EN BANC
G.R. No. 231989, September 04, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMY LIM Y MIRANDA, Accused-Appellant.
D E C I S I O N
PERALTA, J.:
On appeal is the February 23, 2017 Decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 01280-MIN, which affirmed the September 24, 2013 Decision2 of Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, in Criminal Case Nos. 2010-1073 and 2010-1074, finding accused-appellant Romy Lim y Miranda (Lim) guilty of violating Sections 11 and 5, respectively, of Article II of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.
In an Information dated October 21, 2010, Lim was charged with illegal possession of Methamphetamine Hydrochloride (shabu), committed as follows:
That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or use any dangerous drugs, did then and there, willfully, unlawfully, criminally and knowingly have in his possession, custody and control one (1) heat-sealed transparent plastic sachet containing Methamphetamine hydrochloride, locally known as Shabu, a dangerous drug, with a total weight of 0.02 gram, accused well-knowing that the substance recovered from his possession is a dangerous drug.On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), was also indicted for illegal sale of shabu, committed as follows:
Contrary to, and in violation of, Section 11, Article II of Republic Act No. 9165.3
That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, 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 willfully, unlawfully, criminally and knowingly sell and/or offer for sale, and give away to a PDEA Agent acting as poseur-buyer One (1) heat-sealed transparent plastic sachet containing Methamphetamine hydrochloride, locally known as Shabu, a dangerous drug, with a total weight of 0.02 gram, accused knowing the same to be a dangerous drug, in consideration of Five Hundred Pesos (Php500.00) consisting of one piece five hundred peso bill, with Serial No. FZ386932, which was previously marked and recorded for the purpose of the buy-bust operation.In their arraignment, Lim and Gorres pleaded not guilty.5 They were detained in the city jail during the joint trial of the cases.6
Contrary to Section 5, Paragraph 1, Article II of Republic Act No. 9165.4
WHEREFORE, premises considered, this Court finds that:With regard to the illegal possession of a sachet of shabu, the RTC held that the weight of evidence favors the positive testimony of IO1 Orellan over the feeble and uncorroborated denial of Lim. As to the sale of shabu, it ruled that the prosecution was able to establish the identity of the buyer, the seller, the money paid to the seller, and the delivery of the shabu. The testimony of IO1 Carin was viewed as simple, straightforward and without any hesitation or prevarication as she detailed in a credible manner the buy-bust transaction that occurred. Between the two conflicting versions that are poles apart, the RTC found the prosecution evidence worthy of credence and no reason to disbelieve in the absence of an iota of malice, ill-will, revenge or resentment preceding and pervading the arrest of Lim. On the chain of custody of evidence, it was accepted with moral certainty that the PDEA operatives were able to preserve the integrity and probative value of the seized items.
1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 11, Article II of R.A. 9165 and is hereby sentenced to suffer the penalty of imprisonment ranging from twelve [12] years and one [1] day to thirteen [13] years, and to pay Fine in the amount of Three Hundred Thousand Pesos [P300,000.00] without subsidiary imprisonment in case of non-payment of Fine;
2. In Criminal Case No. 2010-1074, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 5, Article II of R.A. 9165, and is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the Fine in the amount of Five Hundred Thousand Pesos [P500,000.00].
3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is hereby ACQUITTED of the offense charged for failure of the prosecution to prove his guilt beyond reasonable doubt. The Warden of the BJMP having custody of ELDIE GORRES y Nave, is hereby directed to immediately release him from detention unless he is being charged of other crimes which will justify his continued incarceration.8
the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.11The chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its admission into evidence.12 To establish a chain of custody sufficient to make evidence admissible, the proponent needs only to prove a rational basis from which to conclude that the evidence is what the party claims it to be.13 In other words, in a criminal case, the prosecution must offer sufficient evidence from which the trier of fact could reasonably believe that an item still is what the government claims it to be.14 Specifically in the prosecution of illegal drugs, the well-established federal evidentiary rule in the United States is that when the evidence is not readily identifiable and is susceptible to alteration by tampering or contamination, courts require a more stringent foundation entailing a chain of custody of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.15 This was adopted in Mallillin v. People,16 where this Court also discussed how, ideally, the chain of custody of seized items should be established:
As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.17Thus, the links in the chain of custody that must be established are: (1) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; (2) the turnover of the seized illegal drug by the apprehending officer to the investigating officer; (3) the turnover of the illegal drug by the investigating officer to the forensic chemist for laboratory examination; and (4) the turnover and submission of the illegal drug from the forensic chemist to the court.18
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:Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 mandates:(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[.]19
(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: 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 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.20On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among other modifications, it essentially incorporated the saving clause contained in the IRR, thus:
(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 phyical 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.In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe admitted that "while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired and prevent planting of evidence, the application of said section resulted in the ineffectiveness of the government's campaign to stop increasing drug addiction and also, in the conflicting decisions of the courts."21 Specifically, she cited that "compliance with the rule on witnesses during the physical inventory is difficult. For one, media representatives are not always available in all comers of the Philippines, especially in more remote areas. For another, there were instances where elected barangay officials themselves were involved in the punishable acts apprehended. "22 In addition, "[t]he requirement that inventory is required to be done in police station is also very limiting. Most police stations appeared to be far from locations where accused persons were apprehended."23
Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates. The presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers makes the requirement of Section 21(a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe for the proper inventory and photograph of seized illegal drugs.We have held that the immediate physical inventory and photograph of the confiscated items at the place of arrest may be excused in instances when the safety and security of the apprehending officers and the witnesses required by law or of the items seized are threatened by immediate or extreme danger such as retaliatory action of those who have the resources and capability to mount a counter-assault.26 The present case is not one of those.
x x x x
Section 21(a) of RA 9165 needs to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of the law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be inventoried and photographed has to include a location where the seized drugs as well as the persons who are required to be present during the inventory and photograph are safe and secure from extreme danger.
