JUDGMENT 1. THE petitioner is a concern running a small scale industry of processing of Cashewnuts. It collects the shelled Cashewnut fruits from the trees direct. The processing is done in different stages : (i) Roasting of the Shelled speeds fruits (ii) Breaking of the coverings i.e. shells and bringing out of food materials (iii) Drying up the food materials in drying chambers (iv) Pilling or strip) ping off the dried up nuts (food material) (v) Treating the stripped off inner nuts (food 'materials), at times with salt (vi) Sorting and grading the; inner nuts (food materials) as produced (vii) Packaging. It is contended that the [processing, requires 4 to 6 days time in the factory. 2. ON the completion of the processing, "kaju Badam", as a food materials is produced, which according to the petitioner is a ready made food for human consumption and the same is pat to market for sale as such. It is contended that the processed Kaju Badam is an article completely different from the shelled Cashewnut seed fruits as found on trees before or at the time of collection and prior to commencement of processing. The case of the petitioner is that as a processed article of food "kaju Badam" ceases to be a forest produce within the meaning of section 2 (4) (b) of the Indian Forest Act 1927. 3. THE Directorate of Forest of the State Government from time to time issues notices inviting tender's for collection of cashewnut seeds and fruits from the cashewnut trees on the forests. The stipulation is that collection of fruits in shells should be made from the trees without causing any damage to the trees and their branches, export fee will have to be paid at the current rate and movement of cashewnuts in seeds and fruits, from forest depots to other area by trucks and other means of conveyance will have to be covered by Transit pass issued by the Forest Officer. 4. THERE are prescribed rules for movement of forest produce and for issuance of Transit pass, known as The West Bengal Forest Produce Transit Rules 1959. In respect of timber and other forest produce from khasmahal forests, passes are issued by the District Forest Officer and/or any other Officer duly authorised on this behalf, on the production of a certificate of origin issued by the Khasmahal Officer. In respect of timber and other forest produce from khasmahal forests, passes are issued by the District Forest Officer and/or any other Officer duly authorised on this behalf, on the production of a certificate of origin issued by the Khasmahal Officer. There are provisions for imposition of fees for transit passes in respect of different items of forest produce moved from districts on such rates prescribed by Conservator of Forest from time to time. It is the contention of the petitioner that neither in the Tender Notice about collection of cashewnuts from trees in the Khasmahal forests nor in the Act or in the Rules, there is any specific or implied provision for the necessity of any transit pass for the movement of processed cashewnuts which are ready marketable food products. 5. THE petitioner firm, after processing the shelled cashewnut seed fruits and having their transformed into a ready marketable food product as a snack has to transport them to different markets for sale to public as food. They are either transhipped by rail or by road transport. . 6. THE Railway authorities; at Jhargram Railway Station refused to book such finished marketable cashewnuts without clearance certificate from the Forest Officer, Jhargram. On 9.5.1977 contending that no movement permit is necessary for movement of dry finished Kaju Badam the petitioner requested the Divisional Forest Officer, West Midnapore Division to inform the Railway Authorities about the matter. In reply by Memo No. 3588/18-4 dated 24.5.1977 the petitioner was informed by the Divisional Forest Officer that transit pass would be necessary. Copy of the same is annexure 'i' to the writ application. The petitioner was therefore requested to apply for "transit pass" through the Range Officer, Jhargram Range along with the requisite documents, for necessary transit pass and the copy of the letter was forwarded to the Range Officer, Jhargram Range, for information and necessary action. The Range Officer was directed to verify the stock and necessary documents as and when such petition was received from the petitioner's firm and forward the same to the office of the Divisional Forest Officer along with necessary documents along with his recommendation for issue of Transit pass in favour of the petitioner firm. The Range Officer was directed to verify the stock and necessary documents as and when such petition was received from the petitioner's firm and forward the same to the office of the Divisional Forest Officer along with necessary documents along with his recommendation for issue of Transit pass in favour of the petitioner firm. The grievance of the petitioner further was to the effect that on 1.6.1977 when the petitioner was transporting 51 tins of processed finished transformed cashewnuts (Kaju Badam) to Calcutta by Lorry No. WBK 1047, the Forest Range Officer Jhargram detained the said lorry and realised a sum of Rs. 51 under receipt No. D 820 3 dated 1. 6. 