THIRD DIVISION
G.R. No. 237804, July 04, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MERCINDO BOBOTIOK, JR. Y LONTOC, Accused-Appellant.
D E C I S I O N
VELASCO JR., J.:
That, on or about the 1st day of February 2011, in the City of Taguig, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without having been authorized by law, did, then and there willfully, unlawfully and knowingly sell, deliver and give away to PO1 Jerry V. Balbin, who acted as police poseur buyer, one (1) small heat-sealed transparent plastic sachet, marked with JVB-010211 containing zero point thirteen (0.13) grams, of white crystalline substance, for and in consideration of the amount of Php.500.00, which substance was found positive to the test for Methylamphetamine hydrochloride, commonly known as "Shabu"[,] a dangerous drug, in violation of the above-cited law.During arraignment, accused-appellant, assisted by his counsel de oficio, entered a plea of not guilty to the charge.5 The mandatory pre-trial conference was terminated on March 14, 2011 and trial on the merits ensued thereafter.6
CONTRARY TO LAW.4
WHEREFORE, based on the foregoing dissertation of the court, the court finds accused Mercindo Bobotiok, Jr. y Lontoc Guilty beyond reasonable doubt for violation of Section 5, 1st paragraph, Article II of Republic Act No. 9165 under Criminal Case No. 17417-D-TG and judgment is hereby rendered that he should suffer the penalty of Life Imprisonment and to pay a Fine in the amount of Five Hundred Thousand Pesos (Php500,000.00).The trial court ruled that all elements of illegal sale of dangerous drugs were present in this case. It found credibility in the testimony of prosecution witnesses PO1 Balbin and PO3 Medrano, that accused-appellant, whose identity was then unknown to them, sold to PO1 Balbin and the confidential informant an illegal drug contained in a transparent plastic sachet sometime between 6:00 and 7:00 in the evening of February 1, 2011. Even though PO1 Balbin was unable to give the marked money to accused-appellant, the trial court held that the omission was not fatal since PO1 Balbin was ready to hand over the same at that time except that he may have forgotten to do so.27
The Jail Warden of the Taguig City Jail is hereby directed to commit the above named accused to the custody of the Bureau of Prisons, Muntinlupa City.
Let the illegal drugs subject of the instant case be turned over to the PDEA to be destroyed in the manner provided by law.
SO ORDERED.
WHEREFORE, premises considered, the instant appeal is hereby DENIED. The Judgment dated January 30, 2017 of the Regional Trial Court, Branch 267, Pasig City is AFFIRMED with MODIFICATION in that appellant Mercindo Bobotiok, Jr. y Lontoc is found guilty beyond reasonable doubt of illegal delivery of shabu penalized under Section 5, Article II of Republic Act No. 9165. Accordingly, he is sentenced to suffer the penalty of life imprisonment and ordered to pay a fine of Five Hundred Thousand Pesos (P500,000.00).The CA sustained the conviction of accused-appellant under Section 5, Article II of RA 9165, albeit on a different ground. Based on the evidence presented, the CA found that accused-appellant cannot be convicted of illegal sale of dangerous drugs since PO1 Balbin failed to effect payment and no sale was consummated. Instead, the CA declared that accused appellant may still be convicted for the illegal delivery of shabu under the same provision of law, the elements of which were found by the appellate court to be present in this case.31
SO ORDERED.30
Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. x x x (emphasis supplied)As correctly found by the appellate court, accused-appellant could not be charged or convicted for the illegal sale of dangerous drugs due to the fact that the poseur-buyer, PO1 Balbin, failed to effect payment for the drugs handed to him by accused-appellant. It appears that PO1 Balbin was caught off-guard when it was accused-appellant who approached them and handed over the plastic sachet containing a white crystalline substance, when he was expecting a person named Zenell Cruz. In the confusion, PO1 Balbin immediately executed the pre-arranged hand signal and proceeded to arrest the accused-appellant without giving the latter the opportunity to ask for payment or to receive the marked money as payment.