It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the place of seizure or at the nearest police station or office of the apprehending law enforcers. The proposal will provide effective measures to ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as long as the law enforement officers could justify the same and could prove that the integrity and the evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances wherein there are no media people or representatives from the DOJ available and the absence of these witnesses should not automatically invalidate the drug operation conducted. Even the presence of a public local elected official also is sometimes impossible especially if the elected official is afraid or scared.25
The prosecution bears the burden of proving a valid cause for non-compliance with the procedure laid down in Section 21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance thereto in such a way that during the trial proceedings, it must initiate in acknowledging and justifying any perceived deviations from the requirements of law. Its failure to follow the mandated procedure must be adequately explained, and must be proven as a fact in accordance with the rules on evidence. It should take note that the rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized items. Strict adherence to Section 21 is required where the quantity of illegal drugs seized is miniscule, since it is highly susceptible to planting, tampering or alteration of evidence.31It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not obtained due to reason/s such as:
(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.32Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos33 requires:
It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse." Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for non- compliance. These considerations arise from the fact that police officers are ordinarily given sufficient time - beginning from the moment they have received the information about the activities of the accused until the time of his arrest - to prepare for a buy-bust operation and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable.34In this case, IO1 Orellan testified that no members of the media and barangay officials arrived at the crime scene because it was late at night and it was raining, making it unsafe for them to wait at Lim's house.35 IO2 Orcales similarly declared that the inventory was made in the PDEA office considering that it was late in the evening and there were no available media representative and barangay officials despite their effort to contact them.36 He admitted that there are times when they do not inform the barangay officials prior to their operation as they. might leak the confidential information.37 We are of the view that these justifications are unacceptable as there was no genuine and sufficient attempt to comply with the law.
The prosecution likewise failed to explain why they did not secure the presence of a representative from the Department the arresting officer, IO1 Orellan, stated in his Affidavit that they only tried to coordinate with the barangay officials and the media, the testimonies of the prosecution witnesses failed to show that they tried to contact a DOJ representative.
ATTY. DEMECILLO: x x x x Q x x x Before going to the house of the accused, why did you not contact a barangay official to witness the operation? A There are reasons why we do not inform a barangay official before our operation, Sir. Q Why? A We do not contact them because we do not trust them. They might leak our information.38
A.1.10. Any justification or explanation in cases of noncompliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items. Certification or record of coordination for operating units other than the PDEA pursuant to Section 86 (a) and (b), Article IX of the IRR of R.A. No. 9165 shall be presented.39While the above-quoted provision has been the rule, it appears that it has not been practiced in most cases elevated before Us. Thus, in order to weed out early on from the courts' already congested docket any orchestrated or poorly built up drug-related cases, the following should henceforth be enforced as a mandatory policy:
Endnotes:
* On wellness leave.
** No part.
1 Penned by Associate Justice Ronaldo B. Martin, with Associate Justices Romulo V. Borja and Oscar V. Badelles, concurring; rollo, pp. 3-19; CA rollo, pp. 86-102.
2 Records, pp. 117-125; CA rollo, pp. 32-40.
3 Records (Criminal Case No. 2010-1073), pp. 3-4.
4 Records (Criminal Case No. 2010-1074), pp. 3-4.
5 Records (Criminal Case No. 2010-1073), pp. 19-20; records (Criminal Case No. 2010-1074), pp. 20-22.
6Id. at 2.
7 Spelled as "Bajar" in the Request for Laboratory Examination on Drug Evidence (See Records of Criminal Case No. 2010-1073 [pp. 9-10] and Criminal Case No. 2010-1074 [p. 9A]).
8 Records (Criminal Case No. 2010-1073), pp. 124-125; CA rollo, pp. 39-40.
9 Rollo, pp. 26-35.
10 R.A. No. 9165 took effect on July 4, 2002 (See People v. De la Cruz, 591 Phil. 259, 272 [2008]).
11 See People v. Badilla, 794 Phil. 263, 278 (2016); People v. Arenas, 791 Phil. 601, 610 (2016); and Saraum v. People, 779 Phil. 122, 132 (2016).
12 United States v. Rawlins, 606 F.3d 73 (2010).
13 United States v. Rawlins, supra note 12, as cited in United States v. Mehmood, 2018 U.S. App. LEXIS 19232 (2018); United States v. De Jesus-Concepcion, 652 Fed. Appx. 134 (2016); United States v. Rodriguez, 2015 U.S. Dist. LEXIS 35215 (2015); and United States v. Mark, 2012 U.S. Dist. LEXIS 95130 (2012).
14 See United States v. Rawlins, supra note 12, as cited in United States v. Mark, supra note 13.
15 See United States v. Cardenas, 864 F.2d 1528 (1989), as cited in United States v. Yeley-Davis, 632 F.3d 673 (2011); United States v. Solis, 55 F. Supp. 2d 1182 (1999); United States v. Anderson, 1994 U.S. App. LEXIS 9193 (1994); United States v. Hogg, 1993 U.S. App. LEXIS 13732 (1993); United States v. Rodriguez-Garcia, 983 F.2d 1563 (1993); United States v. Johnson, 977 F.2d 1360 (1992); and United States v. Clonts,966 F.2d 1366 (1992).
16 Mallillin v. People, 576 Phil.576 (2008).
17 Mallillin v. People, supra, at 587, as cited in People v. Tamano, G.R. No. 208643, December 5, 2016, 812 SCRA 203, 228-229; People v. Badilla, supra note 11, at 280; Saraum v. People, supra note 11, at 132-133; People v. Dalawis, 772 Phil. 406, 417-418 (2015); and People v. Flores, 765 Phil. 535, 541-542 (2015). It appears that Mallillin was erroneously cited as "Lopez v. People" in People v. De la Cruz, 589 Phil. 259 (2008), People v. Sanchez, 590 Phil. 214 (2008), People v. Garcia,599 Phil. 416 (2009), People v. Denoman, 612 Phil. 1165 (2009), and People v. Abelarde, G.R. No. 215713, January 22, 2018.
