TMI Blog2011 (7) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... llant Tapan Kumar Hazra and Subir Kumar Saha for the Respondent JUDGEMENT Sambuddha Chakrabarti: This appeal under S. 130 (I) of the Customs Act, 1962 is at the instance of an importer and is directed against an order dated April 17, 2009 passed by the Customs, Excise and Service Tax Appellate Tribunal, Calcutta, in Customs Appeal No. C- 393/08. The Tribunal thereby dismissed the appeal filed by the importer/appellant against the order of the Commissioner of Customs (Appeals) in which the appellant challenged the order of the Additional Commissioner of Customs by which certain goods imported by the appellant were confiscated on the ground of obscenity. Penalty was also imposed. A trader by profession who is the appellant before us, in course of its usual business imported a consignment of certain items which, the appellant asserts, were meant for sale to adults only. The Assistant Commissioner of Customs, Appraising Group-VI, issued a notice under S. 124 of the Customs Act asking the importer to show cause why the concerned goods should not be confiscated under S. 111 (d) of the Customs Act or penal action under S. 112 (a) of the Customs Act should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted the appellant to import as she had been instructed by the higher authorities to convey to the appellant that there was no restriction on imports of those items. According to the appellant, after getting her verbal no-objection, the appellant went ahead with the import of the consignment in dispute. It was further pointed out in the answer that when the appellant filed the bill of entry for clearance of the imported goods, the same were examined in original and representative samples were taken for inspection. The Group Officers as well as Additional Commissioner of Customs, Group- VI, examined the same and after completion of examination of the goods, the appellant ran from pillar to post for getting the goods cleared but neither the goods were allowed for clearance nor was the appellant given any letter or query from the concerned group. Ultimately on January 7, 2008, the importer/appellant filed a writ-petition before this High Court for release of the goods which had been detained illegally by the departmental officers and at that stage, the appellant was surprised to receive the purported show cause notice issued by the Assistant Commissioner Customs, Appraising G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 the Commissioner had dismissed the appeal. Against that the appellant filed a further appeal before the Customs Excise and Service Tax Appellate Tribunal. The Tribunal also by an order, dated April 17, 2009, dismissed the appeal. This order of the Tribunal has been impugned in the present appeal. At the hearing of the present appeal the sole proprietor of the importer/appellant appeared in person and took out a preliminary point of law about the competence of the authority issuing the show cause notice, as under S. 122 (b) of the Customs Act an Assistant Commissioner had no jurisdiction to adjudicate a confiscation proceeding in respect of goods liable to confiscation the value of exceeding rupees two lac. Mr. Hazra, the learned Advocate appearing for the respondents, tried to meet the said objection by claiming that the Additional Commissioner had authorised the Assistant Commissioner to issue the said notice. In support of his claim records were produced in court from which we were not convinced about any such authorisation. That apart, when the importer had taken the very specific point about the competence of the issuing authority before the Additional Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to define obscenity in any concrete terms. It is true that in England in Obscene Publications Act, 1959, an attempt was made to provide a definition of obscenity: "For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of anyone 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 it". Such definition was not without the difficulties faced by a court of law while implementing it. Lord Wilberforce in DPP -vs- Whyte, reported in (1972) 3 All E. R. 12, noted the absence of any definition of "deprave and corrupt" as also the want of any guideline as to the kind of influence that was meant. His Lordship expressed certain alternatives - whether it was criminal conduct, general or sexual that was feared or departure from some code of morality, sexual or otherwise or from accepted or other beliefs or arousing of erotic desires, normal or abnormal. His Lordship was of the opinion that some, perhaps most of these alternatives, involved deep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obscene in nature. It appears from the order of the Additional Commissioner of Customs that the appellant was requested to let the department know about the names of the experts in the field. Ultimately, Sri S. Mukhopadhyay whose name was suggested by the appellant, was requested to come to the Customs House for inspecting and examining the samples. But he declined. The Additional Commissioner recorded that the importer could not give any further information regarding the experts on the subject. He ultimately concluded that to decide a case of this nature no expert opinion was necessary. It is true that the Supreme Court min the case of Ranjit D Udeshi - vs- State of Maharashtra, reported in A.I.R. 1965 S.C. 881, had observed that in a prosecution under S. 292 of the Indian Penal Code the offending novel or the portions which are the subject matter of the charge must be judged by the court. But at times an expert opinion may be valuable. The Supreme Court also never meant to shut out the expert opinion altogether. Before the Customs Excise and Service Tax Appellate Tribunal the appellant filed an application for polacing on record an expert opinion given by Ms. Ratnottama Sengu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limits of civility. This Act does not throw any light on the formulation of the concept of obscenity or the tests for identification of the concerned materials as obscene except that it prohibits import of obscene books, pamphlets, etc. The Tribunal below quoted the rules printed on of some of the games in question and held that the offending goods were obscene and objectionable as the same were for group sex. Mr. Hazra, the learned Advocate appearing for the respondents, expressed an apprehension that the appellant might collect many persons to watch these games or to be parties thereto and as such the import of such articles should not be allowed. This apprehension again sounds rather far-fetched. If that be so, no film certified by the Censor Board as for adults only may also not be released. For, one cannot really pre-empt the possibility of young people sneaking into or making arrangements for viewing these adult films. On such analogy everything meant for an adult including an adult book or a film, may equally be vulnerable to a young man. On this logic import of an article cannot be prohibited on the slender ground of an uncertain eventuality. To decide wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or 4. advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or 5. offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. Exception. - This section does not extend to- 1. any book, pamphlet, paper, writing, drawing, painting, representation or figure- 1. the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f knowledge, technological progress, more advanced audio and visual devices is perhaps no longer considered as such. The apex Court observed in Chandrakanta (supra) that "in the field of art and cinema the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to the changed conditions are more taken for granted without in any way tending to debase or debauch the mind. What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must, therefore be judged from this aspect". Justice Hidaiyatullah, in the case of Ranjit D Udeshi (supra), pointed out that it was not easy to draw the two tests for labeling a work as obscene because "art has such varied facets and such individualistic appeals that in the same object the sensitive sees only the obscenity because his attention is arrested not by the general or artistic appeal or message, which he cannot comprehend, but by what he can see, and the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us means is not by itself a prohibited activity, provided it is not done through obscene language or pictures. The concerned items are meant for adults and as such their importation for restricted sale to adults only should not be considered to be on the wrong side of the law. Thus, it is obvious that neither the Customs authorities nor the Tribunal below could approach the whole issue in the perspective of the settled legal positions and the changing modern concepts. On the other hand, morality has been conceptualized by some vague and individualized standards and imposed in an overbearing manner. The Tribunal below while passing the impugned order has simply not cared to offer any reason why it considered the concerned items as obscene. Merely by reciting the rules of the games as printed on individual items, the same cannot be adjudged as obscene without anything more. Assigning tangible and substantial reasons was particularly necessary because obscenity has neither any fixed definition nor an inflexible standard. Instead what we get in the Tribunal's order is only a conclusion that it considered certain items as obscene and practically nothing more. The Customs aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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