Sex And Obscenity | The Bombay High Court directs customs to release seized artworks of F N Souza and Akbar Padamsee within 2 weeks.
The bench of Justice M.S. Sonak and Justice Jitendra Jain the Customs laws of India do not insist that Michelangelo’s David be fully clothed before he passes through our Customs Borders. An assistant commissioner of customs cannot lightly and without advertising relevant considerations assume the mantle of being a spokesperson for community standards. Just as one swallow does not make a summer, so also one such decision of one such assistant commissioner of customs does not make the law on this subject.
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Background
Precisely sixty years ago, in Ranjit D Udheshi Vs State of Maharashtra, 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.
The Petitioner challenged the order issued by the Assistant Commissioner of Customs 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 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.
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.
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.
The artworks reached India on 27 March 2023. 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.
On 01 July 2024, the 3rd Respondent made the impugned order confiscating the artworks and imposing a penalty of Rs.50,000/-. It is unclear whether the impugned order directs the “destruction” of these artworks because at least the show cause notice issued to the Petitioner referred to the destruction of these artworks. Hence the present Petition.
Arguments – Sex And Obscenity
The petitioner contended that the Petitioner’s case is not covered by the Notification dated 18 January 1964 since every nude drawing or painting cannot be styled as obscene. The artworks in question are national and international treasures certified by experts in the art world. Even the artists are world- renowned and have been granted national and international awards. He submitted that by ignoring all such relevant material and decisions of the various Courts on “obscenity”, the order has been made. The order warrants interference.
The department contended that the Petitioner has an alternate remedy, and therefore, this Petition ought not to be entertained. He submitted that the Petitioner applied for re-export and accepted that the artworks were obscene. He submitted that the artworks are indeed obscene, and he wondered that if such drawings/paintings were not obscene, what else could be regarded as obscene? Accordingly, there was no case to interfere with the impugned order, and this Petition ought to be dismissed.
Conclusion – Sex And Obscenity
The court held that the Petitioner applied for re-export when confronted with a customs official who treated not just to confiscate but to destroy the artworks of the world-renowned artists. Discretion was perhaps thought the better part of valour by way of an offer to at least allow re-export. To deny the petitioner relief on such grounds would be a travesty of justice.
The court directed the customs department to immediately and, in any event, within two weeks, release the confiscated artworks to the Petitioner.
Case Details
Case Title: M/s. B. K. Polimex India Private Limited Versus Union of India
Case No.: Writ Petition No. 14437 Of 2024
Date: 25/10/2024
Counsel For Petitioner: Shreyas Shrivastava
Counsel For Respondent: Jitendra B Mishra
