SECOND DIVISION
G.R. No. 218914, July 30, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. HENRY DE VERA Y MEDINA, 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 September 30, 2014 (assailed Decision) of the Court of Appeals, Ninth (9th) Division (CA) in CA-G.R. CR-HC No. 06188. The assailed Decision affirmed in toto the Decision3 dated April 10, 2013 rendered by the Regional Trial Court of Baguio City, Branch 61 (trial court), in Criminal Case (CC) Nos. 31846-R and 31847-R, which found accused-appellant Henry De Vera y Medina (De Vera) guilty beyond reasonable doubt of violation of Sections 54 and 115 of Article II of Republic Act No. (RA) 9165,6 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."
The accusatory portions of the two (2) Informations filed and consolidated before the trial court against De Vera read:
[Criminal Case No. 31846-R:]Upon his arraignment on June 27, 2011, De Vera entered a plea of "not guilty" to both offenses charged.9 Trial on the merits, thereafter, was held.
That on or about the 24th day of May 2011, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously sell and deliver One (1) heat sealed transparent plastic sachet containing 0.61 gram of methamphetamine hydrochloride also known as 'SHABU[,]' a dangerous drug, for Php5,000.00 to Albert Dolinta[,] Jr., a member of the City Anti-Illegal Drugs Special Operations Task Group (CAIDSOTG), Baguio City Police Office who acted as poseur buyer, knowing the same to be a dangerous drug, in violation of the aforementioned provision of law.7
[Criminal Case No. 31847-R:]
That on or about the 24th day of May 2011, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody: Three (3) heat sealed transparent plastic sachets, each containing 0.08 gram, 0.06 gram, and 0.06 gram, respectively, of methamphetamine hydrochloride also known as 'SHABU[,]' a dangerous drug, without the corresponding license or prescription from the authorities concerned, in violation of the aforementioned provision of law.8 (Emphasis in the original)
WHEREFORE, judgment is hereby rendered:The trial court ruled that the prosecution was able to discharge its burden to prove the guilt of De Vera for the separate crimes of sale and possession of illegal drugs. The presumption of regularity in the performance of duties of the buy-bust team far outweighed the presumption-of innocence of the accused, as the latter presumption was overturned by the evidence of the prosecution. Moreover, the accused's defense of denial is highly improbable and the defense failed to show ill-motives on the part of the buy-bust team so as to falsely impute upon De Vera the crimes charged.34
1. In Criminal Case No. 31846-R, finding the accused Henry De Vera GUILTY beyond reasonable doubt and he is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of P5,000,000.00; and,
2. In Criminal Case No. 31847-R, finding the accused Henry De Vera GUILTY beyond reasonable doubt and he is hereby sentenced to suffer the penalty of imprisonment of Twelve (12) Years and One (1) Day to Twenty (20) Years and a fine [of] P300,000.00[.]
SO ORDERED.33
WHEREFORE, the trial court's Decision dated April 10, 2013 is AFFIRMED in toto.The CA held that the prosecution adequately proved all the elements of the crimes charged and that the prosecution's evidence sufficiently established an unbroken link in the chain of custody. On the issue of non-compliance by the buy-bust team with Sec. 21 of RA 9165, the CA pronounced that such does not necessarily render the arrest illegal or the items seized inadmissible as what is essential is that the integrity and the evidentiary value of the seized items are preserved.41 Amidst the objections of the defense, the CA held that the identity and integrity of the seized drugs were proven by the prosecution.
SO ORDERED.40 (Emphasis and italics in the original)
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 Sec. 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)
(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; x x x (Emphasis supplied)The same likewise provides for a saving clause in case of non-compliance with the requirements of RA 9165 and the IRR, thus:
x x x 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. x x x (Emphasis supplied)The foregoing is echoed in Sec. 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, physical 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 a 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 x x x. (Emphasis supplied)
Compliance with the requirements forecloses opportunities for planting, contaminating, or tampering of evidence in any manner. Non-compliance, on the other hand, is tantamount to failure in establishing the identity of corpus delicti, thus engendering the acquittal of an accused.50
- 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.
