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.
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