SECOND DIVISION
G.R. No. 228955, March 14, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. AL SHIERAV AHMAD Y SALIH, Accused-Appellant.
D E C I S I O N
REYES, JR., J.:
This is an appeal1 from the Decision2 dated September 13, 2016 of the Court of Appeals (CA), rendered in CA-G.R. CR HC No. 01376-MIN, affirming the Consolidated Judgment3 dated December 4, 2014 of the Regional Trial Court (RTC) of Cagayan de Oro City. The RTC found accused Al Shierav Ahmad y Salih (Ahmad) guilty of violating Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act.
Ahmad pleaded not guilty to both charges during his arraignment.6Criminal Case No. 2012-338
That on or about the 16th of April, 2012 at around 5:30 in the afternoon, at Barangay Barra, Municipality of Opol, Province of Misamis Oriental and within the jurisdiction of this Honorable [C]ourt, the above-named accused, not being lawfully authorized, did then and there willfully, unlawfully, and knowingly sell, deliver and give away to a poseur-buyer in a buy-bust operation, 0.05 grams of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet, which was found positive to the test for Methamphetamine Hydrochloride known as "shabu", a dangerous drug, after receipt of one (1) P500.00 bill marked money with serial [N]o. CK 651130.
Contrary to and in violation of Art. II Section 5 of RA 9165.4
Criminal Case No. 2012-340
That on or about the 16th of April, 2012 at around 5:30 o'clock in the afternoon, at Barangay Barra, Municipality of Opol, Province of Misamis Oriental and within the jurisdiction of this Honorable [C]ourt, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, custody, and control, one (l) heat-sealed plastic packets containing white crystalline substance with a total weight of 0.04 grams; which when subjected to laboratory examination gave positive result for the presence of methamphetamine hydrochloride, a dangerous drug.
Contrary to and in violation of Art. II Section 11 of RA 9165.5
WHEREFORE, all the foregoing premises considered, the court hereby finds accused AI Shierav S. Ahmad:Aggrieved, Ahmad filed a Notice of Appeal with the RTC on January 22, 2015.26 This was granted in the Order27 dated February 2, 2015 of the RTC.The period of his preventive detention shall be credited in his favor. The sachets of shabu are hereby ordered forfeited in favor of the government for proper disposal in accordance with the rules.
- In Crim. Case No. 2012-338, 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; and
- In Crim. Case No. 2012-340, GUILTY beyond reasonable doubt of the clime of Violation of Section 11, Par. 2(3), Article II of R.A. No. 9165. He is hereby sentenced to suffer the penalty of imprisonment of twelve (12) years and one (1) day as minimum to twelve (12) years and two (2) days as maximum and to pay a fine of P300,000.00, with no subsidiary imprisonment in case of non-payment thereof.
SO ORDERED.25
WHEREFORE, premises considered, the appeal is hereby DENIED. The 4 December 2014 Consolidated Judgment of the trial court is AFFIRMED.The CA held that the prosecution was able to establish the chain of custody of the seized illegal drugs. The CA also ruled that the impending danger in the place of Ahmad's arrest was considered sufficient justification for the PDEA agents to conduct the marking and inventory in their office.33
SO ORDERED.32
To secure a conviction for illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the prosecution must establish the following elements: (1) the identity of the buyer and the seller, the object of the sale and its consideration; and (2) the delivery of the thing sold and the payment therefor. What is important is that the sale transaction of drugs actually took place and that the object of the transaction is properly presented as evidence in court and is shown to be the same drugs seized from the accused.In other words, the prosecution bears the burden of proving that the dangerous drugs presented before the trial court are the same items confiscated from the accused. Section 21 of R.A. No. 9165, particularly paragraph 1, provides the procedure for the custody and disposition of
On the other hand, for illegal possession of dangerous drugs, the following elements must be established: "[1] the accused was in possession of dangerous drugs; [2] such possession was not authorized by law; and [3] the accused was freely and consciously aware of being in possession of dangerous drugs."
