G.R. No. 209785, June 04, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARLON ABETONG Y ENDRADO, Accused-Appellant.
D E C I S I O N
VELASCO JR., J.:
That on or about the 22nd day of August 2003, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized by law to sell, trade, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drugs, did, then and there wilfully, unlawfully and feloniously sell, deliver, give away to a police poseur buyer in a buy-bust operation one (1) heat-sealed transparent plastic packet containing methylamphetamine hydrochloride or shabu weighing 0.02 gram(s) more or less, in exchange for a price of P100.00 in mark money, consisting of two (2) P50.00 bill with Serial Nos. BZ323461 and CN467805, in violation of the aforementioned law.During trial, prosecution witness Police Officer 3 Wilfredo Perez (PO3 Perez) of the Police Station 1, Bacolod City Police Office, testified that, in the morning of August 22, 2003, their office received information that a certain alias “Cano,” later identified as accused-appellant, was selling drugs in his house at Purok Sigay, Barangay 2, Bacolod City. Police Senior Inspector Jonathan Lorilla (Inspector Lorilla) then called for a briefing for the conduct of a buy-bust operation against “Cano” and designated PO3 Perez as the poseur-buyer. In preparation for the operation, PO3 Perez initialled two (2) PhP 50 bills bearing Serial Nos. CN467805 and BZ323461, which were going to be used as marked money. After recording the details of the preparation in the police blotter, PO3 Perez and the informant proceeded to the address while Inspector Lorilla and some of his personnel tailed in a car.
Act contrary to law.
Testifying in his defense, accused Marlon Abetong declared being at home in Purok Sigay, Brgy. 2, Bacolod City at 11:50 AM of August 22, 2003, sweeping the floor, alone. Suddenly, a male person entered the open door and held him by his pants. When Marlon asked what his fault was, the man answered to just go with him. The person was in civvies, fair-skinned and tall; he did not introduce himself. Marlon was handcuffed while they were at the foot-walk heading to 26th Aguinaldo Street, and searched, but nothing was recovered from him except his money – P9.00. Accused was made to board a vehicle at Aguinaldo; three handcuffed persons were inside. All four were brought to BAC-Up 2 and placed in a cell. Abetong was not informed of the cause of his arrest; no drugs were presented to him. He knew of the charge – Violation of Section 5, R.A. 9165 – only during arraignment in court.
WHEREFORE, finding accused Marlon Abetong y Endrardo guilty beyond reasonable doubt of Violation of Section 5, Article II of R.A. 9165 (Sale, Delivery, etc. of Dangerous Drugs), as charged, judgment is hereby rendered sentencing him to suffer Life Imprisonment and to pay a fine of P500,000.00. He is also to bear the accessory penalty prescribed by law. Costs against accused.Aggrieved, accused-appellant appealed to the CA, raising the sole issue that his guilt was not proved beyond reasonable doubt. He maintained that, assuming without conceding the validity of the buy-bust operation, the prosecution failed to sufficiently prove that the integrity of the evidence was preserved. Raising non-compliance with Sec. 21 of RA 9165, he argued, among others: (1) that the markings on the items seized do not bear the date and time of the confiscation, as required; (2) that about three days have passed since the items were confiscated before they were brought to the crime laboratory; and (3) that there was neither an inventory nor a photograph of the recovered plastic sachet. Accused-appellant likewise hinged his appeal on the fact that Inspector Lorilla, who had the only key to the evidence locker, did not testify during trial.cra1awredjgc
The subject one (1) sachet of methamphetamine hydrochloride/shabu (Exh. “B-3-A”) recovered/bought from him being a dangerous drug, the same is hereby ordered confiscated and/or forfeited in favor of the government, and to be forthwith delivered/turned over to the Philippine Drug Enforcement Agency (PDEA) provincial office for immediate destruction or disposition in accordance with law.
The immediate commitment of accused to the national penitentiary for service of sentence is likewise further ordered.
WHEREFORE, premises considered, the appeal is DENIED. The decision dated May 25, 2011 of the Regional Trial Court Branch 47 in Bacolod City, convicting the accused-appellant of the offense charged and sentencing him to life imprisonment and to pay a fine of P500,000.00, is AFFIRMED.In upholding the RTC conviction, the CA ratiocinated that the prosecution’s evidence was sufficient to afford the court a reliable assurance that the evidence presented is one and the same as those confiscated from accused-appellant. Hence, this appeal.cra1awredjgc
Section 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:chanroblesvirtuallawlibraryThe case People v. Musa5 was instrumental for the CA in justifying leniency in the compliance with Sec. 21 of RA 9165. Relying on the case, the CA dispensed with several procedural requirements resulting in accused-appellant’s conviction. As cited:
(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.
