New Delhi: Delivering a stinging rebuke for “harassing” small firms, the Delhi High Court this week dismissed a review petition by the Customs Department, which challenged an earlier order to release body massagers that officials had classified as prohibited sex toys.
The court also imposed costs of Rs 25,000 (each for two petitioners) that is to be deducted from the salary of assistant commissioner of customs, Jainendra Jain.
“The Customs Department is clearly harassing the petitioners for no reason,” the division bench of Justices Prathiba M. Singh and Shail Jain said, ordering immediate release of the detained consignments within two working days, on 24 November.
The consignments were not released till Wednesday evening, lawyers for the firms that had imported the massagers told ThePrint.
While dismissing the review petition, the bench said that the department’s action was rooted in selective and subjective enforcement. Regulatory restrictions, it said, cannot be applied on moral assumptions or personal opinion of officials.
The case, which began earlier in the year with the seizure of imported consignments, has evolved into a larger question of applying trade norms uniformly and limits of customs’ discretion.
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The dispute
In January, customs officials seized two consignments imported by Techsync, a micro, small and medium enterprise (MSME) dealing in wellness devices. They classified the products—body massagers and related accessories, including pouches bearing the branding ‘pamperpulse’—as sex toys, citing a 1964 notification under Section 11 of the Customs Act, 1962, which bars ‘obscene articles’.
The department also invoked Section 294 of the Bharatiya Nyaya Sanhita (BNS), claiming the devices appealed to the “prurient interest” and were obscene.
Techsync, represented by advocate Piyushi Garg, argued that the goods were lawful massage apparatus imported under the tariff head for ‘Mechano-Therapy Appliances; Massage Apparatus’.
The company argued that the seizure was based on “moral assumptions” and that identical products had been cleared for larger firms such as Reckitt Benckiser India, which markets Durex products.
The initial order
In its 30 October judgment, the high court held that massage devices designed for therapeutic or personal care use “could not automatically be clubbed with obscene materials like pornographic books or images”.
The bench observed: “By subjecting personal opinions as to the use of the imported products i.e., ‘body massagers’, and declaring the same as obscene products on the mere possibility of the same being used as sex toys, the (customs) commissioner had acted in violation of the law.”
The court ruled that such decisions “cannot be taken on subjective opinion but on national standards”, particularly when customs had been applying the 1964 notification inconsistently.
Relying on a 2024 Bombay High Court ruling that criticised subjective obscenity determinations, the Delhi HC bench interpreted the 1964 notification using the ‘ejusdem generis’ principle, meaning it applies only to articles similar to those expressly listed.
The court also directed the Central Board of Indirect Taxes and Customs (CBIC) to conduct inter-ministerial consultations and file a uniform policy before the next hearing on 9 December.
Customs seeks review
In a review petition filed on 13 November, customs alleged that the importer had mis-declared the products’ true nature.
The department claimed the items were “battery-operated vibrating devices bearing no therapeutic or medical utility” and argued that Techsync needed registration and a no objection certificate (NOC) from the Central Drugs Standard Control Organisation (CDSCO) under the Drugs and Cosmetics Act and the Medical Devices Rules.
Customs also contended the company required ‘Extended Producer Responsibility’ registration under the Battery Waste Management Rules, 2022, since the devices contained rechargeable batteries. The department alleged an online search revealed the products were “in reality sex toys intended for sexual pleasure”, and that the brand — Pamper Pulse – operated a website marketing such items.
The department argued that the 30 October order failed to consider these “mandatory compliances” even though the objections had been raised at the time of hearing.
Techsync countered that the review petition was “directly contradictory” to the 30 October order and represented a deliberate attempt to delay lawful release of goods. The company stressed that no new factual material had been presented to justify review of the earlier ruling.
Techsync also cited 2024 CDSCO FAQs, specifically Question 51, which said: “If a massager is intended for soothing or general wellness purpose and not for any therapeutic purposes, then it does not come under the regulation.”
The company highlighted that E-Waste (Management) Rules, 2022, along with the Battery Rules, exclude micro enterprises under Rule 2(c). As a registered MSME, Techsync submitted these rules did not apply to it.
‘No grounds for review’
On 24 November, the high court bench dismissed the review petition, holding that “there was no ground to review” its earlier judgment.
The bench noted that similar consignments imported by Techsync and other companies, including Huha Care Pvt Ltd, had been cleared without objection.
When the court asked whether customs had stopped consignments from larger firms such as Reckitt Benckiser, and the department answered in the negative, the judges remarked that officers were treating the matter as an “ego issue”, advocate Garg told ThePrint.
‘Big justice for small firms’
Advocates for Techsync —Garg, Ananay Chopra and Ajay Kumar Yadav —described the high court’s judgment as a “landmark victory for MSMEs”.
“Lawful trade activity cannot be stigmatised or obstructed by discretionary or moralistic enforcement… For the millions of MSME entrepreneurs who constitute the backbone of the Indian economy, this case stands as a judicial affirmation that small enterprises, too, are entitled to big justice,” they told ThePrint.
They added that “selective application of prohibitions undermines market fairness and erodes the confidence of small businesses in regulatory processes” and urged the need for “policy modernisation”.
The advocates stated: “For MSMEs operating in the wellness, consumer electronics, or medical devices sectors, this decision underscores that lawful trade activity cannot be stigmatised or obstructed by discretionary or moralistic enforcement.”
(Edited by Prerna Madan)
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