People v.Umipang G.R. No.

190321, April 25, 2012 FACTS : On April 1, 2006 at around 6PM, a buy-bust team from the Station AntiIllegal Drugs-SpecialOperation Task Force (SAID-SOTF) of the Taguig City Police descended along Cagayan de OroStreet, Maharlika Village, Taguig City after a confidential informant reported a certain Sam was selling drugs upon aforesaid place. PO2 Ruchyl Gasid acted as poseur-buyer and was given PHP 500 marked money. PO2 Gasid and confidential informant, upon finding Sam, asked the latter if they could buy PHP 500 worth of drugs. Sam then took out 3 plastic sachets containing a white crystalline substance with various price tags 500, 300, 100. After making the choice PO2 Gasid paid Sam PHP 500. Upon receipt of mon ey, PO2 Gasid took of his cap as pre-arranged signal that the sale has been consummated. Sensing danger Sam attempted to flee the scene but was promptly accosted by the other members of the buy-bust team. Five more marked sachetscontaining the same whit e crystalline substance were recovered from Sam and promptlymarked SAU (Sammy A. Umipang) by PO2 Gasid. For the sale of the sachet of 0.05 gram of shabu, which violates Sec. 5, Art. II of RA 9165, the RTC of Pasig City sentenced accused-appellant to life imprisonment and fined PHP 500,000. For possession of 5 sachets of shabu wiha total weight of 0.23 gram, which is a violation of Sec. 11, Art. II of RA 9165, the same courtsentenced accusedappellant to an indeterminate penalty of imprisonment of 12 years and 1dayminimum to 14 years, 21 days as maximum and fined PHP 300,000. On appeal, CA affirmed the lower courts decision in toto. ISSUE : Did the RTC and the CA err in finding the testimonial evidence of the prosecution witnesses assufficient to convict accused-appellant of the alleged sale and possession of methylamphetamineHCL, which are violations of Secs. 5 and 11, Art. II of RA 9165 respectively? RULING : No, the Court reiterates once again that buy-bust operations, although proven to be an efficientway to flush out illegal transactions, are also susceptible to police abuse. Hence, strict adherenceto procedures lay down by RA 9165, specifically Sec. 21, Art. II must be followed. It is evidentthat said section was blatantly disregarded by the buy-bust team when no proper inventory wasdone, no photographs taken and no representatives from the media, the DOJ, and any publiclyelected official were present.Section 86 of RA 9165 was

also not followed as the PDEA was notcontacted with regards to the operation. Although failure to follow Sec. 21, Art. II of RA 9165 ipsofacto is not fatal to the prosecutions case, it must be shown why such was not carried out by (1)justifiable cause and (2) preservation of the integrity and evidentiary value of the seized itemswere guaranteed. Court maintains that presumption of regularity in the performance of officialfunctions cannot overrule the step- bystep procedure outlined in RA 9165 as it is a matter of substantive law.The court further asserts that the conduct itself of the buy-bust team was defective for thefollowing reasons: (1) material inconsistencies in the marking of the evidence. This is shown bythe admission of PO2 Gasid, who marked the seized items with the accused-appellant initials SAU (Sammy Abdul Umipang) allegedly at the scene of the operation. However, PO2 Gasid admits that prior to the operation he did not know of the identity or full name of the accused, the latter being only known as Sam. It was PO2 Saez, in the police station, who got Sams full name. (2) SAID-SOTF did not show genuine and sufficient third party representatives enumerated in Sec. 21, Art. II of RA 9165 as evidenced by PO2 Gasids admission during cross -examination that no effort was made to contact the barangay captain or any barangay official of Brgy. Maharlika. (3) SAID-SOTF did not properly accomplish the Certificate of Inventory. PO2Gasid, who prepared such document, did not sign it.Court sets aside the decision of the CA affirming the July 24, 2007 RTC decision and acquitsSammy A. Umipang of the crimes charged herein and ordered released immediately People V Climaco The Case

This is a consolidated criminal case filed against appellant Gomer S. Climaco (Climaco) for violation of Sections 5 and 11 of Republic Act No. 9165 (The Comprehensive Dangerous Drugs Act of 2002) for illegal possession (Criminal Case No. 4911-SPL) and illegal sale (Criminal Case No. 4912-SPL) of methamphetamine hydrochloride, a dangerous drug.cralaw

The Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, in its Decision dated 20 January 2009 (RTC Decision), found Climaco guilty beyond reasonable doubt of the crime of illegal possession of methamphetamine hydrochloride, a dangerous drug, and sentenced him to imprisonment of 12 years and 1 day to 14 years and 8 months with a fine of ?300,000.00 in Criminal Case No. 4911-SPL.[1] In Criminal Case No. 4912-SPL, the RTC found Climaco guilty beyond reasonable doubt of the crime of illegal sale of methamphetamine hydrochloride, and sentenced him to life imprisonment with a fine of P500,000.00. On appeal, the Special Fifteenth Division of the Court of Appeals (CA), in its Decision dated 29 March 2011 (CA Decision), affirmed the RTC Decision.[2] Climaco appealed to this Court by filing a Notice of Appeal in accordance with Section 3(c), Rule 122 of the Rules of Court.[3]

Prosecutions Version

The prosecutions version of events is summarized in the RTC Decision:[4]

The prosecution presented two (2) witnesses in the persons of PO1 Alaindelon M. Ignacio, who gave his testimony on 5 January 2005, 8 February 2006 and 2 August 2006; and Forensic Chemist Donna Villa Huelgas, whose testimony was dispensed with on 5 January 2005 upon defenses admission of the existence of the following: 1) Written Request for Laboratory Examination as Exhibit A; 2) The Chemistry Report No. D-1102-04 as Exhibit B; 3) 1 white envelope as Exhibit C; 4) the existence of two (2) plastic sachets with markings GSC-1 as Exhibit C-1; and 5) another one with markings GSC-2 as Exhibit C-2.

PO1 Ignacio testified that he is a member of thePhilippine National Police since 15 October 1999 and was assigned at Intelligence Division, San Pedro Municipal Police Station. As member of the Intelligence Division, he was tasked to conduct surveillance operation and apprehend persons engaged in illegal drug activity. On 7 September 2004, he was on 24-hour duty at PAC base located at United Bayanihan, San Pedro, Laguna. At around 6:00 in the evening of the same day, PO1 Ignacio, SPO3 Samson, SPO4 Balverde, some members of the Laguna Special Operation Team, Members of the Provincial

Intelligence and Investigation Division conducted a briefing regarding a drug operation against a certain Gomer Climaco, No. 5 in the drug watch list in San Pedro, Laguna. During the briefing, PO1 Ignacio was tasked to act as the poseur-buyer and SPO4 Almeda as the overall team leader. The buy-bust money was prepared, which consist of P500.00 bill and some boodle money. The team was also armed with a Warrant of Arrest for illegal drugs issued by Judge Pao. After the briefing, the team proceeded to the target area. When they arrived, PO1 Ignacio saw the suspect standing in front of his house. The other members of the team strategically positioned themselves. Since PO1 Ignacio already knew the suspect, PO1 Ignacio just told Gomer that he would buy shabu. Gomer entered his house and took something. When he came out, Gomer showed to PO1 Ignacio the shabu. PO1 Ignacio scratched his head to signal the team that item was shown to him and he would execute the buying of the shabu. After Gomer asked for the money and PO1 Ignacio gave it to him, SPO3 Samson and the rest of the team immediately moved in to effect the arrest of the suspect. Since he was caught in the act, Gomer did not resist anymore. The team likewise showed Gomer his warrant of arrest. PO1 Ignacio saw SPO3 Samson frisk and ask Gomer to empty his pockets. SPO3 Samson was able to recover another plastic sachet, which was inserted between Gomers fingers. The plastic sachet, which was the product of the buy-bust, and the one recovered from Gomer were turned over to SPO4 Teofilo Royena, who turned them over to the Office of the Special Operation Group located at Brgy. Tubigan, Bian, Laguna. The plastic sachet product of the buy-bust was marked TR-B, which means Teofilo Royena and the letter B means Bust. While the plastic sachet recovered from Gomer was marked TR-R, which means Teofilo Royena and the letter R means Recovered. PO1 Ignacio identified the accused Gomer Climaco in open court. He likewise identified his sworn statement. During the cross-examination, PO1 Ignacio admitted that he learned of the warrant of arrest on 7 September 2004 only. It was SPO4 Valverde who instructed PO Ignacio to conduct surveillance operation against Gomer, who was engaged in rampant selling of shabu.[5]

Aside from the testimony of PO1 Alaindelon Ignacio (Ignacio), the following documentary exhibits were offered for the prosecution: (1) Exhibit A Letter dated 7 September 2004; (2) Exhibit B Chemistry Report No. D-110204; (3) Exhibit C One-half white envelope; (4) Exhibit C-1 Plastic sachet with white crystalline substance with markings GSC-1; (5) Exhibit C-2

Plastic sachet with white crystalline susbtance with markings GSC-2; and (6) Exhibit D Pinanumpaang Salaysay of PO1 Ignacio.[6]

Defenses Version

Appellant Climaco, on the other hand, presented three witnesses and denied the prosecutions allegations of sale and possession of shabu. The defenses version of the events, as narrated in the RTC Decision, is as follows:

The defense presented three (3) witnesses in the persons of the accused himself, Gomer S. Climaco, who testified on 13 May 2008, Michael M. Basihan, who gave his testimony on 7 October 2008, and Cristina Gamboa Climaco, who gave her testimony on 25 November 2008.

