The Calcutta High Court is set to deliberate on a significant legal challenge against the Customs Department’s prohibition on importing sex toys into India, categorizing them as “obscene articles.” The case, titled M/s Pracha Aalloy Private Limited v. Union of India & Ors., was brought before the court by the petitioner who disputes the Customs Department’s decision.
Justice Smita Das Dey, presiding over the case, acknowledged the necessity for judicial scrutiny, particularly as the Customs Department’s actions appear to be driven by subjective moral judgments rather than objective legal standards. This decision impacts the petitioner’s fundamental right to trade. The judge stated, “When a statutory authority acts completely outside the boundaries of objective law and enters the realm of subjective morality, thereby severely affecting a citizen’s fundamental right to trade, the High Court will not shut its doors.”
The petitioner, M/s Pracha Aalloy Pvt. Ltd., is challenging the Customs Department’s reliance on a 1964 notification that bans the import of “any obscene book, pamphlet, paper, drawing, painting, representation, figure or article.” They argue that this notification should not apply to body massagers or sex toys, as there is no explicit statutory clause prohibiting their import under the Customs Act of 1962. Furthermore, they contend that the classification of these items as “obscene” based on their intended use is unfounded.
Additionally, the petitioner highlighted the inconsistency in the marketplace, pointing out that similar sex toys are readily available through major online retailers in India. They argue that the Customs authority’s decision is discriminatory and infringes upon their right to conduct trade.
In defense, the Customs Department argued that the petitioner should have first sought recourse through an appeal under Section 128 of the Customs Act, suggesting that the petition was not maintainable at this stage. However, the High Court found merit in the petitioner’s argument, allowing the case to proceed under Article 226 of the Constitution of India, which grants the right to approach the court directly for legal issues of significance.
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The court has scheduled the next hearing for October 9 and has instructed the respondents to submit a short affidavit-in-opposition within two weeks. The petitioners have been given an additional week to file their reply.
The legal representation in this case includes advocates Gunjan Bahety, Dhiraj Tiwari, and Khushal Mittal for the petitioner, while advocates Kaushik Dey and Tapan Bhanja represent the Customs authorities, and advocates Amit Sharma and Abhishek Kr. Agrahari appear for the Union government.
