SECOND DIVISION
G.R. No. 217661, June 26, 2019
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. FERDINAND BUNIAG Y MERCADERA, ACCUSED-APPELLANT.
D E C I S I O N
CAGUIOA, J.:
This is an Appeal1 under Section 13(c), Rule 124 of the Rules of Court from the Decision2 dated January 30, 2015 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 01246, which affirmed the Judgment3 dated December 23, 2013 rendered by the Regional Trial Court, Branch 40, Misamis Oriental, 10th Judicial Region (RTC) in Criminal Case No. 2008-498, finding accused-appellant Ferdinand Buniag y Mercadera (Buniag) guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. (RA) 9165,4 otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as amended.
That on or about 7:30 P.M. of August 9, 2008, at Olape St., Zone 2 Bayabas, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drugs did then and there wil[l]fully, unlawfully, criminally[,] and knowingly sell and/or offer for sale, and give away[,] and deliver to a poseur [-]buyer [o]ne (1) LG black and red travelling bag with marking "NVP" containing two (2) bundles of dried alleged marijuana fruiting tops with stalks both wrapped in a blue print paper with marking NVP-1 and NVP-2 respectively and one (1) bundle of dried marijuana fruiting tops with stalks wrapped in a GRAPHIC poster paper marking NVP-3 with the following corresponding net weights; A-1 (NVP-1) 154.7 grams, A-2 (NVP-2) 118.8 grams and A-3 [QNVP-3) 36.5 grams respectively, accused knowing the same to be a dangerous drug.Upon arraignment, Buniag pleaded not guilty to the charge.7
Contrary to Section 5, Paragraph 1, in relation to Section 26, Article II of Republic Act No. 9165.6
On August 9, 2008 at around 4 o'clock in the afternoon, PDEA Agent IO1 Rubylyn S. Alfaro (IO1 Alfaro), together with her confidential informant, met with the accused-appellant Buniag outside the vicinity of Bayabas High School, Cagayan de Oro City. It was agreed that IO1 Alfaro will purchase Php 5,000.00 worth of marijuana from Buniag and that the delivery will be made at around 7:00 to 7:30 in the evening of the same day along the street of Olape, Zone 2, Bayabas, Cagayan de Oro City.Version of the Defense
IO1 Alfaro and the CI then went back to their office and relayed the aforesaid information to her fellow agents. At the office, a briefing was conducted wherein IO1 Alfaro was designated as the poseur[-]buyer while IO2 Neil Vincent Pimentel (IO2 Pimentel) was assigned as the back[-]up and arresting officer. After the meeting, the buy[-]bust team composing of IO2 Pimentel, IO1 Alfaro, PO2 Benjamin Reycites, SPO1 Amacanin, IO1 Pica, and the CI, went to the designated area on board their unmarked service vehicle.
The buy[-]bust team arrived at the target area at around 7:10 in the evening. IO1 Alfaro and the CI were dropped off along Olape Street while the rest of the team were inside the vehicle, which was parked from a distance of 5 to 7 meters away from IO1 Alfaro. The rest of the team were cautiously observing the area while IO1 Alfaro and the CI were waiting for Buniag.
Minutes later, Buniag came, carrying with him a black traveling bag. Buniag approached IO1 Alfaro and demanded for the payment of the marijuana but the latter insisted that she should see the narcotics first. Buniag acceded to the request and opened the black traveling bag. IO1 Alfaro and the CI inspected the bag and saw three (3) bundles of marijuana stalks and leaves inside. Wasting no time, IO1 Alfaro made the pre-arranged signal, by executing a "missed call" to IO2 Pimentel, and the rest of the team rushed to their location. IO2 Pimentel arrested the accused-appellant after apprising the latter of his constitutional rights and the nature of the crime he had just violated. IO2 Pimentel then got hold of the black traveling bag, together with three (3) bundles of marijuana inside. The team then brought Buniag to their station with IO2 Pimentel in possession of the traveling bag and the illegal narcotics in going thereto.