Gomer S. Climaco testified that prior to 7 September 2004, he did not know SPO2 Wilfredo Samson and PO1 Alaindelon Ignacio. On 7 September 2004, Gomer, together with his wife and five (5) children, were inside their house. When Gomer was feeding the chicken in front of his yard, four (4) unidentified armed men suddenly arrived and frisked him. When nothing was found in his possession, the men handcuffed and brought him to the police station. At the police station, the men filed a case against him. Gomer denied having sold and delivered shabu to a police poseur-buyer and that he was in possesion of shabu. During the cross-examination, Gomer said that while he was being frisked by the men, Gomer asked the men what was his violation. The men replied that somebody bought shabu from him. Gomer told the men that he did nothing wrong, but the men continued to handcuff him. Gomer was not aware that he was included in the list of top 20 illegal drug pushers. Gomer did not know of any ill motive on the part of the police officer why he would be charged with so grave an offense. He did not file any case against the police officer who arrested him.

Michael M. Basihan testified that Gomer Climaco was his neighbor in Bagong Silang. On 7 September 2004, Michael went to Gomers manukan to gather

guava fruits. When he arrived there, Gomer was tending to his cocks. While he was gathering guava fruits, Michael saw four (4) unidentified armed men suddenly barge into the premises and arrest Gomer. After he was handcuffed, Gomer was made to board a vehicle where he was brought to Jaka Subdivision. Michael could not remember whether it was morning or evening when Gomer was arrested by unidentified armed men because the incident happened a long time ago.

Cristina Gamboa Climaco testified that she is the wife of Gomer Climaco. She did not know SPO2 Wilfredo Samson and PO1 Alaindelon Ignacio. On 7 September 2004, she was inside their house taking care of her child. At around 3:00 in the afternoon of the same day, Gomer arrived in their house, who just came from Barangay Cuyab. After taking a bath, Gomer went outside of their house. While in front of their house, Gomer called the person taking care of his chickens. Gomer and that person went to the back of the house. Meanwhile, Cristina went inside the house. Although she was inside of the house, Cristina could see Gomer and the person through the window. At around 4:00 in the afternoon, Cristina saw four (4) unidentified armed men approach and ask something from Gomer. After a few minutes, Gomer left the back of the house, while the men were left standing there. Cristina went out the house and saw her husband go toward the direction of St. Reymond. At around 6:00 in the evening, Cirstina went down from their house to ask Michael if he saw Gomer. Michael told Cristina that he saw Gomer loaded into a van by several men. During the cross-examination, Cristina said that she did not know of any reason why SPO2 Samson and PO1 Ignacio would arrest her husband.[7]

The Decision of the Regional Trial Court

The RTC declared Climaco guilty of the crimes of illegal sale and illegal possession of methamphetamine hydrochloride or shabu, a dangerous drug. The dispositive portion of the RTC Decision reads:

WHEREFORE, in Criminal Case No. 4912-SPL, the Court finds the accused, Gomer S. Climaco, GUILTY beyond reasonable doubt of the crime of violation of

Sec. 5 of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00.

In Criminal Case No. 4911-SPL, the Court finds the accused, Gomer S. Climaco, GUILTY beyond reasonable doubt of the crime of violation of Sec. 11 of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and sentencing him to suffer imprisonment of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of three hundred thousand pesos (P300,000.00).

The Branch Clerk of Court is directed to transmit to the Philippine Drug Enforcement Agency (PDEA), the plastic sachets subject matter of these cases, for said agencys appropriate disposition.

SO ORDERED.[8]

The RTC found that the elements for the crimes of illegal sale and illegal possession of shabu were sufficiently established by the prosecution.[9] The RTC held that Climacos defense of frame-up is viewed with disfavor as it can be easily concocted.[10] The RTC gave full faith and credit to the testimony of PO1 Ignacio, and declared the police officers who participated in the buy-bust operation were properly performing their duties because they were not inspired by any improper motive.[11]

The Decision of the Court of Appeals

The CA affirmed the conviction of Climaco. The dispositive portion of the CA Decision reads as follows:

WHEREFORE, the appeal is DENIED and the judgment dated January 20, 2009 of the RTC in Criminal Case Nos. 4911-SPL and 4912-SPL finding appellant Gomer S. Climaco guilty beyond reasonable doubt of violation of Sections 5 and 11 of Rep. Act No. 9165 is AFFIRMED.[12]

The CA declared that all the elements of the crimes of illegal sale and illegal possession of dangerous drugs were proven.[13] The CA found that based on the testimony of PO1 Ignacio, it was established that the chain of custody over the seized drugs was unbroken from the arresting officers to SPO4 Royena, and then to the forensic chemist for examination.[14]

The Issue

The sole issue in this case is whether the guilt of Climaco for the crimes of illegal sale and illegal possession of shabu, a dangerous drug, was proven beyond reasonable doubt.

The Ruling of this Court

We resolve to acquit Climaco for the prosecutions failure to prove his guilt beyond reasonable doubt.

PO1 Ignacio, in his testimony, claimed that the dangerous drugs seized from Climaco were marked by SPO4 Teofilo Royena as TR-B and TR-R.[15] However, the Chemistry Report submitted to the trial court shows that the dangerous drugs examined and confirmed to be methamphetamine hydrochloride or shabu by the forensic chemist were marked as GSC1 and GSC2.[16] Since what was seized (TR-B and TR-R) by PO1 Ignacio from Climaco at the time of the buy-bust operation was different from the dangerous drugs submitted (GSC1 and GSC2) to the forensic chemist for review and evaluation, the chain of custody over the dangerous drugs was broken and the

integrity of the evidence submitted to the trial court was not preserved, casting doubt on the guilt of Climaco.

Constitutional Presumption of Innocence; Weight of Evidence

The Constitution guarantees the accuseds presumption of innocence until proven guilty. Section 14(2) of the Bill of Rights (Article III) provides that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.

Section 2, Rule 133 of the Rules of Court likewise states that, in a criminal case, the accused is entitled to an acquittal, unless his guilt is proved beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, which produces absolute certainty. Only moral certainly is required, or that degree of proof which produces conviction in an unprejudiced mind.

Chain of Custody Over the Confiscated Items

The elements necessary in every prosecution for the illegal sale of shabu 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.[17] 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 corpus delicti which means the actual commission by someone of the particular crime charged.[18] The corpus delicti in cases involving dangerous drugs is the presentation of the dangerous drug itself.

On the other hand, to successfully prosecute a case of illegal possession of dangerous drugs, the following elements must be established: (1) the accused is in possession of an item or object which is identified to be a prohibited drug;

(2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the drug.[19]

In both cases of illegal sale and illegal possession of dangerous drugs, the chain of custody over the dangerous drug must be shown to establish the corpus delicti. In People v. Alcuizar,[20] the Court held:

The dangerous drug itself, the shabu in this case, constitutes the very corpus delicti of the offense and in sustaining a conviction under Republic Act No. 9165, the identity and integrity of the corpus delicti must definitely be shown to have been preserved. This requirement necessarily arises from the illegal drugs unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Thus, to remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the accusedappellant; otherwise, the prosecution for possession under Republic Act No. 9165 fails.

Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,[21] which implements the Comprehensive Dangerous Drugs Act of 2002, defines chain of custody as follows:

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 use in court as evidence, and the final disposition.

In Malillin v. People,[22] the Court explained the importance of the chain of custody:

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt. Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.

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 in 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.

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The

same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibits level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise not dictates the level of strictness in the application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. Graham v. State positively acknowledged this danger. In that case where a substance was later analyzed as heroin was handled by two police officers prior to examination who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession was excluded from the prosecution evidence, the court pointing out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into the posession of the police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratorys findings is inadmissible.

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.