x x x 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. x x x54 (Italics in the original)In the present case, the buy-bust operation was arranged in advance with the police officers having been able to form an apprehending team, prepare the necessary paperwork and the buy-bust money, coordinate with PDEA and set-up the sale. With all this time spent preparing, the records show no attempt by the buy-bust team to secure the presence of the three (3) witnesses to be present at the time and place of the alleged confiscation of the drugs. Instead, what is evident from the records is that the witnesses' presence were only secured upon return of the buy-bust team to CAIDSOTG office, and during the inventory of the seized items therein, as testified to by SPO2 Dolinta, thus:
Clearly, not one of the mandatory witnesses was present during, and at the place of, the alleged confiscation of drugs — confirming, in fact, the testimony of De Vera. There being no witness to insulate against police abuses at the point of seizure, i.e., the first link in the chain of custody, it becomes futile to establish the rest of the links in the chain. Doing so would simply be proving the chain of custody of, possibly, already planted drugs.
[PROSECUTOR MA. LOURDES SORIANO (PROS. SORIANO)]: x x x x Q After that, what happened? x xx x A Afterwards, PO2 Abrera stated to him his Constitutional Rights in Ilocano dialect which he understood. Afterwards, we brought the suspect to our office for the filing of the necessary charges against him. x x x x Q When you arrive[d] at your office, what happened next? x x x x A When we arrived at our office, we made the necessary documents. First is the Inventory of the evidence confiscated from the suspect. We called the representatives from the Barangay, Media and DOJ. We made the Inventory in our office.55 (Emphasis supplied)
Instead, these initial custody requirements were only made at about 1:30 a.m. or an hour and a half after the return of the buy-bust team to the CAIDSOTG office. Specifically on the inventory, SPO2 Dolinta testified:
[ATTY. IMMANUEL AWISAN (ATTY. AWISAN)]: x x x x Q And did you conduct an inventory of those items while you were still there at Upper Brookside, Baguio City? A No, Sir. Q There were also no photographs of those [seized] items? A No, Sir.56 (Emphasis supplied)
This fact likewise appears in SPO2 Dolinta's Affidavit58 dated May 25, 2011:
ATTY. AWISAN: x x x x Q What time did you reach the office after the arrest of Mr. Henry [D]e Vera? A I think we reached our office 12:00 midnight already. Q And what time was the inventory conducted? A At around I think 1:30 a.m. of May 25, 2011.57 (Emphasis supplied)
10. That while in the office we conducted the inventory with the presence of media representative from ABSCBN Meilen B. Pacio, Elected official RICO W. TIBONG and DOJ representative Prosecutor RAMSEY WYNN SUDAYPAN[.]59 (Emphasis supplied)As to the photographing, a perusal of the photographs60 reveals that they were, indeed, taken, not in Upper Brookside immediately after the confiscation,61 but only when the buy-bust team returned to the CAIDSOTG office and during the inventory.
In fine, the buy-bust team utterly failed to comply with the requirements of RA 9165 to perform a physical inventory and photographing of the seized illegal drugs immediately after, and at the place of, seizure and confiscation.Received the following item(s) from SPO2 ALBERT E. DOLINTA, JR., PNP, Baguio City:
x x x x
- Three (3) pictures: one of the accused and the two witnesses to the inventory x x x65 (Emphasis in the original)
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 [was] 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.74On the first prong, it has been held that the prosecution must first acknowledge the lapses on the part of the apprehending officers and thereafter cite the justifiable grounds therefor,75 which must be credible.76 Breaches of the procedure contained in Sec. 21 committed by the police officers, left unacknowledged and unexplained by the State, militate against a finding of guilt beyond reasonable doubt against the accused as the integrity and evidentiary value of the corpus delicti would then have been compromised.77
The accused objects to the admission of exhibit "C" (inventory of seized items) on the ground that the police officers failed to comply with [S]ection 21 Article II of R.A. 9165 relative to the handling and custody of drug evidences. The police officers failed to safeguard the integrity of the drug evidences. The inventory of the drug evidence and other seized items was not done immediately after the arrest but was only conducted after the lapse of a considerable period from the time the same were allegedly seized.85 (Emphasis supplied)The defense continued asserting this objection in its Brief filed with the CA, thus:
In the assailed decision, the trial court was convinced that the buy-bust team complied with Section 21, Article II of Republic Act No. 9165. The accused-appellant, however, maintains that there is no factual basis from which the trial court's finding can be derived.Remarkably, even as the defense, in its Brief pointed out the failure of the prosecution to justify the buy-bust team's procedural lapses which would have made possible the application of the saving clause, the prosecution remained mum on the matter. It could have very well filed a Supplemental Brief with the Court expressing its justifications for the lapses;87 however, it did not. Instead, the prosecution, in complete disregard of the defense's points, filed a Manifestation dispensing with the filing of a Supplemental Brief.88
x x x x
First, the prosecution witnesses claimed that the items seized were immediately marked upon confiscation. Nevertheless, it was not established beyond reasonable doubt whether the marking thereof was done in the presence of the accused-appellant, x x x
Second, the accused-appellant did not witness nor sign the inventory, x x x
Third, no photograph was taken during the actual confiscation of the items, x x x
The above enumerated points of noncompliance with the prescribed procedure would not invalidate the search and seizure of the items subject of this case, only if: (1) the noncompliance was based on justifiable grounds; and (2) the integrity of the items confiscated has been preserved. The problem is that the prosecution failed to satisfy the two (2) requirements.
