THIRD DIVISION
G.R. No. 217805, April 02, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALSARIF BINTAIB Y FLORENCIO A.K.A. "LENG," Accused-Appellant.
D E C I S I O N
MARTIRES, J.:
We resolve the appeal from the 24 April 2015 Decision1 of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 01045-MIN. The CA affirmed the conviction of Alsarif Bintaib y Florencio a.k.a. "Leng" (Bintaib) for illegal sale of shabu.
That on or about November 11, 2008, 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, give away to another, transport or distribute, any dangerous drug, did then and there willfully, unlawfully and feloniously sell and deliver to IO2 ABDULSOKOR S. ABDULGANI, a member of the Philippine Drug Enforcement Agency-9 (PDEA), Upper Calarian, Zamboanga City, who acted as poseur-buyer, one (1) heat-sealed transparent plastic sachet containing 0.0344 grams of white crystalline substance 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.On 7 August 2009, Bintaib, with the assistance of counsel, was arraigned and he entered a plea of not guilty. Pre-trial and trial on the merits followed.
CONTRARY TO LAW.3
WHEREFORE, in light of all the foregoing, this Court finds accused ALSARIF BINTAIB Y FLORENCIO A.K.A. "LENG" GUILTY beyond reasonable doubt for violating Section 5, Article II of the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165) and sentences him to suffer the penalty of LIFE IMPRISONMENT and pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00) without subsidiary imprisonment in case of insolvency.The RTC held that even if IO2 Abdulgani did not hand Bintaib money, it was established that they agreed that IO2 Abdulgani would buy shabu even before the drugs were handed to him. A clear manifestation that there was already an understanding between IO2 Abdulgani and Bintaib was the fact that the latter left after the conversation to get shabu and returned with a plastic sachet containing the drug. Further, the RTC said that the nonpayment by IO2 Abdulgani does not obviate the sale between them since payment is not an essential element of sale anyway.6
SO ORDERED.5
The evidence on record does not support appellant's position. On the contrary, the records clearly show that the prosecution had sufficiently established the absence of a gap in the chain of custody and that the shabu was properly identified at the trial. To reiterate, during the buy-bust operation, Abdulgani received from the appellant the sachet containing the prohibited drug. At the office, Abdulgani marked the sachet of shabu "ASA." The designated investigator also marked the same sachet "TBA." After preparing the letter request, the same investigator personally delivered the item to the crime laboratory for forensic examination. The content of the seized sachet was tested by Forensic Chemist Ade-Lazo and was verified to be methamphetamine hydrochloride (shabu). Finally, during trial, the marked sachet of shabu was clearly identified by Abdulgani and Belo.From this CA decision, the case is now before us for final review.
Truly, the foregoing facts confirmed that there was indeed no gap in the chain of custody of the shabu as the PDEA officers properly complied with the required procedure in the custody of the illegal drug. Verily, We see no doubt that the sachet marked "ASA" and "TBA," which was submitted for laboratory examination and later to be found positive for shabu, was the same one delivered by appellant to Abdulgani on November 11, 2008.
Accordingly, like the RTC, We hold that the integrity and the evidentiary value of the shabu coming from appellant was not compromised and that the prosecution was able to establish that the illegal drug presented in court was the very same specimen sold and delivered by appellant at the crime scene.x x x x x x x x x
WHEREFORE, in light of all the foregoing, We AFFIRM in toto the RTC's decision dated November 9, 2011.8
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:As a general rule, the apprehending team must strictly comply with the procedure laid out above because the process itself is a matter of substantive law, which cannot be brushed aside as a simple technicality.9 These provisions were crafted to address potential police abuses by narrowing the window of opportunity for tampering with evidence.10
(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 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 items; 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 the testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the qualities 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; [x x x]
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 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 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.11 [emphasis and underscoring ours]While the law allows the physical inventory and photographing to be done at the nearest police station, the presence of the insulating witnesses during this step is vital. Without the insulating presence of these persons, the possibility of switching, planting, or contamination of the evidence negates the credibility of the seized drug and other confiscated items.
