FIRST DIVISION
G.R. No. 201576, July 22, 2019
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. ANALYN ADVINCULA Y PIEDAD, ACCUSED-APPELLANT.
D E C I S I O N
CARANDANG, J.:
This is an appeal of the Decision1 dated October 28, 2011 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 04260 dismissing the appeal and affirming the Decision2 dated November 25, 2009 of the Regional Trial Court (RTC) of Manila, Branch 2, convicting Analyn Advincula y Piedad (accused-appellant) of violation of Section 5, Article II of Republic Act (R.A.) No. 9165.3
That on or about February 5, 2009, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, trade, deliver or give away to another any dangerous drug, did then and there willfully, unlawfully and knowingly sell or offer for sale to a poseur buyer one (1) heat-sealed transparent plastic sachet containing ZERO POINT ZERO ZERO EIGHT (0.008) [gram] of white crystalline substance, containing methylamphetamine hydrochloride known as "shabu", a dangerous drug.The evidence for the prosecution shows that acting on an information from a civilian informant (CI), Police Sub Inspector (PSI) Johnny Gaspar planned a buy-bust operation against accused-appellant alias "Potsie" who was allegedly engaged in selling illegal drugs at Oroquieta Street, Sta. Cruz, Manila. Police Officer 2 (PO2) Jackson Caballero (PO2 Caballero) was designated as the poseur-buyer. One P200.00 bill was marked with a dot on the nose of former president Diosdado Macapagal according to the Pre-Operation Report and Coordination Form prepared by PO2 Ireneo Salazar.
b. "Chain of Custody" means 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 used in court as evidence, and the final disposition[.]The links in the chain of custody that must be established by the prosecution was summarized in the case of People v. Kamad:11
[F]irst, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.In this case, PO2 Caballero testified on the chain of custody as follows: ACP YAP
Although PO2 Caballero testified with regard to the seizure and marking of the illegal drug recovered from the accused-appellant and his turnover of the illegal drug seized to the investigating officer, he failed to establish the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination. First, PO2 Caballero did not name the investigator but the Spot Report13 submitted by the prosecution shows that the investigator was PO2 Ireneo Salazar. However, as can be gleaned from the Request for Laboratory Examination,14 the request and the specimen were delivered to the crime laboratory by PSI Johnny Gaspar and received by Forensic Chemist PSI Erickson Calabocal. Thus, there is a missing link as to how the specimen came into the possession of PSI Gaspar. It must be emphasized that neither PO2 Ireneo Salazar nor PSI Gaspar was presented as witness by the prosecution. PO2 Caballero did not have personal knowledge as to the handling of the seized drug after he turned over the same to the investigator. Hence, his testimony is insufficient to establish the unbroken link in the chain of custody. Consequently, the prosecution failed to prove that the item confiscated by PO2 Caballero is the same item presented in court.
Q So, tell us what happened? A When we arrived (sic) the location our confidential informant spotted the subject and he pointed to us and I approached the subject and I made the negotiation, sir. Q Tell us in what way you made the negotiation? A I told him-"Pagbilhan ako ng item n'ya". Q What introduction if there was any? A In natural way, sir, I will buy illegal drugs from the suspect. Q So, what was (sic) the suspect did? A Then, he asked how much then I told the suspect P200, sir. Q So, what did you do? A I handed the P200 to the suspect, sir. Q So, what happened to the P200 after it was turned over? A Then, using the left hand the suspect got the money, sir. Q Then? A And then, after getting the money the suspect got something from the right pocket, sit (sic). Q And then, what happened? What was that he pulled out? A It was one small transparent heat-sealed plastic sachet containing white crystalline substance suspected to be shabu, sir. Q Why did he give it to you, handed it over to you? A He gave it to me, sir Q So, what did you do next, Mr. Witness? A Upon the consummation of the transaction I made the pre-arranged signal, sir. Q What was the pre-arranged signal? A By removing my cap, sir. Q So, what happened next, Mr. Witness? A