No explanation was at all offered to justify these lapses and the integrity of the confiscated items had not been preserved. x x x (Additional emphasis supplied and italics in the original)86
But the CA is in error in one important point. It said that the chain of custody of the seized drugs does not appear to be unbroken. But the PDEA report to the Provincial Prosecutor's Office, the booking sheet and arrest report, the Certificate of Inventory, and the laboratory examination request all put down the seized shabu as weighing 0.4 gram. The forensic chemist reported and testified, however, that the police actually submitted only 0.2204 gram of shabu for laboratory testing, short by 0.1796 gram from what the police inventoried.In the present case, similar to Pornillos, the pieces of evidence submitted reveal a significant discrepancy of 39% between the weight of the drugs allegedly confiscated from De Vera and those subjected to examination by the forensic chemist. In dismissing this irregularity, the CA accepted the prosecution's explanation that the quantity of the seized items as indicated in the Request and Inventory are "approximate" weights only, not "true" weights.97 Likewise, the seized drugs were marked anyway, hence, switching, planting or contamination thereof was obviated.98
In People v. Aneslag, the Information alleged that the accused sold 240 grams of shabu but the forensic test showed that the drugs weighed only 230 grams, short by 10 grams. The prosecution offered a sound explanation for the 4.16% loss. The trial court ordered two separate tests of the subject shabu packs. As a consequence the two chemists took out separate samples from each of the seized packs of shabu, resulting in the weight loss.
Here, however, the percentage of loss was not that small. The content of the sachet was inventoried at 0.4 gram but yielded only 0.2204 gram during the laboratory test, short by 0.1796 gram. It suffered a loss of 45% or nearly half of the original weight. The prosecution has three theories: only two chemists served the entire region giving rise to possible error; the police and the crime laboratory used different weighing scales; and the failure of the laboratory to take into account the weight of the sachet container. But these are mere speculations since none of those involved was willing to admit having committed weighing error. Speculations cannot overcome the concrete evidence that what was seized was not what was forensically tested. This implies tampering with the prosecution evidence. The Court cannot affirm the conviction of Pornillos on compromised evidence.96 (Emphasis and underscoring supplied)
x x x 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.108 (Emphasis and underscoring supplied)Hence, there is no such presumption that may arise in the present case. Contrary to the trial court's categorical declaration, 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 incumbent upon the prosecution to prove that the accused is indeed guilty beyond reasonable doubt and overcome his presumed innocence.109
Endnotes:
1Rollo, pp. 23-24.
2 Id. at 2-22. Penned by Associate Justice Magdangal M. De Leon with Associate Justices Stephen C. Cruz and Eduardo B. Peralta, Jr. concurring.
3 CA rollo, pp. 54-63. Penned by Presiding Judge Antonio C. Reyes.
4SEC. 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.
5 SEC. 11. Possession of Dangerous Drugs. — The penalty of x x x shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug x x x regardless of the degree of purity thereof:
x x x x
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu[,]" or other dangerous drugs such as, but not limited to, MDMA or "ecstasy[,]" PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana.
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 (2002).
7 Records, p. 1
8 Id. at 15. The Information mistakenly cited Sec. 12, Article II of RA 9165 instead of Sec. 11 as clearly intended from the body.