Mere signature or presence of the insulating witness at the time of signing is not enough to comply with what is required under Section 21 of R.A. No. 9165. What the law clearly mandates is that they be present while the actual inventory and photographing of the seized drugs are happening. If we were to allow such circumvention of this requirement, we would open the floodgates to more mistaken drug convictions especially when planting evidence is a common practice.13
Q: Mr. Witness, you mentioned right after the preparation of the booking sheet and arrest report, your office conducted the inventory, in other words, Mr. Witness, the representative from the media, from the Department of Justice were already there in that office? A: The OIC called them and after a while they arrived and that was the time they placed their signatures on the inventory, sir. Q: When you arrested the accused, Mr. Witness, did you ask him to have any representative? A: No, sir. Q: So, when you arrived at the office, can you recall if there was any representative of the accused? A: We just told him that he is allowed to call anybody but they never came, sir. Q: Did you also allow the accused to call any representative from outside? A: He refused. Q: Mr. Witness, you mentioned that you marked the shabu, why is it in the inventory the marking was not mentioned in the certificate of inventory? A: No, sir, we did not put it in the inventory sir, the marking. Q: Mr. Witness, when you signed the certificate of inventory, [were] the representative from the media, DOJ, and elected official already there? A: Yes, sir.12
The court must be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses. We are aware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. Hence, the presumption that the regular duty was performed by the arresting officer could not prevail over the constitutional presumption of innocence of the accused.15Hence, since the apprehending team failed to comply with Section 21 of R.A. No. 9165, the presumption of regularity cannot work in their favor. This presumption arises only upon compliance with Section 21 of R.A. No. 9165, or by clearly or convincingly explaining the justifiable grounds for noncompliance.16 Anything short of observance and compliance by the arresting officers with what the law required means that the former did not regularly perform their duties.17 Judicial reliance on the presumption of regularity in the performance of official duty despite the lapses in the procedures undertaken is fundamentally unsound because the lapses themselves are affirmative proofs of irregularity.18
The first stage in the chain of custody rule is the marking of the dangerous drugs or related items. Marking, which is the affixing on the dangerous drugs or related items by the apprehending officer or the poseur-buyer of his initials or signature or other identifying signs, should be made in the presence of the apprehended violator immediately upon arrest. The importance of prompt marking cannot be denied, because succeeding handlers of the dangerous drugs or related items will use the marking as reference. Also, the marking operates to set apart as evidence the dangerous drugs or related items from other material from the moment they are confiscated until they are disposed of at the close of the criminal proceedings, thereby forestalling switching, planting or contamination of evidence. In short, the marking immediately upon confiscated or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value.21The prosecution's version is that IO2 Abdulgani only marked the item he bought from Bintaib at the police station and not immediately after the latter's arrest. The marking was done after a reasonable time of travel from the place of arrest to the police station. Notably, the marking was not done at the place of arrest even if IO2 Abdulgani could have easily placed his initials considering he had backup with him and there was no serious threat to their safety or possibility for Bintaib to escape. At this stage in the chain, there was already a significant break such that there could be no assurance against switching, planting or contamination. We have previously held that "failure to mark the drugs immediately after they were seized from the accused casts doubt on the prosecution evidence warranting an acquittal on reasonable doubt."22
| Very truly yours, |
(SGD) | |
WILFREDO V. LAPITAN | |
Division Clerk of Court |
"WHEREFORE, premises considered, the 24 April 2015 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 01045-MIN is REVERSED and SET ASIDE. Alsarif Bintaib y Florencio a.k.a. "Leng" is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is detained upon orders of other courts or for any other lawful cause.NOW, THEREFORE, You are hereby ordered to immediately release ALSARIF BINTAIB y FLORENCIO A.K.A. "LENG" unless there are other lawful causes for which he should be further detained, and to return this Order with the certificate of your proceedings within five (5) days from notice hereof.
Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court the action taken within five (5) days from receipt of this Decision.
SO ORDERED."
| Very truly yours, |
(SGD) | |
WILFREDO V. LAPITAN | |
Division Clerk of Court |
Endnotes:
1 CA rollo, pp. 99-108.
2 The Comprehensive Dangerous Drugs Act of 2002.
3 RTC records, pp. 1-2.
4 Id. at 76-85.
5 Id. at 85.
6 Id. at 82-83.
7 CA rollo, p. 104.
8 Id. at 105-108.
9Rontos v. People, 710 Phil. 328, 335 (2013) citing People v. Umipang, 686 Phil. 1024, 1038 (2012); People v. Sabdula, 733 Phil. 85-102 (2014).
10People v. Umipang, 686 Phil. 1024, 1038-1039 (2012); People v. Coreche, 612 Phil. 1238-1253 (2009).
11 In R.A. No. 106640, the amendment to Section 21 of R.A. No. 9165 was introduced where the last proviso in the IRR was incorporated in the law itself.
12 TSN, 21 April 2010, pp. 29-31.
13Valdez v. People, 563 Phil. 934, 956 (2007); People v, Dela Cruz, 666 Phil. 593, 619 (2011); Arcilla v. Court of Appeals, 463 Phil. 914-925 (2003); People v. Pagaura, 334 Phil. 683, 689-690 (1997).
14 334 Phil. 683-690 (1997).
15 Id. at 689-690.
16People v. Barte, G.R. No. 179749, 1 March 2017.
17 Id.
18People v. Mendoza, 736 Phil. 749, 770 (2014).
19People v. Casacop, 778 Phil. 369-378 (2016); People v. Akmad, 713 Phil. 581, 589 (2015); People v. Flores, 765 Phil. 535, 541 (2015).
20 708 Phil. 121-133 (2013).
21 Id. at 130-131.
22People v. Ismael, G.R. No. 208093, 20 February 2017 citing People v. Umipang, 686 Phil. 1024, 1050 (2012).