SECOND DIVISION
G.R. No. 212170, June 19, 2019
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. ALEX ESCARAN Y TARIMAN, ACCUSED-APPELLANT.
D E C I S I O N
CAGUIOA, J.:
Before the Court is an ordinary appeal1 filed by accused-appellant Alex Escaran y Tariman (Escaran) assailing the Decision2 dated August 30, 2013 of the Court of Appeals, Twentieth Division, Cebu City (CA), in CA-G.R. CEB CR-HC No. 01275, which affirmed with modification the Joint Judgment3 dated October 18, 2010 of the Regional Trial Court (RTC), Branch 28, 7th Judicial Region, Mandaue City in Criminal Case Nos. DU-11130 and DU-11131, finding Escaran guilty beyond reasonable doubt of the crimes punished under Sections 5 and 11, Article II of Republic Act No. (RA) 9165,4 otherwise known as the Comprehensive Dangerous Drugs Act of 2002.
Criminal Case No. DU-11130 (For violation of Section 5):When arraigned, Escaran pleaded not guilty to both charges against him.8 During the pre-trial, the court dispensed with the testimony of Police Senior Inspector, Forensic Chemical Officer Mutchit G. Salinas (PSI Salinas) after the parties stipulated on the following:
That on or about the 21st day of March, 2004 in the City of Mandaue, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and without being authorized by law, did then and there wilfully, unlawfully and feloniously sell, deliver and give away to another two (2) packets containing "shabu" or methylamphetamine hydrochloride having a total weight of 0.06 gram, a dangerous drug.
CONTRARY TO LAW.6
Criminal Case No. DU-11131 (For violation of Section 11):
That on or about the 21st day of March, 2004, in the City of Mandaue, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control four (4) heat-sealed transparent plastic packet[s] of white crystalline substance having a combined weight of 0.08 gram which when subjected to laboratory examination gave positive results for the presence of methylamphetamine hydrochrloride, a dangerous drug.
CONTRARY TO LAW.7
On March 21, 2004[,] at around 7:00 o'clock in the evening the confidential agent of the Drug Enforcement Unit of Mandaue made a phone call to Police Chief [Inspector Juanito] Enguerra [PCI Enguerra,] informing the latter that [Escaran] is selling shabu at Sitio Sapa-Sapa, Ibabao, Mandaue City. Their conversation lasted for an hour and a half. On the basis of the said information, PCI Enguerra directed PO1 Montebon and PO1 Veraño together with their informant to conduct a surveillance at Sitio Sapa-Sapa at around 8:00 o'clock in the evening, wherein the said policemen ascertained that the information they received was accurate.For his defense, Escaran denied the charges and narrated that:
Upon their return at the police station, PCI Enguerra conducted a briefing attended by the confidential agent, PO1 Montebon, PO1 Veraño and SPO4 Tumakay wherein the group hatched a plan to conduct a buy bust operation against [Escaran]. PO1 Veraño was designated as the poseur-buyer and he was given x x x pre-marked two x x x P100.00 peso bills furnished by SPO1 Enri[q]uez who affixed his signature on the upper left portion of the said bills.
After their briefing, at around 9:00 o'clock in the evening, on board the service vehicle, Mobile 9, PO1 Montebon, PO1 Veraño and SPO1 Enriquez together with the confidential agent went to the designated area. Twenty minutes after the group arrived, they were met by [Escaran,] who asked PO1 Veraño if he would be interested to buy shabu to which the latter answered in the affirmative. PO1 Veraño then told [Escaran] that he would buy worth P200.00[;] thereafter the latter handed to the former two [2] packs of shabu.
After that, PO1 Veraño and PO1 Montebon introduced themselves as policemen and [arrested Escaran] who was thereafter appraised of his constitutional rights. When [Escaran] was frisked by PO1 Montebon, the policeman was able to recover an additional four [4] packs of shabu from the right front pocket of [Escaran]'s trousers.
The police officers then brought [Escaran] to the police station. The two [2] packets from the sale were then marked as "Alex-1" and "Alex-2" while the four [4] packets obtained from the search were marked as "AET- 1" to "AET-4". The contraband were then brought to the PNP Crime Laboratory for examination.
The Chemistry Report [p]repared by [PSI Salinas] on the items seized from [Escaran] yielded positive results for shabu.10
x x x At around 5:00 o'clock in the afternoon of March 21, 2004, [Escaran] was told by his co-worker Arman to wait for him by the bamboo groove near his house so that they could go together to work. They were supposed to report at 9:30 o'clock (sic) in the evening at the back portion of Sitio Sapa-Sapa. [Escaran] had been under the employ of one Titing as a butcher of chickens for the past four [4] years prior to his arrest. Two minutes into waiting for Arman, the latter arrived and told [Escaran] to wait further as he was going to sharpen his knife and if their other companions would arrive before him [Arman] then [Escaran] should go with them.