In this case, PO1 Ignacio, in his testimony, claimed that the substances seized from Climaco during the buy-bust operation were marked as TR-R and TRB:

Q: When SPO4 Almeida handed over the items to SPO4 Teofilo Royena, what if any did SPO4 Royena do with the items? A: He placed markings on it, maam. Q: Where were you when he placed the markings? A: I was present, maam. Q: Do you know what markings was made? A: He placed his initials TR which means Teofilo Royena and the letter B which means bust, maam. Q: Im showing to you a plastic sachet with the markings TR-B, please go over this and tell if this is the same item which you confiscated from the accused? A: Yes, maam. This is the same. PROS. CASANO: Your Honor, the brown envelope which contains the plastic sachet has already been marked as Exhibit C, the plastic sachet as Exhibit C-1 and the markings TR-B as Exhibit C-2 (Continuing). xxxx

Q: Tell us the markings that was placed? A: Its TR-R, the R means recovered, maam. Q: How sure are you that the items marked by SPO4 Teofilo Royena TR-R was the same item taken by SPO3 Samson from the accused? A: Because there was a difference between the two plastic sachets, the recovered by SPO3 Samson was a little bit bigger, maam. Q: Im showing to you a bigger plastic sachet with the markings TR- R, are you referring to this? A: Yes, maam.[23] items

Based on the testimony of PO1 Ignacio, the substances retrieved from Climaco and submitted to the court were contained in two (2) plastic sachets with the markings TR-R and TR-B. However, according to the Chemistry Report executed by Forensic Chemist Donna Villa P. Huelgas on 8 September 2004, the plastic sachets submitted for examination carried the markings GSC-1 and GSC-2, different from the plastic sachets marked TR-R and TR-B containing the drugs retrieved from Climaco:

CHEMISTRY REPORT NUMBER: D-1102-04

xxxx

SPECIMEN SUBMITTED:

A One (1) heat-sealed transparent plastic sachet, with markings GSC1, containing 0.35 gram of white crystalline substance and placed in a staplesealed transparent plastic bag. (Allegedly bought by the Police Poseur-Buyer)

B One (1) heat-sealed transparent plastic sachet, with markings GSC2, containing 0.14 gram of white crystalline substance and placed in a staplesealed transparent plastic bag. (Allegedly found from the posession of Glomer Climaco)[24]

In addition, in the Index of Exhibits submitted by the Officer-in-Charge of the RTC, Exhibit C-1 was described as a plastic sachet with white crystalline substance with markings GSC-1 while Exhibit C-2 was described as a plastic sachet with white crystalline substance with markings GSC-2,[25] contrary to the testimony of PO1 Ignacio and the declaration of Prosecutor Casano that the specimens submitted to the court carried the markings TR-B and TR-R.

Likewise, in the handwritten Minutes dated 5 January 2005, Exhibit C-1 was identified as a plastic sachet with white crystalline substance with marking GSC-1, and Exhibit C-2 was identified as a plastic sachet with white crystalline substance with marking GSC-2.[26]

Clearly, what was submitted to the trial court were plastic sachets bearing the markings GSC-1 and GSC-2, instead of the plastic sachets bearing the markings TR-R and TR-B that contained the substances recovered from Climaco. This fact is evident from the RTC Decision, recognizing Exhibits C-1 and C-2 to bear the markings GSC-1 and GSC-2, while acknowledging the testimony of PO1 Ignacio that the plastic sachets containing the substances recovered from Climaco bore the markings TR-R and TR-B:

The prosecution presented two (2) witnesses in the persons of x x x Forensic Chemist Donna Villa Huelgas, whose testimony was dispensed with on 5 January 2005 upon defenses admission of the existence of the following: 1) Written Request for Laboratory Examination as Exhibit A; 2) The Chemistry Report No. D-1102-04 as Exhibit B; 3) 1 white envelope as Exhibit C; 4) the existence of two (2) plastic sachets with markings GSC-1 as Exhibit C-1; and 5) another one with markings GSC-2 as Exhibit C-2.

xxxx

The plastic sachet product of the buy-bust was marked TR-B, which means Teofilo Royena and the letter B means Bust. While the plastic sachet recovered from Gomer was marked TR-R, which means Teofilo Royena and the letter R means Recovered.[27] (Emphasis supplied)

The prosecution did not explain why the markings of the plastic sachets containing the alleged drugs, which were submitted to be TR-B and TR-R, became GSC-1 and GSC-2 in the Chemistry Report, Index of Exhibits and Minutes of the Hearing. In their decisions, the RTC and CA were silent on the change of the markings. In fact, since the markings are different, the presumption is that the substance in the plastic sachets marked as TR-B and TR-R is different from the substance in the plastic sachets marked as GSC1 and GSC-2. There is no moral certainty that the substance taken from appellant is the same dangerous drug submitted to the laboratory and the trial court.

As held in Malillin v. People,[28] to establish guilt of the accused beyond reasonable doubt in cases involving dangerous drugs, it is important that the substance illegally possessed in the first place be the same substance offered in court as exhibit. This chain of custody requirement ensures that unnecessary doubts are removed concerning the identity of the evidence. When the identity of the dangerous drug recovered from the accused is not the same dangerous drug presented to the forensic chemist for review and examination, nor the same dangerous drug presented to the court, the identity of the dangerous drug is not preserved due to the broken chain of custody. With this, an

element in the criminal cases for illegal sale and illegal possession of dangerous drugs, the corpus delicti, is not proven, and the accused must then be acquitted based on reasonable doubt. For this reason, Climaco must be acquitted on the ground of reasonable doubt due to the broken chain of custody over the dangerous drug allegedly recovered from him.cralaw

WHEREFORE, we SET ASIDE the 29 March 2011 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 03860 affirming the judgment of conviction of the Regional Trial Court, Branch 31, San Pedro, Laguna in Criminal Case Nos. 4911-SPL and 4912-SPL dated 20 January 2009. We ACQUIT appellant Gomer S. Climaco based on reasonable doubt and we ORDER his immediate release from detention, unless he is detained for any other lawful cause.

We DIRECT the Director of the Bureau of Corrections to implement this Decision and to report to this Court on the action taken within five (5) days from receipt of this Decision.

SO ORDERED People V Nasara DECISION

CARPIO MORALES, J.:

Joselito "Jojo" Nasara (appellant) was convicted by the Regional Trial Court (RTC) of Quezon City, Branch 103 for violation of Section 5, Article II, of Republic Act No. 9165, (R.A. No. 9165) or the Dangerous Drugs Act of 2002.

The accusatory portion of the Information against appellant, together with "another person," reads:

That on or about the 16th day of March 2004 in Quezon City, Philippines, the said accused conspiring and confederating with another person whose thru (sic) name, identity and whereabouts has not as yet ascertained and mutually helping each other not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, wilfully (sic), and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero three (0.03) grams of white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.[1] (underscoring supplied)

From the evidence for the prosecution, the following version is culled:

In the morning of March 16, 2004, a confidential informant reported at Police Station 6, Batasan Hills, Quezon City the selling of illegal drugs along San Miguel Street, Payatas, Quezon City.

On the instruction of P/Supt. Raymond Esquivel, SPO2 Rodelio Dionco, PO2 Rolando Lopez (PO2 Lopez), SPO4 Constancio Pitaga and SPO4 Reynaldo Angeles conducted a buy-bust operation in the area. SPO2 Dionco, who was designated as poseur-buyer, was given two 100 peso bills and instructed to scratch his head to signal the consummation of the sale.

Upon arriving at San Miguel Street at 10:30 A.M., also on March 16, 2004, SPO2 Dionco and the informant approached appellant who was standing, together with a certain Kune, outside a small store. The informant thereupon introduced to Kune and appellant SPO2 Dionco as a prospective buyer. As appellant asked how much was being bought, SPO2 Dionco handed the two bills to appellant who, together with Kune, went inside a house adjacent to the store. When the two returned, Kune handed a small plastic sachet containing white crystalline substances to SPO2 Dionco who, after examining it, scratched his head.

As the back-up police officers were closing in, SPO2 Dionco introduced himself as a police officer to appellant and Kune who shoved him and both ran away. The rest of the team gave a chase and caught appellant but not Kune.

The police officers recovered the money from the right pocket of appellant's short pants. On inspection of the house, SPO2 Dionco found on top of a television set two plastic sachets containing substances similar to those inside the sachet handed to him by Kune. These two sachets were marked by PO2 Lopez with his initials "RL".[2]

The buy-bust team thereafter brought appellant to the police station, together with the seized items which were turned over to the Desk Officer. A memorandum[3] was then prepared by P/Insp. Abelardo Aquino, addressed to the Chief of the Central Police District, Physical Science Division, requesting for the conduct of laboratory examination on the seized items to determine the presence of dangerous drugs and their weight, which memorandum was delivered by PO2 Lopez and received at 7:00 p.m. of March 16, 2004 by "Nard" Jabonillo.

