SECOND DIVISION
G.R. No. 222559, June 06, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JENNIFER GA-A Y CORONADO, Accused,
AQUILA "PAYAT" ADOBAR, Accused-Appellant.
D E C I S I O N
CAGUIOA, J.:
This is an Appeal1 filed pursuant to Section 13, Rule 124 of the Rules of Court from the Decision2 dated July 31, 2015 (assailed Decision) of the Court of Appeals, Twenty-Second (22nd) Division (CA) in CA-G.R. CR HC No. 01192-MIN. The assailed Decision affirmed in toto the Judgment3 dated July 25, 2013 rendered by the Regional Trial Court of Cagayan de Oro City, Branch 25 (trial court), in Criminal Case (CC) No. 2011-485, which found accused-appellant Aquila4 "Payat" Adobar (Adobar) guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act No. (RA) 9165,5 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."6
The accusatory portion of the Information7 filed on June 1, 2011 against Adobar reads:
That on or about May 9, 2011[,] at about 11:00 in the morning, more or less, at 32nd Street, Ramonal Village, [Barangay] Camaman-an, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to sell, trade, dispense and give away any dangerous drugs, did then and there willfully, unlawfully and illegally sell, trade, dispense and give away to another one (1) heat-sealed transparent plastic sachet containing white crystalline substance, to PDEA Agent Naomie Siglos, who acted as poseur-buyer, which after a confirmatory test conducted by the PNP Crime Laboratory, said sachet is found positive of the presence of 0.03 grams of Methamphetamine Hydrochloride, a dangerous drug commonly known as shabu, in consideration of Five Hundred pesos (Php500.00) with Serial No. MR443620 which is recorded as marked money in a buy bust operation.Adobar's co-accused, Jennifer Ga-a y Coronado (Ga-a), was charged on May 12, 2011 in two (2) other separate Informations for violation of Sections 119 and 1510, respectively, both of Article II of RA 9165. On September 27, 2011, she pleaded not guilty11 to both offenses charged and trial as against her commenced.
Contrary to and in Violation of Section 5 Article II of R.A. 9165.8
WHEREFORE, premises considered, this Court finds that:Adobar appealed to the CA via Notice of Appeal.64 He filed his Brief65 dated January 3, 2014, while the People, through the Office of the Solicitor General (OSG), filed its Brief66 dated April 28, 2014. In a Resolution67 dated June 18, 2014, the CA considered Adobar to have waived his right to file a Reply Brief.
1. In Criminal Cases Nos. 2011-422 and 2011-423, for failure of the prosecution to prove the guilt of the accused beyond reasonable doubt, JENNIFER C. GAA is hereby ACQUITTED of the offenses charged. The Warden of the BJMP having custody of JENNIFER C. GAA is hereby directed to immediately release her from detention unless she is accused of other crimes which will justify her continued incarceration.
2. In Criminal Case No. 2011-485, accused AQUILO ADOBAR a.k.a. "Payat" is GUILTY BEYOND REASONABLE DOUBT of the offense defined and penalized under Section 5, Article II of R.A. 9165 as charged in the Information, and hereby sentences him to suffer the penalty of Life Imprisonment and to pay the Fine in the amount of Five Hundred Thousand Pesos [P500,000.00], without subsidiary penalty in case of non-payment of fine.
Let the penalty imposed on accused Adobar be a lesson and an example to all who have the criminal propensity, inclination and proclivity to commit the same forbidden act that crime does not pay, and that the pecuniary gain and benefit, as well as the perverse psychological well being which one can derive from selling or manufacturing or trading drugs, or other illegal substance, or from using, or possessing, or just committing any other acts penalized under Republic Act 9165, cannot compensate for the penalty which one will suffer if ever he is prosecuted and penalized to the full extent of the law.