Since the “perfect chain” is almost always impossible to obtain, non-compliance with Sec. 21 of RA 9165, as stated in the Implementing Rules and Regulations, does not, without more, automatically render the seizure of the dangerous drug void, and evidence is admissible as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team.Jurisprudence indeed instructs that failure to observe strictly the above-quoted provision can be excused as long as (1) the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers and (2) non-compliance was attended by justifiable grounds.6 However, the prosecution in this case was unsuccessful in showing that there was no opportunity for tampering, contamination, substitution, nor alteration of the specimens submitted. On the contrary, there is a dearth of evidence to show that the evidence presented was well-preserved. The prosecution likewise failed to offer any justification on why the afore-quoted provision was not complied with.
In the present case, accused-appellants insist on the police officer’s non-compliance with the chain of custody rule since there was “no physical inventory and photograph of the seized items were taken in their presence or in the presence of their counsel, a representative from the media and the Department of Justice and an elective official.”
We, however, find these observations insignificant since a review of the evidence on record shows that the chain of custody rule has been sufficiently observed by the apprehending officers.
It is evident from this sequence of events that during the interim, Inspector Lorilla constructively acquired custody over the seized items. As the lone key holder and consequentially a link in the chain, Inspector Lorilla’s testimony became indispensable in proving the guilt of accused-appellant beyond reasonable doubt. Only he could have testified that from August 22 to 25, 2003 no one else obtained the key from him for purposes of removing the items from their receptacle. Only he could have enlightened the courts on what safety mechanisms have been installed in order to preserve the integrity of the evidence acquired while inside the locker. Absent his testimony, therefore, it cannot be plausibly claimed that the chain of custody has sufficiently been established. To be sure, PO3 Perez did not even testify that he was assigned to safeguard the evidence locker for the said duration; only that he was the one who put it in and three days later took them out of the locker room before bringing them to the crime laboratory.
Q: From the time that the items were confiscated on August 22, 2003 at around 11:50 in the morning up to the time it was delivered to the PNP Crime Laboratory on August 25, 2003 at 10:40 in the morning, where were the items kept? A: It was placed in the evidence locker of the Drug Enforcement Unit together with other exhibits. Q: Who placed the confiscated items inside the locker in the office of the Drug Enforcement Unit? A: Myself. Q: Who keeps the key to that locker? A: Police Inspector Jonathan Lorilla. Q: Aside from Police Inspector Jonathan Lorilla, is there any other person who has access to that locker? A: No more.
From the foregoing transcript, the incongruence between the weight of the drug accused-appellant is being charged of selling and the weight of the drug tested by the forensic chemist becomes patent. For sure, this discrepancy in the weight of the substance is fatal to the case of the prosecution.18 It automatically casts doubt as to the identity of the item seized and of the one tested as it erases any assurance that the evidence being offered is indeed the same as the one recovered during the buy-bust operation.
Q: Tell us what kind of tests did you conduct on the specimen? A: This consists of the physical, chemical and confirmatory tests. In the physical this includes the weighing of the specimen out of its container. Specimen “A” weighs 0.04 gram of white crystalline substance. Then I proceeded to my chemical test in which Marqui and Simons tests were employed. In the Marqui test, a drop of Marqui reagent was added to the representative sample and it [yielded] orange-to-brown color which is indicative of the presence of methamphetamine hydrochloride. In the Simons test, Simons reagents 1, 2 and 3 were added to another representative sample and it produced a deep-blue color reaction, also indicative of the presence of methamphetamine hydrochloride. x x x x Q: For the record, please read the description of Specimen “A” A: One heat-sealed transparent plastic packet with markings containing 0.04 gram of white crystalline substance, placed inside a staple-sealed transparent plastic bag with markings.
* Acting member per Special Order No. 1691 dated May 22, 2014.
1 Penned by Executive Justice Pampio A. Abarintos and concurred in by Associate Justices Gabriel T. Ingles and Marilyn B. Lagura-Yap.
2 Records, p. 1.
3 Id. at 224-225.
4 Id. at 221-231.
5 G.R. No. 199735, October 24, 2012, 684 SCRA 622.
6People v. De Guzman, G.R. No. 186498, March 26, 2010, 616 SCRA 652, 662.
7Catuiran v. People, G.R. No. 175647, May 8, 2009, 587 SCRA 567, 578-579.
8People v. Arriola, G.R. No. 187736, February 8, 2012, 665 SCRA 581, 597; citing Mallillin v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632.
9 TSN, May 6, 2009, p. 24.
10 Id. at 25.
11People v. Abelita, G.R. No. 96318, June 26, 1992, 210 SCRA 497.
12Rollo, p. 13.
13 Records, p. 4.
14 TSN, October 12, 2004, p. 6.
15Cariño v. People, G.R. No. 178757, March 13, 2009, 581 SCRA 388, 406.
16People v. Capuno, GR No. 185795, January 19, 2011, 640 SCRA 233, 251.
17 TSN, October 12, 2004, pp. 3-4.
18People v. Suan, G.R. No. 184546, February 22, 2010, 613 SCRA 366.
19People v. Climaco, G.R. No. 199403, June 13, 2012, 672 SCRA 631, 641.