[G.R. NO. 180693 : September 4, 2009]
BONIFACIO DOLERA Y TEJADA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
CARPIO MORALES, J.:
Bonifacio T. Dolera (petitioner) was charged before the Regional Trial Court of Quezon City with violation of Section 11, Article II of Republic Act No. 9165 (R.A. 9165) or the Comprehensive Dangerous Drugs Act of 2002 under an Information reading
x x x
That on or about the 14th day of August, 2003 in Quezon City, Philippines, the said accused not being authorized by law to possess or use any dangerous drug, did then and there, wilfully, unlawfully and knowingly have in [his] possession and control, Zero point twenty (0.20) grams of white crystalline substance containing Methylamphetamine [sic] hydrochloride a dangerous drug.1
CONTRARY TO LAW.
From the evidence for the prosecution, the following version is gathered.
On August 14, 2003, at 3:30 in the afternoon, PO2 Reynaldo Labon (PO2 Labon), PO1 Arnold PeÃ±alosa (PO1 PeÃ±alosa) and PO2 Victor Aquino, having received a report of drug trafficking in the vicinity of Bicol Street in Barangay Payatas, Quezon City, conducted a surveillance along the area.2
While at the target area, PO2 Labon saw petitioner, at a distance of seven meters, standing near an alley adjoining Bicol Street, scrutinizing a transparent plastic sachet containing white crystalline substance. PO2 Labon, who was in civilian clothes, thus alighted from the vehicle, followed by PO1 Penalosa, and approached petitioner.3 After introducing himself as a policeman, PO2 Labon asked petitioner what he was holding, but the latter, who appeared "natulala,"4 did not reply.
Suspecting that the white crystalline substance inside the plastic sachet was shabu, PO2 Labon confiscated the same5 and handcuffed petitioner. PO1 PeÃ±alosa then frisked petitioner and recovered a heat-sealed plastic sachet also containing white crystalline substance from the right front pocket of petitioner's pants. After informing him of his constitutional rights, petitioner was brought to the police station for further investigation.6
At the police station, PO2 Labon and PO1 PeÃ±alosa marked the plastic sachets with their respective initials "RL" and "AP"7 before turning them over to the case investigator. Later in the day, the two plastic sachets including their contents were brought to the PNP Crime Laboratory for examination. The Chemistry Report8 which recorded the result of the laboratory examination showed that each of the sachets contained 0.10 grams of shabu, a dangerous drug.
The parties9 having stipulated that forensic analyst Leonard M. Jabonillo examined the substances and came up with his findings in his Report, his testimony was dispensed with.
Upon the other hand, petitioner, denying the charge, gave the following version:
He was standing infront of his house waiting for a ride to the public market when three men in civilian clothes alighted from a white "FX" and forced him to board the vehicle. The three brought him to the police station where he was asked to identify a drug pusher in their place. When he replied that he did not know of any, they told him that "tutuluyan nila ako." He was then detained and was subjected to inquest proceedings after four days.10
The trial court, by Decision11 of July 20, 2005, convicted petitioner and sentenced him "to suffer a jail term of twelve years and one day as minimum and thirteen years as maximum and to pay a fine of
P300,000." The trial court observed:
The court finds it quite improbable that police officers in broad daylight would just stop and take away with them a person who is doing nothing but standing on the street in front of his house.
x x x
The accused was brought to the police station for investigation and when asked if it is true that he has shabu, the answer of the accused: "Wala naman po" does not inspire the confidence that an innocent person, who is 35 years old and married with a baby, would have said.
Moreover, the defense of the accused becomes more unconvincing in view of the fact that not even his wife with a baby and his auntie who lives in the same house with him came to court despite the lapse of a long time, to vouch for the accused. His neighbors whom the accused said saw him being arrested likewise did not come forward to corroborate his claimed innocence. (Underscoring supplied)cralawlibrary
The Court of Appeals, before which appellant appealed and questioned, among other things, his warrantless arrest, by Decision12 of October 30, 2006, affirmed petitioner's conviction. In brushing aside appellant's questioning of his warrantless arrest, the appellate court held that he had waived the same when he submitted himself to the jurisdiction of the trial court.
