Can Body Massagers Be Considered Sex Toys? What Bombay High Court Said

Is the sale of sex toys legal in India? Well, there is no explicit law that says they are illegal, under Section 292 of the Indian Penal Code their sale, exhibition, advertising, import, or export can be restricted on the ground 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.)

That is one reason why most online platforms selling these items market them as 'body massagers' and not sex toys.

BCCL

Body massager is not sex toy

And according to the Bombay High Court, a body massager cannot be categorised as an adult sex toy.

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.

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.

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Figment of imagination

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.

Body massagers are not prohibited

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

It said the Commissioner 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 Department had in April 2022 confiscated a 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.

However, the owner of the consignment moved the Central Excise and Service Tax Appellate Tribunal and itn May 2023, the order confiscating consignment was set aside.

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'Just because they can be used, it doesn't mean'

Following this the Customs Department filed an appeal in the Bombay HC which noted that 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.

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