Questioning Morality: The Classification Dilemma Of Massagers As Adult Toys

A recent judgment of the Bombay High Court in Commissioner of Customs Vs Doc Brown Industries LLP[1] resonates with this principle. In this instance, the High Court rejected the Customs Department's appeal against a tribunal's decision. By way of background, the tribunal had determined that the "Caresmith Wave Body Massager," imported by the respondent-importer, should not be categorized as an adult sex toy simply based on the Commissioner's assertion alone. Consequently, it ruled that the product could not be banned for import into India.

The Controversy:

The respondent-importer imported “Caresmith Wave Body Massager” (“the goods in question”), a full body massager, for sale in domestic markets. The Commissioner of Customs believed the goods can be alternatively used as an adult sex toy and thus be categorised as prohibited goods under Notification No. 1/64-Customs dated 18.01.1964 (“the Notification”) which prohibits import of “any obscene book, pamphlet, paper, drawing, painting, representation, figure or article”.

The Commissioner also obtained expert opinions from a physiotherapist and a gynaecologist who opined that the goods in question are primarily body massager, however, these could be used as adult sex toy as their shape and size allow so.

The Order-in-Original:

Confirming the allegations in the Show Cause Notice (SCN), it was observed in the Order-in-Original (OIO) that owing to the shape and features of the goods in question, these are mostly preferred for use as adult sex toys in view of the some of the reviews of the customers on e-commerce platforms such as Amazon and Flipkart. It was thus concluded that Section 292[2] of the Indian Penal Code, 1860 (IPC) can be invoked to consider the goods in question as fitting within the definition of ‘obscene’. 

The Judgment of the Tribunal:

By a scholarly judgment[3], the Tribunal overturned the findings in the OIO. Tracing the history and development of the law on obscenity to the English case of R Vs Hicklin (1868) LR 3 QB 360, as adapted by the Supreme Court in Ranjit D. Udeshi Vs State of Maharashtra AIR 1965 SC 881, it was observed that a material is obscene if it has the tendency to deprave and corrupt the minds of those who are open to such immoral influences and into whose hands the publication is likely to fall. It is to be measured against moral values manifested as “contemporary community standards”, i.e, based on the fast-changing scenario in our country and the impact of the material on a class of persons but not an individual. Therefore, the concept of obscenity cannot be confined to a strict, uniform standard within legal statutes, nor can it be deemed as such merely based on descriptions of sexual intercourse. Accordingly, the Tribunal concluded that depravity or corruption could be provoked only by consequences of acquisition and potential misuse of a material object. It was held that the findings in the OIO were based only on perceived potential of the goods in question to be put to use and “as surrogate for sexual congress that not only is biologically unproductive but also in pursuit of pleasure. as an end without even a pretence to biological conformism”. Such perceptions of the Commissioner cannot lend the goods in question to the coverage as ‘obscene’. Absent of any specific authorisation from the Notification that bans the import of an object, any attempt by customs officials to restrict the use of an object exceeds their jurisdictional authority. It was particularly held that the apprehension of ‘misuse’ suggested by shape and features “evokes nightmares of an over-intrusive customs administration which may find potential for forbidden delights in several commonplace articles of commerce”.

Expanding on the rationale used in the OIO,  the decision emphasised that even if the goods were to be 'misused' as the Commissioner suspected,  classifying it as an “adult sex toy” was not only vague but also plagued with “overtones of decadence stimulated more by moral, than legal, stipulation”. This is underscored by the absence of the term “adult sex toy” in the Notification, any law, the tariff schedule, or any literature related to the goods. Hence, the use of “adult sex toy” merely reflected the Commissioner's personal bias, rather than any legal or regulatory basis.

Moreover, it was noted that the Commissioner had not placed any evidence on record in support of his conclusion on ‘preference’ in usage. Neither was there anything on record to warrant any surmise that the presentation of the goods in question in the marketplace would direct “thinking of ‘susceptible minds” or of those “vulnerable to improper suggestions” to conjugal relations that profane nature. The Commissioner conceiving some objectionable outcome upon seeing the goods in question does not pass muster of non-conformity to “contemporary community standards”.

