The Case

This is a petition¹ for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 11 March 2010 Decision² and 21 July 2010 Resolution³ of the Court of Appeals in CA-G.R. CR No. 30364. The Court of Appeals affirmed the 2 August 2005 Decision⁴ of the Regional Trial Court (RTC), National Capital Judicial Region, Malabon City, Branch 72, in Criminal Case Nos. 28218-MN and 28219-MN, finding petitioner Francisco A. Imson (Imson) and Rolando S. Dayao (Dayao) guilty beyond reasonable doubt of illegal possession of dangerous drugs.

The Facts

On 24 January 2003, at around 9:30 p.m., a confidential informant arrived at the District Drug Enforcement Unit office in Langaray, Caloocan City. The confidential informant advised PO1 Gerry Pajares (Pajares), PO1 Noli Pineda (Pineda) and other policemen that Imson was selling shabu at Raja Matanda Street, San Roque, Navotas. District Drug Enforcement Unit Chief P/Supt. Reynaldo Orante formed a team to conduct a buy bust operation, with Pajares acting as poseur buyer.

Pajares, Pineda, the confidential informant, and other policemen arrived at Raja Matanda Street at around 10:30 p.m. There, they saw Imson talking with Dayao. Thereafter, they saw Imson giving Dayao a transparent plastic sachet containing white crystalline substance. Pajares approached the two men and introduced himself. He immediately apprehended Imson while Pineda ran after Dayao who tried to escape. The policemen confiscated two plastic sachets containing the suspected shabu.

The policemen brought Imson and Dayao to the Langaray Police Station where Imson and Dayao executed their joint sworn statements and where PO1 Ariosto B. Rana marked the two plastic sachets with "RDS" and "FIA." The two plastic sachets were sent to the Philippine National Police - Northern Police Crime Laboratory Office for examination. Both tested positive for shabu.

Third Assistant State Prosecutor Marcos filed two informations dated 27 January 2003 for illegal possession of dangerous drugs against Imson and Dayao.

The RTC's Ruling

In its 2 August 2005 Decision, the RTC found Imson and Dayao guilty beyond reasonable doubt of illegal possession of dangerous drugs. The RTC held:

The denial, sort of alibi and insinuated claim of evidence planting put up by the two accused in these cases as their defense cannot be sustained by the Court.

Dayao would want the Court to believe that at past 10:30 in the evening, he would be playing "kara y krus" along a street. This is hard to believe. The playing of "kara y krus" would require that it be done in a well lighted place, preferably during day time. While the possibility that it can be played during the night cannot be ruled out, it is not the normal time of the day to play "kara y krus". And "kara y krus" is a form of illegal gambling. You do not openly play it along a street/near a street corner.

Imson, on the other hand, maintained that he was preparing food for dinner. While dinner may be taken even late in the evening, it is not usual for a man to do so. There must be an explanation for having a late dinner. In these cases, Imson did not offer any explanation for preparing to have dinner at past 10:30 in the evening.

Additionally, the two accused did not claim that there was any ill motive that made the policemen concoct a tale that resulted in the filing of these cases against them.

The denial made by the two accused cannot prevail. Denial, like alibi is a weak defense in criminal prosecution. It cannot prevail over positive, clear and convincing testimony to the effect that a crime was committed and the accused committed the same (P. vs. Belibet, 197 SCRA 587).

The insinuated claim of the accused to the effect that the shabu must have been planted by the police deserves little or scant consideration. It is the usual defense of those accused of violating the Dangerous Drugs Act of 2002 and, before that, of then existing laws on illegal drugs (refer to P. vs. Nicolas, et al., G.R. No. 114116, February 1, 1995).

On the other hand, the evidence of the prosecution tend to show that a buy bust operation was about to be conducted by reason of a report that accused Imson was selling shabu. It was no longer undertaken because Imson was immediately seen handing shabu to Dayao. This resulted in the arrest of the two accused who were both found in possession of shabu. This version of the police is a reasonable one.⁵

Imson and Dayao appealed to the Court of Appeals.

