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G.R. No. 220447, November 25, 2019




This is an appeal from the Decision1 dated December 22, 2014 of the Court of Appeals (CA) in CA-G.R. CEB CR-HC No. 01721 affirming the Decision2 dated July 19, 2013 of the Regional Trial Court (RTC) of Bacolod City, Branch 52 in Criminal Case No. 06-29331. The , RTC found Albert Peran y Gemerga (appellant) guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of

The Facts

The indictment of appellant for violation of Section 5, Article II of RA 9165 stemmed from the following Information:3
That on or about the 29th day of June, 2006, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized by law to sell, trade, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drugs, did, then and there willfully, unlawfully and feloniously sell, deliver, give away to a police poseur buyer in a buy-bust operation one (1) folded notebook paper containing 1.32 grams of dried marijuana fruiting tops, in exchange marked money of one (1) P100.00 bill bearing Serial No. XU25004,  in violation of the aforementioned law.

Act contrary to law.4
The prosecution alleged that on June 15, 2006, the Granada Police Station received an information from a concerned citizen that a certain "Pinut," a 20-year-old student, was selling marijuana at Don Generoso Villanueva National High School located at Brgy. Granada, Bacolod City. Acting on the information, Station Commander Police Inspector Renato C. Ofamen (P/Insp. Ofamen) ordered Senior Police Officer II Arnaldo N. Briñas ( SPO2 Briñas) to verify the information. SPO2 Briñas conducted a two-week surveillance of appellant and confirmed that the information was positive.5

On June 29, 2006 at around 6:30 a.m., P/Insp. Ofamen ordered SPO2 Briñas to conduct a buy-bust operation against appellant. In preparation thereof, SPO2 Briñas entered in the police blotter the details of their buy-bust money consisting of a marked Pl00-bill with serial number XU250204.6

Therafter, SPO2 Briñas and his back-up, Police Officer II Arnold James Laguna, went to Patricia Homes Subdivision located in Brgy. Granada. Upon reaching the designated place, SPO2 Briñas positioned himself near a waiting shed. After about 30 minutes, appellant, wearing his school uniform, alighted from a public utility jeepney. SPO2 Briñas approached appellant and asked if he had marijuana. Appellant nodded his head. SPO2 Briñas gave appellant the marked P100-bill. In return, appellant handed SPO2 Briñas the marijuana wrapped in a notebook paper. Immediately, SPO2 Briñas introduced himself as a policeman and arrested appellant. Appellant was informed of the offense he committed and of his constitutional rights. SPO2 Briñas marked the sheet of paper where the marijuana was wrapped.7

SPO2 Briñas brought appellant to the Bacolod City Police Station 6 and recorded the incident in the police blotter. The seized marijuana was inventoried in the presence of barangay officials, Kagawad Gerson M. Nietes and Kagawad William D. Diocson. Photographs of the seized item,8 together with the appellant were taken. On the same day, SPO2 Briñas brought the suspected marijuana to the Philippine National Police Crime Laboratory Office 6, Camp Montelibano, Bacolod City and was received by Police Senior Inspector Alexis A. Guinanao (PSI Guinanao). After examination, the seized item wrapped in a notebook paper tested positive for marijuana fruiting tops.9

For the defense, appellant alleged that he was a high school student at Don Generoso Villanueva National High School, Barangay Granada, Bacolod City. On June 29, 2006 at around 7:00 a.m., appellant was at Patricia Homes Subdivision, which is a kilometer away from his school. When he was about to ride a pedicab, a man placed his hand on his shoulder and introduced himself as a policeman. The policeman was not in uniform and was only wearing green shirt and shorts.10

Appellant was brought to the Granada Police Station. Inside one of the rooms, he was stripped and searched but nothing was recovered from appellant.  Later, a barangay official arrived.  Appellant was thereafter photographed while pointing at the money and marijuana placed on a table.11 He learned that the policeman who arrested him was SPO2 Briñas.

On the basis of the testimonies of two witnesses presented in court, namely : a ) PSI Guinanao, the forensic chemical officer; and b) SPO2 Briñas, the poseur-buyer and arresting officer, the RTC convicted appellant in its Decision12 dated July 19, 2013. The RTC ruled that the prosecution was able to prove beyond reasonable doubt the existence of all the elements of illegal sale of marijuana.13 Moreover, the RTC found that the prosecution substantially complied with the chain of custody requirement under Section 21, Article II of RA 9165.14

In the Decision dated December 22, 2014, the CA affirmed the RTC ruling. Hence, this appeal.