Upon receipt of the sachets, Engr. Leonard Jabonillo, Forensic Analyst of the Central Police District Crime Laboratory Office, conducted a laboratory examination thereof and recorded his findings in Chemistry Report No. D-2922004 that each of the three heat-sealed plastic sachets contained 0.03 grams and was positive for methylamphetamine hydrochloride.[4]

Appellant, denying the accusation, claimed that he was framed-up. His version goes: On March 16, 2004, while he was resting inside the house of one Nelson Balawis in San Miguel, he heard some kalabugan which prompted him to go outside where he saw three armed men, one of whom pointed a gun at him. When he asked why, the man shouted to his companions "Damputin yan!," and he was in fact apprehended and brought to a waiting vehicle.

Inside the vehicle were two men who were also accosted and who informed him that the police officers acquired from them 2.5 grams of shabu, P11,000.00 in cash, and a cellular phone.

Finding for the prosecution, the trial court convicted appellant, disposing as follows:[5]

ACCORDINGLY, judgment is hereby rendered finding the accused JOSELITO "JOJO" MASARA (sic) Y DAHAY, GUILTY beyond reasonable doubt of violating Section 5 of RA 9165 (for drug pushing) as charged and he is hereby sentenced to a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00.

The shabu involved in this case in three (3) small plastic sachets of 0.03 gram each are ordered transmitted to PDEA thru DDB for proper care and disposition as per RA 9165.

SO ORDERED.[6] (emphasis in the original)

Ruling out appellant's defense of frame-up, the trial court observed, quoted verbatim:

Jojo testified that he saw two arrested persons inside the FX van where he was also boarded and who told him that the police got from them 2.5 grams of shabu, P11,000.00 cash and a cellphone. If this were so, then those policemen already have (sic) enough sequestered merchandise to bother going after Jojo who, based on his claim, had just gotten out of his room, jobless as a construction crewman for three months, penniless, and who must have clearly appeared to those three (3) armed men mentioned by the defense as a person, from whom they could get nothing. So why bother with him if after all Jojo was not the subject of their going to that place. x x x[7] (underscoring supplied)

As stated earlier, the Court of Appeals affirmed appellant's conviction, hence, the present petition.

In the main, appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items.

It bears noting that the Information is for selling "0.03 gram" of shabu, and that the two heat-sealed plastic sachets each also containing the same 0.03 gram of shabu allegedly confiscated from the house were presented to corroborate the prosecution's evidence.

Sec. 21 of R.A. No 9165 provides:

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 or 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 persons/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 (emphasis and underscoring supplied)

The issue, in the event of non-compliance with above-quoted provision of R.A. No. 9165, does not pertain to admissibility of evidence, but to weightevidentiary merit or probative value thereof.[8]

People v. Dela Cruz[9] enlightens:

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 in 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. (emphasis and underscoring supplied)

In the present case, the records do not show that the procedural requirements of Section 21 with respect to the custody and disposition of confiscated drugs were followed. No physical inventory and photographs were taken. On that score alone, the case for the prosecution fails, absent a plausible explanation to justify failure to comply with the requirements.

Parenthetically, there is even no showing that coordination with PDEA prior to and after the conduct of the buy-bust operation was made, in violation of Section 86 (a), Implementing Rules and Regulations to R.A. 9165.[10]

Given the purpose of conducting a laboratory examination of the suspicious items seized to determine if indeed they contain, in this case, shabu, a more strict standard is imposed by law to ascertain that they are the same items seized or are not substituted or adulterated. Said standard has not been observed in the present case.

The chain of custody was, however, broken after SPO2 Dionco failed to mark the first sachet which is the subject of the sale and the subject of the Information. Why said sachet, together with the two others, was delivered to the PNP Crime Laboratory after more than eight hours from initial custody of the apprehending officers was not even explained.

The police officers-members of the buy-bust team cannot bank on the presumption of regularity in the performance of their duties. The presumption has been destroyed upon their unjustified failure to conform to the procedural requirements mentioned above.[11]

The prosecution having failed to discharge its onus of proving the guilt beyond reasonable doubt of appellant, his exoneration is in order.

WHEREFORE, the appeal is GRANTED. The assailed decision of the appellate court is REVERSED and SET ASIDE. Appellant, Joselito "Jojo" Nasara y Dahay, is ACQUITED for failure of the prosecution to prove his guilt beyond reasonable doubt.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections who is ORDERED to release appellant, unless he is being lawfully held for another offense, and to inform this Court of action taken within ten (10) days from notice hereof.

SO ORDERED.

People V Paloma DECISION

ABAD, J.:

This case is about the need in cases of illegal sale of prohibited drugs for the prosecution to prove the details of the transaction through someone who saw the sale take place.

The Facts and the Case

The public prosecutor charged the accused Manuel Paloma (Paloma) before the Regional Trial Court (RTC) of Quezon City in Criminal Case Q-03-116898 with violation of Section 5, Article II of Republic Act (R.A.) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

At the trial, PO2 Bernard Amigo testified that at about 1:00 p.m. on April 23, 2003 the Batasan Police Station got a tip from an informant that accused Paloma was selling illegal drugs at Pacomara Street in Commonwealth, Quezon City. The station chief directed PO2 Amigo and PO1 Arnold Pealosa to conduct a buy-bust operation involving Paloma. The police officers went to Pacomara Street with the informant and brought with them a P100.00 bill marked with the initials AP.

When the buy-bust team arrived at Pacomara Street at around 3:15 p.m., they saw Paloma standing beside a man and a woman. PO1 Pealosa and the informant approached them; PO2 Amigo, the witness, stood as backup some 15 meters away. From where he stood, he saw PO1 Pealosa talking to Paloma. Momentarily, PO1 Pealosa waved his hand, signifying that he had made the purchase. On seeing the pre-arranged signal, PO2 Amigo

approached and arrested Paloma; PO1 Pealosa for his part arrested Palomas companions, later on identified as Noriel Bamba (Bamba) and Angie Grotel (Grotel). PO2 Amigo recovered from Palomas pants pocket a plastic sachet with a white crystalline substance and the marked P100.00 bill.

After the police officers informed Paloma, Bamba, and Grotel of their rights during custodial investigation, they brought them to the police station and turned them over to the desk officer. The arresting officers also turned over the three sachets of suspected shabu that they seized. According to PO2 Amigo, two of these sachets were those that PO1 Pealosa bought from Paloma. The police eventually let Bamba and Grotel go for the reason that the police officers found no illegal drugs in their possession.

In his defense, Paloma denied that such a buy-bust operation took place. He claimed that at the time of the alleged buy-bust, he was with his 80year-old mother at their house on Pacomara Street, taking a nap. Suddenly, five armed men in civilian clothes barged into the house and woke him up. Two of them held him by the arms while the others searched the house. Although the men found nothing, they handcuffed him and brought him to the police station.

On June 10, 2005 the RTC found Paloma guilty beyond reasonable doubt in Criminal Case Q-03-116898 of the crime charged and sentenced him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00.

On February 13, 2007 the Court of Appeals (CA) in CA-G.R. HC CR 01289 affirmed the RTCs ruling in toto.

The Issue Presented

The sole issue in this case is whether or not the CA erred in finding that the prosecution succeeded in proving beyond reasonable doubt that Paloma sold prohibited drugs to PO1 Pealosa.

The Ruling of the Court

To prove the crime of illegal sale of drugs under Section 5, Article II of R.A. 9165, the prosecution is required to prove (a) the identity of the buyer and the seller as well as the object and consideration of the sale; and (b) the delivery of the thing sold and the payment given for the same. Further, the prosecution must present in court evidence of corpus delicti.[1]

Here, the proof of the sale of illegal drugs is wanting.

One. Under the objective test set by the Court in People v. Doria,[2] the prosecution must clearly and adequately show the details of the purported sale, namely, the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration, and, finally, the accuseds delivery of the illegal drug to the buyer, whether the latter be the informant alone or the police officer. This proof is essential to ensure that lawabiding citizens are not unlawfully induced to commit the offense.[3]

Here, PO2 Amigos testimony miserably failed to establish the required details of the supposed illegal drug sale. He testified on direct examination:

Q: When you, [P]olice [O]fficer Pealosa and the confidential informant arrived at around 3:15 at Pacomara Street, what happened there? A: Upon arrival of that said place Pacomara Street we saw Paloma and one female companion talking with each other.[4]

xxxx

Q: Now when Police Officer Pealosa and the asset approached Paloma where were you at that time? A: I was in a hiding place, in a viewing distance.

Q: Can you see them talking with each other from where you were stationed? A: Yes, sir.

Q: You said earlier Mr. Witness that there were other person[s] other than Paloma, female and male when Police Officer Pealosa and the confidential informant approached him, where were these two persons? A: They were beside each other.

Q: What were they doing, these two persons at that time when they approached by your companion? A: They were just standing.