18People v. Vicente Sipin y De Castro, G.R. No. 224290, June 11, 2018; People v. Amaro, 786 Phil. 139, 148 (2016); and People v. Enad, 780 Phil. 346, 358 (2016).
19 See People v. Sic-Open, 795 Phil. 859, 872 (2016); People v. Badilla, supra note 11, at 275 276; People v. De la Cruz, 783 Phil. 620, 632 (2016); People v. Asislo, 778 Phil. 509, 516 (2016); People v. Dalawis, supra note 17, at 416; and People v. Flores, supra note 17, at 540.
20 People v. Sic-Open, supra note 19, at 873; People v. Badilla, supra note 11, at 276; People v. De la Cruz, supra note 19, at 633; People v. Asislo, supra note 19, at 516-517; People v. Dalawis, supra note 17, at 417; and People v. Flores, supra note 17, at 541.
21 Senate Journal. Session No. 80. 16th Congress, 1st Regular Session. June 4, 2014. p. 348.
22 Id
23Id.
24Id at 349.
25Id. at 349-350.
26 See People v. Mola, G.R. No. 226481, April l8, 2018.
27 TSN, June 2, 2011, pp. 25-28.
28Id. at 17-19.
29 Under the original provision of Section 21(1) of R.A. No. 9165, after seizure and confiscation of the drugs, the apprehending team was required to immediately conduct a physical inventory and to photograph the same in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, (2) a representative from the media and (3) the DOJ, and (4) any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. As amended by R.A. No. 10640, it is now mandated that the conduct of physical inventory and photograph of the seized items must be in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, (2) with an elected public official and (3) a representative of the National Prosecution Service or the media who shall sign the copies of the inventory and be given a copy thereof (See People v. Ocampo, G.R. No. 232300, August, 2018; People v. Allingag, G.R. No. 233477, July 30, 2018; People v. Vicente Sipin y De Castro, supra note 18; People v. Reyes, G.R. No. 219953, Apri123, 2018; and People v. Mola, supra note 26).
30Supra note 18.
31 See also People v. Reyes, supra note 29 and People v. Mota, supra note 26.
32People v. Vicente Sipin y De Castro, supra note 18. See also People v. Reyes, supra note 29. and People v. Mola, supra note 26.
33 G.R. No. 233744, February 28, 2018. (Citations omitted).
34 See also People v. Crespo, G.R. No. 230065, March 14, 2018 and People v. Sanchez, G.R. No. 231383, March 7, 2018. (Emphasis and underscoring supplied)
35 TSN, June 2, 2011, p.l9.
36 TSN, August 5, 2011, p. 13.
37Id. at 15.
38Id. at 14-15.
39 See People v. Alvarado, G.R. No. 234048, April 23, 2018 and People v. Saragena, G.R. No. 210677, August 23,2017.
40 SEC. 5. When warrant of arrest may issue. -(a) By the Regional Trial Court. -Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to Section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.
LEONEN, J.:
Section 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainty.Proof beyond reasonable doubt is ultimately a matter of conscience. Though it does not demand absolutely impervious certainty, it still charges the prosecution with the immense responsibility of establishing moral certainty. Much as it ensues from benevolence, it is not merely engendered by abstruse ethics or esoteric values; it arises from a constitutional imperative:
Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.
This rule places upon the prosecution the task of establishing the guilt of an accused, relying on the strength of its own evidence, and not banking on the weakness of the defense of an accused. Requiring proof beyond reasonable doubt finds basis not only in the due process clause of the Constitution, but similarly, in the right of an accused to be "presumed innocent until the contrary is proved." "Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution." Should the prosecution fail to discharge its burden, it follows, as a matter of course, that an accused must be acquitted. As explained in Basilio v. People of the Philippines:
We ruled in People v. Ganguso:An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course, mean such degree of proof as, excluding the possibility of error, produce absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. The conscience must be satisfied that the accused is responsible for the offense charged.
Well-entrenched in jurisprudence is the rule that the conviction of the accused must rest, not on the weakness of the defense, but on the strength of the prosecution. The burden is on the prosecution to prove guilt beyond reasonable doubt, not on the accused to prove his innocence.1
In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.2 (Emphasis in the original, citation omitted )On the second element of corpus delicti, Section 21 of the Comprehensive Dangerous Drugs Act, as amended by Republic Act No. 10640, spells out requirements for the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia. Section 21 (1) to (3) stipulate requirements concerning custody prior to the filing of a criminal case:
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, 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 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 tile 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. (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject iterm/s: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued immediately upon completion of the said examination and certification[.] (Emphasis supplied )
A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from other cases by accident or otherwise - in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.9 (Emphasis supplied)People v. Holgado, et al.,10 recognized that:
Compliance with the chain of custody requirement ... ensures the integrity of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia in four (4) respects: first, the nature of the substances or items seized; second, the quantity (e.g., weight) of the substances or items seized; third, the relation of the substances or items seized to the incident allegedly causing their seizure; and fourth, the relation of the substances or items seized to the person/s alleged to have been in possession of or peddling them. Compliance with this requirement forecloses opportunities for planting, contaminating, or tampering of evidence in any manner. "11When the identity of corpus delicti is jeopardized by non-compliance with Section 21, the second element of the offense of illegal sale of dangerous drugs remains wanting. It follows then, that this non-compliance justifies an accused's acquittal. In People v. Lorenzo:12
In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict.13 (Emphasis supplied )
Given the flagrant procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its custody, a presumption of regularity in the performance of duties cannot be made in this case. A presumption of regularity in the performance of official duty is made in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof The presumption applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise. In light of the flagrant lapses we noted, the lower courts were obviously wrong when they relied on the presumption of regularity in the performance of official duty.Jurisprudence has thus been definite on the consequence of non compliance. This Court has categorically stated that whatever presumption there is concerning the regularity of the manner by which officers gained and maintained custody of the seized items is "negate[d]":17
We rule, too, that the discrepancy in the prosecution evidence on the identity of the seized and examined shabu and that formally offered in court cannot but lead to serious doubts regarding the origins of the shabu presented in court. This discrepancy and the gap in the chain of custody immediately affect proof of the corpus delicti without which the accused must be acquitted.
