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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 ..... ewart, in his contributory opinion concurring with the judgement of the United States Supreme Court in Jacobellis v. Ohio [378 US 184 (1964)], had, famously, asserted 'I know it when I see it.' that has, since, acquired aura as the most expressive 'non-definition' of obscenity. And so now we have no need to beat around the bush any longer for the metaphorical cat is out of the metaphorical box: we are called upon to ascertain if the law too has like abhorrence for the impugned transaction. 2. In the context, we cannot but wonder if a single piece of those very goods imported for personal use would have aroused the same ire in him or if, in other officers of customs, the impugned goods would have for the wisdom in the order [order-in-original no. 01/2022-23/CC/NS-V/CAC/JNCH dated 6th April 2022] of Commissioner of Customs (NSV), Nhava Sheva is, purportedly, representative testimony to the intent of law - a law uniformly applicable across the length and breadth of this land and, we dare say, a land that has never been coy in acclaiming that seminal exposition of the 'art of love' in Vatsyana's Kamasutra and had never ventured to disown the monuments in Khajuraho and Konarak lest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alisthenics in print and speech, in images and forms or in any combination thereof is pornography. It is not the case of the adjudicating authority that he is the designated expert to identify, and empowered by statutory authority or executive delegation to police, pornography. Indeed, we have not come across any law that anathemizes pornography; and there is no reason that there should be such intrusive oversight over graphic and vocal description or over representation of an act designed by nature, and endowed in all creatures without exception, for perpetuation of the species. Prosecutions in other legal jurisdictions have stemmed from stipulative definition in municipal laws; one of the earliest, Regina v. Hicklin [LR 3 QB 360 (1868)], was rendered in England on possession of pamphlets, denouncing certain religious practices common among Catholics, intended for distribution that were subjected to seizure under Obscene Publications Act, 1857 and in which it was held that 'I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Code, 1860 drafted by Macaulay and grafted into the legislative spectrum by an administration under the influenced of, and steeped in, the laws of the colonizing country; that which hitherto was perceived merely as pornography, a term then in its infancy in the English language, was henceforth to be tested for offending the values prevailing in the colonizing state coloured by the moral preoccupation of those designated to enforce. Its continued existence in independent India, and for over three-quarters of a century since, has not altered the calibrating standard of values though now flavoured with mores of conduct ingrained in officialdom empowered by 'strict liability' prescription in statutes which exorcises challenge on ground of encroachment of rights. In other legal jurisdictions, judicial determination as set out supra, even with statutory criminalization of 'obscenity', has had to grapple with extent of permissible compromise to such rights and has tended to place resolution within a constitutional approach. That, probably, was unavoidable in prosecutions concerned with deterring 'obscene' printed text or picture rather than material objects and, therefore, all about th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid bare without attempting a definition by describing what must be looked for. .... But even if we agree thus far, the question still remains whether the Hicklin test is to be discarded. We do not think that it should be discarded. It makes the court the judge of obscenity in relation to an impugned book etc. and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences... The Court must, therefore, apply itself to consider each work at a time...In other words, treating with sex in a manner offensive to public decency and morality.... judged of by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds, must determine the result... When everything is said in its favour we find that that in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our community standards and as there is no social gain to us which can be said to preponderate, we must hold the book to satisfy the test we have indicated above.' 8. From the narration supra, it is evident that 'obscenity' is, unvaryingly, to be measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by anyone, let alone by the adjudicating authority. 