Q: When these Pealosa and confidential informant approached the subject, what happened next? What transpired next at that time? A: While they were talking Pealosa made the pre-arrange[d] signal.

Q: A:

What was that signal that Pealosa did? By waving his hand.

Q:

Meaning to say?

A:

The buy-bust has already consummated.

Q: A:

When Pealosa made that signal what did you do if any? We rushed up to the area where they were standing.

Q: A:

When you arrived in that area what happened there? I grabbed Paloma and made the search.[5] (Emphasis supplied)

All that PO2 Amigo could say was that PO1 Pealosa and the informant approached Paloma, talked to him, and then PO1 Pealosa made the prearranged signal that the sale had been consummated. Since he was standing at a great distance during the purported buy-bust, PO2 Amigo could not provide the details of the offer to buy the drug and the acceptance of that offer. Indeed, he did not see Paloma take money from PO1 Pealosa nor Pealosa take delivery of the prohibited substance from Paloma.

The cross-examination of PO2 Amigo does not help. He testified:

Q: As a back up Mr. Witness you will agree with me that you cannot hear what was the conversation between the informant, Mr. Pealosa and Mr. Paloma? A: Yes, maam.

Q: A:

So you merely acted upon their gesture? Yes, maam.

Q: So Mr. Witness when you rushed-in to the place where the buy-bust operation was being conducted, you just rushed-in not because you were called upon, but because of the gesture that the same was consummated?

A:

Yes maam only the pre-arranged signal.[6] (Emphasis supplied)

While law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption is disputable by contrary proof and cannot prevail over the constitutional right of the accused to be presumed innocent.[7] The totality of the evidence presented in this case does not support Palomas conviction for violation of Section 5, Article II of R.A. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense.[8]

WHEREFORE, the Court GRANTS the petition, SETS ASIDE the decision of the Court of Appeals in CA-G.R. HC CR 01289 dated February 13, 2007 as well as the decision of the Regional Trial Court of Quezon City, Branch 103, in Criminal Case Q-03-116898, and ACQUITS the accused-appellant Manuel Paloma y Espinosa of the crime of which he is charged on the ground of reasonable doubt. The Court orders his immediate RELEASE from custody unless he is being held for some other lawful cause.

The Court further ORDERS the Director of the Bureau of Corrections to implement this Decision forthwith and to inform this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio.

SO ORDERED.

People V Roble DECISION

VELASCO, JR., J.:

The Case

This is an appeal from the July 14, 2009 Decision[1] of the Court of Appeals (CA) in CA-G.R. CEB CR-H.C. No. 00746, which affirmed the May 2, 2007 Decision[2] in Criminal Case No. DNO-2989 of the Regional Trial Court (RTC), Branch 25 in Danao City. The RTC found accused-appellant Andrew Roble (Roble) guilty of violating Section 5,[3] Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

The charge against Roble stemmed from the following Information:

That on or about March 12, 2003 at 6:30 oclock in the evening more or less, in Looc, Danao City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, in a buy-bust operation, did then and there willfully, unlawfully and feloniously sell and deliver two (2) plastic packets containing shabu powder/granule a regulated drug with a total weight of zero point zero six (0.06) gram to a poseur-buyer for a total consideration of Three Hundred (P300) pesos without any corresponding license or prescription from the proper authorities as provided by law; and the aforesaid packets of shabu was turned over by the poseur-buyer to the police as evidence.

Contrary to law.[4]

On April 9, 2003, the City Prosecutor Dalmacio D. Suralta (City Prosecutor Suralta) issued a Resolution[5] authorizing the filing of the foregoing

information against Roble. Accordingly, a warrant of arrest was issued on April 21, 2003[6] and Roble was arrested on June 17, 2003. On the same date, Roble, through his counsel, filed a Motion for Reinvestigation[7] of the case. In the said motion, Roble intimated that when the case was filed against him, he was in the province of Leyte and, thus, was not able to refute the allegations against him. In an Order dated June 20, 2003, the RTC granted the motion.[8]

After reinvestigation, City Prosecutor Suralta, however, did not find any reason to withdraw the said information[9] and it was given due course by the RTC.[10] As a result, Roble filed a Motion for Reconsideration of the Reinvestigation Report before the Office of the City Prosecutor, which was subsequently denied on January 19, 2004.[11]

On February 4, 2004, Roble was arraigned and pleaded not guilty to the offense charged.[12]

During the trial, the prosecution presented witnesses Police Officer 2 Castor Laurel (PO2 Laurel) and Medical Technologist Jude Daniel Mendoza (Medical Technologist Mendoza). On the other hand, the defense presented accused Roble as its sole witness.

The Prosecutions Version of Facts

On March 12, 2003, at around 5:30 p.m., PO3 Matias Casas (PO3 Casas) received information through a telephone call regarding the illegal drug activities of a certain Jojo Roble in Looc, Danao City.[13] Coordination was then made with the Special Operations Group (SOG) and a buy-bust team was formed composed of PO3 Casas, PO2 Laurel, the SOG and the mayor of Danao City, Mayor Ramonito Durano (Mayor Durano).[14] A briefing was conducted where several pieces of marked 100-peso bills were handed to the poseurbuyer, Abner Banzon Cuizon (Cuizon), by PO3 Casas.[15]

At 6:30 p.m., the team proceeded to the reported area. PO3 Casas, PO2 Laurel and Cuizon were aboard a tricycle while the rest of the team were with Mayor Durano.[16] The tricycle was parked on the side of a road where Cuizon alighted and walked to a nearby store, leaving PO3 Casas and PO2 Laurel inside the tricycle. At this time, the tricycle was parked seven (7) meters away from the said store while the group of Mayor Durano was about thirty (30) meters away.[17]

PO2 Laurel saw Cuizon approach a person and hand him money in exchange for plastic sachets. Upon seeing Cuizon scratch his head, which was the prearranged signal, the policemen approached to arrest Jojo but he was able to flee from the scene.[18] PO3 Casas and PO2 Laurel signaled the rest of the team for assistance but all of them could not locate Jojo.

Meanwhile, Cuizon gave the sachets to PO3 Casas when they approached to arrest Jojo. PO3 Casas, in turn, gave them to the investigator, Senior Police Officer 3 Edgar Awe (SPO3 Awe). Thereafter, a request for laboratory examination was made and submitted to the Philippine National Police Crime Laboratory in Camp Sotero Cabahug, Gorordo Avenue, Cebu City.[19] After examination, Medical Technologist Mendoza issued Chemistry Report No. D459-2003, which stated that the two (2) plastic sachets contained methylamphetamine hydrochloride or shabu.[20]

Version of the Defense

In contrast, Roble interposes the defenses of denial and alibi. He testified that from March 11, 2003 to June 14, 2003, he was in Babatngon, Leyte working, to avoid a frame-up by his enemy.[21]

Specifically, on March 12, 2003 at around 2:00 p.m., he went to his cousin, Danilo Roble, to ask him to accompany him to Wantai Piggery, owned by Nicomedes Alde (Alde), where he would apply as a worker on the recommendation of his uncle, Atty. Santiago Maravilles (Atty. Maravilles).[22]

Alde told him to come back and bring his bio-data with picture and that he would start working on March 17, 2003.[23] He worked there until May 31, 2003 and was not able to return home until June 14, 2003. [24] In support of his claim, he presented a Barangay Certification issued by the Barangay Captain, affidavits of Alde and Danilo Roble, vouchers sighed by Alde, and the endorsement letter of Atty. Maravilles.

Roble further testified that the poseur-buyer, Cuizon, is his enemy in Danao City. Robles girlfriend, Leny Tiango (Tiango), informed him that Cuizon would frame him in a buy-bust operation because Tiango is also the girlfriend of Cuizon.[25]

Ruling of the Trial Court

After trial, the RTC found Roble guilty of the crime charged. The dispositive portion of its Decision reads:

WHEREFORE, the Court finds the prosecution to have sufficiently established the guilt of the accused beyond reasonable doubt for violating Sec. 5, Art. 11, of R.A. 9165 and, therefore, sentences him to suffer the penalty of LIFE IMPRISONMENT and pay the fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00). The two (2) packets of shabu which are the evidence in this case shall be forfeited in favor of the government, and turn over to PDEA for disposition and destruction.

SO ORDERED.[26]

On appeal to the CA, Roble argued that the testimony of PO2 Laurel was replete with inconsistencies.

Ruling of the Appellate Court

On July 14, 2009, the CA affirmed the judgment of the lower court based on the time-honored doctrine that the assessment by the trial court of the credibility of the witnesses and their testimonies deserves great respect. The dispositive portion of the CA Decision reads: WHEREFORE, premises considered, the appealed decision dated May 2, 2007 rendered by the Regional Trial Court, Branch 25, in Danao City is hereby AFFIRMED.

