SECOND DIVISION
G.R. No. 217027, June 06, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NARCISO SUPAT Y RADOC ALIAS "ISOY", Accused-Appellant.
D E C I S I O N
CAGUIOA, J.:
Before the Court is an ordinary appeal1 filed by accused-appellant Narciso Supat y Radoc alias "Isoy" (Narciso) assailing the Decision2 dated August 14, 2014 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 05461, which affirmed the Decision3 dated November 24, 2011 of the Regional Trial Court of San Pedro, Laguna, Branch 93 (RTC), in Crim. Case Nos. 5434-SPL and 5435-SPL, finding Narciso guilty beyond reasonable doubt of violating Sections 5 and 11, Article II of Republic Act No. (RA) 9165,4 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."
That on or about October 8, 2005, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court the said accused without any legal authority, did then and there willfully, unlawfully and feloniously sell, pass and deliver to a police poseur-buyer in consideration of one (1) piece one hundred peso bill, one (1) heat-sealed transparent plastic sachet of METHAMPHETAMINE HYDROCHLORIDE, commonly known as "shabu", a dangerous drug, weighing zero point three (0.03) gram.In Crim. Case No. 5435-SPL, Narciso was charged with the crime of illegal possession of dangerous drugs. The Information there pertinently states:
CONTRARY TO LAW.5
That on or about October 8, 2005, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court the said accused without authority of the law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control two (2) small heat-sealed transparent plastic sachets containing methamphetamine hydrochloride, commonly known as "shabu", a dangerous drug, with a total weight of zero point seventy one (0.71) gram.Upon his arraignment, Narciso pleaded not guilty to the foregoing charges.7 During the pre-trial, the identity of Narciso and the jurisdiction of the trial court over his person were admitted.8
CONTRARY TO LAW.6
On 8 October 2005, a civilian informant and a Barangay Tanod of San Antonio, San Pedro, Laguna arrived at the Municipal Police Station and reported to the Intelligence Section Chief [SPO4 Dela Peña] the illegal drug activities of [Narciso]. SPO4 [Dela] Peña immediately formed a team comprised of himself, [PO3 Rivera], [SPO1 Ame] and PO2 Rommel Bautista. The team conducted a surveillance operation at Holiday Hills, Narra Road, San Antonio, San Pedro, Laguna. The surveillance confirmed that [Narciso] was indeed involved in illegal drug activities. A briefing was conducted where PO3 Rivera was designated as the poseurbuyer for the buy-bust operation and was given a marked P100.00 bill to be used as buy-bust money. It was agreed that the pre-arranged signal would be the giving of a ring to SPO4 [Dela] Peña's mobile phone.During the trial, Narciso admitted the existence and due execution of the following documents:
PO3 Rivera and the civilian informant proceeded to the house of [Narciso] while the rest of the team positioned themselves along Narra Road and waited for PO3 Rivera's call. The informant introduced PO3 Rivera to [Narciso] as a customer. PO3 Rivera handed the P100.00 marked bill to [Narciso], and the latter, in turn, handed PO3 Rivera a plastic sachet containing a white crystalline substance. After receiving the sachet, PO3 Rivera gave SPO4 [Dela] Peña's phone a ring. The rest of the team immediately entered [Narciso's] house and arrested [Narciso]. SPO1 Ame recovered from [Narciso] the buy-bust money and two (2) more sachets containing the same white crystalline substance after conducting a search on his person. The seized items were handed to SPO4 [Dela] Peña and were taken to the police station, together with [Narciso]. The sachet bought by PO3 Rivera from [Narciso] was marked by SPO4 [Dela] Peña as "NS-B", while the two (2) other sachets confiscated by SPO1 Ame from [Narciso's] possession were marked as "NS-P". An inventory of these seized items was conducted. Afterward[s], SPO4 [Dela] Peña transferred the custody of the seized sachets to the crime laboratory for examination. Forensic Chemist Police Senior Inspector (PSI) Donna Villa Hue[l]gas conducted the laboratory examination on the specimens delivered by SPO4 [Dela] Peña. The white crystalline substance contained in the seized plastic sachets was determined to be methamphetamine hydrochloride, also known as shabu.9
1. Laboratory Request for Examination dated October 8, 2005;Version of the Defense
2. Chemistry Report No. D-1127-05;
3. Final Chemistry Report No. D-1127-05;
4. Chemistry Report Findings;
5. Conclusion; and
6. Name and signature of Donna Huelgas.10
On 8 October 2005, at around 10:00 a.m., [Narciso] was at home watching television (TV) with his brother Christopher Supat and a neighbor named Violy. [Narciso] noticed five (5) men entering their compound and eventually their house. He recognized the faces of the two (2) men as the Barangay Tanods, and he learned later that the three (3) other men were police officers. Upon entering the house, the group arrested and handcuffed [Narciso]. His house was searched and when they found nothing, he was left inside the house handcuffed. After fifteen (15) to thirty (30) minutes, the police officers returned and showed him two (2) plastic sachets containing shabu allegedly recovered from his person. Thereafter, [Narciso] was brought to the police station.The Ruling of the RTC
