Release artworks of Souza and Padamsee seized on 'obscenity' ground, Bombay HC tells Customs

Mumbai: The Bombay High Court on Friday ordered the Customs department to release the artworks by renowned artists F N Souza and Akbar Padamsee seized last year on the ground of being "obscene material".

A division bench of Justices M S Sonak and Jitendra Jain quashed a July 2024 order passed by the Assistant Commissioner of Mumbai Customs confiscating the artwork, and observed that the Customs officials, having no understanding of or expertise in the field of art, failed to differentiate between a work of art and obscenity.

The bench allowed a petition filed by a firm, B K Polimex India Pvt Ltd, owned by city-based businessman and art connoisseur Mustafa Karachiwala against the customs order.

The court said the seized artwork shall be released immediately and not later than two weeks to the petitioner.

The petitioner claimed the impugned order confiscating the artworks, which had been acquired by him, was arbitrary and illegal, and deserves to be quashed.

The bench had earlier this week restrained the department from destroying the artworks confiscated pursuant to the impugned order dated July 1, 2024 until further orders. The plea said the seized goods order contained artworks of renowned artists F N Souza and Akbar Padamsee, who have been honoured with prestigious awards by the Indian government.

The petition, filed through advocates Shreyas Shrivastava and Shraddha Swarup, questioned how the Customs department could consider their artwork as obscene.

"The subject work of art is a national treasure of modern art which needs to be given its due recognition. However, the Customs officials have failed to understand the significance of the art and failed to differentiate between art and obscenity," the plea said.

It said the order for seizing the artwork was violative of fundamental rights enshrined in the Constitution of India.

The Customs ought not to have passed such an order when its officials have no understanding or qualification on art, it contended.

"The Customs officials having no understanding of or expertise in the field of art have failed to differentiate between a work of art and obscene work. Every nude drawing or painting does not come under the ambit of obscene material," the petition said.

The plea sought that the confiscation order be quashed and the artwork be released.

In April last year, the Mumbai Customs seized a consignment of seven artworks, including a folio of four erotic drawings comprising one called "Lovers" by Souza, citing obscenity.

The other three, also held back for the same reason, are a drawing titled "Nude" and two photographs by Akbar Padamsee.

Both Souza and Padamsee were part of the Progressive Artists' Group that introduced European modernism to Indian art, and their works are among the most coveted by collectors in India.

In 2022, Karachiwala, through his company BK Polimex Pvt Ltd, acquired the seven artworks at two separate auctions held in London.

But when Karachiwala got them to Mumbai, the special cargo commissionerate of Customs in April 2023 seized the consignment, saying the artworks fell under the category of "obscene material" and hence they cannot clear them.

On July 1, 2024, the assistant commissioner of Customs in an "arbitrary and capricious manner" passed an order confiscating the seized goods and imposed a fine of Rs 50,000 on the petitioner firm, the plea said.