THIRD DIVISION
G.R. No. 207992, August 11, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROBERTO HOLGADO Y DELA CRUZ AND ANTONIO MISAREZ Y ZARAGA, Accused-Appellants.
D E C I S I O N
LEONEN, J.:
On or about January 17, 2007, in Pasig City and within the jurisdiction of this Honorable Court, the accused conspiring and confederating together and both of them mutually helping and aiding with (sic) one another, and not being lawfully authorized to sell any dangerous drug, did then and there wilfully, unlawfully and feloniously sell, deliver and give away to PO1 Philip Aure, one (1) piece of heat-sealed transparent plastic sachet containing five (5) centigrams (0.05 gram) of white crystalline substance, which was found to (sic) positive to the test for methylamphetamine hyrdrocloride (shabu), a dangerous drug, in violation of the said law.
Contrary to law.1chanrobleslaw
WHEREFORE, premises considered, judgment is hereby rendered –
In Crim. Case No. 15338-D finding both the accused Roberto Holgado and Antonio Misarez GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 (sale of dangerous drug), and each of them is hereby sentenced to suffer the penalty of life imprisonment. Each of them is also ordered to pay a fine of One Million Pesos (P1,000,000.00).
In Crim. Cases Nos. 15339-D and 15341-D for violation of Section 11 of R.A. 9165 (possession of dangerous drug) against accused Roberto Holgado and Antonio Misarez, they are hereby found NOT GUILTY of the said offense for lack of evidence.
In Crim. Case No. 15340-D for violation of Section 12 of R.A. 9165 (possession of drug paraphernalia) against Roberto Holgado, judgment is hereby rendered finding the said accused NOT GUILTY of the said offense charged against him on the ground of reasonable doubt.
The dangerous drugs and drug paraphernalia allegedly obtained from the persons of the accused and subject of the Informations are hereby ordered delivered forthwith to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.
Considering the penalty imposed by the Court on the accused ROBERTO HOLGADO and ANTONIO MISAREZ for violation of Section 5 of R.A. 9165 (sale of dangerous drug), their immediate commitment to the National Bilibid Prisons is hereby ordered.
SO ORDERED.18 (Underscoring in the original)
In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.25
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:cralawlawlibrary
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items 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, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of 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 and custody over said items. (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 by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of 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 immediately upon completion of the said examination and certification[.] (Emphasis supplied)
Worse, the Prosecution failed to establish the identity of the prohibited drug that constituted the corpus delicti itself. The omission naturally raises grave doubt about any search being actually conducted and warrants the suspicion that the prohibited drugs were planted evidence.
In every criminal prosecution for possession of illegal drugs, the Prosecution must account for the custody of the incriminating evidence from the moment of seizure and confiscation until the moment it is offered in evidence. That account goes to the weight of evidence. It is not enough that the evidence offered has probative value on the issues, for the evidence must also be sufficiently connected to and tied with the facts in issue. The evidence is not relevant merely because it is available but that it has an actual connection with the transaction involved and with the parties thereto. This is the reason why authentication and laying a foundation for the introduction of evidence are important.29 (Emphasis supplied)
Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit 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. Graham vs. State positively acknowledged this danger. In that case where a substance later analyzed as heroin—was 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—was excluded from the prosecution evidence, the court pointing 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.
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. 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 the same 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.31 (Emphasis supplied)
In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict.33 (Emphasis supplied)
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:
After a closer look, the Court finds that the linkages in the chain of custody of the subject item were not clearly established. As can be gleaned from his forequoted testimony, PO1 Collado failed to provide informative details on how the subject shabu was handled immediately after the seizure. He just claimed that the item was handed to him by the accused in the course of the transaction and, thereafter, he handed it to the investigator.
There is no evidence either on how the item was stored, preserved, labeled, and recorded. PO1 Collado could not even provide the court with the name of the investigator. He admitted that he was not present when it was delivered to the crime laboratory. It was Forensic Chemist Bernardino M. Banac, Jr. who identified the person who delivered the specimen to the crime laboratory. He disclosed that he received the specimen from one PO1 Cuadra, who was not even a member of the buy-bust team. Per their record, PO1 Cuadra delivered the letter-request with the attached seized item to the CPD Crime Laboratory Office where a certain PO2 Semacio recorded it and turned it over to the Chemistry Section.
In view of the foregoing, the Court is of the considered view that chain of custody of the illicit drug seized was compromised. Hence, the presumption of regularity in the performance of duties cannot be applied in this case.Given the flagrant procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its custody, a presumption of regularity in the performance of duties cannot be made in this case. A presumption of regularity in the performance of official duty is made 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 applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise. In light of the flagrant lapses we noted, the lower courts were obviously wrong when they relied on the presumption of regularity in the performance of official duty.With the chain of custody in serious question, the Court cannot gloss over the argument of the accused regarding the weight of the seized drug. The standard procedure is that after the confiscation of the dangerous substance, it is brought to the crime laboratory for a series of tests. The result thereof becomes one of the bases of the charge to be filed.39 (Citations omitted)
"WHEREFORE, premises considered, the decision dated February 18, 2013 of the Court of Appeals in CA-G.R. CR-HC No. 04635 is REVERSED and SET ASIDE. Accused-appellants Roberto Holgado y Dela Cruz and Antonia Misarez y Zaraga are hereby ACQUITTED for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention, unless they are confined for any other lawful cause.
