G.R. No. 205821, October 01, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GARRY DELA CRUZ Y DE GUZMAN, Accused-Appellant.
D E C I S I O N
Criminal Case No. 5450 (20920)
VIOLATION OF SECTION 5, A[R]TICLE (sic) II K OF THE
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(REPUBLIC ACT NO. 9165)
That on or about September 14, 2004, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell, deliver, transport, distribute or give away to another any dangerous drugs, did then and there wilfully, unlawfully and feloniously, SELL AND DELIVER to PO1 WILFREDO BOBON y TARROZA, a member of the PNP, who acted as buyer, one (1) small heat-sealed transparent plastic pack containing white crystalline substance having a total weight of 0.0120 gram which when subjected to qualitative examination gave positive result to the tests for the presence of METHAMPHETAMINE HYDROCHLORIDE (shabu) knowing the same to be a dangerous drug.
CONTRARY TO LAW.
Criminal Case No. 5451 (20921)
VIOLATION OF SECTION 11, ARTICLE II OF THE
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(REPUBLIC ACT NO. 9165)
That on or about September 14, 2004, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there wilfully, unlawfully and feloniously, have in his possession and under his custody and control six (6) pieces heat-sealed transparent plastic sachets each containing white crystalline substance, each weighing as follows: 1) 0.0135 gram; 2) 0.0183 gram; 3) 0.0542 gram; 4) 0.0197 gram; 5) 0.0100 [gram]; and 6) 0.0128 gram or a total of 0.1285 gram; which when subjected to qualitative examination gave positive result to the tests for Methamphetamine Hydrochloride (shabu) knowing same to be a dangerous drug.
CONTRARY TO LAW.3 (Citations omitted)
WHEREFORE, this Court finds:chanroblesvirtuallawlibrary1. In Criminal Case No. 5450 (20920), accused GARRY DELA CRUZ y DE GUZMAN guilty beyond reasonable doubt for violating Section 5, Article II of R.A. 9165 and sentences him to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000) without subsidiary imprisonment in case of insolvency;The methamphetamine hydrochloride used as evidence in these cases are hereby ordered confiscated to be turned over to the proper authorities for disposition.
2. In Criminal Case No. 5451 (20921), accused GARRY DELA CRUZ y DE GUZMAN guilty beyond reasonable doubt for violating Section 11, Article II of R.A. 9165 and sentences him to suffer the penalty of TWELVE YEARS AND ONE DAY to FOURTEEN YEARS of imprisonment and pay a fine of THREE HUNDRED THOUSAND PESOS (P300,000) without subsidiary imprisonment in case of insolvency.
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.
On the other hand, in prosecutions for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond reasonable doubt.21chanrobleslaw
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:chanRoblesvirtualLawlibrary
(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;
. . . .
As this court declared in People v. Morales, “failure to comply with Paragraph 1, Section 21, Article II of RA 9165 implie[s] a concomitant failure on the part of the prosecution to establish the identity of the corpus delicti.”23 It “produce[s] doubts as to the origins of the [seized paraphernalia].”24cralawlawlibrary
The significance of ensuring the integrity of drugs and drug paraphernalia in prosecutions under Republic Act No. 9165 is discussed in People v. Belocura:25cralawlawlibraryWorse, 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 Malilin v. People,27 this court explained that the exactitude required by Section 21 goes into the very nature of narcotics as the subject of prosecutions under Republic Act No. 9165:chanroblesvirtuallawlibrary
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.26 (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.Compliance with the chain of custody requirement provided by Section 21, therefore, ensures the integrity of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia in four (4) respects: first, the nature of the substances or items seized; second, the quantity (e.g., weight) of the substances or items seized; third, the relation of the substances or items seized to the incident allegedly causing their seizure; and fourth, the relation of the substances or items seized to the person/s alleged to have been in possession of or peddling them. Compliance with this requirement forecloses opportunities for planting, contaminating, or tampering of evidence in any manner.
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.28 (Emphasis supplied)
By failing to establish identity of corpus delicti, non-compliance with Section 21 indicates a failure to establish an element of the offense of illegal sale of dangerous drugs. It follows that this non-compliance suffices as a ground for acquittal. As this court stated in People v. Lorenzo:29In 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.30 (Emphasis supplied)The prosecution’s sweeping guarantees as to the identity and integrity of seized drugs and drug paraphernalia will not secure a conviction. Not even the presumption of regularity in the performance of official duties will suffice. In fact, whatever presumption there is as to the regularity of the manner by which officers took and maintained custody of the seized items is “negated.”31 Republic Act No. 9165 requires compliance with Section 21.