From PO1 Balbin's testimony, it is clear that accused-appellant deliberately sought out the confidential informant for the purpose of handing over the small transparent plastic sachet containing the white crystalline substance which was later proven to be shabu. When he confirmed that the confidential informant and PO1 Balbin were the ones whom Zenell Cruz was supposed to meet with, he voluntarily gave them the dangerous drugs, although he had no authority under the law to deliver or distribute the same.
PROSECUTOR VILLENA: And after that, what happened? A: After that, somebody approached us. Before we went to an alley going to the house of Zenell Cruz, we were met by a male person, sir. PROSECUTOR VILLENA: What did this male guy tell you or your informant? A: We were told na wala daw po si Zenell Cruz at ipinagbilin na lang ni Zenell Cruz na may iniwan at ibigay sa amm, str. PROSECUTOR VILLENA: What was your response? A: I told him na yong binilin niya ay kukunin na lang namin. x x x x PROSECUTOR VILLENA: This person knew your informant? A: No, sir. Si Zenell Cruz po, sir, ay may taong pinagbilinan at 'yon po ang sumalubong sa amin. x x x x PROSECUTOR VILLENA: What was your conversation? Okay, so you saw this person. A: When we arrived there, he asked us if we were the textmates of Zenell. PROSECUTOR VILLENA: You were asked. And what was your response? A: The informant told him, "Oo, kami po". PROSECUTOR VILLENA: After that, what did the person tell you? A: He told us, "Wala si Zenell. May pinuntahang importante" and then he gave us the shabu. PROSECUTOR VILLENA: To whom did this person give the drugs? A: I was the one who got the shabu. PROSECUTOR VILLENA: What was the exact item that was given to you? How did it look like? A: Small transparent plastic sachet. PROSECUTOR VILLENA: So the contents, how did it look like? A: White crystalline substance, sir. PROSECUTOR VILLENA: What exactly did you do after receiving that? A: I pinched it, sir. PROSECUTOR VILLENA: Why did you pinch it? A: I tried to see if it's brittle. When I found out that it's brittle, I executed the pre-arranged signal. PROSECUTOR VILLENA: When it's brittle, what would it signify? A: Shabu is brittle, sir.34 (emphasis supplied )
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, x x x so confiscated, seized and/or surrendered, for proper disposition in the following manner:In the case before Us, the records show that the buy-bust team had failed to strictly comply with the prescribed procedure under Section 21, par. 1. To explain the procedure undertaken by the buy-bust team, PO1 Balbin testified, thus:
(1) The apprehending team having initial custody and control of the dangerous drugs x x x 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 persons 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. (emphasis supplied)
The prosecution justified the conduct of the inventory and photograph of the seized item at the police station instead of the place of the buy-bust operation by raising the issue of security. However, a reading of the transcript of PO1 Balbin's testimony reveals that this justification is a mere afterthought since his initial reason is the darkness of the place of arrest. It was only after the diligent prodding by the public prosecutor that PO1 Balbin mentioned the risk of security. Other than this statement, nowhere in the records was it shown that there was any actual threat or risk taken by the buy-bust team during the arrest that had actually prevented them from conducting the inventory and photographing of the seized drugs.
PROSECUTOR VILLENA: What did you do upon your arrival in your office? A: I made the inventory, sir, and then, after the inventory sir, I turned over the chain of custody, sir, then the arrested suspect, sir. PROSECUTOR VILLENA: Why did you opt to make your inventory in your office rather than in the place where you arrested the accused? A: Because it's a little bit dark in the area. PROSECUTOR VILLENA: What's wrong with the darkness surrounding that place? A: We cannot clearly see what's around us. PROSECUTOR VILLENA: Okay and for what purpose you have to see those people around you? A: For security reason, sir. PROSECUTOR VILLENA: So for security? A: Yes, sir. PROSECUTOR VILLENA: So, who were present at the time you made your inventory in the office? A: Our team leader, sir, the suspect, the investigator and our teammates, sir. PROSECUTOR VILLENA: Why only those persons that you have mentioned were present during the inventory and no other persons like media representatives, elective officials or DOJ representatives? A: None, sir, because our team leader P/Cinsp. Payao tried to call the media and the Barangay but no one arrived at our office. PROSECUTOR VILLENA: So how long did you wait for their arrival before you conducted your inventory? A: Almost thirty (30) minutes, sir.36 (emphasis supplied)
At today's hearing, the parties appeared.In dispensing with the testimonies of Forensic Chemical Officer PCI Mangalip, Investigating Officer PO2 Medrano, and PO2 del Rosario, the prosecution failed to show every link of the chain of custody. Without the testimonies or stipulations stating the details on when and how the seized plastic sachet was brought to the crime laboratory, and thereafter, to the court for the prosecution's presentation of evidence, the Court cannot ascertain whether the seized drug presented in evidence during trial was the same item seized from accused-appellant when he was arrested. These gaps in the chain of custody create doubt as to whether the corpus delicti of the crime had been properly preserved.
