G.R. No. 229661, November 20, 2019
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. NASSER LUMINDA Y EDTO, ACCUSED-APPELLANT.
R E S O L U T I O N
The Court supports the serious efforts of the government in its campaign against the menace of prohibited drugs. The merchants of all prohibited drugs, from the rich and powerful syndicates to the individual street pushers, must be hounded relentlessly and punished to the full extent of the law. Even so, we must be watchful against the conviction of alleged drug-pushers on the basis of less than satisfactory evidence of their guilt. Such evidence may be the result only of an excess of zeal or lack of deference for constitutional rights. In such cases, the accused is entitled to is entitled to be acquitted on the ground of reasonable doubt.1
Nasser Luminda y Edto (appellant) was charged with violation of Section 5, Article II of Republic Act No. (RA) 9165 or the Illegal Sale of Dangerous Drugs as stated in the Information, viz.:
That on or about the 21st day of June 2011 in Quezon City, Philippines, the above-named accused, without any lawful authority, did then and there, willfully, unlawfully and knowingly sell, trade, administer, disperse, deliver, give away to another, distribute, dispatch in transit or transport, or act as broker in the said transaction, one (1) heat sealed plastic sachet containing zero point ten (0.10) grams of white crystalline substance containing Methamphetamine Hydrochloride, a dangerous drug.Appellant pleaded "not guilty" to the charge against him and trial on the merits ensued.
CONTRARY TO LAW.2
WHEREFORE, IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered ordering the CONVICTION of accused NASSER LUMINDA y [EDTO] for the offense charged and is hereby sentenced to suffer the penalty of Life. Imprisonment and to pay a fine of P500,000.00.On appeal, the CA affirmed in toto the Judgment of the RTC.
As the accused is a detention prisoner, his period of detention shall be properly credited in his favor in strict conformity with the provision of the rules.
The dangerous drugs submitted as evidence in this case is hereby ordered to be transmitted to the Philippine Drug Enforcement Agency (PDEA), for destruction and/or disposition in strict conformity with the provisions of our laws, rules and regulations on the matter.
Let the Mittimus and necessary documents be prepared for the immediate transfer of the custody of accused to the Bureau of Corrections, National Bilibid Prisons in Muntinlupa City, pursuant to OCA Circular No. 4-92-A.
Further, the PAO pointed out in the Appellant's Brief the following irregularities: first, the seized illegal drug allegedly recovered from the appellant was not marked at the place of seizure but in Camp Karingal; and that the police officers cited the heavy rainfall in the area at that time and the possibility of commotion in Jollibee for their failure to immediately mark the evidence;20second, during the inventory of the item, only a representative from the media was present, while the other witnesses required by the law were absent.21
- THE COURT A GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION'S FAILURE TO PROVE THAT THE police CONDUCTED A VALID ENTRAPMENT OPERATION AGAINST HIM.
- THE COURT A GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROCEDURAL LAPSES ON THE PART OF THE POLICE OFFICERS THE CUSTODY OF THE ALLEGEDLY SEIZED ILLEGAL DRUG.
- THE COURT A QUO GRAVELY ERRED IN ADMITTING IN EVIDENCE THE ALLEGEDLY SEIZED ILLEGAL DRUG DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH EVERY INK IN THE CHAIN OF CUSTODY 19
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:To supplement the above-quoted provision, Section 21(a) of the Implementing Rules and Regulations (IRR) of RA 9165 provides that:
(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; (Emphasis supplied; underscoring supplied.)
Sec. 21. Custody and Disposition of confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursor and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - x x xSimply put, to ensure the integrity of the seized drug item, the prosecution must account for each link in its chain of custody, to wit: first, the seizure and marking 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 by the forensic chemist to the court.24
(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 warranties 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.)
