The undersigned Prosecutor II of the City of Cebu accuses Julius Gadiana y Repollo, for Violation of Sec. 11, Art. 9165, committed as follows:
That on or about the 7th day of February, 2004, at about 3:40 P.M. in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, x x x, with deliberate intent, did then and there have in his/her possession and under his/her control the following:A - Two (2) heat-sealed transparent plastic packets of white crystalline substance with a total net weight of 0.09 grams.
locally known as 'SHABU', containing methamphetamine hydrochloride a dangerous drug/s, without being authorized by law.2
CONTRARY TO LAW.
BAIL RECOMMENDED: P200.000
Cebu City, Philippines, February 19, 2004.JESUS P. FELICIANO
Prosecutor II, Cebu City3
(underscoring in the original)
PROSEC. AGAN: Q After you recovered these [two plastic sachets] from the possession of the accused, what did you do? A We submitted it to the PNP Crime Laboratory. Q Can you still recall who prepared the letter request for laboratory examination? A PO2 Erwin Ferrer. Q If shown to you would you be able to identify it? A Yes. Q Are you referring to this letter request dated February 17 [sic], 2004? A Yes. PROSEC. AGAN: We request, your Honor, that the letter request be marked as our exhibit C. COURT: Mark it. PROSEC. AGAN: Who brought the letter request to the PNP Crime Laboratory? A PO2 Erwin Ferrer. Q Do you know the result of the laboratory examination? A Yes. Q What was the result? A Positive. PROSEC. AGAN: We request, your Honor, that Chemistry Report No. D-241-2004 be marked as our Exhibit D. COURT: Mark it. PROSEC. AGAN: Q Do you affirm and confirm to the truthfulness of the contents [of the] joint affidavit? A Yes ma'am.8 (underscoring supplied)
WHEREFORE, in view of the foregoing, the Court finds the accused Julius Gadiana y Repollo GUILTY beyond reasonable doubt for violation of Section 11, Article II of R.A. 9165 and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of EIGHT (8) YEARS AND ONE (1) DAY OR PRISION MAYOR AS MINIMUM TO TWELVE (12) YEARS AND ONE (1) DAY OF RECLUSION TEMPORAL AS MAXIMUM AND TO PAY A FINE OF THREE HUNDRED THOUSAND (P300,000.00) PESOS together with all accessory penalties provided for by law. The physical evidence is hereby forfeited in favor of the government to be disposed of in accordance with law.
SO ORDERED.13
With the bare and lame denials of the accused, abjectly uncorroborated and without substantiation, apart from his self-serving attempt at extenuation as against the positive testimony of the arresting police officer who enjoys the presumption of regularity in the performance of his official duties, there being no showing of malicious motive to testify against the accused, it is the Court's view that the State has successfully discharged its prosecutory function by sufficiently showing the concurrence of the elements of the offense charged.14 (emphasis and underscoring supplied)
WHEREFORE, the appealed Decision dated October 12, 2005 of the RTC of Cebu City, in Criminal Case No. CBU-68618 convicting accused-appellant Julius Gadiana y Repollo for violation of Section 11, Article II of R.A. 9165, is AFFIRMED with MODIFICATION. As modified, accused-appellant is sentenced to suffer to suffer an indeterminate penalty of imprisonment from TWELVE (12) YEARS AND ONE (1) DAY as minimum, to FOURTEEN (14) YEARS as maximum.
SO ORDERED.16 (underscoring supplied)
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)x x x x
A/Taken: Evidence . . . submitted to the PNP Crime Laboratory.
Received by: SPO1 Abundio C. Cabahug, PNP
Not only was PO1 Busico's testimony that Ferrer prepared the letter-request for laboratory examination hearsay as he did not claim having seen PO3 Dinauanao actually prepare it. The transcripts of stenographic notes do not show that the trial court tested the credibility of witness PO1 Busico and of his testimony. The trial court's conviction of appellant upon its above-quoted one-paragraph ratiocination, which was affirmed by the appellate court, does not thus merit this Court's affirmance.
Parenthetically, appellant's arrest, not to mention resulting confiscation of the alleged confiscation of the plastic sachets of crystalline substances in his possession, leaves nagging doubts on its validity in light of the fact that what PO1 Busico merely saw was appellant's placing of the plastic sachets in his pocket which, without more, does not justify his warrantless arrest under the Rules.26
WHEREFORE, the April 30, 2008 Decision of the Court of Appeals is REVERSED and SET ASIDE. Appellant, Julius Gadiana y Repollo, is ACQUITTED of the crime charged and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause.
The Director of the Bureau of Corrections is ORDERED to forthwith implement this decision and to INFORM this Court, within five days from receipt hereof, of action taken.
Let a copy of this Decision be forwarded to the Secretary of Justice, the PNP Director, and the Director General of the Philippine Drug Enforcement Agency, for information and guidance. No costs.
SO ORDERED.
Bersamin, Del Castillo,* Villarama, Jr., and Sereno, JJ., concur.
Endnotes:
* Additional member per Special Order No. 879 dated August 13, 2010.
1 Exhibit "A," records, p. 5. The form appears to be a photocopy. But the typewritten entries above the blank spaces appear to be original.
2 The underlined portions appear to have been blank spaces over which the data filled over then were supplied with a different typeset.
3 Records at 1.
4 People v. Almorfe, G.R. No. 181831, March 29, 2010.
5 Vide note 1.
6 Ibid.
7 Ibid.
8 Transcript of Stenographic Notes (TSN), June 21, 2005, pp. 5-7.
9 TSN, September 27, 2005 at 3-4.
10 Id. at 4.
11 Id. at 5.
12 Ibid.
13 Records, p. 59.
14 Id. at 58-59.
15 Penned by Justice Francisco P. Acosta, with the concurrence of Justices Amy C. Lazaro-Javier and Florito S. Macalino, CA rollo, pp. 77-90.
16 Id. at 90.
17 People v. Barba, G.R. No. 182420, July 23, 2009, 593 SCRA 711.
18 People v. Habana, G.R. No. 188900, March 5, 2010.
19 Valdez v. People, G.R. No. 170180, November 23, 2007, 538 SCRA 611.
20 Records., p. 8.
21 Section 21 (a), Article II of the Implementing Rules and Regulations of R.A. No. 9165:
(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: 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.
22 People v. Garcia, G.R. No. 173480, February 25, 2009, 580 SCRA 259, 272.
23 People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194, 212.
24 Vide note 1.
25 Quinto v. Andres, G.R. No. 155791, March 16, 2005, 453 SCRA 511, 526.
26 Section 5 of Rule 113 of the Rules of Court provide:
A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.