From the constitutional law point of view, the prosecution's failure to establish with moral certainty all the elements of the crime and to identify the accused as the perpetrator signify that it failed to overturn the constitutional presumption of innocence that every accused enjoys in a criminal prosecution. When this happens, as in this case, the courts need not even consider the case for the defense in deciding the case; a ruling for acquittal must forthwith issue.16 (Emphasis supplied, citation omitted )
In People v. Orteza, the Court did not hesitate to strike down the conviction of the therein accused for failure of the police officers to observe the procedure laid down under the Comprehensive Dangerous Drugs Law, thus:The Comprehensive Dangerous Drugs Act requires nothing less thari strict compliance. Otherwise, the raison d'etre of the chain of custody requirement is compromised. Precisely, deviations from it leave open the door for tampering, substitution and planting of evidence.First, there appears nothing in the records showing that police officers complied with the proper procedure in the custody of seized drugs as specified in People v. Lim, i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the requirement raises doubt whether what was submitted for laboratory examination and presented in court was actually recovered from appellant. It negates the presumption that official duties have been regularly performed by the police officers.IN FINE, the unjustified failure of the police officers to show that the integrity of the object evidence-shabu was properly preserved negates the presumption of regularity accorded to acts undertaken by police officers in the pursuit of their official duties.18 (Emphasis supplied, citations omitted)
. . . .
A review of jurisprudence, even prior to the passage of the R.A. No. 9165, shows that this Court did not hesitate to strike down convictions for failure to follow the proper procedure for the custody of confiscated dangerous drugs. Prior to R.A. No. 9165, the Court applied the procedure required by Dangerous Drugs Board Regulation No. 3, Series of 1979 amending Board Regulation No. 7, Series of 1974.
In People v. Laxa, the policemen composing the buy-bust team failed to mark the confiscated marijuana immediately after the alleged apprehension of the appellant. One policeman even admitted that he marked the seized items only after seeing them for the first time in the police headquarters. The Court held that the deviation from the standard procedure in anti-narcotics operations produces doubts as to the origins of the marijuana and concluded that the prosecution failed to establish the identity of the corpus delicti.
Similarly, in People v. Kimura, the Narcom operatives failed to place markings on the alleged seized marijuana on the night the accused were arrested and to observe the procedure in the seizure and custody of the drug as embodied in the aforementioned Dangerous Drugs Board Regulation No. 3, Series of 1979. Consequently, we held that the prosecution failed to establish the identity of the corpus delicti.
In Zaragga v. People, involving a violation of R.A. No. 6425, the police failed to place markings on the alleged seized shabu immediately after the accused were apprehended. The buy-bust team also failed to prepare an inventory of the seized drugs which accused had to sign, as required by the same Dangerous Drugs Board Regulation No. 3, Series of 1979. The Court held that the prosecution failed to establish the identity of the prohibited drug which constitutes the corpus delicti.
In all the foregoing cited cases, the Court acquitted the appellants due to the failure of law enforcers to observe the procedures prescribed in Dangerous Drugs Board Regulation No. 3, Series of 1979, amending Board Regulation No. 7, Series of 1974, which are similar to the procedures under Section 21 of R.A. No. 9165. Marking of the seized drugs alone by the law enforcers is not enough to comply with the clear and unequivocal procedures prescribed in Section 21 of R.A. No. 9165.
In the present case, although PO1 Santos had written his initials on the two plastic sachets submitted to the PNP Crime Laboratory Office for examination, it was not indubitably shown by the prosecution that PO1 Santos immediately marked the seized drugs in the presence of appellant after their alleged confiscation. There is doubt as to whether the substances seized from appellant were the same ones subjected to laboratory examination and presented in court.
A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they have to be subjected to scientific analysis to determine their composition and nature. Congress deemed it wise to incorporate the jurisprudential safeguards in the present law in an unequivocal language to prevent any tampering, alteration or substitution, by accident or otherwise. The Court, in upholding the right of the accused to be presumed innocent, can do no less than apply the present law which prescribes a more stringent standard in handling evidence than that applied to criminal cases involving objects which are readily identifiable.
R.A. No. 9165 had placed upon file law enforcers the duty to establish the chain of custody of the seized drugs to ensure the integrity of the corpus delicti. Thru proper exhibit handling, storage, labeling and recording, the identity of the seized drugs is insulated from doubt from their confiscation up to their presentation in court .21 (Emphasis supplied, citations omitted)
Republic Act No. 9165 | Republic Act No . 10640 |
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. shall, immediately after seizure and confiscation, who shall be required to sign the copies of the inventory and be given a copy thereof; | 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 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 police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure; 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. |
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. (Emphasis supplied )Lescano v. People23 summarizes Section 21(1)'s requirements:
As regards the items seized and subjected to marking, Section 21(1) of the Comprehensive Dangerous Drugs Act, as amended, requires the performance of two (2) actions: physical inventory and photographing. Section 21(1) is specific as to when and where these actions must be done. As to when, it must be "immediately after seizure and confiscation." As to where, it depends on whether the seizure was supported by a search warrant. If a search warrant was served, the physical inventory and photographing must be done at the exact same place that the search warrant is served. In case of warrantless seizures, these actions must be done "at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable."
Moreover, Section 21(1) requires at least three (3) persons to be present during the physical inventory and photographing. These persons are: first, the accused or the person/s from whom the items were seized; second, an elected public official; and third, a representative of the National Prosecution Service. There are, however, alternatives to the first and the third. As to the first (i.e., the accused or the person/s from whom items were seized), there are two (2) alternatives: first, his or her representative; and second, his or her counsel. As to the representative of the National Prosecution Service, a representative of the media may be present in his or her place.24
Meanwhile, Intelligence Officer 1 Nestle N. Carin (Officer Carin), the poseur-buyer, and Intelligence Officer 2 Vincent Cecil Orcales (Officer Orcales), the team leader of the buy-bust operation, both testified that the inventory and marking happened in their office.