ACP FLOR Q: You said that you were introduced by the confidential informant to alias Buboy, how did the confidential informant introduce you to him? A: The confidential informant introduced me to alias Buboy that
I am going to buy drugs worth Php500.00, sir.28
x x x x Q: What was the reply of alias Buboy? A: After that alias Nasser glanced around and then he took something from his pocket and handed it to me, sir. Q: What was it that alias Buboy took out from his pocket which he handed over to you? A: He took the shabu worth Php500.00 and gave it to me, sir. Q: After he gave it to you, what happened next? A: After I gave him the Php500.00 and when it was being handed to alias Buboy, I then simultaneously executed the pre-arranged signal to the group, sir. Q: What was the pre-arranged signal that you executed? A: I removed my cap, sir. Q: The Php500.00 that you were referring to was the same exhibit that we marked before, Mr. Witness? A: Yes, sir.29 x x x x ACP FLOR: Submitted before this Honorable Court is a plastic sachet containing white crystalline substance, which was submitted by the Forensic Chemist. Your Honor, it appears that the plastic sachet is contained in a transparent plastic bag. ATTY. LAURON: Yes, Your Honor, and we could see the contents of the small plastic bag, only one specimen. COURT: With only one specimen inside? ATTY. LAURON: Yes, Your Honor. ACP FLOR: (to the witness) Q: I'm showing you this plastic sachet, what is the relation of this plastic sachet to the sachet that you removed from the accused during the buy-bust operation? A: That's the one I recovered, sir. Q: Why did you say that this is the same plastic sachet? A: I have my markings, sir. Q: Where did you place these
markings that you were referring to?
A: On the plastic sachet, sir. Q: Can you read for the record
what was the marking that you placed on this sachet?
A: ZC-NL-6-21-11, sir.30 x x x x Q: Where did you mark that plastic sachet, Mr. Witness? A: We marked it at the police station because we were not able to mark in front of Jollibee due to heavy rain, sir.31 (Emphasis supplied.) x x x x Q: Who recovered the buy-bust money? A: PO2 Nepuscua, sir Q: From whom did you recover the buy-bust money? A: From Nasser, sir. Q: After the arrest of alias Buboy and the recovery of the items, what happened next? A: After recovery, I conducted body search and informed him of his rights, sir. Q: What happened next, Mr. Witness? A: We were about to mark but the rain was pouring hard so we were forced to go to the station, sir. Q: Who's in custody of the sachet from the place of arrest up to the station? A: I, sir.32 (Emphasis supplied.)
PO2 Nepuscua also testified as a member of the buy-bust operation team:
Q: You also testified that you could not make the markings because it was already raining? A: Yes, sir. Q: You could not make the findings inside the Jollibee where they have tables and other things? A: We were trying to avoid any problem and we were also avoiding the commotion in Jollibee that's why we decided to proceed to our office, sir. Q: What do you mean problem or commotion, what do you mean? A: From what I know, in arrests being made, sometimes there are commotion that happen and the rain also started to fall heavily that's why we decided to go to our office, sir. Q: Now, you could have easily made these markings inside the restaurant and you were cops. Are you telling us that you cannot control the people, the diners of Jollibee? x x x x A: When we make arrest, we consider primarily the security and welfare of everyone, sir.33 (Emphasis supplied)
Based on the foregoing testimonies, it is readily apparent that there are several breaches in the chain of custody.
ATTY. LAURON: Q: Aside from not having an elected official and DOJ representative to witness the inventory taking, do you have any evidence whatsoever that could show this Ray Agana has any sort of certification that will prove that he is actually a media practitioner like a machine copy of his identification card. Do you have one? A: I remember, sir that we secured the xerox copy of his Id. Q: Where is it? A: It's the Investigator sir that compiled all the documents.34
The prosecution never alleged and proved that the presence of the required witnesses was not obtained for any of the following reasons, 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 elected public official within the period require under Article 125 of the Revised Penal Could 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.The Court in Sarip acquitted the accused on the ground of the prosecution's non-observance of the three-witness rule coupled with its failure to provide justification therefor. The case at bar suffers from the same infirmity. An examination of the records reveals that the inventory45 as well as the photographing of the seized item was made in the presence of only one witness, Rey Argaga of Police Files Tonite. While the arresting officer, PO2 Nepuscua and seizing officer, PO2 Cabling were present, there were no elective official and a DOJ representative. Noticeably, the prosecution had failed to acknowledge this fact, much less provide a justification for it.
Earnest effort to secure the attendance of the necessary witnesses must also be proven as held in People v. Ramos, thus:
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 representative 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 fully 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 the 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.44 (Emphasis supplied. Citations omitted.)