SO ORDERED.63 (Emphasis in the original)
IN VIEW OF THE FOREGOING, the appeal is hereby DENIED. The assailed Judgment dated July 25,2013 of the Regional Trial Court, Branch 25, Cagayan de Oro City is hereby AFFIRMED in toto.68The CA held that the prosecution adequately proved all the elements of the crime. It held that the prosecution sufficiently established all the links in the chain of custody as to remove doubt on the integrity of the subject drugs.
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:Filling in the details as to where the physical inventory and photographing of the seized items should be made is Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165 (IRR) which reads:
(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;
(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 item/s: Provided, That when the volume of the 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 on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (Emphasis supplied and italics in the original)
The same likewise provides for a saving clause in case of noncompliance with the requirements of RA 9165 and the IRR, thus:
(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; xxx (Emphasis supplied)
xxx 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 supplied)The foregoing is echoed in Section 2(a) of the Dangerous Drugs Board (DDB) Regulation No. 1, Series of 2002, to wit:
a. The apprehending team having initial custody and control of dangerous drugs or controlled chemical or plant sources of dangerous drugs or laboratory equipment shall immediately, after the seizure and confiscation, physically inventory and photograph the same in the presence of:In sum, the applicable law mandates the following to be observed as regards the time, witnesses and proof of inventory in the custody of seized dangerous illegal drugs:(i) the person from whom such items were confiscated and/or seized or his/her representative or counsel;(ii) a representative from the media;(iii) a representative from the Department of Justice; and,(iv) any elected public official;
who shall be required to sign copies of the inventory report covering the drugs/equipment and who shall 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 seizure without warrant; Provided further that non-compliance with these requirement under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team xxx.
In People v. Dela Cruz,78 it was explained that compliance with the chain of custody requirement provided by Section 21 ensures the integrity of confiscated drugs and related 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 personls alleged to have been in possession of or peddling them.
- The initial custody requirements must be done immediately after seizure or confiscation;
- The physical inventory and photographing must be done in the presence of:
- the accused or his representative or counsel;
- a representative from the media;
- a representative from the DOJ; and
- any elected public official.
- The conduct of the physical inventory and photograph shall be done at the:
- place where the search warrant is served; or
- at the nearest police station; or
- nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure.
xxx Without the insulating presence of the representative from the media or the [DOJ], or any elected public official during the seizure and marking of the sachets of shabu, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the sachets of shabu that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. xxx85 (Italics in the original)In the present case, none of these three (3) witnesses under Section 21 were present at the time the subject drugs were allegedly confiscated from Adobar. Upon the other hand, only two (2) of the three (3) were summoned by the team and were actually present during the physical inventory and photographing of the seized items.
To recall the prosecution's narrative, Ga-a was arrested after the buy-bust was made against Adobar, i.e., after the subject drugs were taken from him by IO1 Siglos. Clearly, Punong Barangay Acenas was summoned only sometime after the attempted arrest of Adobar and the alleged confiscation of the subject drugs from his person. According to Punong Barangay Acenas, he arrived at the scene about fifteen (15) minutes from such call, when the agents were already settled on the second floor of Adobar's home, ready for inventory. This is confirmed by IO3 Tablate who testified that he phoned in the witnesses only after "clearing" the alleged crime scene, thus:
[ATTORNEY ECHANO:] Q But, you will admit that [when] the PDEA went inside the house, you were not present? A When I arrived at the area, all the agents were already in the second floor of the house. Q When did you receive the call from the PDEA agents? A Immediately after the arrest [of Ga-a] and seizure. Q How many minutes did it take you before you arrived? A About 15 minutes from our residence, Sir. xxxx [TRIAL COURT:] Q In other words, Captain Acenas, when you arrived there, the accused [Ga-a] was already arrested? A Yes, Your Honor. Q The items were already on top of the aparador? A Yes, Your Honor. Q Was the Inventory already prepared ready for your signature or the Inventory was prepared when you were there already? A When I arrived, they started the Inventory, Your Honor.87 (Emphasis supplied)
Notably, while IO3 Tablate testified that all three (3) insulating witnesses came, observed and signed the inventory, this testimony is contradicted by the records which reveal that only the signatures of Punong Barangay Acenas and the media representative actually appear on the inventory document.89 In this regard it should also be noted that only Punong Barangay Acenas was presented in court to testify.