SO ORDERED.[27]

Roble timely filed a notice of appeal of the decision of the CA. On October 13, 2010, he filed his supplemental brief with this Court.

The Issues

Accused-appellant assigns the following errors:

I.

The trial court erred in convicting the accused-appellant of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt.[28]

II.

Both the [RTC] and the [CA] erred in relying upon the weakness of the defense of the accused, instead of the strength of the evidence of the prosecution against him, to come up with Decisions finding him guilty as charged.[29]

III.

Corollarily, the [CA] erred in finding that the basic elements for the sale of illegal drugs are present in this case.[30]

IV.

The [CA] erred in finding that the inconsistency in the markings appearing in the letter request and chemistry report are not material enough to cast doubt that the substance subjected for examination was indeed shabu.[31]

V.

The [CA] erred in finding that the assessment by the trial court of the credibility of the witnesses and their testimonies deserves great respect and remaining unconvinced that the lower court overlooked any important fact or misapprehended any relevant information, which if properly weighed and considered, would negate or erode its assessment.[32]

Our Ruling

The appeal is meritorious.

Accused-appellant argues that the trial and appellate courts erred in relying on the testimony of the prosecution witnesses. He points out several inconsistencies in the testimony of PO2 Laurel raising doubts as to its credibility. Further, he argues that the buy-bust operation was irregularly conducted resulting in a broken chain in the custody of the drugs.

We agree with accused-appellant.

It is hornbook doctrine that the evaluation of the trial court of the credibility of the witnesses and their testimonies is entitled to great weight and is generally not disturbed upon appeal. However, such rule does not apply when the trial court has overlooked, misapprehended, or misapplied any fact of weight or substance.[33] In the instant case, circumstances are present that, when properly appreciated, would warrant the acquittal of accused-appellant.

In the crime of sale of dangerous drugs, the prosecution must be able to successfully prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.[34] 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 corpus delicti.[35] Corpus delicti means the actual commission by someone of the particular crime charged.[36]

In the instant case, the prosecution has failed to prove all the elements of the crime with moral certainty.

A careful perusal of the testimony of PO2 Laurel readily reveals that there is serious doubt as to the identity of the seller. In his testimony, PO2 Laurel stated that when the transaction took place at 6:30 p.m., he was inside a parked tricycle located seven (7) meters away from where the transaction took place. Significantly the transaction occurred behind a store and not along the road. Add to this the fact that it happened at dusk, making it harder to see. Considering all these, it is, therefore, highly improbable that PO2 Laurel

actually saw accused-appellant. In fact, he testified that the poseur-buyer approached a certain person and that he only assumed it was accusedappellant to whom the poseur-buyer was talking, viz:

Q It is therefore safe to say that there is a distance of ten (10) to 15 meters between you and the person approached by the poseur buyer? A Around seven (7) meters, mam.

Q At the time of the approach of your poseur buyer, he was just standing there outside of the road? A Not at the side of the road, but behind the store.

Q A

This store was beside at the National Highway? Yes, mam.

Q A

At that time, there was still some day light? Yes, mam.

Q Nevertheless, the day light that was available at that time was not so bright anymore? A No mam, but there was an electrical light in that area.

Q A

You were inside the cab of the tricycle, is that correct? Yes, mam.

Q A

PO3 Casas was also inside the cab together with you? Yes, mam.

Q A

Who was on the side that was nearest the road? PO3 Casas.

Q When you saw that poseur buyer approached the subject and it was not so bright anymore, you could only see that your poseur buyer approached a man? A Yes, mam, the poseur buyer approached a certain person.

Q You assumed this man that the poseur buyer approached to be the subject Jojo Roble also known as Andrew Roble? A Yes, mam, he was the one.

Q You stated that you had arranged with the poseur buyer to execute a pre-arranged signal by scratching of his head upon the completion of the transaction, is that right? A Yes, mam.

Q And, it was the execution by this poseur buyer of that pre-arranged signal that prompted you and Police Officer Casas to rush towards the place where the poseur buyer and the subject were standing? A Yes, mam.[37] (Emphasis supplied.)

Clearly, PO2 Laurels testimony cannot establish with moral certainty the identity of the seller. It baffles this Court why the prosecution did not present the poseur-buyer as he would be the best person to identify the identity of the seller. No justifiable reason was submitted as to why Cuizons testimony could not be presented.

Even more doubtful is the identity and integrity of the dangerous drug itself. In prosecutions for illegal sale of dangerous drugs, [t]he existence of dangerous drugs is a condition sine qua non for conviction x x x.[38] Thus, it must be established that the substance bought during the buy-bust operation is the same substance offered in court. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.[39]

In Malillin v. People,[40] the Court explained the importance of the chain of custody, to wit:

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt. Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.

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.

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibits level of susceptibility to fungibility, alteration or tamperingwithout regard to whether the same is advertent or otherwise not dictates the level of strictness in the application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. Graham vs. State positively acknowledged this danger. In that case where a substance later analyzed as heroinwas handled by two police officers prior to examination who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possessionwas excluded from the prosecution evidence, the court pointing out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratorys findings is inadmissible.

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 casesby accident or otherwisein 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.

After a thorough review of the records of the instant case, this Court has serious doubts as to the identity of the drug in question. While a buy-bust operation is legal and has been proved to be an effective method of apprehending drug peddlers, due regard to constitutional and legal safeguards must be undertaken. It is the duty of the Courts to ascertain if the operation was subject to any police abuse.[41]

In his Supplemental Brief, accused-appellant aptly points out certain points in the evidence of the prosecution that cast uncertainty on the identity of the drug in question.

At the outset, it must be pointed out that there is confusion as to when the plastic sachet in question was turned over by the poseur-buyer to PO3 Casas. During PO2 Laurels direct examination, he testified that the plastic sachet was handed over by the poseur-buyer to PO3 Casas when they arrived at the police station.[42] But, on cross-examination, his story changed. He testified that the poseur-buyer handed the plastic sachet when his team tried to approach him after he gave the pre-arranged signal, viz:

Q It was already there at the Police Station that your poseur buyer handed the packet of shabu which he allegedly bought from the subject to your investigator? A There at the buy bust area, the poseur buyer delivered to Casas the plastic packet of shabu he bought from the subject.

Q He gave that plastic sachet of shabu to Casas after you chased the accused, correct? A No, mam, upon approaching the poseur buyer, he handed to Casas the plastic packet of shabu, then we ran after the subject and, likewise, PO3 Casas followed us.[43]

After receiving the plastic sachet, PO3 Casas then gave it to the investigator, SPO3 Awe. From here, the trail becomes vague once again. The testimony of PO2 Laurel up to this point talks about a single plastic sachet, but the Request for Laboratory Examination[44] (Request) identifies not one (1) but two (2) plastic sachets. This contradictory fact was not explained in his testimony. Further, one Police Superintendent Agustin G. Lloveras, Jr. (P/Supt. Lloveras) signed the Request. P/Supt. Lloveras was never mentioned in PO2 Laurels testimony. It is unclear as to who he is and as to how he was able to obtain the plastic sachets. Similarly, it is uncertain as to how the plastic sachets were transferred to P/Supt. Lloveras from SPO3 Awe. Again, PO2 Laurels testimony is bereft of any details as to the chain of custody of the drugs at these critical points.

Furthermore, the Request also mentions that the plastic sachets were marked ARJ 1-2. Yet again, PO2 Laurels testimony is lacking as to who marked the plastic sachets and when it was done.

Moreover, the testimony of Medical Technologist Mendoza reveals certain anomalies in the handling of the plastic sachets as well. In his testimony, a certain PO3 Enriquez delivered the plastic sachets. The trail from P/Supt. Lloveras to PO3 Enriquez was also not explained by the prosecution. Further, the sachets were delivered to Medical Technologist Mendoza in an unsealed packet, viz:

Q Mr. Witness, when you received the specimens for examination, you received them attached to accompanying letter-request and already in bigger plastic packet. Is that correct?

Yes, Maam.

Q A

Now, this bigger plastic packet was not sealed. No, Maam.

Q A

Only the two (2) smaller plastic packets inside them. Is that correct? No, Maam.[45]

Obviously, the way the packets were delivered could make them easily susceptible to replacement or substitution. Medical Technologist Mendoza even attested that he had no knowledge as to who marked the plastic sachets since they arrived in his office already marked.

Clearly, the evidence presented by the prosecution is insufficient to prove that the plastic sachets of shabu allegedly seized from accused-appellant are the very same objects tested by the crime laboratory and offered in court as evidence. The chain of custody of the drugs is patently broken.

Similarly, the prosecution failed to follow the requisites found in Sec. 21 of the Implementing Rules and Regulations (IRR) of RA 9165, which outlines the postprocedure in taking custody of seized drugs, viz:

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:

(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 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 x x x.