Pros. Vicente: (continuing to the witness [Officer Orellan] ) Q How did you know that the one bought and the one searched were not interchanged? A I marked the item I recovered from Romy Lim, Sir. Q Where did you mark it Mr. Witness, in what place? A At their house, Sir.26 (Emphasis supplied )
ACP VICENTE, JR.: (To the witness [Officer Orcales] )
ACP VICENTE, JR.: (continuing to the witness [Officer Carin] ) Q You said that Romy Lim handed the sachet of shabu to you, what happened to that sachet of shabu, Ms. Witness? A I turned over it (sic) to IOl Orellan during the inventory. Q Where did he conduct the inventory? A At our office. Q Where? A At the PDEA Office, sir. Q ... How did you know that? A Because I was there sir, during the inventory. Q Then, what did he do with the sachet of shabu Ms. Witness? A He put a marking. Q How did you know? A Because I was present, sir.[27 (Emphasis supplied)
Surprisingly, Officer Carin's testimony was corroborated by Officer Orellan in his Affidavit when he narrated that they "brought the arrested suspects in [their] office and conducted inventory."29
Q How did Agent Orellan handle the evidence? The drugs he recovered and the buy-bust item? And what did he do with it? A He made an inventory. Q How about the marking? A He made markings on it. Q How did you know? A I supervised them. Q And where did Agent Orellan made the inventory? A In the office.28 (Emphasis supplied)
ACP VICENTE, JR.: (continuing to the witness [Officer Carin])
Pros. Vicente: (continuing to the witness (Officer Orellan]) Q What else did you do at the office, Mr. Witness, did you take pictures? A We asked them of their real identity Sir the two of them, and then we took pictures together with the evidence seized from them. Court: These pictures IO1 Orellan were taken at the office? A Yes, Your Honor. Court: No pictures at the house of the accused? A None, Your Honor.30 (Emphasis supplied)
Although Officer Orcales testified that he took pictures "[i]in the house and also in the office, "32 the only pictures in the records of the case were those taken in the PDEA office.33
. . . . Q Aside from markings what else did you do at the office? A I took pictures during the inventory .31 (Emphasis supplied)
These infringements are fatal errors. The police operatives' conduct failed to dispel all reasonable doubt on the integrity of the shabu supposedly obtained from accused-appellant. The buy-bust team failed to account for the handling and safeguarding of the shabu from the moment it was purportedly taken from accused-appellant.
Atty. Demecillo: (continuing to the witness [Officer Orellan]) Q In this Inventory, no signature ofthe two accused? A The accused did not sign, Sir. Q Not also sign[ed] by a man from the DOJ? A Yes, Sir. Q Also from the media? A None, Sir. Q Also by an elected official? A None, Sir.35
The consequences of the failure of the arresting lawmen to comply with the requirements of Section 21(1) ... were dire as far as the Prosecution was concerned. Without the insulating presence of the representative from the media or the Department of Justice, or any elected public official during the seizure and marking of the sachets of shabu, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the sachets of shabu that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the insulating presence of such witnesses would have preserved an unbroken chain of custody.39In blatant disregard of statutory requirements, not one of the three (3) insulating witnesses required by Section 21(1) was shown to be present during the arrest, seizure, physical inventory and taking of pictures.
His statements were corroborated by the testimony of Officer Orcales who stated that he was with Officer Orellan when the latter gave the seized items to the crime laboratory personnel. He confirmed that the person who received it was not Chemist Caceres and that he did not know who it was.45
Atty. Demecillo: (continuing to the witness [Officer Orellan] ) Q Who was the person who received the drugs you delivered in the crime lab? A I cannot exactly remember who was that officer who received that request Sir but I am sure that he is one of the personnel of the crime laboratory, Sir. Q You know Forensic Chemist Charity Peralta Caceres? A I only heard her name to be one of the forensic chemists in the crime lab, Sir. Q Usually you have not seen her? A I saw her but we were not friends, Sir. Q But that evening of October 20, she was not the very person who received the sachet of shabu for examination? A Only the receiving clerk, Sir. Q Not personally Caceres? A No, Sir. Q After delivering these sachets of shabu, you went home? A I went back to our office, Sir. Q From there, you did not know anymore what happened to the sachet of shabu you delivered for examination? A I don't know, Sir.44
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)This proviso was taken from the Implementing Rules and Regulations of Republic Act No. 9165:
Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value ofthe seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.] (Emphasis supplied)To sanction non-compliance, two requisites must be satisfied. First, the prosecution must identify and prove "justifiable grounds." Second, it must show that, despite non-compliance, the integrity and evidentiary value of the seized items were properly preserved. To satisfy the second requirement, the prosecution must establish that positive steps were observed to ensure such preservation. The prosecution cannot rely on broad justifications and sweeping guarantees that the integrity and evidentiary value of seized items were preserved.
Assuming that the buy-bust team has reason not to trust the barangay officials, they could have contacted any other elected official. The presence of barangay officials is not particularly required. What Section 21(1) requires is the presence of any elected officiaL
ATTY. DEMECILLO: (To the witness [Officer Orcales]) . . . . Q Before going to the house of the accused, why did you not contact a barangay official to witness the operation? A There are reasons why we do not inform a barangay official before our operation, Sir. Q Why? A We do not contact them because we do not trust them. They might leak our information.50
Endnotes:
1 Macayan, Jr. v. People, 756 Phil. 202, 213-214 (2015) [Per J. Leonen, Second Division], citing CONST, I (1987), Art. III, Sec. 1; CONST, (1987), Art. III, Sec. 14(2); People of the Philippines v. Solayao, 330 Phil. 811, 819 (1996) [Per J. Romero, Second Division]; and Basilio v. People of the Philippines, 591 Phil. 508, 521-522 (2008) [Per J. Velasco, Jr., Second Division].