[PROSECUTOR VICENTE:] xxxx Q What did you do with the drugs on the table? A After clearing, before I actually made the markings[,] we called up the barangay captain or one of the members of the team, the barangay captain, member from the media and also the representative from the DOJ and upon their arrival it was the time when I actually made the markings to the evidence. xxxx Q And then what else after marking, labelling the sachets of shabu and the paraphernalia, what happened next, Mr. Witness? A After the inventory was signed by the witnesses, upon arrival of (sic) the office after the booking I also prepared a request for the crime lab and then I myself was the one who delivered the evidence to the crime lab.88 (Emphasis supplied)
I, INTELLIGENCE OFFICER-3 ALEX M. TABLATE, xxx do hereby depose and say:To reiterate, the three (3) insulating witnesses must be present at the time of seizure of the drugs such that they must be at or near the intended place of arrest so they can be ready to witness the inventory and photographing of the seized items "immediately after seizure and confiscation." These witnesses must sign the inventory and be given copies thereof. In the present case, from the evidence of the prosecution itself, none of the witnesses were present during the seizure and confiscation of the subject drugs. Moreover, only two (2) of them - the punong barangay and the media representative - witnessed the photographing and signed the inventory.
xxxx
That during the inventory of the seized items/evidence recovered, which I, IO-3 TABLATE myself conducted in the very table itself where said items were found in plain view in the 2nd floor of the house of the suspects, the same were witnessed by the Barangay Captain himself of Brgy. Camaman-an and by a representative from the media through Magnum Radio.91 (Additional emphasis supplied)
Although the Court has ruled that non-compliance with the directives of Section 21, Article II of R.A. No. 9165 is not necessarily fatal to the prosecution's case, the prosecution must still prove that (a) there is a justifiable ground for the non-compliance, and (b) the integrity and evidentiary value of the seized items were properly preserved. Further, the non-compliance with the procedures must be justified by the State's agents themselves. The arresting officers are under obligation, should they be unable to comply with the procedures laid down under Section 21, Article II of R.A. No. 9165, to explain why the procedure was not followed and prove that the reason provided a justifiable ground. Otherwise, the requisites under the law would merely be fancy ornaments that may or may not be disregarded by the arresting officers at their own convenience.102In this case, the prosecution did not acknowledge the lapses, much less offer a credible and justifiable ground for the failure of the buy-bust team to comply with Section 21. No explanation was advanced as to why none of the insulating witnesses was present at the time of seizure and confiscation of the subject illegal drugs. Neither do the records show any justification as to why no DOJ representative was secured to witness the photographing and physical inventory of the seized drugs. Worse, the prosecution did not even concede such lapses. The affidavit of IO3 Tablate shows the indifference of the prosecution on its failure to comply with Section 21, thus:
That IO-1 SIGLOS turned over to me, IO-3 TABLATE the one (1) piece of heat-sealed transparent sachet containing white crystalline substance also suspected to be shabu, which was the subject of the buybust earlier transacted.Hence, considering the prosecution neither acknowledged nor explained its noncompliance with Section 21, the first prong was not satisfied, thus leading to the inevitable conclusion that the saving clause was not triggered. Accordingly, there is no point anymore in determining if the second prong had been satisfied - i.e., proving the integrity and evidentiary value of the seized illegal drugs.
That during the inventory of the seized items/evidence recovered, which I, IO-3 TABLATE myself conducted in the very table itself where said items were found in plain view in the 2nd floor of the house of the suspects, the same were witnessed by the Barangay Captain himself of Brgy. Camaman-an and by a representative from the media through Magnum Radio.