1977, copy of which is annexure II and issued a "transit pass" bearing the said number and date before allowing the said lorry to proceed. The petitioner apprehends that the said realisation was "probably the fees for issue of the said transit pass". The petitioner submits that the said action on the part of the Forest Department are instances of overstepping of jurisdiction, apart from being malafide arbitrary and illegal. The petitioner submits that realisation of said sum of Rs. 51 amounts to "double taxation" on the same article inasmuch as fees for transit pass was once realised when the same was issued for movement of shelled cashewnuts seeds and fruits gathered from the trees in the Forest, for being brought to the petitioner's factory in Jhargram Town. 7. ON 2.7.1977 the petitioner made a representation to the Secretary to the Government of West Bengal, Forest Department, with a copy thereof to the Conservator of Forest, West Bengal and sought their intervention by the way of relief in the matter and contended that no "transit pass" was deemed necessary for movement of processed finished food "kaju Badam". The petitioner also sent a reminder thereto demanding justice of the Respondents. The petitioner's grievance is that this system of enforcement of the requirement of a '"transit pass" for movement of processed finished food Kaju Badam is causing nuuncessary harassment, inconvenience and trouble and putting it into unnecessary double taxation and expenses and imposing unnecessary unwarranted restriction on the trade in processed finished food "kaju Badam". 8. THE last contention of the petitioner is that Kaju Badam can never be included within the meaning of "forest Produce" for which transit pass is necessary. 8. THE last contention of the petitioner is that Kaju Badam can never be included within the meaning of "forest Produce" for which transit pass is necessary. The petitioner in such circumstances moved this Court for a writ in the nature of Mandamus directing the respondents to forthwith recall/set aside and/or not to give effect or further effect to the impugned order bearing No. 3583/18-4 dated 24th May, 1977 issued by the Divisional Forest Officer, West 'midnapore Division and directing also refund of the fees/fine realised from the petitioner pursuant to that order. The petitioner also wanted interpretation of section 2 (4) of the Indian Forest Act regarding processed finished marketable ready for immediate human consumption food cashewnuts (Kaju Badam) so that same may not be included as a Forest produce, for the movement of which a transit pass would be necessary. An affidavit- in- opposition was filed on behalf of the Respondents No. 1 to 5 sworn by Sri Moloy Kumar Chowdhury, Divisional Forest Officer, West Midnapore Division, Jhargram. The respondents contend that according to the provisions of section 2 (4) (b) of the Indian Forest Act 1927 "forest Produce" includes trees and leaves, flowers and fruits and all other parts or produce not hereinbefore mentioned of trees, when found in or brought from a forest. Therefore processed cashew-nuts, when actually brought from a forest will be treated as a forest produce and will attract the provisions of section 41 of the Indian Forest Act 1927 and regulations made there under. Section 2 (4) (a) of the Act begins with the word "the following whether found in or brought from forest or not", whereas the words in clause (b) are "the following when found in, or brought from a forest". It is contended that processed cashewnuts seeds seem to be forest produce since cashewnut fruits in the instant case were brought from forest and as such were forest produce within the meaning of section 2 (4) (b) (i) of the ' Indian Forest Act 1927. Transit pass is issued for movement of forest produce as per Rule 2 and no export tee has boon realised. Whereas West Bengal Forest Produce Transit: Rules, 1 959 is in force but no provision for fees for transit pass is realised. Transit pass is required to be taken for movement of "forest. Produce" which includes the processed cashewnuts as well. Whereas West Bengal Forest Produce Transit: Rules, 1 959 is in force but no provision for fees for transit pass is realised. Transit pass is required to be taken for movement of "forest. Produce" which includes the processed cashewnuts as well. Since cashewnuts is forest produce when brought from forest, under section 2 (4) (b) (i) of the Indian Forest Act 192. 7, transit pass is necessary. 9. IT was contended on behalf of the Respondents that the petitioner has not related the facts in their proper perspective. By a letter dated 9.5.1977 the petitioner informed the Respondent No. 3 that Railway Authorities were refusing to book finished products (dry cashewnuts) as they considered the same to be forest produce and requested the. Respondent No. 3 to issue instructions to local. Railway Authorities or issue such a permit so that the (petitioner does not face any difficulty in booking the said commodities. The Respondent No. 3 issued his Memo No. 3588/18-4 dated 24.5.1977 which is impugned in the present Rule. The petitioner by letter-dated 2.7.1977 made representation to the Secretary, Department of Forest inter alia contending an alleged restriction of movement of finished (processed) food products (dry cashewnuts). There was a further representation on behalf of the petitioner by way of demand of justice. On 1.6.1977 at about 11.00 P.M. at night Truck No. WBR 1047 was detected while carrying 51 tins of cashewnuts, not covered by any transit pass as required under Rule 4 (2) of the West Bengal Forest Produce Transit Rule, 1959. One Kamal Kumar Goenka of petitioner's firm produced proof of the origin of the forest produce (cashewnuts)' and his title thereto. He pleaded guilty for violation of Transit Rules and was found willing to con-pound the case. He duly signed the compounding of fence Report No. 87/j. R. of 1977-78 admitting the offence committed by the petitioner punishable under Rule 11 of the West Bengal Forest Produce Transit Rules, 1959. The Forest Range: Officer, Jhsrgram being legally empowered in this regard, assessed the compensation of Rs. 51 only, for the aforesaid offence under section 68 of the Indian Forest Act 192. 