Further, it was observed that the deeming definition of ‘obscene’ in so far as objects are concerned, alludes to reading, seeing and hearing as the triggers. In other words, the test of obscenity applies only to a picture of the object or sounds from the object and not the object itself. The SCN proceedings in this case were commenced against objects and not against representation of objects.

Regarding the reviews of customers on e-commerce platforms, it was held that, had the Commissioner made a complaint for violation of “contemporary community standards”, action would have been initiated by police authorities against sellers and the platform leading to determination of ‘obscenity’ by court of law. Moreover, placing reliance on publicity material available on the internet to determine obscenity “transfers the enforcement of obscenity law to the promotional material which, even if offending as obscene is outside ambit of customs law for not having been imported”.

Further, the Tribunal faulted the OIO for ordering destruction of goods as there is no provision in the Customs Act which empowers the Commissioner to order destruction.

High Court’s Endorsement of Tribunal’s Judgment:

The High Court echoed the view of the Tribunal by holding that “it was clearly the figment of the Commissioner’s imagination and/or his personal perception that the goods are prohibited items …. If the test of mere imagination or ingenuity is to be applied to prohibit clearance of any goods, this would cross all boundaries of the customs officials being governed by law and the rules. In the facts of the present case, the Commissioner (adjudicating officer) has failed to act as a prudent official who would be expected to act reasonably in deciding the issues of clearance of goods in question, which ought to have been strictly in accordance with law”.

The High Court also agreed with the view of the Tribunal in holding that merely because the goods in question can be subjected ‘misuse’ (of the nature which the Commissioner contemplated), this can never be the test to hold that the goods were prohibited. There was no material before the Commissioner to categorise the goods in question to be any obscene figure, article, or of an objectional description. 

The High Court also provided an alternative interpretation to the Notification by holding that terms ‘article’ occurring in the Notification must be read ejusdem generis with the terms preceding it, namely “book, pamphlet, paper, drawing, painting, representation, figure”. Interpreted in this context, the goods in question, which are mechanical devices like massagers, cannot reasonably be equated with the items listed in the relevant entries, such as books, pamphlets, papers, drawings, paintings, representations, figures, or similar articles. Consequently, these goods should not fall under the prohibition outlined in the Notification.

Concluding Remarks:

The judgment of the High Court, potentially putting the controversy to rest, cautions the customs authorities to not decide any case based on their own moral assumptions and preconceptions. The Customs authorities cannot be hypersensitive to the potential evocations from the imported goods. It is noteworthy that the Supreme Court, in Aveek Sarkar Vs State of West Bengal (2014) 4 SCC 257 specifically held that “regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons”. In other words, to determine whether certain content is obscene, the standard of determination is that of an ordinary common person and not a hypersensitive person. The Supreme Court explained this phenomenon with greater alacrity in the case of KA Abbas Vs Union of India (1970) 2 SCC 780 thus: “If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped”.

Moreover, the legal stance on obscenity within customs law is now clear: the prohibition on imported goods, if any, should not be judged based on their potential use but rather on the nature of the goods at the time of import. In this regard, what is noteworthy is that the Tribunal has held that even if the goods in question were put to a use as contemplated by the Commissioner, it would still not qualify as ‘obscene’ qua the Customs law. Though the High Court has not expressly commented on this aspect, it would be interesting to see how courts would interpret this in future cases.

In all, the judgment comes as a sigh of relief to importers importing similar goods. The only remaining question in this case is how quickly the Customs authorities will release the goods seized during investigations, given that enforcing a judgment in India often proves more challenging than securing a favorable ruling.

[1] Vide judgment dated 20.03.2024 in Customs Appeal (L) No. 582 of 2024

[2] Section 292(1) of the IPC states that a book, pamphlet, paper, writing, drawing, painting, representation, 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.

[3] Vide Final Order No. A /85949-85952/2023 dated 11.05.2023.