The Court of Appeals' Ruling

In its 11 March 2010 Decision, the Court of Appeals affirmed the RTC's 2 August 2005 Decision. The Court of Appeals held:

We x x x find no merit in Appellants' contention that they should be acquitted because of the allegedly procedural lapses committed by the police operatives who failed to conduct a physical inventory of the subject specimen and to photograph the same resulting in the failure of the prosecution to prove their guilt of the crime charged.

On this regard, the required procedure on the seizure and custody of drugs as provided under Section 21, paragraph 1, Article II of R.A. No. 9165 pertinently provides:

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.

The aforecited section is implemented by Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165, which states:

x x x

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: 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 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

To the mind of this Court, granting arguendo that the police operatives team failed to faithfully implement the post-operational requirement on the inventory and photographing of the seized drugs as required by Section 21 of RA 9165, nevertheless, jurisprudence has it that non-compliance with the procedure shall not invalidate the legitimate drug operation conducted by the police operatives. On this point, the pronouncement of the Supreme Court in People v. Bralaan is highly relevant, thus:

x x x

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefore, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.

x x x

Notably, the aforecited ruling was echoed by the Supreme Court in People v. Pringas, viz:

x x x

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefore, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.

x x x

At this juncture, We rule that the apprehending team was able to preserve the integrity of the subject drugs and that the prosecution was able to present the required unbroken chain in the custody of the subject drug, viz: a.) starting from the apprehension of the Appellants by the police operatives and the recovery of the subject illegal drugs by virtue of the former's valid warrantless arrest; b.) upon seizure of subject drugs by PO1 PAJARES and PO1 PINEDA, the same remained in their possession until the same were turned over to PO1 ARIOSTO B. RANA (PO1 RANA), the police investigator stationed in their headquarters, with the markings "RDS" and "FIA", initials of Appellants DAYAO and IMSON, respectively; c.) upon receipt of the subject drugs, a Laboratory Examination Request was then prepared [sic] P/Supt. ORANTE addressed to the Chief of the NPDO Crime Laboratory Office of Caloocan City requesting the Forensic Chemist on duty to examine the illegal drugs confiscated from Appellants; d.) the subject specimens were received by PO1 SAMONTE of the PNP-NPD Crime Laboratory Office from PO2 RANA; e.) the said specimens were examined by P/Insp. CALOBOCAL who found the same to be positive for shabu; f.) thereafter, P/Supt. ORANTE prepared a referral slip dated 26 January 2003, addressed to the inquest prosecutor presenting as evidence, inter alia, the two (2) plastic sachets confiscated from the Appellants and the Laboratory Examination Report with PSR# D-097-03; g.) the two (2) plastic sachets recovered from Appellants IMSON and DAYAO were turned over to the custody of the trial prosecutor Fiscal RHODA MAGDALENE OSINAGA (Fiscal OSINAGA), who presented the same as prosecution evidence during the direct examination of PO2 PAJARES on 22 April 2005 marking them as Exhibits "C-1" and "C-2", respectively. To stress, the unbroken chain of custody of the subject specimen was established by the prosecution and supported by the evidence on hand.⁶

Imson and Dayao filed a motion for reconsideration. In its 21 July 2010 Resolution, the Court of Appeals denied the motion. Hence, the present petition.

The Issue

Imson raises as issue that the two plastic sachets containing shabu were inadmissible in evidence because the integrity of the chain of custody was impaired. He states:

The failure to: (a) conduct a physical inventory; (b) photograph the plastic sachet in the presence of the accused or his representative, counsel, representative from the media and the Department of Justice and any elected public official; and (c) immediately mark the plastic sachet on site, all cast doubt as to whether the chain of custody remains intact.⁷

The Court's Ruling

The petition is unmeritorious.

