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G.R. No. 178757 - RONALD CARINO AND ROSANA ANDES v. PEOPLE OF THE PHILIPPINES

G.R. No. 178757 - RONALD CARINO AND ROSANA ANDES v. PEOPLE OF THE PHILIPPINES

PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

[G.R. NO. 178757 : March 13, 2009]

RONALD CARINO and ROSANA ANDES, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

TINGA, J.:

In this Petition for Review on Certiorari, 1 petitioners Ronald Carino and Rosana Andes assail the Decision2 of the Court of Appeals in CA-G.R. CR No. 29867 dated 13 March 2007, which affirmed the joint decision3 of the Regional Trial Court of Quezon City, Branch 103,4 finding petitioners Ronald Carino and Rosana Andes guilty beyond reasonable doubt of illegal possession of methamphetamine hydrochloride, a dangerous drug locally known as shabu.

Petitioners Carino and Andes were apprehended on two separate but related incidents on 20 June 2003 at the corner of G. Araneta and E. Rodriguez Avenues in Quezon City. The apprehending officers were allegedly members of the Central Police District (CPD)-Galas Police Station 11 and were part of the eight-man team5 that was dispatched by the police district authorities to conduct the "Oplan Sita" an operation which had for its object the suppression of rampant robbery in the vicinity. It was in the course of this operation that both petitioners were arrested without a warrant for allegedly having in their possession plastic sachets containing shabu.

After the arrest and investigation, petitioners were charged in two separate informations6 with violation of Section 11, Article II of Republic Act No. 9165 (R.A. No. 9165).7 Both of them entered a negative plea on arraignment.8 The cases were thereafter jointly tried.

The prosecution offered the testimony of PO1 Joseph Tayaban (Tayaban) and PO1 Arnold Eugenio (Eugenio) to prove the charges against petitioners. Tayaban and Eugenio professed that they were the ones who arrested both petitioners.

Tayaban testified that the members of "Oplan Sita," on 20 June 2003, had started patrolling the area of coverage as early as 9:00 o'clock in the morning of that day. At around 2:00 o'clock in the afternoon, his colleague, Eugenio, spotted Carino, about a meter away from their location and holding a plastic sachet in his hand. Right there and then, they placed Carino under arrest and Eugenio immediately seized the plastic sachet.9 They asked Carino who the source of the plastic sachet was and the latter immediately identified petitioner Andes. They approached Andes, and she allegedly became hysterical when the policemen introduced themselves to her. It was then that Tayaban noticed the woman inserting something inside the pocket of her 5-year old male child. Tayaban was suspicious so he inspected the right pocket of the child and found a plastic sachet inside it containing shabu.10 Petitioners were immediately brought to the Galas Police Station. The plastic sachets were allegedly submitted to the desk officer and then to the station investigator who in the presence of Tayaban marked each of the specimens with the initials "JT-RA" and "AE-RC."11 The markings purportedly represented the initials of Eugenio and Tayaban and the initials of petitioners from whom they were seized.ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Eugenio corroborated the testimony of Tayaban in its material respects. He admitted that he was the one who grabbed Carino when he noticed that the latter was holding a plastic sachet in his hand. He suspected the sachet to be containing shabu and he immediately told Carino of his offense. At that point Carino allegedly dropped the plastic sachet, so he (Eugenio) picked it up and after examining the same concluded that it indeed contained shabu.12 He and his companions brought Carino to their team leader just across the street. The latter asked Carino who the source of the shabu was, and he was told that it was a certain woman.13 Some members of the team, including Tayaban, left Araneta Avenue and went to Banawe Avenue to the place where the woman allegedly could be found, but Eugenio was not able to catch up with them because he received a phone message moments later that the woman had already been arrested. He instead proceeded to the police station for the investigation.14

The prosecution also submitted the results of the qualitative examination administered on the contents of the two plastic sachets seized from petitioners. The chemistry report signed by Engineer Leonard M. Jabonillo (Jabonillo), chemist and forensic analyst at the CPD Crime Laboratory Office, revealed that the specimens submitted for analysis yielded positive of methamphetamine hydrochloride content.15