In order to abbreviate the proceedings, the counsels for the parties decided to enter into stipulation/admission of facts as regards the proposed testimony of Police Chief Inspector Maridel Rodis Martinez, and these are as follows:
What is clear from the foregoing is the lack of stipulations required for the proper and effective dispensation of the testimony of the forensic chemist. In People v. Pajarin, et al.,47 the Court reminded that in case of a stipulation by the parties to dispense with the attendance and testimony of the forensic chemist, it should be stipulated that the forensic chemist would have testified that he had taken the precautionary steps required in order to preserve the integrity and evidentiary value of the seized item. These steps include: (1) that the forensic chemist received the seized article as marked, properly sealed, and intact; (2) that he resealed it after examination of the content; and (3) that he placed his own marking on the same to ensure that it could not be tampered pending trial.48]
- That police Chief Inspecto Maridel Rodis Martinez was the duly designated Forensic Chemist in this instant case;
- That she received the Request for Laboratory Examination dated June 21, 2011 together with the object evidence from PO1 Warlito Cagurungan on June 21, 2011;
- That thereafter, she conducted forensic examination on the said object evidence that she received and thereafter came up with Initial Laboratory Report No. D-136-11 and Final Chemistry Report No. D-136-11;
- The due execution, authenticity, as well as the contents of the Initial Laboratory Report an the Final Chemistry Report;
- That she can identify the object evidence that she received and examined if shown to her at the witness stand.
- That she was the one who personally turned over the custody of the object evidence to the Court;
- That she was not one of the alleged seizing/arresting officer;
- That she has no personal knowledge as to the alleged arrest and seizure;
- That she has no personal knowledge as to the source or origin of the allegedly seized object evidence;
- That she did not conduct quantitative examination on the alleged object evidence as shown in the records.
* Designated additional member per Special Order No. 2724 dated October 25, 2019.
1 See People v. Labarias, 291 Phil. 511, 518 (1993) and People v. Manalansan, 267 Phil. 651, 658 (1990).
2 Records. p. 1.
3Rollo, p. 3.
5Id. at 4.
6 Records, p. 169.
7Id. at 171.
8Id. at p. 176.
9Id. at p. 177.
10Id. at 178.
11Id. at 181.
12Rollo, p. 5.
13 CA rollo, pp. 55-65. Penned by Presiding Judge Fernando T. Sagun, Jr.
14Id. at 64-65.
15Id. at 114-115.
16Rollo, pp. 25-26.
17Id. at 28-29.
18 CA Rollo, pp. 34-53.
19Id. at 36.
20Id. at 48-49.
21Id. at 49.
22People v. Dela Torre, G.R. No. 238519, June 26, 2019 citing People v. Sumili, 753 Phil. 342, 348 (2015).
23People v. Dela Torre, supra.
24People v. Banding, G.R. No. 233470, August 14, 2019 citing People v. Nandi, 639 Phil. 134 (2010).
25People v. Refe, G.R. No. 233697, July 10, 2019.
26People v. Manabat, G.R. No: 242947, July 17, 2019.
27People v. Refe, supra note 25 citing People v. Barte, 806 Phil. 533, 544 (2017).
28 TSN, March 22,2012, p. 18.
29 TSN, March 22,2012, pp. 19-20.
31Id. at 22.
32Id. at 24-25.
33 TSN, June 18, 2013, p. 77-79.
34 TSN, March 18, 2014, p. 137.
35 G.R. No. 242018, July 3, 2019 citing People v. Musor, G.R. No. 231843, November 7, 2018.
37People v. Dela Torre, G.R. No. 225789, July 29, 2019.
38People v. Mola, G.R. No. 226481, April 18, 2018, 862 SCRA 112, 124.
39 G.R. No. 227394, June 6, 2018, 865 SCRA 368.
40 G.R. No. 229047, April 16, 2018, 861 SCRA 267.
41 Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by Executive Order Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).
42People v. Sarip, G.R. No. 231917, July 8, 2019 citing People v. Angelita Reyes, et al., G.R. No. 219953, April 23, 2018.
43 G.R. No. 231917, July 8, 2019.
45 See Receipt/Inventory of Property Seized, records, p. 170.
46Id. at 132-133.
47 654 Phil. 461, 466 (2011).
48Id. See also People v. Ubungen, G.R. No. 225497, July 23, 2018.
49People v. Orcullo, G.R. No. 229675, July 8, 2019.
50People v. Mola, supra note 38.
51People v. Orcullo, supra.