7. Sri Goenka paid the sum of Rs. 51 only and obtained receipt No. D 820 3/688 dated 1.6.1977 which was issued for the said amount. The Forest Range: Officer, Jhsrgram being legally empowered in this regard, assessed the compensation of Rs. 51 only, for the aforesaid offence under section 68 of the Indian Forest Act 192. 7. Sri Goenka paid the sum of Rs. 51 only and obtained receipt No. D 820 3/688 dated 1.6.1977 which was issued for the said amount. Copy of the said receipt which was annexed to this petition as annexure 'ii' was not an authentic copy as would be evident from the carbon copy of the said receipt which was enclosed as annexure 'x-1 ' to the affidavit- in- opposition. Transit Pass Mo. 2 of Book No. 13311 dated 1.6.1977 a copy whereof is annexed to the affidavit- in- opposition and marked 'x' was also issued by the said Range Officer, Jhargram. Copies of the said receipt and the statement of offences committed by the petitioner were annexed and marked X-1 collectively. In the affidavit -in- opposition it was contended that it would thus be evident that the amount realised was towards payment of compensate on and not "fees" for Transit, pass and the question of double taxation does not arise. It was reiterated that cashewnuts were forest produce calling for transit pass for their movement and any action to violate the Rules would entail the offence within the meaning of Indian Forest Act and the Rules. As the petitioner firm had committed Offence and had the of fence compounded according to the provisions of the Act and the Rules and paid compounding fee of Rs. s51 which was again not a "fine" strictly in accordance with law nothing could be done in this regard. 10. IT was reiterated on behalf of the Respondents that no fees for issuing transit pass was being realised but transit pass was issued in accordance with law as per Rule 4 (2) of the West Bengal Forest Products Transit Rules 1959. In the pleadings in the writ application especially in paragraph 5 thereof, nothing is said about the origin of the cashewnut fruits. In Reader's Digest Library of Modern English the particular volume regarding World of Plants at page 292 gives out that cashewnut is an edible fruit of anacardium Occidentals, a tropical ever green tree, native to South America. Cashewnut tree has a small cluster of red flowers. In Reader's Digest Library of Modern English the particular volume regarding World of Plants at page 292 gives out that cashewnut is an edible fruit of anacardium Occidentals, a tropical ever green tree, native to South America. Cashewnut tree has a small cluster of red flowers. Its kidney shaped fruits hanging from the base of fleshy pear shaped structures called cashew apples are not really fruits but swollen stems. Roasted and salted nuts are eaten as snacks. Pulpy apples are used in making jams and leverages. 11. LET us now look to the definition of forest produce. Sub-section (4) to section 2 of the Indian Forest Act 1927 is divided into two clauses whereas in clause (a) several articles irrespective of being found in or brought from a forest or not, viz. timber, charcoal, caoutchouc, catechu wood oil resin natural varnish,, bark, lac mahua flowers, mahua seeds kuth and myrab olams are forest produce, the following are forest produce only when found in or brought from a forest (vide 2 (4) (b) (i) trees and leaves, flowers and fruits, and all other parts or produce not. hereinbefore mentioned of trees (ii) plants not being trees (including grass, creepers, seeds and moss), and all parts or produce or such plants, (iii) wild animals and skins, tusk:, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and (iv) peat, surface soil, rock, and minerals (including line stone, laterite, mineral coils, and all products of mines or quarries ). 