FIRST DIVISION
G.R. No. 233207, August 20, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ANTHONY MADRIA Y HIGAYON, Accused-Appellant.
D E C I S I O N
TIJAM, J.:
Before the Court is an appeal1 from the Court of Appeals' (CA's) Decision2 dated March 8, 2017 in CA-G.R. No. CR-HC No. 01357-MIN, affirming the Decision3 dated October 27, 2014 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 25, convicting accused-appellant Anthony Madria y Higayon (Madria) for violation of: (1) Section 11 (possession), Article II of Republic Act (R.A.) No. 9165 in Criminal Case No. 2010-001 for illegal possession of shabu; and (2) Section 5 (selling), Article II of R.A. No. 91654 in Criminal Case No. 2010-002 for illegal sale of shabu.
Upon arraignment, both appellant Madria and Lorenzo De Ala (De Ala) entered a plea of "Not Guilty" to the crimes charged. Joint trial of the cases ensued.Criminal Case No. 2010-001
That on or about December 28, 2009, at more or less 6:25 o'clock in the evening, at Ramonal St., Barangay 29, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or use any dangerous drugs, did then and there willfully, unlawfully, criminally, and knowingly have in his possession, custody, and control, six (6) small heat-sealed transparent plastic sachets containing Methamphetamine Hydrochloride, locally known as Shabu, a dangerous drug, with a total weight of 0.42 gram, accused well-knowing that the substance recovered from his possession is a dangerous drug.5Criminal Case No. 2010-002
That on or about December 28, 2009, at more or less 6:25 o'clock in the evening, at Ramonal St., Barangay 29, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, and mutually helping one another, without being authorized by law to sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drugs, did then and there willfully, unlawfully, criminally, and knowingly sell and/or offer for sale, and give away to a poseur-buyer One (1) small heat-sealed transparent plastic sachet containing Methamphetamine Hydrochloride, locally known as Shabu, a dangerous drug, weighing 0.02 gram, accused knowing the same to be a dangerous drug in consideration of Five Hundred pesos (Php500.00) with Serial No. EL 240363, which was previously marked for the purpose of the buy-bust operation.6
WHEREFORE, premises considered, this Court hereby finds that:
1. In Criminal Case No. 2010-001, accused ANTHONY MADRIA Y HIGAYON is hereby found GUILTY BEYOND REASONABLE DOUBT of the offense defined and penalized under Section 11, Article II of R.A. 9165 and each is hereby sentenced to an indeterminate penalty of IMPRISONMENT ranging from twelve (12) years and one (1) day to thirteen (13) years, and to pay a Fine in the amount of P300,000.00 without subsidiary imprisonment in case of non-payment of Fine;
2. In Criminal Case No. 2010-002, accused ANTHONY MADRIA Y HIGAYON and LORENZO DE ALA are GUILTY BEYOND REASONABLE DOUBT of the crime defined and penalized under Section 5, Article II of R.A. 9165, and hereby sentences him to a penalty of LIFE IMPRISONMENT and for each of them to pay a Fine in the amount of Five Hundred Thousand Pesos [P500,000.00] without subsidiary imprisonment in case of non-payment of Fine.
x x x x
SO ORDERED.14
FOR THESE REASONS, the Judgment in Criminal Case Nos. 2010-001 and 2010-002 appealed from is AFFIRMED in toto.Thereafter, only accused Madria filed this instant petition18 raising this sole assignment of error:
SO ORDERED.17
Section 1 (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[.]Corollary thereto, in Junie Mallillin y Lopez v. People of the Philippines,23 the Court explained that 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. Thus:
x x x 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.24We find merit in Madria's protestations that the prosecution failed to establish the charges against him due to the gaps in the chain of custody and due to the assailable integrity of the evidence in view of the police officers' non-compliance with Section 21,25 Article II of R.A. No. 9165 and its Implementing Rules and Regulations (IRR).26
As regards the items seized and subjected to marking, Section 21(1) of the Comprehensive Dangerous Drugs Act, as amended, requires the performance of two (2) actions: physical inventory and photographing. Section 21(1) is specific as to when and where these actions must be done. As to when, it must be "immediately after seizure and confiscation." As to where, it depends on whether the seizure was supported by a search warrant. If a search warrant was served, the physical inventory and photographing must be done at the exact same place that the search warrant is served. In case of warrantless seizures, these actions must be done "at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable."Notably, the procedures mentioned in R.A. No. 9165 are mandatory in nature, as indicated by the use of the word "shall" in its directives and its implementing rules.29
Moreover, Section 21(1) requires at least three (3) persons to be present during the physical inventory and photographing. These persons are: first, the accused or the person/s from whom the items were seized; second, an elected public official; and third, a representative of the National Prosecution Service. There are, however, alternatives to the first and the third. As to the first (i.e., the accused or the person/s from whom items were seized), there are two (2) alternatives: first, his or her representative; and second, his or her counsel. As to the representative of the National Prosecution Service, a representative of the media may be present in his or her place.28
"Marking" is the placing by the arresting officer or the poseur-buyer of his/her initials and signature on the items after they have been seized. It is the starting point in the custodial link. It is vital that the seized items be marked immediately since the succeeding handlers thereof will use the markings as reference.Likewise, in the case of People v. Joselito Beran y Zapanta,31 the Court held that:
To truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence, the chain of custody rule requires that the marking of the seized contraband be done (1) in the presence of the apprehended violator, and (2) immediately upon confiscation.32Indeed, it is important that the seized drugs be immediately marked, if possible, as soon as they are seized from the accused.33
Based on IO1 Siglos' testimony, it can be deduced, that at the outset, even before the buy-bust team initiated its operation on Madria and De Ala, no arresting officer was so minded to mark or even take a photo of the possible contraband that they may recover from both accused. This is manifested by the fact that none of them had a ball pen, sign pen, masking tape and camera - basic tools that can be used to mark the seized items. To put it differently, the allegation regarding the arresting officers' supposed security being compromised was already predetermined. Obviously, right from the start, the arresting officers had no intention to comply with the law by marking the seized items in the presence of the accused and immediately upon confiscation.
