Case Note & Summary
The petitioner, M/s. B. K. Polimex India Private Limited, imported seven artworks by world-renowned artists F.N. Souza and Akbar Padamsee from London in 2023. The artworks depicted nudes, including some in sexual poses. The Assistant Commissioner of Customs (ACC) issued a show cause notice and eventually passed an order on 1 July 2024 confiscating the artworks and imposing a penalty of Rs.50,000/- under Notification No.1/1964-Customs issued under Section 11 of the Customs Act, 1962, which prohibits import of obscene material. The petitioner challenged the order by way of a writ petition before the Bombay High Court. The court noted that the ACC had relied entirely on his personal interpretation of obscenity without considering the artistic merit, expert opinions from Sakshi Gallery and Grosvenor Gallery, and the fact that similar artworks are displayed in the National Gallery of Modern Art. The court applied the community standard test for obscenity as laid down in Supreme Court precedents, including Ranjit D. Udheshi v. State of Maharashtra, Samaresh Bose v. Amal Mitra, and K.A. Abbas v. Union of India. The court held that nudity in art is not per se obscene and that the ACC's action was arbitrary and unreasonable. The court quashed the confiscation order and directed the release of the artworks to the petitioner. The court also deprecated the conduct of the customs authorities in threatening destruction of the artworks.
Headnote
A) Customs Law - Prohibition on Import of Obscene Material - Section 11 Customs Act, 1962 read with Notification No.1/1964-Customs - The Assistant Commissioner of Customs confiscated seven artworks by renowned artists F.N. Souza and Akbar Padamsee on the ground that they were 'obscene' based solely on his personal opinion. The High Court held that the test of obscenity is not the personal opinion of the officer but the community standard test as laid down by the Supreme Court. The officer failed to consider the artistic merit, expert opinions, and the fact that similar artworks are displayed in national galleries. The confiscation order was quashed as arbitrary and unreasonable. (Paras 1-3, 17-20, 22-25) B) Constitutional Law - Freedom of Speech and Expression - Article 19(1)(a) Constitution of India - Artistic expression is protected under Article 19(1)(a). The court emphasized that nudity in art is not per se obscene. The Supreme Court in Ranjit D. Udheshi v. State of Maharashtra held that 'angels and saints of Michelangelo do not need to be made to wear breeches before they can be viewed.' The customs officer's action in 2024, sixty years after that judgment, was deprecated. (Paras 1, 22-25) C) Customs Law - Confiscation and Penalty - Section 111(d) Customs Act, 1962 - The impugned order confiscated the artworks and imposed a penalty of Rs.50,000/-. The High Court set aside the order as the finding of obscenity was not sustainable. The court directed release of the artworks to the petitioner. (Paras 3, 11, 25)
Issue of Consideration
Whether the Assistant Commissioner of Customs was justified in confiscating and ordering destruction of artworks by F.N. Souza and Akbar Padamsee on the ground that they were 'obscene' under Notification No.1/1964-Customs issued under Section 11 of the Customs Act, 1962.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 1 July 2024, and directed the respondents to release the seven artworks to the petitioner forthwith.
Law Points
- Obscenity test under Section 11 Customs Act
- 1962
- Notification No.1/1964-Customs
- Community standard test
- Artistic merit
- Ranjit D. Udheshi v. State of Maharashtra
- Samaresh Bose v. Amal Mitra
- K.A. Abbas v. Union of India