To corroborate the foregoing account, the defense presented the testimony of Kurt Pilacan, who was twelve (12) years old when the incident happened. [He testified that] [a]t around 1:00 p.m., he was also watching TV at the house of [Narciso], together with five or six children. While watching TV, he heard a gunshot and a group of five (5) men entered the house of [Narciso]. The latter was immediately handcuffed. The men searched the house and found a cellphone and pieces of jewelry. They left the house and upon their return, they showed to [Narciso] illegal drugs placed in a plastic sachet.11
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:The requirements of paragraph 1, Section 21, Article II of RA 9165.
(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 he 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)
Parsed, the above provisions impose the following requirements in the manner of handling and inventory, time, witnesses, and of place after the arrest of the accused and seizure of the dangerous drugs:
SECTION 21. x x x(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 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)
1. The initial custody requirements must be done immediately after seizure or confiscation;All the above requirements must be strictly complied with for a successful prosecution of the crimes of illegal sale and/or illegal possession of dangerous drugs under RA 9165. To be sure, case law states that the procedure enshrined in Section 21, Article II of RA 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects.37 For indeed, however noble the purpose or necessary the exigencies of the campaign against illegal drugs may be, it is still a governmental action that must always be executed within the boundaries of law.38
2. The physical inventory and photographing must be done in the presence of:3. The conduct of the physical inventory and photograph shall be done at the:
- the accused or his representative or counsel;
- a representative from the media;
- a representative from the DOJ; and
- any elected public official.
- place where the search warrant is served; or
- nearest police station; or
- nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure.
x x x Without the insulating presence of the representative from the media or the Department of Justice, 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. Indeed, the insulating presence of such witnesses would have preserved an unbroken chain of custody.43 (Emphasis supplied)The practice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so - and "calling them in" to the place of inventory to "witness" the inventory and photographing of the drugs only after the buy-bust operation has already been finished - does not achieve the purpose of the law in having these witnesses prevent or insulate against the planting of drugs.
In this case, gaps exist in the chain of custody of the seized items which creates reasonable doubt as to the identity and integrity thereof.b."Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of 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 date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition[.] (Emphasis supplied)
The first stage in the chain of custody 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 the 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 confiscation or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value.53 (Emphasis supplied)Notably in this case, three (3) plastic sachets were recovered from Narciso: (1) sachet bought by PO3 Rivera and (2) sachets confiscated by PO3 Ame; but the markings were made not in the place of seizure and not by the police officer who recovered the seized drugs.
x x x [The sole testimony presented by the prosecution] failed to disclose the identities of the desk officer and the investigator to whom the custody of the drugs was given, and how the latter handled these materials. No reference was ever made to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. Likewise, no one testified on how the specimen was handled after the chemical analysis by the forensic chemist. While we are aware that the RTC's Order of August 6, 2003 dispensed with the testimony of the forensic chemist because of the stipulations of the parties, we view the stipulation to be confined to the handling of the specimen at the forensic laboratory and to the analytical results obtained. The stipulation does not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession. To be sure, personnel within the police hierarchy (as SPO2 Sevilla's testimony casually mentions) must have handled the drugs but evidence of how this was done, i.e., how it was managed, stored, preserved, labeled and recorded from the time of its seizure, to its receipt by the forensic laboratory, up until it was presented in court and subsequently destroyed - is absent from the evidence adduced during the trial. x x xIn turn, the importance of establishing the chain of custody in drugs cases was explained in Mallillin v. People61:
The recent case of Lopez v. People is particularly instructive on how we expect the chain of custody or "movement" of the seized evidence to be maintained and why this must be shown by evidence:As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.60 (Emphasis supplied)
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.62As in Sanchez, the Court finds that while the parties indeed made the stipulations in question, such stipulations do not relate to or do not cover the specific manner by which the seized items were handled while in their possession. Further, they do not indicate how such items were subsequently turned over to the next responsible party.