2 People v. Morales y Midarasa, 630 Phil. 215 (2010) [Per. J Del Castillo, Second Division].
3 639 Phil. 134 (2010) [Per J. Mendoza, Second Division].
4 Id. at 144-145, citing People v. Kamad, 624 Phil. 289,304 (2010) [Per J. Brion, Second Division].
5 630 Phil. 215 (2010) [Per J. Del Castillo, Second Division].
6 Id. at 229.
7 People v. Laxa, 414 Phil. 156, 170 (2001) [Per J. Mendoza, Second Division], as cited in People v. Orteza, 555 Phil. 700, 708 (2007) [Per J. Tinga, Second Division].
8 576 Phil.576 (2008) [Per J. Tinga, Second Division].
9 Id. at 588-589.
10 741 Phil. 8 (2014) [Per J. Leonen, Third Division].
11 Id. at 93.
12 633 Phil. 393 (2010) [Per J. Perez, Second Division].
13 Id. at 403.
14 624 Phil. 289 (2010) [Per J. Brion, Second Division].
15 Id. at 311.
16 Id.
17 People v. Navarrete, 665 Phil. 738, 749 (2011) [Per J. Carpio Morales, Third Division]. See also People v. Ulat, 674 Phil. 484, 500 (2011) [Per J. Leonardo-De Castro, First Division].
18People v. Navarrete, 665 Phil.738, 748-749 (2011) [Per J. Carpio Morales, Third Division].
19 588 Phil. 95 (2008) [Per J. Tinga, Second Division].
20 Id. at 405.
21 Id at 403-406.
22 This is not entirely novel. The Implementing Rules and Regulations of Republic Act No. 9165 already I stated it. Nevertheless, even if it has been previously stated elsewhere, it now takes on a greater significance . It is no longer expressed merely in an administrative rule, but in a statute.
23 778 Phil. 60 (2016) [Per J. Leonen, Second Division].
24 Id. at 475.
25 The buy-bust operation was conducted in 2010.
26 TSN dated June 2, 2011, pp. 17-18.
27 TSN dated July 22, 2011, pp. 10-12.
28 TSN dated August 5, 20ll, p.l3.
29 RTC records (Crim. Case No. 2010-1073), p. 5, Affidavit of Arresting Officer.
30 TSN dated June 2, 2011, pp. 21-30.
31 TSN dated July 22, 2011, pp. 10-l2.
32 TSN dated August 5, 2011, p. 13.
33 RTC records (Crim. Case No. 2010-1073), p. 18, and RTC records (Crim. Case No. 2010-1074), p. 16.
34 TSN dated August 5, 2011, p. 17.
35 TSN dated June 2, 2011, pp. 28-29.
36 639 Phil. 134, 144 (2010) [Per J. Mendoza, Second Division].
37 People v. Mendoza, 736 Phil. 749 (2014) [Per J. Bersamin, First Division].
38 Id. at 764.
39 Id.
40Ponencia, p. 3.
41 Id.; TSN dated June 2, 2011, p. 8. In Officer Orellan's testimony, he stated that aside from himself, the buy-bust team was composed of "Regional Director Layese, Deputy Director Atila, ... IO1 Carin, IO2 Alfaro, IOl Genita , IO1 Avila, IO2 Orcales, IA2 Pica , IO1 Cardona[.]"
42 Id.
43 Id.
44 TSN dated June 2, 2011, pp. 36-37.
45 TSN dated August 5, 20ll, p.l6.
46 Ponencia, p. 14.
47 Id.
48 Id.
49 Id.
50 TSN dated August 5, 2011, pp. 14-15.
51 RTC records (Crim. Case No. 2010-1073), p. 5, Affidavit of Arresting Officer.
52 Ponencia, p. 3.
53 J. Caguioa's Reflections, p. 2.
CAGUIOA, J.:
In dangerous drugs cases, it is essential in establishing the corpus delicti that the procedure provided in Section 21 of R.A. 9165 is followed. The said section provides:Furthermore, Section 21(a), Article II of the Implementing Rules and Regulations of R.A. 9165 (IRR) filled in the details as to where the physical inventory and photographing of the seized items could be done: i.e., at the place of seizure, at the nearest police station or at the nearest office of the apprehending officer/team, thus:
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;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours[.]
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, 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:Section 21 plainly requires the apprehending team to conduct a physical inventory of the seized items and photograph the same immediately after seizure and confiscation in the presence of the accused, with (l) an elected public official, (2) a representative of the Department of Justice (DOJ), and (3) a representative of the media, all of whom shall be required to sign the copies of the inventory and be given a copy thereof.
(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: 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 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[.] (Emphasis supplied)
Although the Court has ruled that non-compliance with the directives of Section 21, Article II of R.A. No. 9165 is not necessarily fatal to the prosecution's case, the prosecution must still prove that (a) there is a justifiable ground for the non-compliance, and (b) the integrity and evidentiary value of the seized items were properly preserved. Further, the non-compliance with the procedures must be justified by the State's agents themselves. The arresting officers are under obligation, should they be unable to comply with the procedures laid down under Section 21, Article II of R.A. No. 9165, to explain why the procedure was not followed and prove that the reason provided a justifiable ground. Otherwise, the requisites under the law would merely be fancy ornaments that may or may not be disregarded by the arresting officers at their own convenience.15 (Citations omitted)In the case of People v. Barte,16 the Court pronounced that the State has the duty to credibly explain the noncompliance of the provisions of Section 21:
When there is failure to comply with the requirements for proving the chain of custody in the confiscation of contraband in a drug buy-bust operation, the State has the obligation to credibly explain such noncompliance; otherwise, the proof of the corpus delicti is doubtful, and the accused should be acquitted for failure to establish his guilt beyond reasonable doubt.17In People v. Ismael,18 the accused was acquitted because "the prosecution failed to: (1) overcome the presumption of innocence which appellant enjoys; (2) prove the corpus delicti of the crime; (3) establish an unbroken chain of custody of the seized drugs; and (4) offer any explanation why the provisions of Section 21, RA 9165 were not complied with."19
Under the last paragraph of Section 21(a), Article II of the IRR of R.A. No. 9165, a saving mechanism has been provided to ensure that not every case of noncompliance with the procedures for the preservation of the chain of custody will irretrievably prejudice the Prosecution's case against the accused. To warrant the application of this saving mechanism, however, the Prosecution must recognize the lapse or lapses, and justify or explain them. Such justification or explanation would be the basis for applying the saving mechanism. Yet, the Prosecution did not concede such lapses, and did not even tender any token justification or explanation for them. The failure to justify or explain underscored the doubt and suspicion about the integrity of the evidence of the corpus delicti. With the chain of custody having been compromised, the accused deserves acquittal. x x x21 (Emphasis supplied; citations omitted)Conformably with these disquisitions, I thus express my full support over the institution by the ponencia of the following mandatory policies before a case for violation of R.A. 9165, as amended by R.A. 10640, may be filed:
To my mind, the Court, through the said policies, actually achieves two laudable objectives, namely: (1) ensuring that the cases filed before the courts are not poorly prepared, thus ultimately leading to the decongestion of court dockets, and (2) further protection of the citizens from fabricated suits.