12. IT is tire admitted fact that cashewnut fruits would be coming within the purview of section 2 (4) (b) (i) of the Indian Forest Act 192 7 when found in or brought from a forest. In the reported decision of Kasi Prasad Sahu v. State of Orissa and Anr. reported in A.I.R. 1963 Orissa 24 a Division Bench of Orissa High Court held inter alia that the Orissa Timber and forest Produce Transit Rules 195 8 which require a permit from the forest officials for transit of mahua flowers and other forest produce even though they have been collected from the lands of private parties are not ultra vires of section 41 of the Indian Forest Act 1927. Though most of the sections of the Indian Forest Act deal with Government Forest and Government lands and forest produce grown on such property, nevertheless there are many sections, especially those in Chapter VII, which confer regulatory power on Government to control movement of forest produce even though the produce may not be the property of Government. It is well known that Government may exercise regulatory power over movement of property even though the property may not belong to the Government. Following this analogy, we may hold that even if a forest produce is not acquired from a forest, but if it is found in the vicinity of a forest or when there are proximate relations in the facts and circumstances of the case, so as to deduce the inference that same has been brought from a forest apart from the question of the said produce being products actually of a forest, leaving aside such produce which perse come within the purview of sub-section 4 (a) to section 2, they are forest produce. 13. A mere regulatory power can never amount to an unreasonable restriction either under -sub-clause (f) or sub-clause (g) of clause (1) of Article 19 of the Constitution. It is expressly stated that the transit pass or permit shall be given free of cost. There is the further assurance that transit pass, if applied for, would be given. Rule naturally satisfies the test of reasonableness. Rules cannot also be seriously contended to affect freedom of trade being in violation of Article 30 1. Mere regulatory provisions of a statute will not of Tend Article 301. Forest Act is undoubtedly an existing law and as held by the Orissa High Court, it would be nothing untoward on the part of the Government to insist on enforcement of transit pass by way of a Rule framed in West Bengal Forest Transit Rules 1959 after the coming into force of the Constitution. The Rule was trained under section 41 of that Act which is pre constitution Act and they do not come beyond the scope of that section. Hence they would get protection of Article 305 vide A.I.R. 1962 S.C. 1406 Automobile Transport (R) Ltd. v. State of Rajasthan. 14. The Rule was trained under section 41 of that Act which is pre constitution Act and they do not come beyond the scope of that section. Hence they would get protection of Article 305 vide A.I.R. 1962 S.C. 1406 Automobile Transport (R) Ltd. v. State of Rajasthan. 14. THE question arises in the facts and circumstances of the case further as to whether a finished product by the way of processed cashewnut fruits being stored and packed for transhipment from the factory site at Jhargram would call for a further transit pass and whether they are forest produce. There is no doubt whatsoever that raw cashewnuts are collected in the forest or found in - the vicinity of the forest having a direct proximate relation to the forest itself. They are-being brought from the forest or found in the forest itself. They are forest produce calling for a transit pass. But after those shelled cashewnut fruits are brought in the petitioner's factory and processed by undergoing various stages as conterded by the petitioner and as earlier referred to and they are' being packed in tins or put in jackets dried and processed so as to be fit for human consumption as a snack, their ultimate origin as fruits having been brought from forest, lose significance. It has been contended by the petitioner in their affidavit- in reply, they also purchase cashewnuts. from the open market apart from mating collection from the forest. When they are brought to the factory and dried and processed having undergone different stages as mentioned hereinbefore and are packed in tins for transportation, they are not really to-be reckoned articles as immediately brought from the forest. Mr. Sarkar drew my attention to the reported judgment in Deputy Commissioner Agricultural Income Tax and Sales Tax v. M/s. Palmpadan Plantations reported in A.I.R. 1969 S.C. 930 where the word "produce" has been discussed threadbare, but there the word "produce" taken in the context of sale of trees of spontaneous growth have been taken into consideration. In order to fall within the definition of "dealer" a person must sell goods produced by him by manufacture, agriculture, floriculture or otherwise. Trees which are grown spontaneously and without any plantation by that person, cannot possibly be regarded as having been "produced" by him by agriculture or horticulture. In order to fall within the definition of "dealer" a person must sell goods produced by him by manufacture, agriculture, floriculture or otherwise. Trees which are grown spontaneously and without any plantation by that person, cannot possibly be regarded as having been "produced" by him by agriculture or horticulture. The word "otherwise" was held not covering trees of spontaneous growth since the element of production must be present. The context in which the word 'produced' appears in the definition can only mean "to bring forth" "bring into being or existence" "to bring (a thing) into existence from its raw materials or elements". According to Webster's International English Dictionary verb produce means to bring forward, beget etc. The juxtaposition of the word 'manufacture' with agriculture, horticulture etc. is significant and cannot be lost sight of. The intention in Implying the word 'produce' obviously was to introduce an element of some process for bringing into existence the goods. Mr. Sarkar contended that Cashewnuts