That at the PDEA Regional Office-10, the arrested female suspect formally identified herself as Jennifer C. Ga-a, 22 years old, single and a resident of Ramonal Village, Brgy. Camaman-an, Cagayan de Oro City while the other suspect who was able to elude arrest despite earnest effort to apprehend him was formally identified as Aquilo Adobar, 48 years old, married and a resident of the same barangay. The latter suspect is a targetlisted personality as per PDEA National Drugs Information System (NDIS).103 (Emphasis in the original)
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. xxx106 (Emphasis in the original)It is vital that the seized contrabands are immediately marked because succeeding handlers of the specimens will use the markings as reference. The Court has held:
Crucial in proving [the] chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband[s] are immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating[,] switching, "planting," or contamination of evidence.In the present case, a considerable period of time intervened between the confiscation of the subject drugs and its subsequent marking - which was unaccounted for by the prosecution. This gaping hiatus is brought about by the failure of the poseur buyer, IO1 Siglos, to credibly account for her whereabouts and the handling of the subject drugs from the time she confiscated the same from Adobar to the time she turned it over to IO3 Tablate for marking. The marked inconsistencies in her testimonies taken on April 23, 2012 and November 6, 2012 fail the test of credibility.
Long before Congress passed RA 9165, this Court has consistently held that failure of the authorities to immediately mark the seized drugs raises reasonable doubt on the authenticity of the corpus delicti and suffices to rebut the presumption of regularity in the performance of official duties, the doctrinal fallback of every drug-related prosecution.107 (Additional emphasis supplied)
This is in contrast to her testimony on November 6, 2012 where she stated under oath that when the back-up team arrived, she proceeded to the team's service vehicle, about 10-15 meters away, and therein waited for a considerable time while the back-up team chased after Adobar and searched the premises. She only went back to the house and handed the subject drugs to IO3 Tablate when it was time for the physical inventory, thus:
[PROSECUTOR VICENTE:] xxxx Q And then after you made that pre-arranged signal of rubbing your back head, what happened? A After a few minutes[,] the back up team rushed up. Q What happened next? A And then when they arrived we checked the area and then after we checked the area I followed them and then I went up stairs to give the buy-bust evidence to the arresting officer, Sir. xxxx Q You said that after you touched your head the arresting officer arrived, and then Tablate went upstairs? A Yes, Sir. Q How many minutes after Tablate went upstairs, how many minutes you followed Tablate? A About 3-4 minutes, Sir.108 (Emphasis supplied)
The significance of this contradiction in IO1 Siglos' testimony cannot be overemphasized. Being the first custodian in the chain and having held onto the then unmarked seized drugs for a considerable lapse of time, IO1 Siglos must clearly and convincingly account for her handling and care of the subject drugs before turning them over to IO3 Tablate for marking. In this, she failed, thus, effectively creating an obvious but unexplained break in the chain. Hence, assuming that the illegal drugs which went into the chain are actually the same drugs seized from Adobar's person, i.e., assuming the same were not planted at the point of seizure, there remains that great possibility of switching while the same were in IO1 Siglos' custody.
