FIRST DIVISION
G.R. No. 231010, June 26, 2019
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. ORLY VISPERAS Y ACOBO, ACCUSED-APPELLANT.
D E C I S I O N
DEL CASTILLO, J.:
Appellant Orly Visperas y Acobo (appellant) appeals from the October 16, 2015 Decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 06149, that affirmed the April 1, 2013 Decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 44, in Criminal Case No. 2010-0518-D, finding him guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act (RA) No. 9165.
Factual Antecedents
Appellant was charged with violation of Section 5, Article II of RA 9165 the accusatory portion of the Amended Information alleging viz.:
That on or about September 29, 2010, in the evening in Mapandan, Pangasinan and within the jurisdiction of the Honorable Court, the above-named accused did, then and there willfully, unlawfully and feloniously, SELL, TRADE, DELIVERED [sic], DISTRIBUTED [sic], DISPENSED [sic] to an undercover police officer who acted as poseur-buyer one (1) heat-sealed transparent plastic sachet of methamphetamine hydrochloride with a weight of 0.028 grams [sic], without necessary permit or authority to sell.During his arraignment, appellant pleaded not guilty. Thereafter, trial ensued.
CONTRARY TO Section 5, Article II, of RA 9165.3
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:The Implementing Rules and Regulations (IRR) further expand on the proper procedure to be followed under Section 21(1), Article II of RA 9165, thus -(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; x x x.
(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 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;In People v. Lim,6 the Court stressed the importance of the presence or attendance of the three witnesses, namely, any elected public official, the representative from the media, and the DOJ representative, at the time of the physical inventory and photograph of the seized items. In the event of their absence, the Court held:
It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not obtained due to reason/s such as:On top of these, there must be evidence of earnest efforts to secure the attendance of the necessary witnesses. In People v. Ramos,8 the Court ruled:
(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code proved futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.7 (Emphasis in the original)
It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse." Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for non-compliance. These considerations arise from the fact that police officers are ordinarily given sufficient time - beginning from the moment they have received the information about the activities of the accused until the time of his arrest - to prepare for a buy-bust operation and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable.9 (Emphasis in the original)In other words, jurisprudence requires that, in the event that the presence or attendance of the essential witnesses is not obtained, the prosecution must establish not only the reasons for their absence, but also that earnest efforts were exerted in securing their presence.10 The prosecution must explain the reasons for the procedural lapses, and the justifiable grounds for failure to comply must be proven, since the Court cannot presume what these grounds are or that they even exist.11
Endnotes:
* Per Raffle dated October 29, 2018.
1 CA rollo, pp. 85-99; penned by Associate Justice Maria Elisa Sempio Diy and concurred in by Associate Justices Ramon M. Bato, Jr. and Manuel M. Barrios.
2 Records, pp. 149-155; penned by Presiding Judge Genoveva Coching-Maramba.
3 Id. at 33.4People v. Caiz, 790 Phil. 183, 196 (2016).
5 Id. at 197.
6 G.R. No. 231989, September 4, 2018.
7 Id.
8 G.R. No. 233744, February 28, 2018. (Citations omitted).
9 Id.
10People v. Pascua, G.R. No. 227707, October 8, 2018.
11People v. Ramos, supra note 8.