10. Even as our concern here is about material objects proceeded against for being 'obscene', and not published material for which the decisions supra were rendered, the underlying principles enunciated therein, and more particularly in re Ranjit D Udeshi, exert influence from circumstantial conflation. Turning to the legal armoury, section 11 of Customs Act, 1962 empowers prohibition on import or export of goods but becomes available to customs officers for interdiction only within terms of notifications issued under such empowerment by the Central Government and drawn upon here is notification no. 1/64-Cus (NT) dated 18th January 1964 prohibiting import, inter alia, of '...... i.... ii. any obscene book, pamphlet, paper, drawing, painting, representation, figure or article: iii.....' as authority for proposing confiscation of the impugned goods under section 111 of Customs Act, 1962. That this confiscatory empowerment is not restricted only for import of goods prohibited under section 11 of Customs Act, 1962 but may be invoked fraction against goods imported contrary to 'any other law for the time being in force' has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot but also take note that penalty under section 114AA of Customs Act, 1962 has been imposed on the importer, as well as the two individuals before us, and ostensibly for incorrect declaration in the bills of entry filed under section 46 of Customs Act, 1962 by not describing the goods as 'adult sex toys'; there being no allegation of non-declaration, this penalty is attendant upon finding that the goods are liable for confiscation under section 111(m) of Customs Act, 1962 which is conspicuously absent in the impugned order. It has been said that there are places that even angels fear to tread for, upon such declaration, the 'proper officer' of customs would have been hard put to assess the goods to duty factored on determining the tariff item in the First Schedule to Customs Tariff Act, 1975 corresponding to description that is a close, let alone exact, match; that the impugned goods are not just 'adult sex toys', as is evident in the adjudicatory weighment itself, renders it apparent, to even those with only casual acquaintanceship of customs law, that there must be some description therein which does approximately match. The adjudicating authority has jumped to a declaratory fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Indian Penal Code, 1860 thereby enabling officers of customs to proceed with confiscation under Customs Act, 1960. 14. The whole turns on the correctness of the finding that the shape and features of the 'body massager' - not excluded by any of the experts from such use - and its motion, powered by battery-driven motor, rendering it more aptly describable as 'adult sex toy' with potential for 'stimulation and erotic pleasure' suffices for it to be held as 'obscene' in law. That can be concluded only by perusal of the facts relating to import and the rival submissions, appreciation of the context in which customs law incorporated action on 'obscene' goods, analysis of the scope of intervention by customs officers and comprehension of the extent to which 'obscenity' may be applied to goods. 15. The controversy appears to have been spawned by the impediment, owing to want of catalogue, in processing of bill of entry no. 461517/17.06.2021 initiated through the default 'faceless assessment' route causing 'first check' of consignment that was found to consist of cardboard boxes, printed with 'Caresmith Wave' and affixed with labels indicating contents to be 'wave body massager' gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponded to by letters of 17th September 2021 and 24th September 2021 respectively; while both concurred on its potential for use as 'adult sex toy', the former also went on to state that he would not recommend use around 'intimate areas' for fear of trauma and infection. The appellant countered with opinion, dated 21st September 2021, of Ms Prachi Shah, MPT, PG(DIP), founder Encore Physiotherapy, certifying that the product is used for massaging parts of the body and that the high-grade silicon ensures no allergic reaction or rashes on skin. Likewise, Prof Chhaya Verma, Head of Department of Physiotherapy in TNMC and BYL Nair Hospital, vide letter dated 28th September 2021, opined that such non-medical gadgets are merely massage aids. Both sides have placed emphasis on the 'expert opinions', admittedly prejudiced by having been solicited - with the communication of Deputy Commissioner (SIIB), Nhava Sheva making no bones about the arousal of suspicion in the mind of the investigators - on the range of use and abuse, which is bemusing, to say the least, as there could be nothing more individualized than 'pleasuring' and nothing more likely to provoke competitive assertion of mastery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Commissioner of Customs, Ahmedabad [2007 (214) ELT 373 (Tri-Ahmd)] which held that contents of website are not reliable rebuttal of contrary expert opinion. According to him, the use or misuse of an object by an individual is a matter of personal proclivity and that, as far as the impugned goods are concerned, expert opinion has not discountenanced description of the goods as 'body massagers' which is not prohibited by law. Taking us through the evolution of 'obscenity' law, he pointed out the decisions of the Hon'ble Supreme Court in Ranjit D Udeshi v. State of Maharashtra [1965 AIR 881] and in Ajay Goswami v. Union of India and others [(2007) 1 SCC 143] make it evident that the impugned goods are not obscene. 