Both petitioners denied the charges. It was revealed during their testimony, however, that they had previously known each other as Carino was employed as a "latero" at the automobile repair shop owned by Andes's "kumpare."16

Carino testified that he was on his way to work when he was arrested along E. Rodriguez Avenue. He was allegedly grabbed by the hand by one of the policemen and asked him to come with them to the police station. He denied having been frisked at any time between his arrest and conveyance to the police station.17 Quite boldly, he asserted that Tayaban was the source of the plastic sachet allegedly recovered from him as he in fact saw the said officer pull the sachet out of his own pocket at the time the arrest was taking place. At that point, Carino was asked who the source of the drug was, but when he replied that it was not his, one of the officers retorted, "Nagmamaang-maangan ka pa." At the police station, he was allegedly mauled by Tayaban because he again denied ownership of the plastic sachet.18 When he was brought to the prosecutor's office for inquest proceedings, Carino continued, the fiscal allegedly told the police, "Bakit hindi na lang natin i-further investigation ito? Wala namang ebidensiya sa kanya," suggesting that the police escort including Tayaban and Eugenio did not bring the supposed sachet of shabu seized from petitioners.19

Petitioner Andes, for her part, narrated that she and her 5-year old son were on their way home from the bakeshop when suddenly, Tayaban and a certain police officer Prado approached them and asked her whether she could identify the man inside the police car;20 that she obliged, so she proceeded to the where the car was parked and seeing petitioner Carino inside with his hands cuffed told the officers that the man was familiar to her because he was an employee at his "kumpare's" shop but she could not place his name;21 that she was then invited to come to the police station and once there, she saw Carino being frisked and the officers found nothing on him; and that she was also frisked by Tayaban but found nothing on her either.22 She also claimed that Tayaban and his companions demanded from her and Carino P10,000.00 for their release but they were detained because they could not and did not pay.23

On 9 December 2005, the trial court rendered its joint decision24 in these cases finding both petitioners guilty beyond reasonable doubt of the crime of illegal possession of dangerous drugs. It sentenced petitioners to suffer the prison term of twelve years and one day as minimum to thirteen years as maximum as well as to pay the fine of P300,000.00.25

Petitioners interposed an appeal with the Court of Appeals,26 but in its 13 March 2007 Decision the appellate court affirmed the findings and conclusions of the trial court.27 Petitioners moved for reconsideration28 but the same was denied.29

In this Petition for Review on Certiorari,30 petitioners once again bid to establish that their guilt has not been proven beyond reasonable doubt. They capitalize on the alleged inconsistencies in the testimony of police officers Tayaban and Eugenio,31 as well as on the inadmissibility, for failure to establish the chain of custody, of the drug specimens supposedly seized from them on account of the failure of the forensic chemist who signed the chemistry report to testify in court.32

The OSG, for its part, advances that the evidence was sufficient to prove the petitioners' guilt in this case especially considering that the alleged inconsistencies in the testimonies of the prosecution witnesses in this case can no longer be challenged because they had already been accorded credibility by the trial court.33 Besides, the OSG points out, petitioners advance no better defense than their self-serving claim of frame-up which must be dismissed in light of the presumption that the police officers involved in their apprehension have regularly performed their duty.34 As to the claim that the evidence should not be admitted for failure of the forensic chemist to testify, the OSG points out that the parties had already agreed at the pre-trial to dispense with such testimony inasmuch as they had already stipulated that the drug specimens were actually submitted to the laboratory for analysis and that the results thereof were then reduced in written report.35

The Court grants the petition.

To begin with, prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction.36 In these cases, it is therefore essential that the identity of the prohibited drug be established beyond doubt.37

The mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.38

Chain of custody is defined as the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.39 As a method of authenticating evidence, it requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.40 It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.41 It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.

In the case at bar, however, the prosecution evidence is insufficient to provide that assurance, for all the people who made contact with the sachets of shabu allegedly seized from petitioners, only Tayaban and Eugenio were able to testify in court as to the identity of the evidence. The desk officer at the police station to whom the specimens were purportedly surrendered by Tayaban and Eugenio was not even presented in court to observe the identity and uniqueness of the evidence. Even more to the point is the fact that the testimony of the investigator, who had taken custody of the plastic sachets after the same were reported to the desk officer, was likewise not offered in court to directly observe the evidence and admit the specific markings thereon as his own. The same is true with respect to Jabonillo, the forensic chemist at the crime laboratory who administered the chemical examination on the specimens and who could have testified on the circumstances under which he received the specimen at the laboratory for analysis and testing, as well as on the conduct of the examination which was administered on the specimen and what he did with it at the time it was in his possession and custody.