The failure of the policemen to make a physical inventory and to photograph the two plastic sachets containing shabu do not render the confiscated items inadmissible in evidence. In People v. Campos,⁸ the Court held that the failure of the policemen to make a physical inventory and to photograph the confiscated items are not fatal to the prosecution's cause. The Court held that:

The alleged procedural lapses in the conduct of the buy-bust operation, namely the lack of prior coordination with the PDEA and the failure to inventory and photograph the confiscated items immediately after the operation, are not fatal to the prosecution's cause.

x x x x

The absence of an inventory of personal effects seized from appellant becomes immaterial to the legitimacy of the buy-bust operation for it is enough that it is established that the operation was indeed conducted and that the identity of the seller and the drugs subject of the sale are proven. People v. Concepcion so instructs:

"After going over the evidence on record, we find that there, indeed, was a buy-bust operation involving appellants. The prosecution's failure to submit in evidence the required physical inventory of the seized drugs and the photography pursuant to Section 21, Article II of Republic Act No. 9165 will not exonerate appellants. Non-compliance with said section is not fatal and will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[?]⁹ (Emphasis supplied)

Likewise, the failure of the policemen to mark the two plastic sachets containing shabu at the place of arrest does not render the confiscated items inadmissible in evidence. In People v. Resurreccion,¹⁰ the Court held that the failure of the policemen to immediately mark the confiscated items does not automatically impair the integrity of chain of custody. The Court held:

Jurisprudence tells us that the failure to immediately mark seized drugs will not automatically impair the integrity of chain of custody.

The failure to strictly comply with Sec. 21(1), Art. II of RA 9165 does not necessarily render an accused's arrest illegal or the items seized or confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as these would be utilized in the determination of the guilt or innocence of the accused.

x x x x

Accused-appellant broaches the view that SA Isidro's failure to mark the confiscated shabu immediately after seizure creates a reasonable doubt as to the drug's identity. People v. Sanchez, however, explains that RA 9165 does not specify a time frame for "immediate marking," or where said marking should be done:

"What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items -- to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence -- should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation."

To be able to create a first link in the chain of custody, then, what is required is that the marking be made in the presence of the accused and upon immediate confiscation. "Immediate Confiscation" has no exact definition. Thus, in People v. Gum-Oyen, testimony that included the marking of the seized items at the police station and in the presence of the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon immediate confiscation contemplates even marking at the nearest police station or office of the apprehending team.¹¹ (Emphasis supplied)

The presumption is that the policemen performed their official duties regularly.¹² In order to overcome this presumption, Imson must show that there was bad faith or improper motive on the part of the policemen, or that the confiscated items were tampered. Imson failed to do so.

WHEREFORE, the Court AFFIRMS the 11 March 2010 Decision and 21 July 2010 Resolution of the Court of Appeals in CA-G.R. CR No. 30364.

SO ORDERED.

Leonardo-De Castro,^* Villarama, Jr.,^** Perez, and Sereno, JJ., concur.

Endnotes:

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^* Designated acting member per Special Order No. 1006 dated 10 June 2011.

^** Designated acting member per Special Order No. 1043 dated 12 July 2011.

¹ Rollo, pp. 10-26.

² Id. at 29-49. Penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Josefina Guevara-Salonga and Pampio A. Abarintos concurring.

³ Id. at 51-52.

⁴ Id. at 70-76. Penned by Judge Benjamin M. Aquino, Jr.

⁵ Id. at 74-75.

⁶ Id. at 45-48.

⁷ Id. at 17.

⁸ G.R. No. 186526, 25 August 2010, 629 SCRA 462.

⁹ Id. at 467-468.

¹⁰ G.R. No. 186380, 12 October 2009, 603 SCRA 510.

¹¹ Id. at 518-520.

¹² People v. De Guzman, G.R. No. 177569, 28 November 2007, 539 SCRA 306, 317.