[PROSECUTOR VICENTE:] xxxx Q After you rubbed the back part of your head, what happened next? A I noticed that the operatives rushed up to the area, Sir. xxxx Q So[,] when the operatives arrived, what did Aquillo (sic) Adobar do? A He went upstairs, Sir. Q He run? A Yes, Sir. Q And he was chased by the operatives? A Yes, Sir. xxxx Q What did you do? A I went outside going to our service vehicle, Sir. Q How far was the service vehicle parked from the house? A More or less 10-15 meters, Sir. xxxx Q Why you did not go with them when they chased the accused? A Because my tasked (sic) is only a [poseur] buyer, Sir. Q You said that the accused handed to you the sachet of shabu, what did you do with it? A I handed to the arresting officer, IO3 Tablate during the inventory, Sir. Q But you said you went to the vehicle? A Yes, Sir. Q You waited there? A Yes, Sir. Q And then, when did your team conduct an inventory? A After the searched (sic), Sir. Q So[,] after you went to the vehicle, you went back to the house? A Yes, Sir.109 (Emphasis supplied)
xxx a buy-bust operation has a significant downside that has not escaped the attention of the framers of the law. It is susceptible to police abuse, the most notorious of which is its use as a tool for extortion. In People v. Tan, this Court itself recognized that by the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. xxx115 (Italics in the original)For this, the Court has instructed lower courts to exercise extra vigilance in trying drugs cases "lest an innocent person be made to suffer the unusually severe penalties for drug offenses."116 The presumption that regular duty was performed by the arresting officers simply cannot prevail over the presumption of innocence granted to the accused by the Constitution. It is thus incumbent upon the prosecution to prove that the accused is indeed guilty beyond reasonable doubt.117
To sum, "[l]aw enforcers should not trifle with the legal requirement to ensure integrity in the chain of custody of seized dangerous drugs and drug paraphernalia." Thus, "[t]his is especially true when only a miniscule amount of dangerous drugs is alleged to have been taken from the accused."Adobar's defense of denial is concededly weak and uncorroborated. This weakness, however, does not add strength to the prosecution's case as the evidence for the prosecution must stand or fall on its own weight. Well-entrenched in jurisprudence is the rule that the conviction of an accused must rest not on the weakness of the defense but on the strength of the evidence of the prosecution.121
Although the miniscule quantity of confiscated illicit drugs is solely by itself not a reason for acquittal, this instance accentuates the importance of conformity to Section 21 that the law enforcers in this case miserably failed to do so. If initially there were already significant lapses on the marking, inventory, and photographing of the alleged seized items, a doubt on the integrity of the corpus delicti concomittantly exists. xxx120 (Emphasis supplied)
Endnotes:
1Rollo, pp. 31-32.
2 Id. at 3-30. Penned by Associate Justice Rafael Antonio M. Santos with Associate Justices Edgardo A. Camello and Henri Jean Paul B. Inting, concurring.
3 CA rollo, pp. 36-45. Penned by Judge Arthur L. Abundiente.
4 Spelled as "Aquillo" and "Aquilo" in some parts of the Records.
5SEC. 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. (Emphasis and italics in the original)
6 AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES, § 21 (2002).
7 Records (CC No. 2011-485), p. 3.
8 Id.
9 The accusatory portion of the Information dated May 11, 2011 reads:That on or about May 9, 2011, at about 11:30 in the morning, more or less, at 32nd St. Ramonal Village, Barangay Carnarnan-an, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there[,] wilfully, unlawfully and feloniously have in h[e]r possession, custody and control seventeen (17) pieces of heat-sealed transparent plastic sachet each containing Methamphetamine Hydrochloride (Shabu), [a] dangerous drug, accused knowing full well that [s]he is possessing xxx a dangerous drug, with a total net weight of 0.94 grams.10 The accusatory portion of the Information dated May 11, 2011 reads:
Contrary to [law] and in Violation of Section 11 Article II of RA No. 9165. Records (CC No. 2011-422), p. 3.That on or about May 9, 2011, at about 11:30 in the morning, more or less, at 32nd, St. Ramona) Village, Barangay Camaman-an, Cagayan de Oro City, Philippines, and within the jurisidction of this Honorable Court, the above-named accused, [without being authorized by law,] did then and there[,] willfully, unlawfully and feloniously and criminally was found to be positive for the use of dangerous drug, after a confirmatory test.11 CA rollo, p. 38.
Contrary to [law] and in Violation of Section 15 Article II of RA No. 9165. Records (CC No. 2011-423), p. 3.
12 Records (CC No. 2011-485) p. 17.
13 Id. at 19.
14 Id. at 24.
15 CA rollo, p. 38.
16Rollo, p 7.