Aside from that, the prosecution has not in fact reasonably explained why these same witnesses were not able to testify in court. While indeed the OSG claims that the testimony of Jabonillo has already been dispensed with by the parties at the pre-trial stage, there however seems to be not a single hint in the pre-trial order which implies that the parties indeed dispensed with said testimony.42

In view of these loopholes in the evidence adduced against appellant, it can be reasonably concluded that the prosecution was unable to establish the identity of the dangerous drug and in effect failed to obliterate the hypothesis of petitioners' guiltlessness.

Be that as it may, while a testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness.43 The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination44 and even substitution and exchange.45 In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise not dictates the level of strictness in the application of the chain of custody rule.

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. Hence, the risk of tampering, loss or mistake with respect to an exhibit of this nature is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives.46 The danger, according to Graham v. State,47 is real. In that case, a substance later analyzed as heroin was excluded from the prosecution evidence because it was previously handled by two police officers prior to examination who, however, did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession. The court pointed out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratory's findings is inadmissible.48 ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Indeed, the Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over a narcotic specimen there could have been tampering, alteration or substitution of substances from other cases'by accident or otherwise in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.

Our drugs laws in fact establish reasonable safeguards for the protection of the identity and integrity of narcotic substances and dangerous drugs seized and/or recovered from drug offenders. Section 2149 of R.A. No. 9165 materially requires the apprehending team having initial custody and control of the drugs to, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The same requirements are also found in Section 2150 of its implementing rules51 as well as in Section 252 of the Dangerous Drugs Board Regulation No. 1 series of 2002.53

The members of the arresting team in this case, however, do not seem to have complied with these guidelines. The prosecution has not even shown that they had extended reasonable efforts to comply with the statutory requirements in handling the evidence. From the testimonies of Tayaban and Eugenio, it is clear that after the arrest of petitioners they immediately seized the plastic sachets, took custody thereof and brought the same to the police station together with petitioners. It was at the police station and not at the place where the item was seized from appellant where, according to Tayaban and Eugenio, the unnamed police investigator had placed the markings on the specimens. What is more telling is the admission made by Tayaban to the effect that the markings were placed on the plastic sachet in his presence and not in the presence of petitioners as required by law.

These flaws in the conduct of the post-seizure custody of the dangerous drug allegedly recovered from petitioners, taken together with the failure of the key persons who handled the same to testify on the whereabouts of the exhibits before they were offered in evidence in court, militate against the prosecution's cause because they not only cast doubt on the identity of the corpus delicti but also tend to negate, if not totally discredit, the claim of regularity in the conduct of official police operation advanced by the OSG. Indeed, we cannot give much weight to the contention that the arresting officers in this case were not trained to apprehend and arrest drug offenders, because as agents of the government in law enforcement they are reasonably presumed to know the laws and the rules they are tasked to enforce.

We take this occasion to reiterate, albeit not needlessly, that the presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption, in other words, obtains only where nothing in the records is suggestive of the fact that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law.54 But where the official act in question is irregular on its face, an adverse presumption arises as a matter of course.55

All told, in view of the deviation of the apprehending officers from the mandated conduct of taking post-seizure custody of the dangerous drug in this case, there is no way to presume that the members thereof had performed their duties regularly. And even assuming that we can confidently rely on the credibility of the prosecution witnesses in this case, the evidence would still fall short of satisfying the quantum of evidence required to arrive at a finding of guilt beyond reasonable doubt because the evidence chain failed to conclusively connect petitioners with the seized drugs in a way that would establish that the specimens are one and the same as that seized in the first place and offered in court as evidence.