Both lower courts favored the members of the buy-bust team with the presumption of regularity in the performance of their duty, mainly because the accused did not show that they had ill motive behind his entrapment.In this case, the presumption of regularity cannot stand because of the buy-bust team's blatant disregard of the established procedures under Section 21 of RA 9165. What further militates against according the apprehending officers in this case the presumption of regularity is the fact that even the pertinent internal anti-drug operation procedures then in force were not followed. Under the 1999 Philippine National Police Drug Enforcement Manual,71 the conduct of buy-bust operations requires the following:
We hold that both lower courts committed gross error in relying on the presumption of regularity.
Presuming that the members of the buy-bust team regularly performed their duty was patently bereft of any factual and legal basis. We remind the lower courts that the presumption of regularity in the performance of duty could not prevail over the stronger presumption of innocence favoring the accused. Otherwise, the constitutional guarantee of the accused being presumed innocent would be held subordinate to a mere rule of evidence allocating the burden of evidence. Where, like here, the proof adduced against the accused has not even overcome the presumption of innocence, the presumption of regularity in the performance of duty could not be a factor to adjudge the accused guilty of the crime charged.
Moreover, the regularity of the performance of their duty could not be properly presumed in favor of the policemen because the records were replete with indicia of their serious lapses. As a rule, a presumed fact like the regularity of performance by a police officer must be inferred only from an established basic fact, not plucked out from thin air. To say it differently, it is the established basic fact that triggers the presumed fact of regular performance. Where there is any hint of irregularity committed by the police officers in arresting the accused and thereafter, several of which we have earlier noted, there can be no presumption of regularity of performance in their favor.70 (Emphasis supplied)
The Court has ruled in People v. Zheng Bai Hui72 that it will not presume to set an a priori basis on what detailed acts police authorities might credibly undertake and carry out in their entrapment operations. However, given the police operational procedures and the fact that buy-bust is a planned operation, it strains credulity why the buy-bust team could not have ensured the presence of the required witnesses pursuant to Section 21 or at the very least marked, photographed and inventoried the seized items according to the procedures in their own operations manual.ANTI-DRUG OPERATIONAL PROCEDURES
V. SPECIFIC RULES
x x x x
B. Conduct of Operation: (As far as practicable, all operations must be officer led)
1. Buy-Bust Operation - in the conduct of buy-bust operation, the following are the procedures to be observed:a. Record time of jump-off in unit's logbook;b. Alertness and security shall at all times be observed[;]c. Actual and timely coordination with the nearest PNP territorial units must be made;d. Area security and dragnet or pursuit operation must be provided[;]e. Use of necessary and reasonable force only in case of suspect's resistance:f. If buy-bust money is dusted with ultra violet powder make sure that suspect ge[t] hold of the same and his palm/s contaminated with the powder before giving the pre-arranged signal and arresting the suspects;g. In pre-positioning of the team members, the designated arresting elements must clearly and actually observe the negotiation/transaction between suspect and the poseur-buyer;h. Arrest suspect in a defensive manner anticipating possible resistance with the use of deadly weapons which maybe concealed in his body, vehicle or in a place within arms['] reach;i. After lawful arrest, search the body and vehicle, if any, of the suspect for other concealed evidence or deadly weapon;j. Appraise suspect of his constitutional rights loudly and clearly after having been secured with handcuffs;k. Take actual inventory of the seized evidence by means of weighing and/or physical counting, as the case may be;l. Prepare a detailed receipt of the confiscated evidence for issuance to the possessor (suspect) thereof;m. The seizing officer (normally the poseur-buyer) and the evidence custodian must mark the evidence with their initials and also indicate the date, time and place the evidence was confiscated/seized;n. Take photographs of the evidence while in the process of taking the inventory, especially during weighing, and if possible under existing conditions, the registered weight of the evidence on the scale must be focused by the camera; ando. Only the evidence custodian shall secure and preserve the evidence in an evidence bag or in appropriate container and thereafter deliver the same to the PNP CLG for laboratory examination. (Emphasis and underscoring supplied)
Endnotes:
1 CA rollo, pp. 95-97.
2 Id. at 83-93. Penned by Associate Justice Mariflor P. Punzalan Castillo and concurred in by Associate Justices Amy C. Lazaro-Javier and Zenaida T. Galapate-Laguilles.