At the station, IO2 Pimentel marked the black traveling bag with his initials "NVP" while the three bundles of marijuana were successively marked with "NVP 1" to "NVP 3". IO2 Pimentel then prepared the Inventory of Seized Items while their Regional Director made the Letter Request for Laboratory Examination. Pictures were also taken of the accused-appellant and the seized items. IO2 Pimentel and IO1 Alfaro then brought Buniag and the seized items to the Regional Crime Laboratory Office which received the seized items at 9:10 in the evening of the same day. Upon a qualitative examination conducted by PSI Erma Condino Salvacion, the three bundles were found positive for marijuana, a dangerous drug. The result of the said examination was embodied in Chemistry Report No. D-154-2008.8
On August 8, 2008, Buniag, a resident of Wao, Lanao del Sur, went to Cagayan de Oro City pursuant to the request of his brother, who was in Manila, to check the latter's house in Bayabas, Cagayan de Oro City. On the evening of the next day, he went out of his brother's house to buy some food. Suddenly, a vehicle stopped in front of him and two persons, whom he later recognized as IO2 Pimentel and IO1 Alfaro, alighted therefrom and ran towards him. The two persons then handcuffed him and told him that he is a suspect because there are plenty of marijuana in Wao, to which he replied that such is not true.
After his arrest, Buniag was made to board a vehicle. While inside the vehicle, IO2 Pimentel asked for Php 20,000.00 so that he will be released. He replied that he has no money because his family is very poor. IO2 Pimentel continued to ask if he has a title to a lot or a house, to which he replied that he has none. At the PDEA Office, he was made to sit down on a chair and was asked to point to a black bag. He was then photographed while pointing to the said bag. He was then brought to the crime laboratory wherein he was given a plastic container and was told to urinate [i]n it. He said that during the course of his arrest and at the laboratory, he was made to sign documents without knowing the contents therein. Buniag vehemently denied that he owned the black traveling bag, as well as the three bundles of marijuana inside it. He claimed that he did not even know what marijuana is.9
WHEREFORE, all the foregoing premises considered, the court hereby finds accused Ferdinand Buniag y Mercadera GUILTY beyond reasonable doubt of having committed the offense charged in the information (violation of Section 5, Article II of R.A. 9165). He is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine in the amount of FIVE HUNDRED THOUSAND PESOS (P500.000.00), without subsidiary imprisonment in case of insolvency. The period of his preventive detention shall be credited in his favor. The bundles of marijuana are hereby ordered forfeited in favour of the government for proper disposal in accordance with the rules.
SO ORDERED.14Aggrieved, Buniag appealed to the CA.
WHEREFORE, the appeal is DENIED. The Judgment dated June 14, 2013 of the Regional Trial Court of Misamis Oriental, 10th Judicial Region, Branch 40 in Criminal Case No. 2008-498 is hereby MODIFIED. Accused-appellant Ferdinand Buniag y Mercadera is found GUILTY beyond reasonable doubt for violating Section 26(b), Article II of R.A. No. 9165 .and is sentenced to suffer a penalty of life imprisonment and to pay a fine of P500,000.00The CA ruled that a perusal of the Information filed against Buniag would show that he was charged with violation of Section 5, paragraph 1, in relation to Section 26,16 Article II of RA 9165.17 Here, Buniag clearly intended to sell marijuana and commenced overt acts in relation to it, however, the sale was aborted when IO1 Alfaro, upon confirming that Buniag had with him the marijuana, made a "miss-call" to IO2 Pimentel, their pre-arranged signal, and the rest of the team rushed to the area and placed Buniag under arrest.18 From the testimonies of the witnesses, the prosecution was able to establish that there was an attempt to sell marijuana.19 Thus, the RTC should have convicted Buniag for violation of Section 26(b), Article II of RA 9165.20
SO ORDERED.15
Second, although there was a media representative who signed the inventory report at the police office, such is not enough because the law requires that the mandatory witnesses should already be present during the actual inventory and not merely after the fact. Moreover, there was no representative from the Department of Justice (DOJ) or any elected official at the time of arrest of the accused and seizure of the illegal drugs, and inventory and photography of the seized items at the police station.32 As testified by IO2 Pimentel:
Q- You identified earlier the picture, am I correct also to say that the picture was only taken when you were already there in your office? A- Yes[,] Sir. Q- As well as the marking of the items were (sic) only made in your office? A- Yes[,] Sir.31
In this connection, the Court has repeatedly held that Section 21, Article II of RA 9165, the applicable law at the time of the commission of the alleged crime, strictly requires that (1) the seized items be inventoried and photographed immediately after seizure or confiscation; and (2) the physical inventory and photographing must be done in the presence of (a) the accused or his/her representative or counsel, (b) an elected public official, (c) a representative from the media, and (d) a representative from the DOJ.34
Q- There is Amor appeared in the inventory whose name is this? (sic) A- The representative from the media Gold Star Daily, Your Honor. Q- What Gold Star Daily? A- He is a media personnel, Your Honor, from the Gold Star Daily. Q- Where was this inventory made and when was this made? A- At our office on August 9, 2008 prior [to] 9:00 o'clock in the evening. Q- Before going to the Crime Lab? A- Yes, Your Honor. Q- When did Amor appear in your office to sign? A- Between that hours, Your Honor, after we arrived at the office more or less, Your Honor at around 8:00 o'clock, Your Honor. (sic) Q- She is the only witness during the making of the inventory? A- Yes, Your Honor.33 (Emphasis supplied)
Thus, it is obvious that the buy-bust team manifestly disregarded the procedure laid down under Section 21 of RA 9165. Neither did they have any valid excuse to do so. The integrity and evidentiary value of the corpus delicti have thus been compromised and Buniag must accordingly be acquitted.