Then, after the pre-arranged signal I introduced myself to the subject and I arrested him, sir. Q Who assisted you? A At that time PO Reynaldo Mallari, sir. Q So, what happened next, Mr. Witness, after that (sic)? A So, after the negotiation and did (sic) everything we proceeded to our station, sir..., I marked the said item on (sic) the place, sir. Q When did you mark (sic)? A At that time, sir, when I arrested the subject. Q What was the marking? A AAP, sir. Q Where did you get this abbreviation, initial? What did you mean by that? A Analyn Advincula Piedad, sir. Q Where was Analyn then at that time? A In front of her, sir. x x x x Q After marking where did you put, place the said evidence? A At my left front pocket, sir. Q Who submitted that to the investigator? A I, myself, sir.12
Section 21, Article II of R.A. No. 9165 states the procedure to be followed by a buy-bust team in the seizure, initial custody, and handling of confiscated illegal drugs and/or paraphernalia. This section was amended by R.A. No. 10640 which imposed less stringent requirements in the procedure; but the amendment was approved only on July 15, 2014.16 As the crime in this case was committed on February 9, 2009, the original version of Section 21 is applicable, thus:
ATTY. CIRILO: Q You said that you were able to how many plastic sachets you were able to recover from her? A One plastic sachet, ma'am. Q And that you marked the..., where did you mark the plastic sachet? A At the place of arrest, ma'am. Q And who were with you at that time that the marking was made? A PO2 Reynaldo Mallari, ma'am. Q And that there were no other persons present aside from you and Mallari at that time that the specimen was marked? A The neighbors, ma'am. Q That there was no Barangay Kagawad present? A No, ma'am. Q Am I correct? A Yes, ma'am Q There was no photograph taken on the accused and the dangerous drug recovered from...? A Yes, ma'am. Q There was no inventory? A None, ma'am. Q And you did not bring Analyn to the hospital when you arrested her, you immediately proceeded to the station? Yes or no, Mr. Witness? A Yes, ma'am.15
Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:The presence of the three witnesses required by Section 21 is precisely to protect and to guard against the pernicious practice of policemen in planting evidence. Without the insulating presence of the three witnesses 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 R.A. 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 seized drugs that were evidence of the corpus delicti, and thus adversely affecting the trustworthiness of the incrimination of accused appellant.17
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.]x x x x
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.18 (Emphasis in the original)In the case at bar, the lapses of the arresting police officers are significant and cannot be ignored. There was no photograph and inventory of the seized items, and no representatives from the Department of Justice (DOJ) and the media, and any elected public official during the marking of the shabu. Furthermore, no explanation/justification was given by the buy-bust team why they did not comply or observe the rule laid down in Section 21.
Endnotes:
* Designated additional member per Raffle dated April 1, 2019.
1 Penned by Associate Justice Amelita G. Tolentino, with Associate Justices Normandie B. Pizarro (now retired) and Rodil V. Zalameda (now a Member of this Court), concurring; rollo, pp. 2-14.
2 Records, pp. 29-34.
3 An Act Instituting the Comprehensive Dangerous Drugs Act of 2002, Repealing Republic Act No. 6424, otherwise known as the Dangerous Drugs Act of 1972, as amended, Providing Funds Therefor, and for Other Purposes.
4 Records, p. 1.
5 Id. at 10; Exhibit C-1.
6People v. Otico, G.R. No. 231133, June 6, 2018.
7People v. Alvarado, G.R. No. 234048, April 23, 2018.
8People v. Ga-a, G.R. No. 222559, June 6, 2018, citing People v. Del Mundo, G.R. No. 208095, September 20, 2017.
9 Id., citing People v. Dahil, 750 Phil. 212, 226 (2015).
10People v. Caiz, 790 Phil. 183,204 (2016), citing People v. Rosialda, 643 Phil. 712 (2010).
11 624 Phil. 289 (2010).
12 TSN dated October 22, 2009, pp. 7-9.
13 Records, p. 8.
14 Id. at 9; Exhibit A.
15 TSN, dated October 22, 2009, p. 12.
16People v. Sood, G.R. No. 227394, June 6, 2018.
17 Id.
18 Id.
19 Supra note 6.
20 See Lescano v. People, 778 Phil. 460 (2016).
21People v. Reyes, 797 Phil. 671, 692 (2016).