9 Id. at 33.
10 Referred to as "PO3 Charmino" in some parts of the records.
11 Direct Examination of SPO2 Dolinta, TSN, May 7, 2012, p. 6.
12 Id.
13 Id.
14 Id. at 7-8.
15 Id. at 9-10.
16 Id. at 10.
17 Id. at 11-12.
18 Id. at 12-13.
19 Records, p. 4.
20 Direct Examination of SPO2 Dolinta, TSN, May 7, 2012, p. 14.
21 Id.
22 Records, p. 4.
23 Direct Examination of SPO2 Dolinta, TSN, May 7, 2012, p. 15.
24 Records, p. 4.
25 Id. at 5.
26 Direct Examination of PO3 Charmino, TSN, June 6, 2012, p. 14.
27 Records, p. 5.
28 Direct Examination of SPO2 Dolinta, TSN, May 7, 2012, p. 18.
29 Records, p. 4.
30 Direct Examination of SPO2 Dolinta, TSN, May 7, 2012, p. 22.
31 Id. at 21.
32 Direct Examination of De Vera, TSN, February 18, 2013, pp. 6-22.
33 CA rollo, p. 63.
34 Id. at 58.
35 Id. at 57-63.
36 Records, pp. 182-183.
37 CA rollo, pp. 38-52.
38 Id. at 77-94.
39 Id. at 95-96.
40Rollo, p. 21.
41 Id. at 11.
42 Id. at 30-34.
43 Id. at 37-41.
44People v. Casacop, 778 Phil. 369, 375 (2016).
45 See People v. Abetong, 735 Phil. 476, 490 (2014); Valencia v. People, 725 Phil. 268, 277 (2014).
46 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; People v. Lorenzo, 633 Phil. 393, 403 (2010).
47 The definition of "chain of custody" can be found in Sec. 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements RA 9165, thus: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 [to] destruction. Such record of movements and custody of seized [items] 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.48People v. Dahil, 750 Phil. 212, 226 (2015).
49 Id. at 227.
50People v. Dela Cruz, 744 Phil. 816, 830 (2014).
51 Comprehensive Dangerous Drugs Act of 2002, as amended by RA 10640, Sec. 21 (l).
52 See IRR, Article II, Sec. 21 (a).
53 As early as in the case of People v. Cruz, 310 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. x x x54People v. Mendoza, 736 Phil. 749, 764 (2014).
55 Direct Examination of SPO2 Dolinta, TSN, May 7, 2012, pp. 17-19.
56 Re-Cross Examination of SPO2 Dolinta, TSN, May 8, 2012, p. 23.
57 Id. at 26.
58 Records, p. 4.
59 Id.
60 Showing, in the background, what appear to be office tables and a poster of the PNP attached to the wall. Records, p. 43.
61 Re-Cross Examination of SPO2 Dolinta, TSN, May 8, 2012, p. 23.
62 Records, p. 43.
63 See Sec. 21 of RA 9165.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:64 Records, p. 38.
(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[.] (Emphasis supplied)
65 Id.
66People v. Beran, 724 Phil. 788 (2014).
67People v. Ismael, G.R. No. 208093, February 20, 2017, 818 SCRA 122, 141.
68 See People v. Jugo, G.R. No. 231792, January 29, 2018, p. 10.
69People v. Cayas, 789 Phil. 70, 79 (2016); People v. Havana, 776 Phil. 462, 475 (2016).
70 See People v. Sanchez, 590 Phil. 214, 234 (2008).
71 x x x 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)
72 See id.
73 Supra note 45.
74 Id. at 286.
75People v. Cayas, supra note 69, at 80.
76People v. Barte, G.R. No. 179749, March 1, 2017, 819 SCRA 10.
77 Id.; see also People v. Sumili, 753 Phil. 342, 352 (2015).
78 CA rollo, p. 88.
79 Id.
80People v. Cayas, supra note 69; People v. Havana, supra note 69.
81 CA rollo, p. 89.
82People v. Kamad, 624 Phil. 289, 301 (2010), citing People v. Garcia, 599 Phil. 416, 427 (2009).
83People v. Galvez, 548 Phil. 436, 470 (2007), citing People v. Saavedra, 233 Phil. 622, 647 (1987).
84 Records, pp. 137-138.
85 Id. at. 137.
86 CA rollo, pp. 48-50.
87 On August 12, 2015, the Court resolved, among others, to notify the parties that they may file their respective supplemental briefs within thirty (30) days from such notice. Rollo, p. 28.