17 CA rollo, p. 39.
18 Specifically:19Rollo, pp. 7-8.
- That the witness is an expert witness being the forensic chemist of the PNP Crime Lab stationed at Camp Evangelista, Cagayan de Oro City[;]
- That on May 9, 2011[,] she received a letter request for the laboratory examination of one heat-sealed transparent plastic sachet with markings "AMT-1 5/9/11" containing white crystalline substance and seventeen (17) heat-sealed transparent plastic sachets with markings "AMT-1 5/19/11 to AMT-17 5/9-11" containing white crystalline substance[;]
- That she also received a letter request for the drug examination of the accused;
- That she conducted [a] laboratory examination in accordance with the letter request[;]
- That she reduced her findings into writing denominated as Chemistry Report No. D-156-2011 and Chemistry Report No. DTCRIM-160-2011[;]
- That she brought with her today for identification and marking the specimens mentioned in the Chemistry Reports including the Chemistry Reports which are now marked by the prosecution. Records (CC No. 2011-423), p. 51.
20 Bearing serial numbers MR443620; duly recorded in the PDEA Blotter. Records (CC No. 2011-485) p. 6.
21 CA rollo, p. 39.
22 Records (CC No. 2011-485) p. 8.
23 Id.
24 Direct Examination of IO3 Tablate, TSN, March 20, 2012, p. 7.
25 Records (CC No. 2011-485), p. 6.
26 Id.
27 Id. at 7.
28 Id.
29 Direct Examination of IO3 Tablate, TSN, March 20, 2012, p. 10.
30 Id. at 11.
31 Specifically: 1) two (2) packs of transparent empty sachets; 2) three (3) pieces of lighter; 3) one (1) piece of improvised tooter; 4) one (1) piece of aluminum foil strip. Records (CC No. 2011-423), p. 16.
32 Direct Examination of IO3 Tablate, TSN, March 20, 2012, p 12.
33 Records (CC No. 2011-423), p. 16.
34 Direct Examination of IO3 Tablate, TSN, March 20, 2012, p. 12.
35 Id.
36 "AMT - A" for the subject drugs; "AMT - 1" to "AMT - 17" for the seventeen (17) sachets of shabu found inside the room with Ga-a. Records (CC No. 2011-423), p. 16.
37 Records (CC No. 2011-485), p. 7.
38 Records (CC No. 2011-423), p. 16.
39 Direct Examination of IO3 Tablate, TSN, March 20, 2012, p. 21.
40 Records (CC No. 2011-485) pp. 12-13.
41 Direct Examination of IO3 Tablate, TSN dated March 20, 2012, p. 15.
42 Records (CC No. 2011-423), p. 9.
43 Id. at 16.
44 Id.
45 In accordance with standard protocol, the same was signed by Lt. Col. Layese (Ret). Id. at 13.
46 Direct Examination of IO3 Tablate, TSN, March 20, 2012, p. 14.
47 Direct Examination of Ga-a, TSN, March 25, 2013, p. 14.
48Rollo, p. 11.
49 Direct Examination of Ga-a, TSN, March 25, 2013, p. 6.
50 Id. at 5.
51 Id.
52 Id.
53 Id. at 7.
54 Id. at 11.
55 Direct Examination of Adobar, TSN, April 8, 2013, p. 5.
56 Id. at 5-6.
57 Id. at 6.
58 Id. at 11.
59 Id.
60 Id. at 6-7.
61Comment/Opposition to Prosecution's Formal Offer of Exhibits dated November 22, 2012, Records (CC No. 2011-485), pp. 67-68.
62 CA rollo, pp. 43-44.
63 Id. at 45.
64 Id. at 11-12.
65 Id. at 24-35.
66 Id. at 52-66.
67 Id. at 68.
68Rollo, p. 29.
69 Id. at 44-45.
70 Id. at 38-39.
71 Promulgated on July 15, 2014 and entitled "AN ACT TO FURTHER STRENGTHEN THE ANTIDRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165," Section 21 of RA 9165, as amended by RA 10640, currently reads:"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:72People v. Gonzales, 708 Phil. 121, 127 (2013), citing People v. Kamad, 624 Phil. 289, 300 (2010).
