Nudity alone does not constitute obscenity; artistic merit and contemporary community standards must be considered in determining obscenity under the Customs Act.

JUDGMENT :

(M.S. Sonak, J.)

1. Precisely sixty years ago, in Ranjit D Udheshi Vs State of Maharashtra, 1964 SCC OnLine SC 52, the Supreme Court of India, speaking through Justice Hidayatullah, declared that in India, the angels and saints of Michealangelo do not need to be made to wear breeches before they can be viewed. Still, in 2024, the Assistant Commissioner of Customs prohibited the import and ordered confiscation (and possibly destruction) of seven drawings by world-renowned artists, viz. Mr. F N Souza and Mr. Akbar Padamsee on the ground that such artworks, in his opinion, were obscene.

2. Accordingly, we issue Rule. The rule is made returnable immediately at the request and with the consent of the learned counsel for the parties.

3. The Petitioner challenges the order dated 01 July 2024 issued by the Assistant Commissioner of Customs (Respondent No.3) confiscating the drawings by world-renowned artists, viz. Mr. F N Souza and Mr. Akbar Padamsee on the ground that such artworks were “obscene”. Apart from confiscating the artworks, the impugned order dated 01 July 2024 also imposes a fine of Rs.50,000/- on the Importer/Petitioner. There is no clarity on whether the impugned order directs the “destruction” of these artworks because at least the show cause notice issued to the Petitioner had referred to the destruction of these artworks.

4. In 2022, the Petitioner purchased three drawings by Mr Akbar Padamsee at an auction by Rosebery’s London and four by Mr Francis Newton Souza from the auctioneers Lyon and Turnbull London. The payments were made to the auctioneers through usual banking channels.

5. On 24 March 2023, the Petitioner booked M/s. Stephen Morris Shipping PLC, Greenford City London, United Kingdom, through M/s FedEx via airway bill (AWB) No.771665532428 for the above seven quantities of Padamsee and Souza artworks against the invoices issued favouring the Petitioner. The invoices specifically mention that the consignment from London to India was “nude drawings” after considering the provisions of the Customs Act, 1962, and to ward off the charge of any misdeclaration and suppression.

6. The artworks reached India on 27 March 2023. The counsel for the Petitioner submitted that the Customs officials threatened not just confiscation but also destruction of these valuable artworks. The FedEx officials panicked and advised the Petitioner to apply for re-export rather than risk confiscating and destroying these artworks.

7. The Petitioner pleaded that under wrong representation from FedEx that the artworks fall under the category of “obscene material”, the Petitioner, being wholly misled, wrote to the Customs Authorities on 17 April 2023 seeking permission to re- export the said artworks. On 20 April 2023, however, the Airport Special Cargo Commissionerate (APSC) customs officials seized all the seven Padamsee and Souza artworks vide seizure memo dated 20 April 2023.

8. The Petitioner wrote to the Deputy Commissioner of Customs on 08 May 2023 seeking the release of the confiscated artworks by pointing out that the artworks were not obscene. Along with this letter, the Petitioner also provided a certificate issued by Sakshi Gallery of India and Grosvenor Gallery London to the effect that such artworks were not obscene. Even copies of printouts displayed in the Virtual Tour of the National Gallery of Modern Art, along with opinions of experts from various art galleries in London and India, were enclosed, along with the letter dated 08 May 2023 urging that these artworks by world-renowned artists were by no means obscene.

9. Since the Respondents had not responded by 07 June 2023, the Petitioner requested a personal hearing through its advocate’s notice. On 16 June 2023, the Petitioner was informed that a personal hearing would be given on 22 June 2023. The Petitioner’s representative was heard on 22 June 2023. He also produced a personal appeal from Ms. Meena Joseph Vari, Art Curator, Educator, and Dean at Srishti Institute o