On the merits, the appellate court held:
The bare denial of accused-appellant that shabu was found in his possession by the police officers deserves scant consideration. Accused-appellant testified that his arrest was witnessed by several persons who know him and who are known to him, however, he did not present anyone of them to corroborate his claim that no shabu was recovered from him when he was arrested by the police officers. It has been ruled time and again that a mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. Moreover, accused-appellant admitted that he does not know the police officers who arrested him as it was the first time that he saw them. In fact, accused-appellant does not impute any improper motive against the police officers who arrested him. The presumption that the police officers performed their duties in a regular manner, therefore, stands. (Emphasis and underscoring supplied)cralawlibrary
His motion for reconsideration having been denied by Resolution13 of November 21, 2007, petitioner filed the present Petition for Review .
Petitioner initially takes issue on the appellate court's ruling that he waived any objection to his arrest when he entered a plea upon arraignment and actively participated in the trial. Underscoring that an appeal in a criminal case opens the whole case for review, petitioner reiterates his lament that he was arrested without a warrant, asserting that "there was nothing unusual in [his] behavior then which w[ould] engender a genuine reason to believe that he was committing something illegal which would compel the police officers to approach him."14
Respecting the Chemistry Report, petitioner contends that it is hearsay, as the forensic analyst who prepared the document was never presented to identify it and testify thereon.15
Moreover, petitioner contends that the prosecution failed to establish the chain of custody of the seized illegal drugs to thus cast serious doubt on whether the specimens presented in court were the ones allegedly confiscated from him.16
The Solicitor General, maintaining, on the other hand, that the arrest of petitioner needed no warrant as it was done while petitioner was committing illegal possession of shabu, posits: Since PO2 Labon and PO1 PeÃ±alosa were conducting a surveillance based on a report of rampant drug trafficking in the area, the chance encounter with petitioner who was holding a plastic sachet with white crystalline contents gave the police officers reasonable suspicion to accost him and ask about the contents thereof. The police officers' suspicion was all the more heightened when petitioner was dumbfounded when asked about the plastic sachet.17
The Solicitor General further posits that the prosecution did not have to present the forensic analyst in view of petitioner's stipulation that the two plastic sachets seized from him were found to be positive for shabu.
Finally, the Solicitor General maintains that the seized plastic sachets were properly submitted to the police crime laboratory for testing, and, at all events, petitioner failed to rebut the presumption of regularity in the performance by the police officers of their official duties.
The petition is meritorious.
Prefatorily, the Court finds in order the appellate court's observation that it is too late for petitioner to question the legality of his arrest in view of his having already entered his plea upon arraignment and participated at the trial. Having failed to move to quash the information on that ground before the trial court,18 and having submitted himself to the jurisdiction of the trial court, any supposed defect in his arrest was deemed waived. For the legality of an arrest affects only the jurisdiction of the court over his person.19
It is with respect to the failure of the prosecution to prove the chain of custody of the allegedly seized evidence that the Court departs from the findings of the appellate and lower courts to warrant a reversal of petitioner's conviction.
For a prosecution for illegal possession of a dangerous drug to prosper, it must be shown that (a) the accused was in possession of an item or an object identified to be a prohibited or regulated drug; (b) such possession is not authorized by law; and (c) the accused was freely and consciously aware of being in possession of the drug.20
Thus Mallillin v. People21 emphasized:
Prosecutions for illegal possession of prohibited drugs necessitates [sic] 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. Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt. Be that as it may, 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. (Italics in the original; emphasis and underscoring supplied)
The standard operating procedure on the seizure and custody of dangerous drugs is found in Section 21, Article II of R.A. No. 9165 which provides:
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. (Emphasis supplied)cralawlibrary
Section 21(a) of Article II of the Implementing Rules and Regulations of R.A. No. 9165 more specifically mandates that:
(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 and underscoring supplied)cralawlibrary
Thus, with respect to the marking of dangerous drug by the apprehending officer or team in case of warrantless seizures such as in this case, it must be doneat the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable. This is in line with the "chain of custody" rule. People v. Sanchez22 elucidates:
. . . [I]n case of warrantless seizures such as a buy - bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law's intent of preserving their integrity and evidentiary value.
