While the sale of sex toys isn’t illegal in the Sovereign Democratic and Republic state of India, per se, under Section 292 of the Indian Penal Code, their sale, exhibition, advertising, import or export can be restricted on the basis of obscenity: 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, quotes India Times.
To work around the restriction, most (online) adult toy retailers in India, market the stimulators as “body massagers,” as opposed to sex toys, which a recent Bombay High Court has determined unquestionable.
According to India Times, the Bombay High Court (BHC) has determined both that a body massager is not an adult sex toy, and that the potential use of such is a “figment of imagination of the Commissioner of Customs.”
“A division bench of Justices Girish Kulkarni and Kishor Sant made the conclusion in a case related to the confiscation of consignments containing body massagers by the Customs department,” shares India Times. “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. However, the HC on Wednesday held that a body massager could be used as an adult sex toy was clearly the figment of imagination of the Commissioner of Customs.”
“It was clearly the figment of the Commissioner’s imagination and/or his personal perception that the goods are prohibited items.”
– Bombay High Court
In April 2022, the India Customs Department confiscated a consignment containing body massagers which they deemed adult sex toys and prohibited from import in accordance with their interpretation of local law.
However, the consignment owner disagreed with the veto and moved to the Central Excise and Service Tax Appellate Tribunal, where in May 2023, the order confiscating consignment was set aside.
The Customs Department filed an appeal in the BHC, which noted that “merely because the goods could be subjected to an alternative use cannot be the test to hold that they were prohibited.”
The court went on to argue that body massagers which were confiscated are traded domestically and are not regarded as prohibited items.
“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 BHC stated.
Going on, the High Court questioned the Commissioner’s “vivid imagination,” saying that the Customs Department’s findings regarding the massager were “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 said that the Commissioner had failed to act prudently as an official whose task it is to act reasonably in deciding the issue of clearance of goods.
“It was clearly the figment of the Commissioner’s imagination and/or his personal perception that the goods are prohibited items,” the BHC concluded.
Read the original story in the India Times right here.
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