The Court's Ruling

The appeal is with merit.

At the onset, it must be emphasized that an appeal of a criminal conviction opens the entire records of the trial to review. Consequently, the Court, in the course of its review, may also examine any error even if not assigned by the accused.15

The elements necessary in the prosecution of illegal sale of dangerous drugs are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. Similarly, it is essential that the transaction or sale be proved to have actually taken place coupled with the presentation in court of evidence of the corpus delicti.16

In order to avoid planting, tampering, substitution and contamination of the corpus delicti, Section 21, Article II of RA 9165 provides for the manner by which law enforcement officers should handle seized items in dangerous drugs cases. However, Section 21, Article II of RA 9165 was amended by RA 10640,17 which requires that the said inventory and photography be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well as certain witnesses, namely: an elected public official and a representative of the National Prosecution Service or the media.18 Considering that the present case took place on June 29, 2006 prior to the amendment of RA 9165 by RA 10640, the old provision of Section 21, Article II of RA 9165 applies, to wit:
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; (Emphasis supplied).
As could be gleaned from the foregoing, the seized drugs must be immediately inventoried and photographed in the presence of the accused or his representative, a representative from the media, the Department of Justice (DOJ), and any elected public official. All are required to sign the copies of the inventory and each should be given a copy thereof.

In the prosecution's attempt to show that the safeguards of Section 21, Article II of RA 9165 were complied with, they presented the testimony of SPO2 Briñas, who testified that the alleged buy-bust operation happened at 8:00 a.m. of June 29, 2006. After appellant's arrest, SPO2 Briñas averred that he immediately brought appellant to the police station where an inventory of the seized item was conducted in the presence of two barangay officials.

The prosecution failed to comply with Section 21, Article II of RA 9165.

Other than SPO2 Briñas bare allegation, the records are bereft of proof that an inventory was actually conducted after appellant's arrest on June 29, 2006. In lieu of the inventory, the prosecution presented a Certification19  dated June 30, 2006 stating that appellant was apprehended by the anti-illegal drugs task group on June 29, 2006, and that marijuana leaves were seized from him .

The Certification adduced by the prosecution cannot serve as proof of the required inventory under Section 21 of RA 9165. Being dated June 30, 2006, the Certification only signifies that no inventory was conducted on June 29, 2006-the day of appellant's arrest and alleged seizure of marijuana. The Certification did not bear all the signatures of the three insulating witnesses. Only two elective officials, namely Kagawad Gerson M. Nietes and Kagawad Wiliiam D. Diocson, signed the Certification. This clearly indicates that no representative from the media or from the DOJ actually came to witness the alleged inventory and photographing of the allegedly seized marijuana.

While the absence of the insulating witnesses required by Section 21 of RA 91 65 does not itself render the confiscated items in admissible, a justifiable reason for the failure or a showing of a genuine and sufficient effort to secure them must be adduced.20 The prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law. Mere statements of their unavailability, absent actual serious attempts to secure the required witnesses., are unacceptable and do not justify non-compliancte.21 These considerations arise from the fact that police officers are ordinarily given sufficient time —beginning from the moment they have received the information about activities of the accused until the time of his arrest-to prepare for a buy-bust operation and to make necessary arrangements to strictly comply with the procedure prescribed by 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.22

Here, not only did the prosecution fail to proffer any explanation for their non-compliance with the three witness rule, there was even no effort on their part to observe the law. As stated by SPO2 Briñas in his Affidavit,23 the police operatives conducted a two-week surveillance of appellant. During the two-week period, they had every opportunity to arrange and secure the presence of the required insulating witnesses, but they failed to do so. This signifies the police officers' lack of effort to comply with the safeguards of Section 21 of RA 9165, adversely affecting the authenticity of the allegedly seized marijuana.