- In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21(1) of R.A. No. 9165, as amended, and its IRR.
- In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items.
- If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause.
- If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court.22
(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints nd urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.24Verily, none of the above reasons - or any such justifications similar to the aforementioned - wa s present in this case.
x x x [A]ny divergence from the prescribed procedure must be justified and should not affect the integrity and evidentiary value of the confiscated contraband. Absent any of the said conditions, the non compliance is an irregularity, a red flag that casts reasonable doubt on the identity of the corpus delicti.29 (Emphasis supplied )Thus, in case of noncompliance with Section 21, the Court cannot rely on the presumption of regularity to say that the guilt of the accused was established beyond reasonable doubt. The discussion in People v. Sanchez30 is instructive:
The court apparently banked also on the presumption of regularity in the performance that a police officer like SPO2 Sevilla enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. Admittedly, the defense did not adduce any evidence showing that SPO2 Sevilla had any motive to falsify. The regularity of the performance of his duties, however, leaves much to be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown.What further militates against according the police the presumption of regularity is the fact that even the pertinent internal guidelines of the police (some as early as 1999, predating R.A. 9165) require photographing and inventory during the conduct of a buy-bust operation.
An effect of this lapse, as we held in Lopez v. People, is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption of innocence.31 (Citation omitted)
x x x xChapter 4, Rule 37 of the 2013 Revised Philippine National Police (PNP) Operational Procedures33 applicable during the pre-amendment of Section 21 provides:V. SPECIFIC RULES
x x xx
B. Conduct of Operation: (As far as practicable, all operations must be officer led )1. Buy-Bust Operation in the conduct ofbuy-bust operation, the following are the procedures to be observed:a. Record time of jump-off in unit's logbook;
b. Alertness and security shall at all times be observed[;]
c. Actual and timely coordination with the nearest PNP territorial units must be made;
d. Area security and dragnet or pursuit operation must be provided[;]
e. Use of necessary and reasonable force only in case of suspect's resistance:
f. If buy-bust money is dusted with ultra violet powder make sure that suspect ge[t] hold of the same and his palm/s contaminated with the powder before giving the pre-arranged signal and arresting the suspects;
g. In pre-positioning of the team members, the designated arresting elements must clearly and actually observe the negotiation/transaction between suspect and the poseur-buyer;
h. Arrest suspect in a defensive manner anticipating possible resistance with the use of deadly weapons which maybe concealed in his body, vehicle or in a place within arms['] reach;
i. After lawful arrest, search the body and vehicle, if any, of the suspect for other concealed evidence or deadly weapon;
j. Appraise suspect of his constitutional rights loudly and clearly after having been secured with handcuffs;
k. Take actual inventorv of the seized evidence by means of weighing and/or physical counting, as the case may be;
I. Prepare a detailed receipt of the confiscated evidence for issuance to the possessor (suspect) thereof;
m. The seizing officer (normally the poseur-buyer) and the evidence custodian must mark the evidence with their initials and also indicate the date, time and place the evidence was confiscated/seized;
n. Take photographs of the evidence while in the process of taking the inventory, especially during weighing, and if possible under existing conditions, the registered weight of the evidence on the scale must be focused by the camera; and
o. Only the evidence custodian shall secure and preserve the evidence in an evidence bag or in appropriate container and thereafter deliver the same to the PNP CLG for laboratory examination. (Emphasis and underscoring supplied)
Further, the Revised PNP Manual on Anti-Illegal Drugs Operation and Investigation34 (2014 AIDSOTF Manual) similarly requires strict compliance with the provisions:
- In the handling, custody and disposition of evidence, the provision of Section 21, RA 9165 and its IRR shall be strictly observed.
- 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 personls 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 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, 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.
- Photographs of the pieces of evidence must be taken upon discovery without moving or altering its position in the place where it was situated, kept or hidden, including the process of recording the inventory and the weighing of dangerous drugs, and if possible under existing conditions, with the registered weight of the evidence on the scale focused by the camera, in the presence of persons required, as provided under Section 21, Art II, RA 9165. (Emphasis and underscoring supplied)
Section 2-6 Handling, Custody and Disposition of Drug and Non-Drug Evidence
2.33 During handling, custody and disposition of evidence, provisions of Section 21, RA 9165 and its IRR as amended by RA 10640 shall be strictly observed.