In cases of illegal sale and illegal possession of dangerous drugs, the dangerous drug seized from the accused constitutes the corpus delicti of the offense. Thus, it is of utmost importance that the integrity and identity of the seized drugs must be shown to have been duly preserved. "The chain of custody rule performs this function as it ensures that unnecessary doubts concerning the identity of the evidence are removed."34 (Citations omitted and emphases Ours)
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:The requirements of the law are clear. The apprehending officers must immediately conduct a physical inventory and to photograph the seized items in the presence of the following: (a) the accused or the person from whom the items were confiscated, or his representative or counsel; (b) a representative from the media; (c) a representative from the Department of Justice (DOJ); and (d) any elected public official. They should also sign the inventory and be given a copy thereof.(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 x36
Based on the foregoing statutory rules, the manner and timing of the marking of the seized drugs or related items are crucial in proving the chain of custody. Certainly, the marking after seizure by the arresting officer, being the starting point in the custodial link, should be made inm1ediately upon the seizure, or, if that is not possible, as close to the time and place of the seizure as practicable under the obtaining circumstances. This stricture is essential because the succeeding handlers of the contraband would use the markings as their reference to the seizure. The marking further serves to separate the marked seized drugs from all other evidence from the time of seizure from the accused until the drugs are disposed of upon the termination of the criminal proceedings. The deliberate taking of these identifying steps is statutorily aimed at obviating switching, "planting" or contamination of the evidence. Indeed, the preservation of the chain of custody vis-a-vis the contraband ensures the integrity of the evidence incriminating the accused, and relates to the element of relevancy as one of the requisites for the admissibility of the evidence.41 (Emphasis Ours)While non-compliance with these requirements is excusable, this only applies when the integrity and the evidentiary value of the seized items were properly preserved. The prosecution must also provide a credible justification for the arresting officers' failure to comply with the procedure under Section 21 of R.A. No. 9165.42
Assistant Provincial Prosecutor Gerald Cecilio P. Roa:During cross-examination, IO Orcales merely reiterated that the place of arrest was dangerous, without providing substantial details regarding this claim:
You said Mr. [W]itness that you made the actual inventory in your office, right?
IO Orcales:
Yes, but we had an initial inventory in the area, but as what I have told you the area is dangerous and I cannot compromise the safety of the agents and so I declared to conduct the inventory in the office.
Q: In short, there was no really inventory (sic) that you conducted in the house of LOVE2X even a partial one?
A: No Sir, Ijust tried to write there, but one of the agents approached me Sir that the area is a hostile zone and so Ialso followed them down Sir because I know that the area is also dangerous.44
Atty. Ricolino L. Ayuban (Counsel for the Accused):Indeed, lapses may be excused under exceptional circumstances. But it should be borne in mind that this remains as an exception to the rule requiring the immediate marking and inventory of the seized dangerous drugs. There must be adequate explanation, proven as a fact, for the arresting officers' failure to follow the prescribed procedure in Section 21 of R.A. No. 9165. The court can neither presume what these justifiable grounds are, nor assume its existence.46 As such, the prosecution cannot simply bypass the requirements under Section 21 of R.A. No. 9165 through a bare and unsupported allegation that the area was dangerous.
It was only in your office when you made the markings of all those items, Officer Orcales, correct?
IO Orcales:
Yes, sir. We have supposedly (sic) initial inventory in the area but one of our agents told me "let us proceed to the office for inventory and other documents."
Q: So, there was no markings [sic] made while inside of that house?
A: Yes, sir.
Q: You said that initial inventory was made supposedly in that house but for security reason[s] you did not continue it but just continued only in your office, correct?
A: Yes, sir. And also the media advised us to have that in the office[.]
Q: The media was not able to arrive at the house of the accused?
A: When we have the operation, sir we requested them to proceed to the area.45
Given the foregoing deviations of police officer Esternon from the standard and normal procedure in the implementation of the warrant and in taking post-seizure custody of the evidence, the blind reliance by the trial court and the [CA] on the presumption of regularity in the conduct of police duty is manifestly misplaced. The presumption of regularity is merely just that-a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. Suffice it to say that this presumption cannot preponderate over the presumption of im1ocence that prevails if not overthrown by proof beyond reasonable doubt. In the present case the lack of conclusive identification of the illegal drugs allegedly seized from petitioner, coupled with the irregularity in the manner by which the same were placed under police custody before offered in court, stronglySimply put, this presumption-gratuitously invoked in instances such as this-does not serve to cure the lapses and deficiencies on the part of the arresting officers. It cannot likewise overcome the constitutional presumption of innocence accorded the accused. Part of the prosecution's duty in overturning this presumption of innocence is to establish that the requirements under Section 21 of R.A. No. 9165 were strictly observed. It should be emphasized that Section 21 of R.A. No. 9165 is a matter of substantive law, which should not be disregarded as a procedural technicality.58
militates a finding of guilt.57 (Emphasis Ours)
Endnotes:
* Designated as Acting Chief Justice per Special Order No. 2539 dated February 28, 2018.