[IO1 Alfarol:] Q- That area is isolated? A- At that time Your H[o]nor there are so many people. Q- They gathered and you were afraid if they have companions? A- Yes[,] Your Honor, x x x x Q- How many of you were in that entrapment operation? A- More or less seven sir. Q- If there were seven of you and you were armed why are you afraid of the people in Olape? A- Because it is already 9:00 p.m., there were many people watching us. Q- You were not sure [i]f these people whether friendly or enemy? (sic) A- Yes[,] sir.38
Endnotes:
1 See Notice of Appeal dated February 17, 2015, rollo, pp. 15-16.
2Rollo, pp. 3-14. Penned by Associate Justice Edgardo T. Lloren with Associate Justices Edward B. Contreras and Rafael Antonio M. Santos, concurring.
3 CA rollo, pp. 34-41. Penned by Presiding Judge Ma. Corazon B. Gaite-Llanderal.
4 Entitled "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 TOR OTHER PURPOSES" (2002).
5 Records, p. 1.
6 Id.
7Rollo, p. 4.
8 Id. at 5-6.
9 Id. at 6.
10 CA rollo, p. 39.
11 Id.
12 Id.
13 Id. at 40.
14 Id. at 40-41.
15Rollo, p. 13.
16 SEC. 26. Attempt or Conspiracy. — Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act:
xx x x
(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical[.]
17Rollo, p. 9.
18 Id.
19 Id.
20 Id. at 10.
21 Id. at 11.
22 Id. at 12.
23 Id. at 13.
24People v. Tumulak, 791 Phil. 148, 158 (2016).
25 REVISED PENAL CODE, Art. 6.
26People v. Bartolini, 791 Phil. 626, 633-634 (2016).
27People v. Sagana, G.R. No. 208471, August 2, 2017, 834 SCRA 225, 240.
28Derilo v. People, 784 Phil. 679, 686 (2016).
29People v. Bartolini, supra note 26, at 634, citing People v. Gatlabyan, 669 Phil. 240, 252 (2011).
30 The said section reads as follows:
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[.]
31 TSN, July 23, 2010, p. 20.
32Rollo, p. 6.
33 TSN, July 23, 2010, pp. 22-23.
34 See RA 9165, Art. II, Sec. 21 (1) and (2); Ramos v. People, G.R. No. 233572, July 30, 2018, accessed at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/64716; People v. Ilagan, G.R. No. 227021, December 5, 2018, accessed at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/64800; People v. Mendoza, G.R. No. 225061, October 10, 2018, accessed at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/64646.
35 People v. Angeles, G.R. No. 237355, November 21, 2018, accessed at http://elibrary.judiciary. gov.ph/thebookshelf/showdocs/1/64869.
36People v. Sanchez, 590 Phil. 214, 234 (2008)
37People v. Ceralde, G.R. No. 228894, August 7, 2017, 834 SCRA 613, 625.
38 TSN, January 22, 2010, pp. 5-7.
39People v. Mateo, 582 Phil. 390, 410 (2008), citing People v. Ong, 476 Phil. 553, 571 (2004) and People v. Juatan, 329 Phil. 331, 337-338 (1996).
40People v. Dela Cruz, 666 Phil. 593, 605 (2011).
41 TSN, May 7, 2009, p. 3.
42Rollo, p. 13.
43People v. Zheng Bai Hui, 393 Phil. 68, 133 (2000).
44People v. Mendoza, 736 Phil. 749, 769-770 (2014).
45 CONSTITUTION, Art. Ill, Sec. 14, par. (2): "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved x x x."
46 See People v. Jugo, G.R. No. 231792, January 29, 2018.