What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft. (Emphasis and underscoring supplied)cralawlibrary
For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. If the physical inventory and photograph are made at the nearest police station or office as allowed by the rules, the inventory and photography of the seized items must be made in accordance with Sec. 2 of Board Resolution No. 1, Series of 2002, but in every case, the apprehended violator or counsel must be present. Again, this is in keeping with the desired level of integrity that the handling process requires. Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody. (Italics in the original; emphasis and underscoring supplied)
Ranged against these evidentiary norms, the prosecution's terse treatment of its exacting duty to prove beyond reasonable doubt the guilt of accused-petitioner founders. Consider PO1 PeÃ±alosa's following testimony:
You said you turned over the confiscated item to the investigator?cralawred
Before you turned over the item what did you do with that item?cralawred
We marked it sir.
What markings was placed on the items before it was given to the Police Investigator?cralawred
Our initial sir.
What is your initial?cralawred
What about the items, what markings?cralawred
RL Reynaldo Labon sir.
x x x
After you turned over the specimen to the investigator, what happened to the specimen?cralawred
It was turned over to the PNP Crime Laboratory sir.
x x x x (Emphasis and underscoring supplied) 23
From the foregoing testimony of prosecution witness PO2 Penalosa which was essentially echoed by prosecution witness PO2 Labon, there is no showing how the flow of the custody of the drugs went from the time of the arrest of petitioner and alleged confiscation of the sachets up to the turnover thereof at the police station to the investigator according to PO2 Penalosa, to the desk officer according to PO2 Labon.
Neither is there a showing that the items were inventoried or photographed and marked in the presence of petitioner in accordance with statutory requirements. In fact, where in the police station and at what stage of the investigation was the supposed marking of evidence done were not even indicated.
And there is no indication whether the investigator and the desk officer were one and the same person, and what steps were undertaken to insure the integrity of the evidence.
Notably, the record shows that it was PO1 PeÃ±alosa who delivered the items to the crime laboratory.24 How they were turned over to him by the investigator or desk officer, the prosecution failed to give even a simple indication thereof.
There is thus a reasonable likelihood of substitution along the chain in that the two plastic sachets that tested positive for shabu were different from the items allegedly seized from petitioner. The Court has long considered such possibility of substitution as fatal for the prosecution.25
Worse, the two marked plastic sachets were not even presented, hence, not identified in open court by the police officers-witnesses and there is no explanation extant in the record of what happened to them after their laboratory examination.
Segueing to the Solicitor General's assertion that appellant already admitted that the two plastic sachets were seized from him and that the contents thereof were tested positive for shabu as contained in the trial court's Order of September 13, 2004 reading:
It is hereby stipulated by the parties that the items allegedly confiscated from the accused were submitted to the crime lab for examination and the findings were put into writing and the same were marked by the prosecution as EXHIBIT B-Request for laboratory examination; EXHIBIT C 'Chemistry Report No. D-765-2003; C-1 Findings; EXHIBIT D - Certification; EXHIBIT E - Specimen A; E-1 marking lmj; E-2 marking RL; EXHIBIT F - Specimen B; F-1 marking lmj; F-2 marking AP and EXHIBIT G - Brown envelope.
In view of this stipulation, the testimony of Engr. Leonard Jabonillo is hereby dispensed with.
x x x x (Italics, emphasis and underscoring supplied),
the same fails to impress.
The above-quoted stipulation of facts is self-explanatory. What was stipulated was that, among other things, "the items allegedly confiscated" were submitted for laboratory examination.
The Chemistry Report only confirmed the contents of two plastic sachets. Whether they were the same packets allegedly confiscated from petitioner, the prosecution failed to establish as there was yet again an unexplained break in the chain.
That the prosecution offered in evidence the request for laboratory examination, the chemistry report and the certification from the forensic analyst26 has no bearing on the question of whether the specimens submitted for chemical analysis were the same allegedly seized from petitioner. All that these exhibits proved were the existence and authenticity of the request for laboratory examination and the results of said examination, but not the required chain of custody from the time of seizure of the evidence until its presentation in court.