18. Learned Authorised Representative submitted that expert opinion makes it abundantly clear that the articles under import can be used as 'adult sex toys' which suffices for invoking section 111 of Customs Act, 1962. The depiction of similar product, as well as the attendant description calculated to induce buyers to indulge in personal satisfaction, in 'snapdeal', according to him, leaves no room for doubt on this score. Taking us through the specific enumeration in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... features' appears not only to have influenced the reversal of dominant use, eloquently re-sequenced in the placement of 'claim' and 'preferred' supra in the impugned order, but also, from '51.1.....act as body massagers and capable of and being used as adult sex toys to satisfy basic instincts of people. (emphasis supplied) The subject product is containing as article which falls under the category of "Obscene Article" (Sex Toys) packaged in a cloth bag. The box is having a charging cable also. It is seen on Internet, that the item (identical) is being traded on amazon website...The reviews of customers and replies to customer queries by suppliers...confirms that the item is being used as Obscene Article (Sex Toys). Further contention of the importer that since the goods are sold through e-commerce websites like Amazon.in and Flipkart.com the items cannot be prohibited is not tenableas (sic) e-commerce companies like Amazon, Flipkart are not competent to decide whether the goods are prohibited or not. xxx 51.3 This leads me to conclude that the goods imported viz, "Caresmith Wave Body Massager" are being marketed not primarily as a massage device but as a sex toy. The pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituting statute. The same formulation is to be found in section 292 of the Indian Penal Code, 1860 drafted by the colonial administration to mirror the mores prevailing in England and recently enacted there as Obscene Publications Act, 1857 from which emanated the Hicklin decision. Effectively, the law, relied upon by the adjudicating authority and impugned before us, is a relic of Victorian imperialism against which gadgetry of a century and half later has been tested in the impugned proceedings. 22. It is not for us to speculate on retention in a different form for the next six decades though the inherent flexibility therein may have been reason enough. However, it is of interest that archived records of government transactions indicate that, in the run up to the Morley Minto Act of 1909, in discussions within the Executive Council of the Governor-General on banning import of a publication analysing the Revolt of 1857 as seditious on proposal by officialdom of the Bombay provincial administration, a suggestion did come up that section 18 of Sea Customs Act, 1878 be amended. Subsequent notings reveal doubts about empowering customs officials to determine sedition in publications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve for violation of community standards if they were, action would have been initiated by police authorities against sellers and the platform leading to determination of 'obscenity' and the absence of such is the surest counter to the finding that 'body massagers' are 'obscene articles' liable to be confiscated upon import. Such discriminatory treatment of products, based on source, as 'obscene' is not contemplated by law. 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. 25. 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 'obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred 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. Therein lies the nub of the problem here: can the deployment of an expression such as 'adult sex toy' - not found in any statute, not in the notification grasped at, not in the tariff schedule, not in literature relating to the goods - for communicating abhorrence felt by an officer of customs suffice to deny a relaxing massage to those aware of the artifice and who are capable of, nay even willingly so, paying the price charged for it. 27. 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. We note that the 'claim' of the importer has not been controverted and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent unambiguous definition, it is the courts alone that are competent to decide for each case. No such judicial determination on 'body massagers' has been relied upon by the adjudicating authority. Border enforcement of 'obscenity law' under the impugned notification is relegated to 'predicate offence' and the impugned order is, thereby, contrary to law. 29. 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. An officer of customs conceiving some objectionable outcome upon seeing 'body massager' does not pass muster of non-conformity to 'community standards' warranted by the decision supra. 30. The submission of Learned Authorized Representative placed reliance on publicity material available on the internet. This line of argument transfers the enforcement of 'obscenity' law to the promotional material which, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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