"(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.
"xxx
"(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 and additional italics supplied)
73People v. Cayas, 789 Phil. 70, 76-77 (2016), citing People v. Capuno, 655 Phil. 226, 241 (2011).
74 See People v. Del Mundo, G.R. No. 208095, September 20, 2017, p. 7, citing People v. Gayoso, G.R. No. 206590, March 27, 2017, p. 8 and People v. Lorenzo, 633 Phil. 393, 403 (2010).
75 The definition of "chain of custody" can be found in Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements RA 9165, thus:xxx "Chain of custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plants sources of dangerous drugs or laboratory equipment at each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court [for] destruction. Such record of movements and custody of seized [item] shall include the identity and signature of the person who held temporary custody of the seized item, the dates and times when such transfers of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.76Peoplev. Dahil, 750 Phil. 212, 226 (2015).
77 Id. at 227.
78 744 Phil. 816, 829-830 (2014).
79 See id. at 830.
80 COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, as amended by RA 10640, § 21 (1).
81 See IRR, Art. II, Sec. 21(a).
82 Emphasis supplied.
83 As early as in the case of People v. Cruz, 301 Phil. 770, 774-775 (1994), the Court has taken judicial notice of the rather pervasive practice of planting evidence in anti-narcotics operations, holding that:Be that as it may, the Court is also cognizant of the fact that the practice of planting evidence for extortion, as a means to compel one to divulge information or merely to harass witnesses is not uncommon. By the very nature of anti-narcotics operations, with the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. xxx84 736 Phil. 749 (2014).
85 Id. at 764.
86 Direct Examination of Punong Barangay Acenas, TSN, September 11, 2012, pp. 2-3.
87 Id. at 4-5.
88 Direct Examination of IO3 Tablate, TSN, March 20, 2012, pp. 12-14.
89 Records (CC No. 2011-423), p. 16.
90 Id. at 8-9.
91 Id.
92 Emphasis supplied.
93 Direct Examination of IO3 Tablate, TSN, March 20, 2012, pp. 18-19.
94 See People v. Beran, 724 Phil. 788 (2014) where the Court held that the marking shall be done (1) in the presence of the apprehended violator and (2) immediately upon confiscation.
95People v. Cayas, supra note 73, at 79; People v. Havana, 776 Phil. 462, 475 (2016).
96 States:xxx 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 supplied)97 COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, as amended by RA 10640, § 21 (1).
98People v. Cayas, supra note 73, at 80.
99People v. Barte, G.R. No. 179749, March 1, 2017.
100 Id.; see People v. Sumili, 753 Phil. 342, 352 (2015).
101 725 Phil. 268 (2014).
102 Id. at 286.
103 Records (CC No. 2011-423), p. 9.
104People v. Nandi, 639 Phil. 134, 144-145 (2010).
105 Supra note 94, at 788.
106 Id. at 819-820.
107People v. Umipang, 686, Phil. 1024, 1049-1050 (2012).
108 Direct Examination of IO1 Siglos, TSN, April 23, 2012, pp. 6-8.
109 Id., TSN, November 6, 2012, pp. 7-10.
110Rollo, p. 26.
111 Id.
112 Id.
113 See People v. Umipang, supra note 107, at 1038.
114 Id. at 1033.
115People v. Garcia, 599 Phil. 416, 427 (2009).
116Valdez v. People, 563 Phil. 934, 956 (2007).
117People v. Pagaura, 334 Phil. 683, 690 (1997).
118People v. Arposeple, G.R. No. 205787, November 22, 2017, p. 22.
119 G.R. No. 205614, July 26, 2017.
120 Id. at 22.
121Macayan, Jr. v. People, 756 Phil. 202, 214 (2015).
122 See People v. Jugo, G.R. No. 231792, January 29, 2018, p. 10.
123People v. Dahil, supra note 76, at 225.