[Escaran] decided to wait further as their other companions were not yet in sight. A while later he noticed four [4] persons who approached him and asked where they could buy shabu. [Escaran] replied that he does not sell shabu and directed the persons to go further back out and he saw the group heading towards the store. Thereafter, one of the persons in the group came back to him and asked him to accompany them because they were not familiar with the place. [Escaran] declined and said that he was waiting for his companions. The person left him alone. Still, no companions in sight, another person from the group was able to come back and asked him again to accompany them but then again he declined. This infuriated the person who retorted "Why will you not accompany us? We are just requesting you to accompany us."
Undaunted, another one from the group whom he identified as Montebon introduced himself saying "Bay, we are policemen. You just accompany us where we can buy shabu." But [Escaran] was adamant saying he could not do that because he was waiting for his companions. Montebon then replied[,] "It's up to you, you might regret it", after he said that he returned to his companions.
The four of them, then approached him and ordered him to stand up. [Escaran] asked why he was ordered around but they retorted that he was hard-headed. Suddenly, one of the four people drew his gun and aimed at [Escaran] saying[,] "If you only had accompanied us, this [would] not have happened to you.["] Thereafter, he was dragged in a corner and was told to board the vehicle. He was later on brought to the Command Office where he was asked to point to them [policemen] the house of a certain Dennis and was even told that should he supply them the information, the four will set him free. Not knowing any person in the name of Dennis, he could not give them an answer.
They left him for a while in a small room and a few short minutes later, they brought him outside and made him sit on a table near the computer and was told: "do you see those packs? Those 6 packs will be yours if you will not tell us." He pleaded to them and told them that he was still on probation but they were just laughing at him. He was later on locked up and brought to Precinct l.11
The lack of inventory and photographs of the seized items was corroborated by PO1 Montebon, who testified as follows:
Q After the arrest of the accused, what happened next? A We brought him to [t]he Mandaue City Police Office and interrogated him.34 x x x x Q Was there an inventory made of the 6 packs? A None, but a report was made. Q What report are you referring to? A Report for Crime Laboratory. Q That is a request. A Yes, request. Q You know that when you arrest somebody for selling or for possession, you have to make an inventory of the items seized or confiscated from him in the presence of the accused or his representative? A No, we already coordinated with the PDEA.35 x x x x Q You wouldn't know if a photograph was taken of the items seized? A No, but there was a picture of the accused. Q Only a picture of the accused? A Yes.36
Third, none of the three (3) required witnesses under Section 21 was present at the place of seizure and apprehension and even at the police station. It bears emphasis that the presence of the required witnesses at the time of the apprehension and inventory is mandatory, and that the law imposes the said requirement because their presence serves an essential purpose. In People v. Tomawis,38 the Court elucidated on the purpose of the law in mandating the presence of the required witnesses as follows:
Q You immediately brought him [Escaran] to your office and placed him under investigation and booked him? A [Y]es. Q There was an inventory made? A No. Q No photographs taken? A The photograph of Escaran was taken. Q Photographs of items which you said were confiscated from him? A No.37
The presence of the witnesses from the DOJ, media, and from public elective office is necessary to protect against the possibility of planting, contamination, or loss of the seized drug. Using the language of the Court in People v. Mendoza,39 without the insulating presence of the representative from the media or the DOJ and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA 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 subject sachet that was evidence of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused.
The presence of the three witnesses must be secured not only during the inventory but more importantly at the time of the warrantless arrest. It is at this point in which the presence of the three witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug. If the buy-bust operation is legitimately conducted, the presence of the insulating witnesses would also controvert the usual defense of frame-up as the witnesses would be to able testify that the buy bust operation and inventory of the seized drugs were done in their presence in accordance with Section 21 of RA 9165.Indeed, case law states that the procedure enshrined in Section 21, Article II of RA 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects.41 For indeed, however noble the purpose or necessary the exigencies of the campaign against illegal drugs may be, it is still a governmental action that must always be executed within the boundaries of law.42
The practice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so — and "calling them in" to the place of inventory to witness the inventory and photographing of the drugs only after the buy-bust operation has already been finished — does not achieve the purpose of the law in having these witnesses prevent or insulate against the planting of drugs.
To restate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be secured and complied with at the time of the warrantless arrest; such that they are required to be at or near the intended place of the arrest so that they can be ready to witness the inventory and photographing of the seized and confiscated drugs "immediately after seizure and confiscation".40 (Emphasis and underscoring in the original)
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 noncompliance is an irregularity, a red flag, that casts reasonable doubt on the identity of the corpus delicti.54(Emphasis supplied)The presumption of regularity in the performance of duty cannot overcome the stronger presumption of innocence in favor of the accused.55
The Court has ruled in People v. Zheng Bai Hui59 that it will not presume to set an a priori basis on what detailed acts police authorities might credibly undertake and carry out in their entrapment operations. However, given the police operational procedures and the fact that buy-bust is a planned operation, it strains credulity why the buy-bust team could not have ensured the presence of the required witnesses pursuant to Section 21 or at the very least marked, photographed and inventoried the seized items according to the procedures in their own operations manual.ANTI-DRUG OPERATIONAL PROCEDURES
x x x x
V. SPECIFIC RULES
xxxx
B. Conduct of Operation: (As far as practicable, all operations must be officer led)
1. Buy-Bust Operation - in the conduct of buy-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 arm[']s 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 inventory of the seized evidence by means of weighing and/or physical counting, as the case may be;
l. 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)
Endnotes:
1 See Notice of Appeal dated October 2, 2013; CA rollo, pp. 123-125.
2 CA rollo, pp. 99-122. Penned by Associate Justice Ma. Luisa C. Quijano-Padilla, with Associate Justices Ramon Paul L. Hernando (now a Member of this Court) and Carmelita Salandanan-Manahan concurring.