remains a forest produce since it has been brought forth or brought into being or existence or brought into existence from its raw materials or elements from the fruits of Cashewnuts which was found in a forest. Therefore irrespective of its position at Jhargram factory or 'otherwise, since it has been brought from a forest, it would remain a 'forest produce' though the article undergoes processing and still it would not lose the' character of a forest produce. I do not agree that such would be the meaning since the words 'when found in or brought from a forest' have been used as prefix to different categories or articles mentioned in sub clause (i) (ii) (iii) and (iv) to section 2 (4) (b) of the Indian Forest Act. By citing the decisions reported in 1963 SC 791 Union of India and Anr. v. Delhi Cloth and General Mills, Mr. Sarkar contended that since the producers of Vanaspati cannot hold having manufactured some kind of non-essential vegetable oil by applying to the raw materials purchased by them, the process of neutralisation by alkali and bleaching by activated earth and/or carbon and contended that manufacture is complete as soon as by the application of one or more process the raw material undergoes some change so as to equate processing to manufacture. It was held in the said case that the 'manufacture' used as a verb is generally understood to mean as 'bringing into existence a new substance and does not mean merely to produce some change in a substance however, major in consequence the change may be, Cashewnuts on this analogy, could not be held to be the manufactured -into a new product altogether. Mr. Sen on the other' hand banking upon the same decision contended that what is 'kaju Badam' known to the market as a snack is something different from the raw fruit Cashewnuts which is found in or brought from the forest, since it is the finished produce as a snack that is indeed a new production and the same has been brought into existence by drying up, processing and making it salted so as to be fit for being used as a snack. 15. IN a very recent judgment of the Supreme Court in Union of India and Ors. v. Ahmedabad Manufacturing and Calico Printing (Mills) Co. Ltd., Ahmedabad pronounced on August 12, 1985 and since reported in 1985 (3) Supreme Court Cases 693, while deciding the question of taxability, it was observed inter alia that whet hers a produce is cotton fabric or rayon or artificial fabric, would depend upon its nature and character at the final stage and not at the intermediary stage of its production. The Supreme Court held inter alia that everything depends upon nature and character of the goods, at the final stage of its production, unless a contrary intention appears from the statute. Though I do hold that the analogy of Central Excise and Salt. Act cases are not decisive in so far as cases under the Indian Forest Act are concerned, still then the principle underlying the same may be of some moment in appreciating as to whether the product is forest produce at its last or conclusive stage. That being so, it is the ultimate stage of its being used as a snack that distinguished it from that stage of the raw seed or fruit when it is immediately brought from the forest. 16. WHILE I do not find any transgression of law or violation of the powers vested in it by imposing a compounding fee as the petitioner was asked to pay and as its representative. 16. WHILE I do not find any transgression of law or violation of the powers vested in it by imposing a compounding fee as the petitioner was asked to pay and as its representative. did pay on the said representative pleading guilty to the offence I do hold that for transportation or transhipment of dry processed Cashewnuts or 'kaju Badam' which is used as snack from the petitioner's factory either in tins or in jackets, would not call for a transit pass within the meaning of West Bengal Forest Produce Transit Rules, 1959, since Cashewnuts involve raw processed finished marketable ready for immediate human consumption snacks, which is something different from a forest produce in the shape of a dry fruit in whatever form actually found in or brought from a forest. Hence no permission or movement of processed Cashewnuts fit to be used as a snack to any distance either by Railways from Jhargram Railway Station or by road carries by way of road transport would be necessary. But I make it clear over again that transit pass would be necessary in respect of dry shelled unprocessed or semi-processed cashewnut fruits. Anything which has not been processed at all or not reached the ultimate stage of dry processed cashewnut which is fit for human consumption in the shape of snacks, would need, in matters of transportation any transit pass if the origin of such Cashewnut is from the forest. With this observation I make the Rule absolute in part. In view of the petitioner s representative pleading guilty and agreeing to compounding of an offence the prayer for refund of a sum of Rs. 51 as claimed by the petitioner stands rejected. The petitioner has not been subjected to any double taxation inasmuch as no fees has been charged for the transit pass and in that perspective its claim for refund of Rs. 51 is not maintainable at law. The Rule is thus made absolute in part. There will be no order as to costs. Rule made absolute in part.