In Mallillin v. People,56 People v. Obmiranis57 and People v. Garcia,58 we declared that the failure of the prosecution to offer the testimony of key witnesses to establish a sufficiently complete chain of custody of a specimen of shabu, and the irregularity which characterized the handling of the evidence before the same was finally offered in court, fatally conflict with every proposition relative to the culpability of the accused. It is this same reason that now moves us to reverse the judgment of conviction in the present case.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 29867 dated 13 March 2007, affirming the joint decision of the Regional Trial Court of Quezon City, Branch 103 in Criminal Case Nos. Q-03-118301 and Q-03-118302 is REVERSED and SET ASIDE. Petitioners Ronald Carino y Asunzion and Rosana Andes y Nobelo are ACQUITTED on reasonable doubt and are accordingly ordered immediately released from custody unless they are lawfully held for another offense.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED.

Endnotes:


1 Rollo, pp. 12-31.

2 CA rollo, pp. 78-89; The assailed decision was penned by Associate Justice Renato C. Dacudao, then chairperson of the Court of Appeals Seventh Division, and was concurred in by Associate Justices Hakim S. Abdulwahid and Arturo G. Tayag.

3 Records, pp. 126-130. In Criminal Case Nos. Q-03-118301 and Q-03-118302.

4 The court was presided by Judge Jaime N. Salazar, Jr.

5 Records, pp. 12 and 127.The other members of the team were SPO4 Rene Cruz, PO2 Nelson Pangan, PO2 Arvin Nicolas, PO1 Felicito Salvador, PO1 Glen Calima and PO1 Joel Espirito. See the Joint Affidavit of PO1 Arnold Eugenio and PO1 Joseph Tayaban,

6 Id. at 2 and 4.

The inculpatory portion of the information against Ronald Carino, in Criminal Case No. Q-03-118301, reads:

That on or about the 20th day of June 2003, in Quezon City, Philippines, the said accused, not being authorized by law to possess or use any dangerous drug, did then and there [willfully], unlawfully and knowingly have in his/her possession and control zero point zero four (0.04) gram of Methylamphetamine Hydrochloride, a dangerous drug.

CONTRARY TO LAW.

The inculpatory portion of the information against Rosana Andes, in Criminal Case No. Q-03-118302, reads:

That on or about the 20th day of [June 2003], in Quezon City, Philippines, the said accused, not being authorized by law to possess or use any dangerous drug, did then and there [willfully], unlawfully and knowingly have in his/her possession and control zero point zero three (0.03) gram of Methylamphetamine Hydrochloride, a dangerous drug.

CONTRARY TO LAW.

7 The Comprehensive Dangerous Drugs Act of 2002.

8 Records, p. 22.

9 TSN, 8 March 2004, pp. 3-6.

10 TSN, 8 March 2004, pp. 6-8.

11 TSN, 8 March 2004, pp. 8-11.

12 TSN, 17 August 2004, pp. 4-8.

13 Id. at 10-11.

14 Id. at 11-14.

15 Records, p. 8. See Chemistry Report No. D-502-2003.

16 TSN, 2 February 2005, pp. 8 - 9.

17 Id. at 3-5.

18 Id. at 5-7.

19 TSN, 2 February 2005, pp. 14-15.

20 TSN, 7 March 2005, pp. 5-6.

21 Id. at 6-7.

22 Id. at 7-10.

23 Id. at 10-11. Ronnie Po, the nephew of the automobile repair shop owner in which Carino was employed, also testified that on the day petitioners were supposedly arrested, Carino indeed did not arrive at his place of work; TSN, 16 August 2005, pp. 1-5.

24 Records, pp. 126-130.

25 Records, p. 130. The trial court disposed of the cases as follows:

ACCORDINGLY, judgment is hereby rendered finding both accused GUILTY beyond reasonable doubt of the violation of Section 11, R.A. 9165 as charged and each is sentenced as follows:

1. In Q-03-118301, accused RONALD CARINO y ASUNZION is sentenced to a jail term of TWELVE (12) YEARS and ONE (1) DAY, as minimum to THIRTEEN (13) YEARS, as maximum and to pay a fine of P300,000.00; andcralawlibrary

2. In Q-03-118302, accused ROSANA ANDES y NOBELO is sentenced to a jail term of TWELVE (12) YEARS and ONE (1) DAY, as minimum to THIRTEEN (13) YEARS, as maximum and to pay a fine of P300,000.00; andcralawlibrary

The methylamphetamine hydrochloride involved in these cases are ordered transmitted to the PDEA thru the DDB for proper disposition.