While there is no need to present all persons who came into contact with the seized drugs to testify in court,27 the prosecution still has to convincingly establish that the chain of custody remained unbroken throughout, and the seized items specifically identified. This the prosecution failed to discharge.
The appellate court's reliance on the presumption of regularity in the performance of official functions would not suffice to uphold petitioner's conviction. Once challenged by evidence, such as in this case, the presumption of regularity cannot be regarded as binding truth and cannot prevail over the presumption of innocence of petitioner-accused.28 Ï‚Î·Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ±rÃ¿
Although petitioner's defense is denial which, standing alone, is inherently weak, the Court has repeatedly stressed that the conviction of an accused must rest on the strength of the prosecution's evidence and not on the weakness of his defense.
The prosecution having failed to overturn the constitutional presumption of innocence in favor of petitioner, his acquittal is in order.
A final word. The Court notes the trial court's seemingly haphazard consideration of the circumstances of the case as mirrored in its decision. Its three-paragraph ratio decidendi only discussed the defense evidence and even rendered judgment on the basis of conjectures and suppositions. Noticeably, the decision never alluded to the prosecution evidence, nor even tackled in passing the basis of the penalties it imposed.
Exhorted to be extra vigilant in trying drug-related cases, courts should give more than lip service to the mandate of administering justice by undertaking a serious and comprehensive consideration of the pros and cons of the evidence offered by both the prosecution and defense in determining the merits of a case.29
WHEREFORE, for failure of the prosecution to prove his guilt beyond reasonable doubt, petitioner, BONIFACIO T. DOLERA, is ACQUITTED of the crime of illegal possession of dangerous drugs.
Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is ORDERED to cause the immediate release of petitioner, unless he is being lawfully held for another cause, and to inform this Court of action taken within ten days from notice.
No pronouncement as to costs.
1 Records, p. 1.
2 Transcript of Stenographic Notes, March 17, 2004, pp. 4-5.
3 Id. at 6, 14.
4 Id. at 16.
5 Id. at 7.
6 TSN, October 27, 2003, pp. 5-6.
7 Id. at 7-8.
8 Records, p. 8; Exhibit "C."
9 Id. at 44.
10 TSN, November 25, 2004, pp. 3-7.
11 Records, pp. 65-67; Penned by Judge Jaime Salazar Jr.
12 Rollo, pp. 67-73; Penned by Associate Justice Marina L. Buzon with Associate Justices Regalado E. Maambong and Japar B. Dimaampao concurring.
13 Id. at 85-86.
14 Id. at 15-20.
15 Id. at 22-23.
16 Id. at 24-27.
17 Id. at 96-102.
18 People v. Timon, 346 Phil. 572, 593 (1997).
19 People v. Nazareno, 329 Phil. 16, 22 (1996).
20 People v. Tiu Won Chua, 453 Phil. 177, 186 (2003).
21 G.R. No. 172953, April 30, 2008, 553 SCRA 619 (2008).
22 G.R. No. 175832, October 15, 2008, 569 SCRA 194.
23 TSN, October 27, 2003, pp.7-8.
24 Records, p. 6; At the lower left portion of Exhibit "B" is a stamped acknowledgement which reads:
CONTROL NO. 1892
T/D RECEIVED: 2000H 14 Aug '03
RECORDED BY: PO2 Plan
DELIVERED BY: PO1 PeÃ±alosa
25 Vide: Valdez v. People, 170180, November 23, 2007, 538 SCRA 611; People v. Ong, 476 Phil. 553 (2004); People v. Kimura, 471 Phil. 895 (2004); People v. Pedronan, 452 Phil. 226 (2003) and People v. Casimiro, 432 Phil. 966. (2002).
26 Exhibits "B," "C" and "D," records 6,8, and 10.
27 Vide: People v. Agulay, G.R. No.181747, September 26, 2008 and People v. Zeng Hua Dian G.R. No. 145348, 432 SCRA 25 (2004).
28 People v. Tan, 432 Phil. 171, 197 (2002).
29 People v. Sevilla, 394 Phil. 125, 159 (2000).