88Rollo, p. 37.
89 Records, p. 6.
90 Id. at 7.
91 Id. at 6-7. The following table appear in both the Request and the Inventory:
MARKING/S QUANTITY DESCRIPTION EXH-A"AED"
05/24/2011
W/ signature Approximately zero point sixty (0.60) gram of suspected white crystalline substance suspected to be "shabu" for buy-bust. One (1) piece of small heat sealed transparent plastic sachet containing white crystalline substance suspected to be "Shabu" marked with "AED" 05/24/2011 and signature for identification purposes. EXH-B-1"MNC"
05/24/2011
W/ signature Approximately zero point twenty four (0.24) gram each sachet of suspected white crystalline substance suspected to be "shabu" for possession. One (1) piece of small heat sealed transparent plastic sachet containing white crystalline substance suspected to be "Shabu" marked with "MNC" 05/24/2011 and signature for identification purposes. EXH-B-2"MNC"
05/24/2011
W/ signature Approximately zero point twenty four (0.24) gram each sachet of suspected white crystalline substance suspected to be "shabu" for possession. One (1) piece of small heat sealed transparent plastic sachet containing white crystalline substance suspected to be "Shabu" marked with "MNC" 05/24/2011 and signature for identification purposes. EXH-B-3"MNC"
05/24/2011
W/ signature Approximately zero point twenty four (0.24) gram each sachet of suspected white crystalline substance suspected to be "shabu" for possession. One (1) piece of small heat sealed transparent plastic sachet containing white crystalline substance suspected to be "Shabu" marked with "MNC" 05/24/2011 and signature for identification purposes.
92 Id. at 8.
93 Id. at 42.
94 Id. at 8, 42. The following appear in both the Laboratory Report and Chemistry Report:
SPECIMEN/S SUBMITTED:
1 - Four (4) heat sealed transparent plastic sachets, each containing white crystalline substance with the following markings and recorded net weights:A = [EXH-A AED 05/24/2011 and signature] = 0.61 gram95 718 Phil. 675 (2013).
B = [EXH B-1 MNC 05/24/2011 and signature] = 0.08 gram
C = [EXH B-2 MNC 05/24/2011 and signature] = 0.06 gram
D = [EXH B-3 MNC 05/24/2011 and signature] = 0.06 gram (Emphasis in the original)
96 Id. at 678-679.
97 CA rollo, p. 86.
98Rollo, p. 19.
99 699 Phil. 146, 166-167 (2012).
100 Records, p. 4.
101 Cross Examination of SPO2 Dolinta, TSN, May 8, 2012, p. 12.
102Rollo, p. 11.
103 See People v. Umipang, 686 Phil. 1024, 1038 (2012).
104 Id. at 1033.
105 CA rollo, p. 92.
106 Id. at 58.
107 Supra note 82.
108 Id. at 311.
109People v. Pagaura, 334 Phil. 683, 690 (1997).
110Macayan, Jr. v. People, 756 Phil. 202, 214 (2015).
111 See People v. Jugo, supra note 68.
112People v. Dahil, supra note 48, at 225.
113 See People v. Jugo, supra note 68.
PERALTA, J.:
I concur with the ponencia in acquitting accused-appellant Henry De Vera y Medina of the charges of illegal sale and illegal possession of dangerous drugs, or violation of Sections 5 and 11, Article II of Republic Act No. (R.A. No.) 9165,1 respectively. The ponencia duly noted that the records show no attempt by the buy-bust team to secure the presence of the three (3) witnesses required to be present at the time and place of the alleged confiscation of the dangerous drugs, namely: the public elected official, the Department of Justice representative and the media representative. I also agree with the ponencia in stressing that the prosecution did not concede the evident lapses of the buy-bust team, and no explanation was advanced as to the failure to conduct the inventory and take photographs of the seized drugs immediately after confiscation and in the presence of the insulating witnesses and the accused. Nevertheless, I would like to elaborate on important matters relative to Section 212 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 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.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
x x x x
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 if the elected official is afraid or scared.8
Section 29. Criminal Liability for Planting of Evidence. - Any person who is found guilty of "planting" 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. (Emphasis ours)
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.
6Id.
7Id.
8Id. 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.
12Id.
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.