ORDER :

Sandeep Sharma, J.

1. Being aggrieved and dissatisfied with the order dated 25.09.2020, passed by learned Special Judge-II, Kullu, H.P., in Cr. MP No. 221 of 2020, whereby an application under Section 293(2) of Cr.P.C., having been filed by the petitioner/accused (hereinafter referred to as 'accused') for summoning Sh. Kapil Sharma, Assistant Director, State Forensic Science Laboratory, Junga for cross-examination, came to be dismissed, accused has approached this Court in the instant proceedings filed under Section 397 read with Section 482 of Cr.P.C., praying therein to set aside the aforesaid impugned order.

2. For having bird's eye view of the matter, certain undisputed facts, which may be material for adjudication of the case at hand are that a case under Sections 20 & 21 of NDPS Act and Section 40 of the Excise Act, came to be lodged against the accused, in the year 2017 and since then, he is behind the bars. After completion of investigation, police has already presented the challan in the competent Court of law. Since, accused was not satisfied with the report given by State Forensic Science Laboratory, Junga, qua the contraband allegedly recovered from his conscious possession, he filed an application under Section 52 A of NDPS Act, praying therein for retesting of samples, however, such application, was dismissed by learned trial Court on 20.09.2018, on the ground of delay. Being dissatisfied with the aforesaid order passed by learned trial Court, accused preferred a petition under Section 482 Cr.P.C., in this Court, however, same is pending adjudication till date. After framing of charge, under Sections 20 & 21 of NDPS, Act and Section 40 of H.P. Excise Act, evidence of prosecution has commenced. While prosecution witnesses were being examined, accused filed an application under Section 293 (2) Cr.P.C., praying therein to summon Sh. Kapil Sharma, Assistant Director, State Forensic Science Laboratory, Junga, for cross-examination qua the report of State FSL, submitted by him in the case at hand (Annexure P-4). In the aforesaid application, accused submitted that samples contained in Mark 1 & 2, do not fall within the ambit of NDPS Act, as neither it is preparation of Cannabis nor it is Hashish oil, as alleged by prosecution and as such, person responsible for rendering report deserves to be cross-examined qua the aforesaid issue. Accused further submitted before the Court below that as per Section 293(1) of Cr.P.C., report submitted by Assistant Director is per se admissible for evidence and same can be used against him in the trial. He submitted that in case he is not provided an opportunity to cross-examine the person responsible for giving report, same shall remain un-rebutted and he can be convicted on the basis of the same. Accused stated before the Court below that since report of expert is completely vague, no reliance, if any, can be placed upon the same, but he can prove such fact only by cross-examining the person responsible for giving the report. Besides above, accused also prayed that with a view to prove his innocence, chemical analyst who has rendered the report, may be examined at the first instance. However, fact remains that aforesaid application having been filed by accused, came to be rejected vide order dated 25.09.2020 (Annexure P-5) on the ground that witness intended to be examined has already been listed in memorandum filed by prosecution and as and when, he is examined by prosecution, prayer for his cross-examination can be made. Besides above, Court below held that accused has not yet entered his defence and as such, his prayer to summon a chemical analyst for cross-examination cannot be accepted. Court below, ordered that accused has such a right only when next stage is reached and not on an earlier stage. In the impugned order, learned Court below has observed that accused can summon and examine any witness after he or she enters into his/her defence and it is prerogative of the pros