The witness for the prosecution was PCI Richard Allan Mangalip. The witness did not anymore take the witness stand and the parties have agreed to stipulate on the nature of his testimony. The parties have stipulated on the following: that the witness is a bonafide member of the Philippine National Police assigned at Crime Laboratory Office of the Southern Police District; that he is an expert witness in the field of examination of dangerous drugs particularly methylamphetamine hydrochloride; that on February 1, 2011, his office received a request for laboratory examination from the Station Anti-Illegal Drugs, Special Operation Task Group of the Taguig City Police Station; that upon receipt of the request, said witness subjected the specimen contained in one (1) heat-sealed transparent plastic sachet with markings "NB-010211" containing 0.13 gram of white crystalline substance for qualitative examination that the result gave positive result to the test for methylamphetamine hydrochloride; and that the findings of the witness was reduced into writing under Physical Science Report No. D-053-11S. For his part and by way of counter stipulation, Atty. Rommel Asuncion manifested that the said witness has no personal knowledge as to the commission of the crime and that he has also no personal knowledge that those items examined were the same shabu recovered from the accused.37
At today's hearing, the parties appeared.
PO3 Roel Medrano was the witness for the prosecution. He was the immediate back-up officer in the buy bust operation conducted in the herein case.
Considering his participation as a back-up officer, the parties decided to stipulate on the nature of his testimony, as follows:
x x x x
12. That he was also present during the time that the poseur buyer conducted the inventory which inventory is marked as Exhibit "D";
13. That he also saw the poseur buyer, who was in custody of the drugs, turned over the same to PO2 Vergelio del Rosario, who was the Investigator-on-Case;
14. That he was also present when photos were taken which photos were marked as Exhibits "J" to "J-1";
15. That he was also present during the inquest proceedings;
16. That the drugs the witness saw the poseur buyer, PO1 Jerry Balbin, already in possession when he responded to the pre-arranged signal and the drugs that he saw PO1 Balbin turning over to their investigation are the same drugs subject-matter of this case x x x.38
At today's hearing, the parties appeared.
The witness for the prosecution was PO3 Vergelio Del Rosario.
