauty Care Products)’ - obscene products - whether the subject imported products are in fact sex toys that are prohibited from import under the 1964 Notification on the ground of being obscene products? - HELD THAT:- This issue in respect of similar products has already been decided by the Bombay High Court in DOC Brown Industries [2024 (3) TMI 999 - BOMBAY HIGH COURT], where the Commissioner of Customs had seized the said products for being adult sex toys and therefore obscene products under the 1964 Notification. The Petitioner therein being aggrieved by the same had appealed before the Appellate Tribunal which had set aside the seizure on the ground that the Commissioner’s findings were completely untenable. This decision was appealed before the Bombay High Court by the Customs Department whereby the High Court had examined the 1964 Notification. The Bombay High Court has deprecated the practice of replacing objective analysis of the applicable provisions to the imported goods, with subjective opinions of the concerned Customs officials. The High Court has held that the test of imagination or ingenuity cannot be the applicable test as the same would fall foul of the principles of legitimacy and fairness - Insofar as the 1964 Notification is concerned the Bombay High Court was of the view that the terms contained therein would have to be read ejusdem generis, and thus, only products in the nature of book, pamphlet, paper, drawing, painting, representation, figure or article, etc, would be prohibited. The products such as ‘body massagers’ would not fall within the scope of the 1964 Notification. At present the absence of uniformity is evident from the fact that the Customs Department has permitted other companies to import identical products without any objection. In view of the same until and unless there is a policy decision taken by the CBIC as to whether these products have to be prohibited, and if so then in what manner, the consignments of the Petitioner’s cannot be seized or detained in a selective manner. Accordingly, let the subject imported products be provisionally released subject to furnishing a bond from the Petitioner in the appropriate form and manner. Upon the bond being furnished and the applicable customs duty being paid by the Petitioner, the consignments shall be provisionally released to the Petitioner within one week - Petition disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether imported devices declared as 'Face Roller (Beauty Care Products)' but alleged to be 'Silicone Male Massagers'/sex toys constitute 'obscene' articles prohibited from import under Notification No.1/1964-Customs (the 1964 Notification) read with Section 111(d) of the Customs Act, 1962 and Section 294 of the Bharatiya Nyaya Sanhita, 2023 (BNS, 2023). 2. Whether the Customs authorities may, in the absence of uniform policy or CBIC clarification, seize/detain such consignments selectively based on the subjective opinion or imagination of an individual officer about possible alternate use. 3. Whether, pending adjudication of a show cause notice alleging mis-declaration and obscenity, seized consignments should be provisionally released under Section 110A of the Customs Act, 1962, and on what conditions. ISSUE-WISE DETAILED ANALYSIS Issue 1: Characterisation of imported devices as 'obscene' and scope of the 1964 Notification and Section 294 BNS, 2023 Legal framework: The 1964 Notification prohibits import of 'any obscene book, pamphlet, paper, drawing, painting, representation, figure or article.' Section 111(d) of the Customs Act provides for confiscation of prohibited imports. Section 294 BNS, 2023 (corresponding to Section 292 IPC) defines 'obscene' by reference to lasciviousness, appeal to prurient interest, and tendency to deprave and corrupt persons likely to read/see/hear the matter. Precedent treatment: The Bombay High Court decision in Commissioner of Customs v. DOC Brown Industries LLP (referred to) considered identical factual questions and set aside seizures of 'body massagers' treated as sex toys; the Appellate Tribunal below that decision had likewise set aside the seizure. Supreme Court jurisprudence on obscenity (Ajay Goswami; Aveek Sarkar) establishes the community standard test and rejects subjective/sensitive-person standards (discouraging Hicklin test). Interpretation and reasoning: The Court accepts the ejusdem generis reading of clause (ii) of the 1964 Notification as applied by the Bombay High Court - items listed (books, pamphlets, papers, drawings, paintings, representations, figures) are to be read as a class; machines or appliances like massagers are not naturally of that class. The Court endorses the principle that characterization cannot rest on conjectural or imaginative uses; an official's subjective perception that an item 'could' be used for sexual gratification does not convert otherwise importable goods into prohibited 'obscene' articles absent material showing that the goods, taken as a