The identity of the marijuana presented in court is likewise questionable. We reiterate what was held in Casona v. People:24
Inasmuch as the dangerous drug itself constitutes the corpus delicti of the offense charged, its identity and integrity must be shown by the State to have been preserved. On top of the elements for proving the offense of illegal possession, therefore, is that the substance possessed is the very substance presented in court. The State must establish this element with the same exacting degree of certitude as that required for ultimately handing down a criminal conviction. To achieve this degree of certitude, the Prosecution has to account for all the links in the chain of custody of the dangerous drug, from the moment of seizure from the accused until it is presented in court as proof of the corpus delicti. The process, though tedious, must be undergone, for the end is always worthwhile-the preservation of the chain of custody that will prevent unnecessary doubts about the identity of the evidence.25 (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, there could have been tampering, alteration or substitution of substances from other cases in which similar evidence was submitted for laboratory testing. Hence, in authenticating the specimen, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.26

In this case, the specimen subject of the Request for Laboratory Examination27 prepared by P/Insp. Ofamen was merely described as "[a] small pi[e]ce of wrapped notebook pad containing suspected dried marijuana leaves[.] (buy bust)." Strangely, when the specimen was brought to the crime laboratory, the police officers did not even bother to place the substance in a sealed container to eliminate the possibility of it being tampered, altered or substituted. They just left the purported marijuana leaves wrapped in a piece of notebook paper and delivered it to the crime laboratory. Likewise, the request reveals that the specimen was not even marked or labeled for it to be readily identifiable from the other specimens.

The item's identity and evidentiary value even became more questionable after the result of the laboratory examination. To reiterate, the substance subject of the Request for laboratory Examination were dried marijuana leaves. Curiously, per Chemistry Report No: D-206-2006,28 the specimen which was examined by PSI Guinanao were not marijuana leaves, but marijunana fruiting tops. The Court cannot just gloss over this disparity in the identity of the corpus delicti especially that there was a complete disregard by the law enforcement officers of Section 21 of RA 9165. Indubitably, the variance in the specimen subject of the Request for Laboratory Examination and the item indicated in the Chemistry Report creates reasonable doubt as to the identity of the corpus delicti. There being no exact certitude that the substance allegedly seized from appellant the very substance presented in court, We are constrained to rule for the acquittal of appellant on the ground that his guilt has not been proven beyond reasonable doubt.

WHEREFORE, in view of the foregoing, the appeal is GRANTED. The Decision dated December 22, 2014 of the Court of Appeals in CA-G.R. CEB CR-HC No. 01721 is REVERSED and SET ASIDE. Accordingly, Albert Paran y Gemerga is ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt in Criminal Case No. 06-29331. Albert Paran y Gemerga is ORDERED immediately RELEASED from detention, unless he is detained for any other lawful cause.

The Director of the Bureau of Corrections, Muntinlupa City is ordered to cause his immediate release, unless he is being held in custody for any other reason. The Director of the Bureau of Corrections is directed to report the action he has taken to this Court within five days from receipt of this Decision.


Perlas-Bernabe, (Chairperson), Hernando, and Zalameda,** JJ., concur.
Reyes, Jr. A, J., on leave.


** Designated additional member per Special Order No. 2724 dated October 25, 2019.

1Rollo, pp. 4-13; penned by Associate Justice Edgardo L. Delos Santos with Associate Justices Marilyn B. Lagura-Yap and Justice Jhosep Y. Lopez, concurring.

2 CA rollo , pp. 28-38; penned by Presiding Judge Raymond Joseph G. Javier.

3 Records. p. 1.


5Rollo , p. 5 .

6Id. at 5-6.

7Id. at 6.

8 Records, pp. 12-13.

9Id. at 9.

10 CA rollo, p. 30.

11Id. at 31.

12Id. at. 28-38.

13Id. at 37.

14Id. at 35-36.

15Casona v. People, G.R. No. 179757, September 13, 2017, 839 SCRA 448, 447.

16People v. Roble, 663 Phil. 147, 157 (2011) citing Cruz v. People, G.R. No. 164580, February 6, 2009, 578 SCRA 147, 152-153.

17 An act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165, Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2002." Approved on July 15, 2014.

18 Section 21(1), Article II RA 9165, as amended by RA 10640.

19 Records, p. 11.

20 See People v. Visperas, G.R. No. 231010, June 26, 2019 citing People v. Ramos, G.R. No. 233744, February 28, 2018.



23 Records, p. 4-5.

24Casona v. People, G.R. No.179757, September 13, 2017, 839 SCRA 448.

25Id. at 449.

26People v. Merando, G.R. No. 232620, August 5, 2019 citing Mallillin v. People, 576 Phil. 576, 588-589 (2008).

27 Records, p.8.

28Id. at 9.
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