Body massager can't be categorised as adult sex toy and prohibited for import: Bombay High Court

Mumbai: A body massager cannot be categorised as an adult sex toy and hence cannot be included in the list of items prohibited for import, the Bombay High Court has said.

A division bench of Justices Girish Kulkarni and Kishor Sant on Wednesday quashed an order passed by the Customs department confiscating consignments containing body massagers.

The Commissioner of Customs had confiscated the goods claiming that the body massagers could be used as adult sex toys and such items are prohibited for import.

Opining that a body massager could be used as an adult sex toy was clearly the figment of imagination of the Commissioner of Customs, the HC said.

It dismissed a petition filed by the Commissioner of Customs, challenging a May 2023 order passed by the Central Excise and Service Tax Appellate Tribunal whereby the Custom department's order confiscating consignments containing body massagers was set aside.

The Commissioner of Customs as adjudicating officer had in April 2022 refused to clear the consignment containing body massagers noting that they were adult sex toys and hence prohibited for import as per the Customs notification issued in January 1964.

The high court noted that the findings recorded by the commissioner are "peculiar and clearly appear to be quite astonishing and too far-fetched, when he reduces in writing his vivid imagination on what an equipment for a body massage would be and more particularly on his perception on the perceived uses."

"It was clearly the figment of the Commissioner's imagination and/or his personal perception that the goods are prohibited items," the HC said.

The court noted that body massagers are traded in domestic markets and are not regarded as prohibited items.

It said the Commissioner (adjudicating officer) had failed to act as a prudent official who would be expected to act reasonably while deciding the issue of clearance of goods.

The Customs Commissioner had also relied on section 292(2) of the Indian Penal Code which says any book, pamphlet, paper, and drawing or any other objects that is deemed to be obscene if it is lascivious or appeals to the prurient interest.

The HC, however, said machines like massagers certainly cannot be compared with the companion items in the said entries which are in the nature of book, pamphlet, paper, drawing, painting, representation, figure or article and so on that are prohibited under the notification.

Aggrieved by the Commissioner's order, the owners of the consignment had approached the tribunal.

The tribunal, while setting aside the Commissioner's order, severely criticised the same and said the view taken by the Commissioner to categorise the body massager as an adult sex toy was purely the officer's imagination.

The Commissioner had claimed that before deciding to prohibit the goods, the opinion of experts was taken who had opined the body massagers could be subjected to other uses.

The bench, however, said merely because the goods could be subjected to an alternative use cannot be the test to hold that they were prohibited.

"It appears that such experts clearly opined that although undoubtedly the item as imported was a body massager, however, it was also their opinion that the item could also be used for the purpose which the Commissioner contemplated," the HC said.

The bench dismissed the petition filed by the Commissioner of Customs and upheld the tribunal order.