3 Id. at 49-57. Penned by Judge Marilyn Lagura-Yap.
4 AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES (2002).
5 Records (Crim. Case No. DU-11130), pp. 1-2; records (Crim. Case No. DU-11131 ), pp. 1-2.
6 Id. at 1.
7 Records (Crim. Case No. DU-11131), p. 1.
8 CA rollo, p. 1.
9 Id. at 101-102.
10 Id. at 102-103.
11 Id. at 104-106.
12 Id. at 56-57.
13 Id. at 54-56.
14 Id. at 56.
15 Id. at 99-122.
16 Id. at 109 117.
17 Id. at 117-119.
18 Id. at 121.
19People v. Sagana, G.R. No. 208471, August 2, 2017, 834 SCRA 225, 240.
20Derilo v. People, 784 Phil. 679, 686 (2016).
21 See People v. Alvaro, G.R. No. 225596, January 10, 2018, p. 9.
22People v. Manansala, G.R. No. 229092, February 21, 2018, p. 5.
23 The said section reads as follows:
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[.]
24 See RA 9165, Art. II, Sec. 21(1) and (2).
25People v. Calleja, G.R. No. 227427, June 6, 2018, p. 10.
26 See People v. Sanchez, 590 Phil. 214, 234 (2008).
27People v. Ceralde, G.R. No. 228894, August 7, 2017, 834 SCRA 613, 625.
28People v. Dela Victoria, G.R. No. 233325, April 16, 2018, p. 6; People v. Crispo, G.R. No. 230065, March 14, 2018, p. 8; People v. Año, G.R. No. 230070, March 14, 2018, p. 6; People v. Lumaya, G.R. No. 231983, March 7, 2018, p. 8; People v. Ramos, G.R. No. 233744, February 28, 2018, p. 6; People v. Magsano, G.R. No. 231050, February 28, 2018, p. 7; People v. Manansala, G.R. No. 229092, February 21, 2018, p. 7; People v. Miranda, G.R. No. 229671, January 31, 2018, p. 7; People v. Dionisio, G.R. No. 229512, January 31, 2018, p. 9; People v. Jugo, G.R. No. 231792, January 29, 2018, p. 7; People v. Mamangon, G.R. No. 229102, January 29,2018, p. 7; People v. Alvaro, G.R. No. 225596, January 10, 2018, p. 7; People v. Almorfe, 631 Phil. 51, 60 (2010).
29 See People v. De Guzman, 630 Phil. 637, 649 (2010).
30People v. Gonzales, 708 Phil. 121, 123 (2013).
31 See TSN, April 14, 2005, p. 8.
32 See TSN, April 12, 2005, pp. 28-29.
33 799 Phil. 484, 494 (2016).
34 TSN, April 12, 2005, p. 10.
35 Id. at 29-30.
36 Id. at 31.
37 TSN, April 18, 2005, p. 14.
38 G.R. No. 228890, April 18, 2018.
39 736 Phil. 749,764 (2014).
40People v. Tomawis, supra note 38, at 11-12.
41Gamboa v. People, 799 Phil. 584, 597 (2016), citing People v. Umipang, 686 Phil. 1024, 1038-1039 (2012).
42 Id. at 597.
43People v. Callejo, supra note 25, at 9-10, citing People v. Cayas, 789 Phil. 70, 79-80 (2016).
44People v. Beran, 724 Phil. 788, 822 (2014).
45People v. Reyes, 797 Phil. 671,690 (2016).
46 TSN, April 18, 2005, pp. 3-10.
47People v. Gajo, G.R. No. 217026, January 22, 2018, p. 8.
48 TSN, April 12, 2005, pp. 28-29.
49 Records, pp. 38-39.
50People v. Supat, G.R. No. 217027, June 6, 2018, p. 16.
51 1987 CONSTITUTION, Art. III, Sec. 14(2). "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved x x x."
52People v. Belocura, 693 Phil. 476,503-504 (2012).
53 718 Phil. 352 (2013).
54 Id. at 366.
55People v. Calleja, supra note 25, at 20, citing People v. Mendoza, supra note 39, at 770.
56 Id., citing People v. Mendoza, id.
57 Id., citing People v. Mendoza, id.
58 PNPM D-O-3-1-99 [NG], the precursor anti illegal drug operations manual prior to the 2010 and 2014 AIDSOTF Manual.
59 393 Phil. 68, 133 (2000).
60People v. Otico, G.R. No. 231133, June 6, 2018, p. 23, citing People v. Jugo, G.R. No. 231792, January 29, 2018, p. 10.