SO ORDERED.

26 CA rollo, pp. 59-73.

27 Id. at 88-89. The Court of Appeals disposed of the case as follows:

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the appealed Joint Decision dated December 9, 2005 of the Regional Trial Court, Branch 103, Quezon City, in Criminal Case Nos. Q-03-118301 and Q-03-118302, finding the accused-appellants Ronald Carino y Asunzion and Rosana Andes y Nobelo guilty beyond reasonable doubt of violating Section 11, Article II of Republic Act No. 9165, and sentencing them each to an indeterminate penalty of twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum, plus a fine of P300,000.00 is hereby AFFIRMED in toto. Costs shall also be taxed against accused-appellants.

SO ORDERED.

28 Id. at 84-87.

29 Id. at 195.

30 Supra note 1.

31 Id. at 22.

32 Id. at 23.

33 Id. at 105-106.

34 Id. at 107-108.

35 Id. at 108.

36 People v. Simbahon, 449 Phil. 74, 81 (2003); People v. Laxa, 414 Phil. 156, 170 (2001); People v. Dismuke; People v. Mapa;

37 Id.; People v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51, 70.

38 Allen, Ronald J., et al., An Analytical Approach to Evidence, Little Brown & Co., USA (1989), p. 174.

39 Dangerous Drugs Board Regulation No. 1, s. (2002).

40 United States v. Howard-Arias, 679 F.2d 363, 366; United States v. Ricco, 52 F.3d 58.

41 Park C. Roger, et al., Evidence Law (1998), p. 507.

42 Records, p. 24. The Pre-trial Order states that the accused in these cases are the same accused charged in the information who pleaded not guilty on arraignment, and that they were arrested without a warrant of arrest.

43 29A Am. Jur. 2d Evidence - 946.

44 29A Am. Jur. 2d Evidence - 946.

45 See Graham v. State, 255 N.E.2d 652, 655.

46 Graham v. State, 255 N.E2d 652, 655.

47 Graham v. State, 255 N.E2d 652.

48 Graham v. State, 255 N.E2d 652, 655.

49 SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments. Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner.

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours;

(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender; Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former;

(7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; andcralawlibrary

(8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused and/or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH.

50 SEC. 21. x x x (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served, or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [emphasis supplied]

51 Approved on 30 August 2002 and became effective upon its publication in three (3) newspapers of general circulation and registration with the Office of the National Administrative Register.

52 Section 2. Seizure or confiscation of drugs or controlled chemicals or laboratory equipment.

A. The apprehending team having initial custody and control of dangerous drugs or controlled chemical or plant sources of dangerous drugs or laboratory equipment shall immediately, after the seizure and confiscation, physically inventory and photograph the same in the presence of:

(i) the person from whom such items were confiscated and/or seized or his/her representative or counsel;

(ii) a representative from the media;

(iii) a representative from the department of Justice; andcralawlibrary

(iv) any elected public official;

who shall be required to sign copies of the inventory report covering the drug/equipment and who shall be given a copy thereof. Provided, that the physical inventory and photograph shall be conducted at the place where the search is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of a seizure without warrant; Provided further that non-compliance with these requirement under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizure of and custody over said items.

b. The drugs or controlled chemicals or laboratory equipment shall be properly marked for identification, weighed when possible or counted, sealed, packed and labeled by the apprehending officer/team [emphasis supplied].

53 Adopted and approved on 22 November 2002 and became effective fifteen (15) days after its publication in two (2) newspapers of general circulation and registration with the Office of the National Administrative Register.

54 People v. Obmiranis, G.R. No. 181492, December 16, 2008.

55 Jones on Evidence, p. 94, citing Arkansas R. COM. V. CHICAGO R.L. & P.R. CO., 274 U.S. 597, 71 L Ed 1221, 1224.

56 G.R. No. 172953, April 30, 2008.

57 Supra.

58 G.R. No, 173480, 25 February 2009. The case cited the case of Mallillin v. People, G.R. No. 172953, April 30, 2008, as "Lopez v. People."

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