whole, meet the statutory obscenity test under Section 294 BNS, 2023. The Court applies Supreme Court guidance requiring contemporary community standards and the 'ordinary man' test rather than hypersensitive perceptions. The availability of identical products in domestic commerce without prohibition is a relevant indicium against categorizing the items as prohibited imports. Ratio vs. Obiter: Ratio - The 1964 Notification must be read ejusdem generis; devices such as massagers/mechano-therapy appliances that are legitimately within medical/beauty classification do not ipso facto fall within clause (ii) banning 'obscene' printed or representational material. Also, characterization of goods as obscene cannot be founded on mere imagination or subjective opinion of customs officials; the community-standard legal test must be applied. Obiter - Observations about possible obsolescence of a 60-year-old notification and call for contemporary policy clarity by CBIC (practical guidance rather than strictly binding legal proposition). Conclusions: The seized imported devices cannot be treated as prohibited obscene imports under the 1964 Notification merely because a customs officer perceives possible sexual use. Absent material satisfying the statutory obscenity test, such goods do not fall within the banned category; reliance on subjective imagination is legally impermissible. Issue 2: Legitimacy of selective seizure/detention by Customs in absence of CBIC policy and uniform standards Legal framework: Administrative action under the Customs Act must conform to legal standards of reasonableness and fairness; seizures under Section 111(d) and adjudication procedures must respect rule of law. CBIC as policy-making authority may issue clarifications to ensure uniformity. Precedent treatment: The Bombay High Court criticized perverse application of law by Customs based on personal perception; Supreme Court authorities require application of objective community standards in obscenity determinations. Interpretation and reasoning: The Court identifies absence of CBIC uniform policy/clarification as resulting in inconsistent treatment (identical goods permitted for import for some parties while seized for others). Such selective enforcement appears arbitrary; in the face of demonstrable non-uniform practice, seizures in particular cases may be provisional and susceptible to judicial intervention. The Court recognizes CBIC's proposed inter-ministerial consultation to formulate an authoritative policy before consistent enforcement can occur. Ratio vs. Obiter: Ratio - In the absence of a clear policy or uniform administrative standard, selective seizures of identical products are arbitrary and unlawful; this supports provisional judicial relief. Obiter - Recommendation that CBIC take a policy decision aligning with contemporary standards (administrative direction rather than binding legal holding). Conclusions: Customs cannot selectively prohibit import of products without an articulated, uniform policy; arbitrary detention/seizure on basis of individual officer's subjective views is impermissible pending policy clarification by CBIC and proper application of statutory obscenity standards. Issue 3: Entitlement to provisional release of seized consignments under Section 110A pending adjudication Legal framework: Section 110A of the Customs Act permits provisional release of goods seized under Section 110 on taking bond with security and conditions as adjudicating authority may require; adjudicatory proceedings must afford opportunity to be heard and reasoned orders. Precedent treatment: The Court relies on statutory provision and prior appellate reasoning criticizing arbitrary seizures to justify provisional release where detention appears arbitrary and adjudication is pending. Interpretation and reasoning: Given (a) the pending show cause notice whose merit is contested, (b) the apparent arbitrariness/selectivity of detention, and (c) the absence of CBIC policy, the Court exercises jurisdiction to order provisional release on furnishing an appropriate bond and payment of applicable customs duty, while preserving the adjudicatory process. The petitioner is directed to file reply and participate in the proceedings; adjudicating authority to pass reasoned order taking into account discussed legal principles. Ratio vs. Obiter: Ratio - Where seizure appears arbitrary and adjudication is pending, Section 110A authorizes provisional release on bond and conditions; judicial direction for provisional release is appropriate to prevent unfair selective detention. Obiter - Specific timelines (one week for release upon compliance) are practical directions for the present matter rather than general law. Conclusions: The seized consignments should be provisionally released upon the petitioner furnishing bond and paying applicable customs duty; the adjudicatory proceedings shall continue with a fair hearing and reasoned order, and all rights and remedies are preserved.