1 CA rollo, pp. 80-81.
2 Pe nned by Associate Justice Oscar V. Badelles, with Associate Justices Romulo V. Borja and Ronaldo B. Martin, concurring; id. at 69-77.
3 Id. at 32-42.
4 Records (Crim. Case No. 2012-338), p. 1.
5 Records (Crim. Case No. 2012-340), p. 1.
6 Records (Crim. Case No. 2012-338), p. 18; Records (Crim. Case No. 2012-340), p. 17.
7Rollo, p. 4; Records (Crim. Case Nos. 2012-338 and 2012-340), p. 3.
8 Id.
9 Id. at 5.
10 Id.; TSN, September 5, 2012, p. 4.
11 TSN, September 5, 2012, p. 4; TSN; June 4, 2014, p. 20.
12Rollo, p. 5.
13 TSN, September 5, 2012, p. 4.
14 Id.
15Rollo, p. 5; Records, p. 2.
16 Id.
17Rollo, pp. 5-6.
18 Records (Crim. Case No. 2012-340). p. 10.
19 TSN, June 4, 2014, pp. 3-4.
20Rollo, p. 6.
21 Id.
22 Id.; TSN, June 4, 2014, pp. 18-20.
23 CA rollo, pp. 32-42.
24 Records (Crim. Case No. 2012-338), pp. 84-85; Records (Crim. Case No. 2012-340), pp. 78-79.
25 CA rollo, p. 23.
26 Records (Crim. Case No. 2012-338), pp. 88-90; Records (Crim. Case No. 2012-340), pp. 82-84.
27 Records (Crim. Case No. 2012-338), p. 96; Records (Crim. Case No. 2012-340), pp. 89.
28 CA rollo, pp. 27-29.
29 Id. at 59-61.
30 Id. at 62.
31 Id. at 76.
32 Id.
33 Id. at 74-75.
34People of the Philippines v. Salim Ismael y Radang, G.R. No. 208093, February 20, 2017.
35See Implementing Rules and Regulations of R.A. No. 9165, Section 21(a); See also PDEA Guidelines on the Implementing Rules and Regulations of Section 21 of R.A. No. 9165, as Amended by R.A. No. 10640 (May 28, 2015).
36 This has been amended by R.A. No. 10640, An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending For the Purpose Section 21 of R.A. No. 9165, Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2002" to read:
"x x x x
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items 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, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of 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 and custody over said items."
37People v. Mendoza, 736 Phil. 749, 761 (2014).
38People v. Sabdula, 733 Phil. 85, 96 (2014).
39People v. Dahil, et al., 750 Phil. 212, 232 (2015), citing People v. Sabdula, supra note 38, at 96.
40 736 Phil. 749 (2014).
41 Id. at 761.
42People of the Philippines v. Eddie Barte y Mendoza, G.R. No. 179749, March 1, 2017.
43 TSN, September 5, 2012, pp. 16-17.
44 TSN, May 7, 2013, p. 9.
45 TSN June 25, 2013, pp. 8-9.
46People v. De Guzman y Danzil, 630 Phil. 637, 648-649 (2010).
47 TSN, October 30, 2013, p. 3.
48 Id.
49 Supra note 9.
50 TSN, September 5, 2012, pp. 6-7.
51People v. De Guzman, supra note 46, at 653; People v. Garcia, 599 Phil. 416, 433-434 (2009).
52 As amended, R.A. No. 10640 now requires the presence of a representative from the National Prosecution Service (R.A. No. 10640, Section 1).
53 TSN, October 30, 2013, p. 5.
54 Id. at 2-3.
55People v. Dela Cruz, 744 Phil. 816, 832 (2014), citing Mallilin v. People, 576 Phil. 576, 579 (2008).
56 576 Phil. 576 (2008).
57 Id. at 593.
58People of the Philippines v. Jonas Geronimo y Pinlac, G.R. No. 225500, September 11, 2017; People of the Philippines v. John Paul Ceralde y Ramos, G.R. No. 228894, August 7, 2017.