Even though non-compliance with Sec. 21 of the IRR is excusable, such cannot be relied upon when there is lack of any acceptable justification for failure to do so. In People v. Lorenzo,[46] citing People v. Sanchez,[47] the Court explained that this saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds.

In the instant case, no justifiable grounds were put forth by the prosecution for the procedural lapses. In his testimony, PO2 Laurel clearly stated that no inventory was made after he and his team obtained custody of the drugs. This is a patent violation of the aforementioned section. Citing Zarraga v. People,[48] the Court, in People v. Lorenzo, held that the lack of inventory on the seized drugs create[s] reasonable doubt as to the identity of the corpus delicti.[49]

Parenthetically, no coordination with the Philippine Drug Enforcement Agency was made, in violation of Sec. 86(a) of the IRR of RA 9165.[50]

Summing up all these circumstances, it behooves this Court not to blindingly accept the flagrantly wanting evidence of the prosecution. Undoubtedly, the prosecution failed to meet the required quantum of evidence sufficient to support a conviction, in which case, the constitutional presumption of innocence prevails. As we have held, When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.[51]

WHEREFORE, the CA Decision dated July 14, 2009 in CA-G.R. CEB CR-H.C. No. 00746 affirming the RTCs judgment of conviction is REVERSED and SET ASIDE. Petitioner Andrew Roble is hereby ACQUITTED on ground of reasonable doubt and is accordingly ordered immediately released from custody unless he is being lawfully held for another offense.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED. People V Rosselle Santiago DECISION

ABAD, J.:

The Facts and the Case

The public prosecutor of Makati charged the accused Roselle Santiago y Pabalinas alias Tisay (Roselle) with violation of Section 5 of Republic Act (R.A.)

9165[1] before the Regional Trial Court (RTC) of Makati City in Criminal Case 05-792. Roselle was also charged with violation of Section 15 of the same law in Criminal Case 05-1101.[2]

Initially, Roselle pleaded not guilty in Criminal Case 05-1101 (violation of Section 15) but she later changed her plea to guilty[3] and was so found by the court. The latter, however, deferred her sentencing until the termination of the case for violation of Section 5.

The parties stipulated at the pre-trial (1) that PO3 Leo Gabang investigated the case; (2) that, although the latter prepared the investigation report, he had no personal knowledge of what happened; (3) that the police made a request, through P/Supt. Marietto Mendoza, for laboratory examination; (4) that P/Insp. Richard Allan Mangalip, a forensic chemist of the Philippine National Police (PNP) Crime Laboratory, examined the submitted specimen, not knowing from whom the same was taken; (5) that the PNP Crime Laboratory Office issued Physical Science Report D-090-05S; and (6) that the forensic chemist was qualified. With these stipulations, the prosecution dispensed with Mangalips testimony.[4]

PO1 Voltaire Esguerra (Esguerra) testified that on April 4, 2005, they received information that Roselle was selling illegal drugs at her house at Pipit Extension, Barangay Rizal, Makati City. Esguerra conducted a test buy and received from her one heat-sealed transparent plastic sachet that presumably contained shabu. When he returned to his office, Esguerra marked the sachet with @ Tisay then sent it to the laboratory for testing.[5] Before receiving the results of the test buy, an asset told the police that Roselle was going to leave her house, prompting Esguerras team to conduct a buy-bust operation.

Esguerra met Roselle again and told her that it was he who bought shabu from her earlier that day. She thus let him enter the front yard of her house where he told her that he wanted to buy another pack for P300.00. Roselle took his marked money and entered the house. While waiting and looking in, Esguerra spotted two women[6] inside using shabu with the asset by their side, apparently waiting for his turn. Subsequently, Roselle returned

with one heat-sealed transparent plastic sachet presumably containing shabu. Upon receipt of the sachet, Esguerra signaled his team. They arrested Roselle and appraised her of her rights. Esguerra immediately marked the sachet with RPS.

After returning to the station, he turned over Roselle and the seized sachet to the investigator. When the contents of the first and second sachets (with @ Tisay and RPS markings) were examined, these were confirmed to be Methylamphetamine Hydrochloride (shabu). A confirmatory test also found Roselle positive for the use of shabu.

For her defense, Roselle denies that she sold shabu to Esguerra. She claims that the case was a product of a mistaken identity, as she was not known as Tisay in the area but Roselle. She narrated how she was forcibly taken from her house and into custody.

In its decision dated June 11, 2008, the RTC found Roselle guilty of violation of Section 5, Article II of R.A. 9165, and sentenced her to life imprisonment and to pay a fine of P500,000.00. The RTC also sentenced her to undergo rehabilitation for not less than six months at a government drug rehabilitation center subject to the provisions of R.A. 9165 for her violation of Section 15, Article II of R.A. 9165.

Roselle appealed from both judgments to the Court of Appeals (CA) in CA-G.R. CR-HC 03451 but the latter court affirmed the two convictions. She looks for her acquittal from this Court.

The Issues Presented to the Court

The issues presented to the Court are (1) whether or not the police conducted a valid arrest in Roselles case; and (2) whether or not the CA erred

in affirming the RTCs finding that the prosecution evidence established her guilt of the offense charged beyond reasonable doubt.

The Courts Ruling

One. Roselle claims that the police did not make a valid arrest in her case since they arrested her without proper warrant and did not apprise her of the rights of a person taken into custody as the Constitution and R.A. 7438 provide.[7] But Roselle raised this issue only during appeal, not before she was arraigned. For this reason, she should be deemed to have waived any question as to the legality of her arrest.[8]

Two. Although the prosecution established through Esguerra the acts constituting the crime[9] charged in the drug-pushing case (Section 5), it failed to provide proper identity of the allegedly prohibited substance that the police seized from Roselle.

Esguerra testified that he seized a heat-sealed sachet of white substance from Roselle and marked the sachet with RPS right in her presence. He claimed that he then immediately submitted the specimen to the police crime laboratory for examination. But the request for laboratory exam reveals that it was not Esguerra who delivered the specimen to the crime laboratory.[10] It appears that Esguerra gave it to a certain SPO3 Puno who in turn forwarded it to a certain PO2 Santos. No testimony covers the movement of the specimen among these other persons. Consequently, the prosecution was unable to establish the chain of custody of the seized item and its preservation from possible tampering.

Since the seized substance was heat-sealed in plastic sachet and properly marked by the officer who seized the same, it would have also been sufficient, despite intervening changes in its custody and possession, if the prosecution had presented the forensic chemist to attest to the fact a) that the sachet of substance was handed to him for examination in the same condition that

Esguerra last held it: still heat-sealed, marked, and not tampered with; b) that he (the chemist) opened the sachet and examined its content; c) that he afterwards resealed the sachet and what is left of its content and placed his own marking on the cover; and d) that the specimen remained in the same condition when it is being presented in court. In this way, the court would have been assured of the integrity of the specimen as presented before it. If the finding of the chemist is challenged, there may be opportunity for the court to require a retest so long as sufficient remnants of the same are left.

What is more, the prosecution failed to account for the whereabouts of the seized specimen after the crime laboratory conducted its tests. This omission is fatal since the chain of custody should be established from the time the seized drugs were confiscated and eventually marked until the same is presented during trial.[11]

Taking into account the above reasons, the Court finds it difficult to sustain the conviction of Roselle for violation of Section 5. The presumption of her innocence of the charge must prevail.

As for the other offense, her violation of Section 15 (Use of Illegal Drugs), it is curious that the CA still entertained her appeal from it despite the fact that she pleaded guilty to the charge and did not ask the trial court to allow her to change her plea. At any rate, since she had been under detention at the Correctional Institute for Women since 2005 and presumably deprived of the use of illegal substance during her entire stay there, she should be deemed to have served the mandatory rehabilitation period that the RTC imposed on her.

WHEREFORE, for failure of the prosecution to prove her guilt beyond reasonable doubt of the alleged violation of Section 5 of R.A. 9165, the Court REVERSES the decision of the Court of Appeals in CA-G.R. CR-HC 03451 dated October 30, 2009 and ACQUITS the accused Roselle Santiago y Pabalinas of the charge against her for that crime.

The Court DIRECTS the warden of the Correctional Institute for Women to release the accused from custody immediately upon receipt of this decision unless she is validly detained for some other reason.

SO ORDERED. People V Delos Reyes DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the Decision[1] dated July 12, 2006 of the Court of Appeals in CAG.R. CR.-H.C. No. 01733, which affirmed with modification the Decision[2] dated September 23, 2003 of Branch 214 of the Regional Trial Court (RTC) of Mandaluyong City in Criminal Case No. MC-00-2375-D. The Court of Appeals found accused-appellants Rolando S. delos Reyes and Raymundo G. Reyes (Reyes) guilty beyond reasonable doubt of violation of Section 21 of Article IV, in relation to Section 16 of Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, and imposing upon them the penalty of reclusion perpetua.