124 See People v. Jugo, supra note 122.
PERALTA, J.:
I concur with the ponencia in acquitting accused-appellant Aquila "Payat" Adobar of the charge of illegal sale of dangerous drugs or violation of Section 5, Article II of R.A. No. 9165.1 As aptly noted by the ponencia, none of the three (3) witnesses under Section 212 of R.A. No. 9165 were present at the time the subject drugs were confiscated from appellant, and no justifiable reason was proffered on why only two (2) of the three witnesses a barangay captain and a representative from the media-summoned by the buy-bust team were actually present during the physical inventory and photographing of the seized items, sans the presence of a representative from the Department of Justice (DOJ). Be that as it may, I would like to emphasize on important matters relative to Section 21 of R.A. No. 9165, as amended.
To properly guide law enforcement agents as to the proper handling of confiscated drugs, Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 filled in the details as to where the inventory and photographing of seized items had to be done, and added a saving clause in case the procedure is not followed:3
(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 noncompliance 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.It bears emphasis that R.A. No. 10640,4 which amended Section 21 of R.A. No. 9165, now only requires two (2) witnesses to be present during the conduct of the physical inventory and taking of photograph of the seized items, namely: (a) an elected public official; and (b) either a representative from the National Prosecution Service or the media.
Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates. The presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers makes the requirement of Section 21(a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe for the proper inventory and photograph of the seized illegal drugs.However, under the original provision of Section 21 and its IRR, which is applicable at the time the appellant committed the crimes charged, the apprehending team was required to immediately conduct a physical inventory and photograph the drugs after their seizure and confiscation in the presence of no less than three (3) witnesses, namely: (a) a representative from the media, and (b) the DOJ, and; (c) any elected public official who shall be required to sign copies of the inventory and be given copy thereof. The presence of the three witnesses was intended as a guarantee against planting of evidence and frame up, as they were "necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity."9
xxxx
Section 21(a) of RA 9165 need to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of the law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be inventoried and photographed has to include a location where the seized drugs as well as the persons who are required to be present during the inventory and photograph are safe and secure from extreme danger.
It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the place of seizure of illegal drugs or at the nearest police station or office of the apprehending law enforcers. The proposal will provide effective measures to ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and the evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances where there are no media people or representatives from the DOJ available and the absence of these witnesses should not automatically invalidate the drug operation conducted. Even the presence of a public local elected official also is sometimes impossible especially ifthe elected official is afraid or scared.8
Section 29. Criminal Liability for Planting of Evidence. - Any person who is found guilty of uplanting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.However, non-observance of such police administrative procedures should not affect the validity of the seizure of the evidence, because the issue of chain of custody is ultimately anchored on the admissibility of evidence, which is exclusively within the prerogative of the courts to decide in accordance with the rules on evidence.
Section 32. Liability to a Person Violating Any Regulation Issued by the Board. - 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 found violating any regulation duly issued by the Board pursuant to this Act, in addition to the administrative sanctions imposed by the Board.
Endnotes:
1 "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES"
2 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:(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;3People v. Ramirez, G.R. No. 225690, January 17, 2018.
4 "AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002" Approved on July 15, 2014.
5 Senate Journal, Session No. 80, 16th Congress, 1st Regular Session, June 4, 2014, p. 348.
6 Id.
7 Id.
8 Id. at 349-350.
9People v. Sagana, G.R. No. 208471, August 2, 2017.
10People v. Miranda, G.R. No. 229671, January 31, 2018; People v. Paz, G.R. No. 229512, January 31, 2018; and People v. Mamangon, G.R. No. 229102, January 29, 2018.
11People v. Saragena, G.R. No. 210677, August 23, 2017
12 Id.
13 Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.
14People v. Ramirez, supra note 3.
15People v. Gajo, G.R. No. 217026, January 22, 2018.
16 G.R. No. 202206, March 5, 2018.