[CROSS-EXAMINATION by Atty. Amarga] x x x x Q: Now what were the things that you brought to the target area? A: Only the marked money. Q: You do not have any ball pen or sign pen? A: No, Sir. Q: You do not have a masking tape? A: No, Sir. Q: You do not have a camera? A: No, Sir. x x x x.34
This justification, however, is insufficient. Other than the bare allegation that coordination with the media and the barangay officials could have compromised the buy-bust operation, the prosecution offered no factual evidence to substantiate this claim. Likewise, there was no allegation that these people, required by law, could similarly compromise the operation if they had been informed of and present before, during, and after the operation. In People v. Macud,40 we emphasized the importance of this requirement, thus:
[REDIRECT EXAMINATION by Prosecutor Vicente] Q: Why is it that you did not inform the barangay of your operation? A: Because there is a possibility that the information would leak, Sir. Q: You also said that there was no media. Why? A: To contact a media is very hard, Sir, because most media are willing to hear the news regarding a buy-bust operation but not willing to appear in Court as witnesses. x x x x38 [RECROSS EXAMINATION by Atty. Blanco] Q: This PDEA office that you mentioned is the one at Corrales just right next to the Bombo Radio? A: Yes, Ma'am. Q: Yet at few steps to the Bombo Radio, you did not inform the radio personnel as to your operation? A: Yes, Ma'am. x x x x39
The presence of the persons who should witness the post-operation procedures is necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity. The insulating presence of such witnesses would have preserved an unbroken chain of custody. We have noted in several cases that a buy-bust operation is susceptible to abuse, and the only way to prevent this is to ensure that the procedural safeguards provided by the law are strictly observed.Here, this procedure has not been followed, and its breach not justifiably explained. To note, it is the prosecution who had the concomitant part to "establish that earnest efforts were employed in contacting the representatives enumerated" under the law.41 This, it failed to do.
x x x Admittedly, the apprehending police officers merely paid a lip service on the procedural requirement provided for under Section 21. The pictures were taken, but no pictures depicting the arrest were offered in evidence. An inventory was made, but no signatures of the personalities mentioned under Section 21, appeared thereon, x x x.42To compound the flaws in the chain of custody, this Court observed that the prosecution failed to proffer evidence on how the items were stored, preserved, labeled, and recorded from the moment they were confiscated at the crime scene, to the time they were inventoried at the PDEA office, until they were brought to the PNP Crime Laboratory for examination, and finally presented to the trial court. IO2 Pimentel could not even identify the particular item which was the subject of the illegal sale as a result of the buy-bust operation. He even admitted that the same could have been co-mingled with the items seized from Madria for illegal possession. Thus:
Interestingly, IO1 Siglos' testimony, likewise, reveals that she did not disclose to IO2 Pimentel which item was the subject of the buy-bust operation, thus:
[CROSS-EXAMINATION by Atty. Blanco] x x x x Q: And the sachet of shabu which was the alleged subject of the buy-bust operation was given to you by Siglos right there at the area? A: Yes, Ma'am. Q: Therefore, you had in your possession the 6 sachets of shabu including the one sachet of shabu given to you by Siglos in your left hand?A: Yes, Ma'am. Q: The one sachet was co-mingled because it was in your palm and there was no marking made yet during the operation?A: Yes, Ma'am. Q: From the seven (7) sachets, you cannot identify which one was the subject of the buy-bust operation? A: The poseur-buyer can identify, Ma'am. Q: How can he identify when you said you were the one who marked the sachet in your office? A: He was there during the marking, Ma'am. Q: But there was no marking in the crime scene?A: Yes, Ma'am.Q: You are saying that the one sachet of shabu, the alleged subject of the buy-bust operation, was co-mingled with the other 6 sachets? A: Yes, Ma'am. Q: Therefore, you cannot identify the sachet which was the subject of the
buy-bust operation?A: Siglos can identify that, Ma'am. x x x x43 (Emphasis Ours)
Based on the testimonies of the police officers, we find that there is no assurance that the confiscated items presented here as evidence are the same articles that had been the subject of the crime of illegal sale and illegal possession charges against Madria. The indeterminateness of the identities of the seized items even before they were marked, and the failure of the police officers to adequately show how these items were handled and preserved,45 while in their possession, broke the chain of custody. It entertains the likelihood that these items were switched or replaced. As such, it tainted the integrity of the alleged shabu ultimately presented as evidence before the trial court.