2.34 Photographs of pieces of evidence must be taken immediately upon discovery of such, without moving or altering its original position including the process of recording the inventory and the weighing of illegal drugs in the presence of required witnesses, as stipulated in Section 21, Art II, RA 9165, as amended by RA 10640. xxxx
a. Drug Evidence. 1) Upon seizure or confiscation of illegal drugs or CPECs, laboratory equipment, apparatus and paraphernalia, the operating Unit's Seizing Officer/Inventory Officer must conduct the physical inventory, markings and photograph the same in the place of operation in the presence of: (a) The suspect/s or the person/s from whom such items were confiscated and/or seized or his/her representative or counsel; (b) With an elected Public Official; and (c) Any representatives from the Department of Justice or Media who shall affix their signatures and who shall be given copies of the inventory. 2) For seized or recovered drugs covered by Search Warrants, the inventory must be conducted in the place where the Search Warrant was served. 3) For warrantless seizures like buy-bust operations, inventory and taking of photographs should be done at the nearest Police Station or Office of the apprehending Officer or Team. 4) If procedures during the inventory were not properly observed, as stipulated in Section 21, RA 9165 as amended by RA 10640, law enforcers must make a justification in writing for non-observance of the same to prove that the integrity and evidentiary value of the seized items are not tainted. (Emphasis and underscoring supplied)
The Court has ruled in People v. Zheng Bai Hui 35 that it will not presume to set an a priori basis of what detailed acts police authorities might credibly undertake and carry out in their entrapment operations. However, given the police operational procedures, it strains credulity why the police officers could not have (1) ensured the presence ofthe required witnesses, or at the very least (2) marked, photographed, and physically inventoried the seized items pursuant to the provisions of their own operational procedures.36
6) During the actual physical inventory, the Seizing Officer must mark, and photograph the seized/recovered pieces of evidence in accordance with the provision of Section 21 of RA 9165 as amended by RA 10640 in the presence of: (a) The suspect or person/s from whom such items were confiscated and/or seized or his/her representative or counsel; (b) With an elected Public Official; and (c)Any representatives from the Department of Justice or Media who shall affix their signatures and who shall be given copies of the inventory. (Note: The presence of the above-mentioned witnesses shall only be required during the physical inventory of the confiscated items. If in case, witnesses mentioned above are absent, same should be recorded in the report. 7) In warrantless searches and seizures like buy-bust operations, the inventory and taking of photographs shall be made at the nearest Police Station or Office of the Apprehending Officer or Team whichever is practicable, however, concerned police personnel must execute a written explanation to justify, non-compliance of the prescribed rules on inventory under Section 21, RA 9165 as amended by RA 10640. x x x (Emphasis and underscoring supplied )
Endnotes:
1 People v. Magat, 588 Phil.395, 402 (2008).
2 People v. Dumangay, 581 Phil.730, 739 (2008).
3 Id.
4 People v. Santos, Jr., 562 Phil. 458, 471 (2007).
5 People v. Crispo, G.R. No. 230065, March 14, 2018, p. 11; People v. Ana, G.R. No. 230070, March 14, 2018, p. 7; People v. Lumaya, G.R. No. 231983, March 7, 2018, p. 12; People v. Ramos, G.R. No. 233744, February 28, 2018, p. 9; People v. Manansala, G.R. No. 229092, February 21, 2018, p. 9; People v. Guieb, G.R. No. 233100, February 14,2018, p. 9; People v. Paz, G.R. No. 229512, January 31,2018, p. 11; People v. Miranda, G.R. No. 229671, January 31,2018, p. 11; People v. Jugo, G.R. No. 231792, January 29, 2018, p. 9; People v. Mamangon, G.R. No. 229102, January 29, 2018, p. 9; People v. Calibod, G.R. No. 230230, November 20, 2017, p. 9; People v. Ching, G.R. No. 223556, October 9, 2017, p. 10; People v. Geronimo, G.R. No. 225500, September 11,2017, p. 9; People v. Macapundag, G.R. No. 225965, March 13, 2017, 820 SCRA 204, 215; Gamboa v. People, 799 Phil. 584, 597 (2016); see also People v. Dela Victoria, G.R. No. 233325, April 16, 2018, p. 10; People v. Bintaib, G.R. No. 217805, April 2, 2018; People v. Segundo, G.R. No. 205614, July 26, 2017, p. 17.
6 736 Phil. 749 (2014).
7 Id. at 764.
8 See People v. Cayas, 789 Phil. 70,79 (2016); People v. Havana, 776 Phil. 462,475 (2016).
9 See id. at 80.
10 R.A. 9165, Sec. 21(1), as amended by R.A. 10640.
11 See People v. Alagarme, 754 Phil. 449,461 (2015).
12 See People v. Sumili, 753 Phil. 343, 352 (2015).
13 See People v. Capuno, 655 Phil.226, 240-241 (2011); People v. Garcia, 599 Phil.416, 432-433 (2009); People v. Reyes, G.R. No. 199271, October 19, 2016, 806 SCRA 513, 536-537.
14 725 Phil.268 (2014 ),
15 Id. at 286.
16 G.R. No. 179749, March 1, 2017, 819 SCRA 10.
17 Id. at 13.
18 G.R. No. 208093, February 20, 2017, 818 SCRA 122.
19 Id. at 142; underscoring supplied.
20 Supra note 13.
21 Id. at 536.
22 Ponencia, pp. 15-16.
23 Id. at 13; emphasis omitted.
24 Id., citing People v. Sipin, G.R. No. 224290, June 11, 2018, p. 17.
25 RULES OF COURT, Rule 131, Sec. 3(m) provides: "That official duty has been regularly performed."
26 People v. Mendoza, supra note 6, at 770.
27 Id.
28 718 Phil. 352 (2013).
29 Id. at 366.
30 590 Phil.214 (2008).
31 Id. at 242 243.
32 PNPM-D-0-3-1-99 [NG], the precursor anti-illegal drug operations manual prior to the 2010 and 2014 AIDSOTF Manual.
33 PNP Handbook, PNPM-00-DS-3-2-13, December 2013.
34 PNP Manual, PNPM-D-0-2-14 (DO), September 20l4.
35 393 Phil. 68, 133 (2000).
36 Note also that the same PNPDEM lays down the guidelines for preparation in buy-bust operations, including the preparation of inventory and photographing equipment, save only from the a priori basis consideration above.
37 See People v. Barte, supra note 16, at 22.
37 See People v. Barte, supra note 16, at 22.