Being the investigator on the case, the parties agreed to stipulate on his intended testimony. They stipulated as follows: x x x that he was the designated investigator with whom the accused was presented for investigation after his apprehension; that in the course of the investigation conducted by the said witness, he prepared the affidavit of arrest of arresting officer marked as Exhibit "A" during the pre-trial; that the witness likewise made the request for laboratory examination and drug test of the accused, the laboratory examination was marked as Exhibit "M" whereas, the drug test was marked as Exhibit "L" during the pre-trial; that the witness also prepared the chain of custody form marked as Exhibit "G", the turn-over of arrested suspect marked as Exhibit "F", the turn-over of evidence marked as Exhibit "E", the inventory of seized and/or properties from the accused marked as Exhibit "D" including the affidavit of attestation which was marked as Exhibit "K"; that the witness also prepared the coordination form marked as Exhibit "C" and the preoperation report marked as Exhibit "B"; that the witness also prepared the spot report marked as Exhibit "H", the booking sheet pertaining to Bobotiok marked as Exhibit "I" and he was the person who took the photograph of the accused including the evidence recovered from him marked as Exhibits "J" and "J-1". The defense admitted the same. The defense on the other hand offered as counter-stipulation, that the witness has no personal knowledge as to the arrest of the accused and as to the source of the illegal drugs turned-over to him.39 x x x
Very truly yours, |
(SGD) |
WILFREDO V. LAPITAN |
Division Clerk of Court |
"WHEREFORE, the appeal is GRANTED. The Decision dated December 11, 2017 of the Court of Appeals in CA-G.R. CR No. 09066, which affirmed with modification the Judgment dated January 30, 2017 of the Regional Trial Court, Branch 267, Pasig City in Criminal Case No. 17417-D-TG, is hereby REVERSED and SET ASIDE. Accused-appellant Mercindo Bobotiok, Jr. y Lontoc is ACQUITTED of the charge of violation of Section 5, Article II of Republic Act No. 9165, for failure of the prosecution to prove his guilt beyond reasonable doubt. His immediate RELEASE from detention is hereby ordered, unless he is being held for another lawful cause.NOW, THEREFORE, You are hereby ordered to immediately release MERCINDO BOBOTIOK, JR. y LONTOC unless there are other lawful causes for which he should be further detained, and to return this Order with the certificate of your proceedings within five (5) days from notice hereof.
Let a copy of this Decision be furnished to the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation, who is then also directed to report to this Court the action he has taken within five (5) days from receipt of this Decision.
SO ORDERED."
Very truly yours, |
(SGD) |
WILFREDO V. LAPITAN |
Division Clerk of Court |
Endnotes:
1 See Notice of Appeal dated January 4, 2018; rollo, pp. 102-103.
2Rollo, pp. 2-18. Penned by Associate Justice Ramon R. Garcia and concurred in by Associate Justices Edwin D. Sorongon and Maria Filomena D. Singh.
3 Records, p. 1.
4 Id.
5 Id. at 30.
6 Id. at 39.
7 Transcript of Stenographic Notes (TSN) dated May 11, 2011, pp. 1-7.
8Rollo, pp. 4-6.
9 TSN, June 13, 2013, pp. 4-6.
10 Id. at 4, 6.
11 Id. at 9-10; TSN, March 3, 2016, p. 3; TSN, August 18, 2016, p. 7.
12 TSN, June 13, 2013, pp. 7-10.
13 Id. at 11-12.
14 Id. at 13-16.
15 Id. at 19-20.
16 TSN, July 30, 2014, pp. 3-7.
17 Id. at 8-9.
18 TSN, August 18, 2016, pp. 3-4.
19 Id. at 8-9.
20 TSN, July 30, 2014, p. 10.
21 TSN, May 11, 2011, pp. 2-6.
22 TSN, October 6, 2016, pp. 3-4.
23 Id. at 5-6.
24 Id. at 7-9.
25 TSN, December 12, 2016, pp. 4-6.
26 Records, pp. 161-172. Rendered by Judge Antonio M. Olivete.
27 Id. at 167.
28 Id. at 168-170.
29 Id. at 21-22.
30Rollo, p. 18.
31 Id. at 13-14.
32 Id. at 15 17.
33People of the Philippines v. Michael Maongco y Yumonda and Phans Bandali y Simpal, G.R. No. 196966, October 23, 2013.
34 TSN, June 13, 2013, pp. 13-15.
35People of the Philippines v. Myrna Gayoso y Arguelles, G.R. No. 206590, March 27, 2017, citing People of the Philippines v. Fernando Ranche Havana a.k.a. Fernando Ranche Abana, G.R. No. 198450, January 11, 2016, 778 SCRA 524, 534-535.
36 TSN, July 30, 2014, pp. 3-4.
37 Records, p. 43; Order dated May 11, 2011.
38 Id. at 125-126; Order dated March 3, 2016.
39 Id. at 151-152; Order dated August 18, 2016.
40People of the Philippines v. Eddie Barte y Mendoza, G.R. No. 179749, March 1, 2017.