Even the doing of acts which ostensibly approximate compliance but do not actually comply with the requirements of Section 21 does not suffice. In People v. Magat,32 for instance, this court had occasion to emphasize the inadequacy of merely marking the items supposedly seized: “Marking of the seized drugs alone by the law enforcers is not enough to comply with the clear and unequivocal procedures prescribed in Section 21 of R.A. No. 9165.”33cralawlawlibrary
The exactitude which the state requires in handling seized narcotics and drug paraphernalia is bolstered by the amendments made to Section 21 by Republic Act No. 10640. Section 21(1), as amended, now includes the following proviso, thereby making it even more stringent than as originally worded:chanRoblesvirtualLawlibraryProvided, 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:
In People v. Nandi,34 this court explained that four (4) links “should be established in the chain of custody of the confiscated item: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.”35cralawlawlibrary
In Nandi, where the prosecution failed to show how the seized items were handled following the actual seizure and, thereafter, turned over for examination, this court held that the accused must be acquitted:chanroblesvirtuallawlibraryAfter 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.36 (Citations omitted)
Thus, other than the markings made by PO1 Garcia and the police investigator (whose identity was not disclosed), no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required by R.A. No. 9165 and its implementing rules. We observe that while there was testimony with respect to the marking of the seized items at the police station, no mention whatsoever was made on whether the marking had been done in the presence of Ruiz or his representatives. There was likewise no mention that any representative from the media and the Department of Justice, or any elected official had been present during this inventory, or that any of these people had been required to sign the copies of the inventory.39 (Citations omitted)
We found no gap in the prosecution’s presentation of the chain of custody. There was a seizure of seven (7) heat-sealed sachets of shabu as a result of a valid buy-bust operation. PO1 Bobon and SPO1 Roca testified how the seizure was conducted. PO1 Bobon was able to identify the shabu which were involved in the illegal sale vis-a-vis the one involved in illegal possession because he knowingly put them in different pockets. The seized drugs were marked at the police station which was only 200 meters away from the area where the arrest was made. The identity of these seized items were secured as PO1 Bobon placed tapes on the respective heat-sealed sachets of shabu and marked them with his initials which he later identified in court.42 (Citation omitted)
While the miniscule amount of narcotics seized is by itself not a ground for acquittal, this circumstance underscores the need for more exacting compliance with Section 21. In Malilin v. People, this court said that “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.”
. . . .
Trial courts should meticulously consider the factual intricacies of cases involving violations of Republic Act No. 9165. All details that factor into an ostensibly uncomplicated and barefaced narrative must be scrupulously considered. Courts must employ heightened scrutiny, consistent with the requirement of proof beyond reasonable doubt, in evaluating cases involving miniscule amounts of drugs. These can be readily planted and tampered. . . . 44 (Citations omitted)
It is lamentable that while our dockets are clogged with prosecutions under Republic Act No. 9165 involving small-time drug users and retailers, we are seriously short of prosecutions involving the proverbial “big fish.” We are swamped with cases involving small fry who have been arrested for miniscule amounts. While they are certainly a bane to our society, small retailers are but low-lying fruits in an exceedingly vast network of drug cartels. Both law enforcers and prosecutors should realize that the more effective and efficient strategy is to focus resources more on the source and true leadership of these nefarious organizations. Otherwise, all these executive and judicial resources expended to attempt to convict an accused for 0.05 gram of shabu under doubtful custodial arrangements will hardly make a dent in the overall picture. It might in fact be distracting our law enforcers from their more challenging task: to uproot the causes of this drug menace. We stand ready to assess cases involving greater amounts of drugs and the leadership of these cartels.45chanrobleslaw
1People v. Holgado, G.R. No. 207992, August 11, 2014 [Per J. Leonen, Third Division].
2Rollo, p. 3.
3 Id. at 4.
4 Id. at 6.
7 Id. at 7.
9 CA rollo, p. 41.
11 Rollo, p. 7.
12 Id. at 5.
13 Id. at 7–8.
14 Id. at 8.
15 Id. at 9.
16 Id. at 3–18.
17 Id. at 19–20.
18 Id. at 25.
19 Id. at 27–28.
20 Id. at 30–31.
21People v. Morales, G.R. No. 172873, March 19, 2010, 616 SCRA 223, 235 [Per J. Del Castillo, Second Division], citing People v. Darisan et al., 597 Phil. 479, 485 (2009) [Per J. Corona, First Division] and People v. Partoza, 605 Phil. 883, 890 (2009) [Per J. Tinga, Second Division].
22 G.R. No. 207992, August 11, 2014 [Per J. Leonen, Third Division].
23People v. Morales, G.R. No. 172873, March 19, 2010, 616 SCRA 223, 236 [Per J. Del Castillo, Second Division].
24People 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].
25 G.R. No. 173474, August 29, 2012, 679 SCRA 318 [Per J. Bersamin, First Division].
26 Id. at 337–338.
27 576 Phil. 576 (2008) [Per J. Tinga, Second Division].
28 Id. at 588–589.
29 G.R. No. 184760, April 23, 2010, 619 SCRA 389 [Per J. Perez, Second Division].
30 Id. at 401.
31People 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].
32 588 Phil. 395 (2008) [Per J. Tinga, Second Division].
33 Id. at 97.
34 G.R. No. 188905, July 13, 2010, 625 SCRA 123 [Per J. Mendoza, Second Division].
35 Id. at 133, citing People v. Zaida Kamad, G.R. No. 174198, January 19, 2010, 610 SCRA 295 [Per J. Brion, Second Division].
36 Id. at 133–134.
37 People v. Holgado, G.R. No. 207992, August 11, 2014 [Per J. Leonen, Third Division].
38 599 Phil. 416 (2009) [Per J. Brion, Second Division].
39 Id. at 429.
40 CA rollo, p. 41.
42Rollo, p. 14.
43 CA rollo, p. 41.
44 G.R. No. 207992, August 11, 2014 jurisprudence/2014/august2014/207992.pdf> [Per J. Leonen, Third Division].