[COURT] x x x x Q: When Pimentel recovered the six (6) sachets of shabu, were you
present? A: Yes, Your Honor. Q: Did you tell him which of the sachets was taken by you from the accused? A: No, Your Honor. Q: How did Pimentel know that this is the particular sachet of shabu that you bought? A: He just hold [sic] it, Your Honor. Q: From Justo Ramonal Street to your office, he was holding only one (1) sachet? A: Yes, Your Honor. Q: It was not further placed in a container; Not even placed inside his pocket? A: Yes, Your Honor.44 (Emphasis Ours)
Endnotes:
* Designated Acting Chairperson per Revised Special Order No. 2582 dated August 8, 2018.
** Designated as Acting Member pursuant to Revised Special Order No. 2560 dated May 11, 2018.
1Rollo, pp. 16-17.
2 Penned by Associate Justice Edgardo A. Camello, with Associate Justices Edgardo T. Lloren and Perpetua T. Atal-Paño, concurring. Id. at 3-15.
3 Penned by Presiding Judge Arthur L. Abundiente. CA rollo, pp. 46-56.
4Comprehensive Dangerous Drugs Act of 2002.
5 Id. at 4.
6 Id. at 3.
7 CA rollo, pp. 48-49.
8 Id. at 49, 67-68.
9 Id. at 49-50, 68-69; Rollo, pp. 6-7.
10 CA rollo, pp. 50-69.
11Rollo, pp. 5-6.
12 Id. at 7-8; CA rollo, pp. 50-51.
13 CA rollo, pp. 51-52.
14 Id. at 55-56.
15 Id. at 26-45 and 80-94.
16Rollo, pp. 3-15.
17 Id. at 14.
18 Id. at 16-17.
19People v. Garcia, 599 Phil. 416, 426-427 (2009).
20People v. Tan, 401 Phil. 259, 273 (2000); citing People v. Pagaura, 334 Phil. 683-689 (1997).
21People v. Garcia, supra note 19, at 427.
22Dangerous Drugs Board (DOB) Regulation No. 1, Series of 2002.
23 576 Phil. 576 (2008).
24 Id. at 587.
25 Article II - Unlawful Acts and Penalties
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs. Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The 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: x x x
26 Section 21 (a). - The apprehending office/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 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, shall not render void and invalid such seizures of and custody over said items; x x x x
27 778 Phil. 460 (2016).
28 Id. at 475.
29People v. Morales y Midarasa, 630 Phil. 215, 230 (2010).
30 G.R. No. 206590, March 27, 2017; citing People v. Alejandro, 671 Phil. 33, 46 (2011).
31 724 Phil. 788 (2014); citing People v. Sanchez, 590 Phil. 214, 241 (2008).
32 Id. at 819.
33People v. Ismael, G.R. No. 208093, February 20, 2017.
34 TSN dated August 3, 2010, pp. 14-15.
35People v. Umipang y Abdul, 686 Phil. 1024, 1050 (2012); citing People v. Laxa, 414 Phil. 156 (2001); People v. Casimiro, 432 Phil. 966 (2002).
36People v. Gonzales, 708 Phil. 121, 131 (2013).
37People v. Ismael, supra note 33.
38 TSN dated July 15, 2010, p. 39.
39 Id. at 39-40
40 G.R. No. 219175, December 14, 2017.
41People v. Umipang y Abdul, supra note 35, at 1053.
42 CA rollo, p. 55.
43 TSN dated July 15, 2010, pp. 36-37.
44 TSN dated August 3, 2010, pp. 23-24.
45People v. Ismael, supra note 33.
46People v. Segundo y Iglesias, G.R. No. 205614, July 26, 2017.
47Cariño, et al. v. People, 600 Phil. 433, 451 (2009); see People v. Capuno, 655 Phil. 226, 244 (2011).