3 Records (Crim. Case No. 5435-SPL), pp. 164-168. Penned by Judge Francisco Dizon Paño.
4 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 (2002).
5 Records (Crim. Case No. 5434-SPL), p. 1.
6 Records (Crim. Case No. 5435-SPL), p. 1.
7 Id. at 21.
8 Id. at 38.
9 CA rollo, pp. 85-86.
10 Id. at 86.
11 Id. at 86-87.
12 Supra note 3.
13 Id. at 168.
14 Id. at 167.
15 Id. at 170.
16 CA rollo, p. 45.
17 Id. at 42-43.
18 Supra note 2.
19 Id. at 88-89.
20 Id. at 89.
21 Id. at 91.
22 Id. at 90.
23 Id.
24 Id. at 91.
25 Id. at 91-92.
26 Id. at 95-97.
27Rollo, pp. 17-18.
28 Id. at 21-25, 26-32.
29People v. Paz, G.R. No. 229512, January 31, 2018, p. 7.
30People v. Bartolini, 791 Phil. 626, 633-634 (2016).
31People v. Sagana, G.R. No. 208471, August 2, 2017, p. 8.
32Derilo v. People, 784 Phil. 679, 686 (2016).
33 See People v. Alvaro, G.R. No. 225596, January 10, 2018, p. 6.
34 See People v. Viterbo, 739 Phil. 593, 601 (2014).
35People v. Saragena, G.R. No. 210677, August 23, 2017, p. 7.
36 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."
37Gamboa v. People, 799 Phil. 584, 597 (2016), citing People v. Umipang, 686 Phil. 1024, 1038-1039 (2012).
38 Id.
39 See TSN, March 17, 2008, pp. 3-4.
40 See TSN, February 17, 2009, pp. 9-15.
41 Exh. records (Crim. Case No. 5434-SPL), p. 16.
42 736 Phil. 749 (2014).
43 Id. at 764.
44 RA 9165, Sec. 21(1) as implemented by its IRR.
45People v. Beran, 724 Phil. 788, 822 (2014).
46People v. Reyes, G.R. No. 199271, October 19, 2016, 806 SCRA 513, 536.
47People v. Geronimo, G.R. No. 180447, August 23, 2017, p. 8.
48 Id.
49People v. Ramos, G.R. No. 233744, February 28, 2018, pp. 9-10.
50People v. Mamangon, G.R. No. 229102, January 29, 2018, p. 7, citing People v. De Guzman, 630 Phil. 637, 649 (2010).
51 703 Phil. 58, 73 (2013).
52 708 Phil. 121 (2013).
53 Id. at 130-131.
54 TSN, February 17, 2009, p. 13.
55 Exh. "C," records (Crim. Case No. 5434-SPL), p. 14.
56 See TSN, February 17,2009, pp. 13-14.
57 Exh. "C," records (Crim. Case No. 5434-SPL), p. 14.
58 590 Phil. 214 (2008).
59 Id. at 225.
60 Id. at 237-238.
61 576 Phil. 576 (2008).
62 Id. at 588-589.
63People v. Gonzales, supra note 52, at 123.
64 1987 CONSTITUTION, Art. III, Sec. 14(2). "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved x x x."
65People v. Belocura, 693 Phil. 476, 503-504 (2012).
66 See People v. Mendoza, supra note 42, at 770.
67 Id.
68 See People v. Catalan, 699 Phil. 603, 621 (2012).
69 Id.
70 Id. at 621.
71 PNPM-D-O-3-1-99 [NG], the precursor anti-illegal drug operations manual prior to the 2010 and 2014 AIDSOTF Manual.
72 393 Phil. 68, 133 (2000).
73 See People v. Jugo, G.R. No. 231792, January 29, 2018, p. 10.