Bombay HC says body massagers cannot be categorised as sex toy, Prohibited for import

A Bombay High Court division bench comprising of Justices Girish Kulkarni and Kishor Sant on Wednesday quashed an order of the Customs Department confiscating consignments consisting of body massagers, saying that a body massager cannot be categorised as a sex toy and be put in a list of items prohibited for import.

The Bombay HC dismissed the petition filed by the commissioner of Customs, who had challenged the 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. This took place after the commissioner refused to clear the consignment in April of 2022, noting that the consignment contained body massagers which could be used as sex toys and therefore, were prohibited from being imported as per the customs notification issued in January 1964.

The Bombay HC while hearing this matter opined that body massagers being used as sex toys was clearly a figment of the imagination of the commissioner of Customs.  The High Court also noted that the findings of the commissioner 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 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 added that body massagers were also traded in the domestic markets and did not come under the prohibited category. They also noted that the commissioner who is also the adjudicating officer did not act as a prudent official, as would have been expected from him while deciding the matter of clearance of goods.

While, the Customs Commissioner 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 Bombay HC 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.

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