Let a copy of this decision be furnished to the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director of Bureau of Corrections is directed to report to this court within five (5) days from receipt of this decision the action he has taken. Copies shall also be furnished to the Director General of Philippine National Police and the Director General of the Philippine Drugs Enforcement Agency for their information.
The Regional Trial Court is directed to turn over the seized sachet of methamphetamine hydrochloride to the Dangerous drugs Board for destruction in accordance with law.
SO ORDERED.chanrobleslaw
Endnotes:
* Designated as Acting Member in view of the vacancy in the Third Division per Special Order No. 1691 dated May 22, 2014.
1Rollo, pp. 3–4.
2 CA rollo, p. 27.
3 Id. at 28.
4 Id. at 28–29.
5 Id. at 29.
6 CA rollo, pp. 29–30 and rollo, p. 5.
7 CA rollo, p. 30.
8 Id. at 29–30.
9Rollo, pp. 2–3.
10 CA rollo, p. 30.
11 Rollo, p. 5 and CA rollo, p. 158.
12 Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.
The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions.
If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case.
For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemical trade, the maximum penalty shall be imposed in every case.
If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed.
The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section.
The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.
13 Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof:cralawlawlibrary
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or "shabu";
(6) 10 grams or more of marijuana resin or marijuana resin oil;
(7) 500 grams or more of marijuana; and
(8)10 grams or more of other dangerous drugs such as, but not limited to, methylenedioxymethamphetamine (MDA) or "ecstasy", paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxyamphetamine (GHB), and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements, as determined and promulgated by the Board in accordance to Section 93, Article XI of this Act.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:(1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams;chanroblesvirtuallawlibrary14 Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. - The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body: Provided, That in the case of medical practitioners and various professionals who are required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession, the Board shall prescribe the necessary implementing guidelines thereof.
(2) Imprisonment of twenty (20) years and one (1) day to life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantities of dangerous drugs are five (5) grams or more but less than ten (10) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or three hundred (300) grams or more but less than five (hundred) 500) grams of marijuana; and(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana.
The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act.
15Rollo, p. 4.
16 CA rollo, pp. 32-33.
17 Id. at 33-38.
18 Id. at 37–38.
19Rollo, pp. 2–10.
20 Id. at 12.
21 Rollo, p. 17.
22 Id. at 21-22.
23 Id. at 28-37.
24 G.R. No. 172873, March 19, 2010, 616 SCRA 223 [Per J. Del Castillo, Second Division].
25 Id. at 235, citing People v. Darisan, 597 Phil. 479, 485 (2009) [Per J. Corona, First Division] and People v. Partoza, 605 Phil. 883 (2009) [Per J. Del Castillo, Second Division].
26People v. Morales, G.R. No. 172873, March 19, 2010, 616 SCRA 223, 236 [Per J. Del Castillo, Second Division].
27People v. Laxa, 414 Phil. 156, 170 (2001) [Per J. Mendoza, Second Division], as cited in People v. Orteza, G.R. No. 173051, July 31, 2007, 528 SCRA 750, 758 [Per J. Tinga, Second Division].
28 G.R. No. 173474, August 29, 2012, 679 SCRA 318 [Per J. Bersamin, First Division].
29 Id. at 337–338.
30 576 Phil. 576 (2008) [Per J. Tinga, Second Division].
31 Id. at 588–589.
32 G.R. No. 184760, April 23, 2010, 619 SCRA 389 [Per J. Perez, Second Division].
33 Id. at 401.
34People v. Navarrete, G.R. No. 185211, June 6, 2011, 650 SCRA 609, 618 [Per J. Carpio-Morales, Third Division]. See also People v. Ulat, G.R. No. 180504, October 5, 2011, 650 SCRA 607 [Per J. Leonardo-De Castro, First Division].
35 588 Phil. 395 (2008) [Per J. Tinga, Second Division].
36 Id. at 97.
37 G.R. No. 188905, July 13, 2010, 625 SCRA 123 [Per J. Mendoza, Second Division].
38 Id. at 133, citing People v. Zaida Kamad, G.R. No. 174198, January 19, 2010, 610 SCRA 295 [Per J. Brion, Second Division].
39 Id. at 133–134.
40Rollo, pp. 31–32; supplemental brief, pp. 4–5.
41 CA rollo, p. 30.
42Rollo, p. 29; supplemental brief, p. 2.
43 Id. at 31; supplemental brief, p. 5.
44 Id.
45 G.R. No. 186467, July 13, 2011, 653 SCRA 803 [Per J. Mendoza, Third Division].
46 G.R. No. 178202, May 14, 2010, 620 SCRA 561 [Per J. Velasco, Jr., Third Division].
47 Id. at 576–577.
48 Id. at 577.
49 G.R. No. 188905, July 13, 2010, 625 SCRA 123 [Per J. Mendoza, Second Division], citing People v. Zaida Kamad, G.R. No. 174198, January 19, 2010, 610 SCRA 295 [Per J. Brion, Second Division].
50 576 Phil. 576 (2008) [Per J. Tinga, Second Division].
51 Id. at 633.
52 CA rollo, pp. 33-38.