The following antecedent facts are culled from the records:

On February 17, 2000, accused-appellants Rolando S. delos Reyes and Raymundo G. Reyes, Emmanuel de Claro, and Mary Jane Lantion-Tom (Lantion-Tom) were all arrested for illegal possession, sale, delivery, distribution, and/or transportation of Methamphetamine Hydrochloride, a regulated drug commonly known as shabu. The Office of the City Prosecutor of Mandaluyong City, in its Resolution dated March 3, 2000, found probable cause to indict accused-appellants, together with Emmanuel de Claro, for

violation of Republic Act No. 6425, and resolved to continue the preliminary investigation in so far as Lantion-Tom was concerned. The criminal information against accused-appellants and Emmanuel de Claro, filed with the RTC, reads:

The undersigned 2nd Asst. City Prosecutor accuses ROLANDO DELOS REYES y SANTOS @ BOTONG, RAYMUNDO REYES y GUINZON @ MAC-MAC and EMMANUEL DE CLARO y ENRIQUEZ @ COCOY of the crime of VIOLATION OF SEC. 21 ART. IV IN REL. TO SEC. 16 ART. III OF R.A. 6425 AS AMENDED, committed in the manner herein narrated as follows:

That on or about the 17th day of February, 2000, in the City of Mandaluyong, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, not being lawfully authorized to possess any regulated drug, conspiring and confederating together and mutually helping and aiding one another, commit to sell, deliver, distribute and/or transport a carton of ten (10) heat-sealed transparent plastic bags containing white crystalline substance with the following grams, to wit: 99.2, 94.9, 99.6, 93.5, 98.3, 99.5, 99.6, 99.5, 98.4 and 98.4 grams or a total of 980.9 grams, which substance when submitted for drug examination, were found positive to the test for Methamphetamine Hydrochloride, commonly known as shabu, a regulated drug, without the corresponding license and prescription.[3]

On March 7, 2000, accused-appellant Rolando delos Reyes, Emmanuel de Claro, and Lantion-Tom, insisting on their innocence, moved for a reinvestigation of their case before the RTC, which said trial court granted in an Order[4] dated March 15, 2000.

After the reinvestigation, the Office of the City Prosecutor issued a Resolution dated April 3, 2000, recommending that the RTC proceed with the indictment of accused-appellant Reyes and Emmanuel de Claro, and dismiss the charges against accused-appellant Rolando delos Reyes and Lantion-Tom. The Office of the City Prosecutor considered the different versions of events

presented by the parties during the preliminary investigation and reinvestigation (except accused-appellant Reyes who did not participate in the proceedings), which it summarized as follows:

In their Joint Affidavit of Arrest, the arresting officers, members of the Intelligence and Investigation of the Regional Mobile Group (RMG) of the National Capital Region Police Office (NCRPO) claims that on 17 February 2000 a confidential informant called up relative to a narcotics drug deal to commence at the vicinity of the parking area of Shangrila Plaza Hotel, Mandaluyong City; that they were dispatched to verify the reports and conduct police operations; that about 2:00 p.m. after meeting with the confidential agent, they strategically positioned themselves at the vicinity parking area of said hotel; that about 10:00 p.m., accused/respondent Reyes a.k.a. Mac-Mac, on board a white Toyota Corolla, and accused/respondent [Rolando] delos Reyes, a.k.a. Botong, on board a red Toyota Corolla, arrived with accused/respondent Reyes subsequently proceeding inside Whistletop Bar and Restaurant, and accused/respondent [Rolando] delos Reyes calling accused/respondent [Emmanuel] de Claro through his cellular phone; that accused/respondent [Rolando] delos Reyes and [Emmanuel] de Claro then proceeded to the latters parked Mazda car where respondent Lantion-Tom was waiting; from the parked car, a box in transparent plastic bag was taken, which accused/respondent [Emmanuel] de Claro handed-over to accused/respondent [Rolando] delos Reyes; accused/respondent [Rolando] delos Reyes in turn handed the box in a plastic bag to accused/respondent Reyes; that the arresting officers accosted the accused/respondents who according to the arresting officers admitted having in their possession illegal drugs; that the recovered items containing ten (10) pcs. of heat sealed transparent plastic bags of white crystalline substance with a total weight of 980.9 grams turned positive to the test for methylamphetamine hydrochloride or shabu, a regulated drug.

In his Sinumpaang Kontra-Salaysay, accused/respondent [Rolando] delos Reyes claims that on 17 February 2000, he went to Buenas Market, Manggahan, Pasig City, together with a neighbor, one Marlon David, to talk to Raymundo Reyes who was to pay his indebtedness; that while looking for a parking space, several men with firearms suddenly appeared, with one shouting, buksan mo ang pintuan ng sasakyan at kung hindi babasagin ko

ito; that he and Marlon David were forced out of their vehicle with one of the armed men bringing out a plastic shopping bag of Shoe Mart, asking where the said bag allegedly containing shabu came from; that accused/respondent [Rolando] delos Reyes answered hindi ko alam, that he and Marlon David were blindfolded when forcibly taken to the groups vehicle and continuously asked who the source of the shabu was, with respondent/accused [Rolando] delos Reyes replying, hindi ko alam at wala akong kinalaman diyan; that Marlon David was separated from accused/respondent [Rolando] delos Reyes and later released on 18 February 2000; that when accused/respondent [Rolando] delos Reyes blindfold was removed, he found himself at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila.

xxxx

To confirm respondent/accused [Rolando] delos Reyes claim, that he was arrested in Brgy. Manggahan, Pasig City, and not in the vicinity of Whistletop Bar and Restaurant in Mandaluyong City, respondent/accused [Emmanuel] de Claros spouse submitted a certified true xerox copy of barangay blotter of Barangay Manggahan, Pasig City, reflecting the entry on 19 February 2000 made by Mrs. Delos Reyes, on the incident reported to by Marlon David thus:

BLOTTER

Dumulog po rito sa himpilan ng Punong Barangay si Gng. Virginia Delos Reyes, upang ipagbigay alam ang pagkawala ng kanyang asawa na si Mr. Rolando delos Reyes, nuong petsa 17 ng Pebrero taong dalawang libo (2000) na ayon sa batang pamangkin na si Marlon David, ay hinuli ng mga hindi kilalang lalaki sa Buenas Market, Manggahan, Pasig City nais niyang alamin kung ang nasabing insidente ay coordinated dito sa himpilan o tanggapan ng Barangay.

(Sgd) Virginia delos Reyes Nagpapahayag

The blotter was apparently made after Marlon David informed Mrs. [Virginia] Delos Reyes of the incident upon his release on 18 February 2000. Another witness, one Joel Navarro, claims having seen the actual incident confirming the events as narrated to by accused/respondent [Rolando] delos Reyes and Marlon David.

Accused/respondent [Emmanuel] de Claro and his common law wife, respondent Lantion-Tom, submitted their separate Counter-Affidavits jointly denying the charges and claiming that they were at the Whistlestop Bar and Restaurant to talk to respondent Lantion-Toms accountant Ms. Daisy Milan regarding the Mayors Permit, Business Location Clearance issued by the Office of the Barangay Captain, insurance documents, BIR Certificate of Registration of her business; that they were with accused/respondent [Emmanuel] de Claros brother, Roberto and a friend, James, with the two remaining outside the restaurant; that respondent Lantion-Tom went to accompany Ms. Milan, while accused/respondent [Emmanuel] de Claro was left inside; that after Ms. Milan left, respondent Lantion-Tom was suddenly surrounded by men who introduced themselves as police officers and were arresting them for being the source of shabu in a drug deal; that all of them, accused/respondent [Emmanuel] de Claro, Roberto and James were likewise arrested and continuously questioned on their complicity in the drug deal; that they were taken to Camp Bagong Diwa, Taguig, Metro Manila and subjected to further investigation; that Roberto and James were released the following day. Both respondents maintain that the allegations of the arresting officers as to the circumstances on the alleged drug deal leading to their arrest are unfounded and purely fabricated.

During the preliminary investigation proceedings on 21 March 2000, the arresting officers manifested that they are going to submit reply-affidavit on 29 March 2000. However, no such reply-affidavit was submitted.[5]

The Office of the City Prosecutor pointed out that the arresting police officers failed to refute accused-appellant Rolando delos Reyes counter-allegation that

he was not arrested at Shangri-La Plaza in Mandaluyong City, but he was illegally arrested without warrant at Buenas Market in Cainta, Rizal, as corroborated by Marlon David and Joel Navarro (Navarro) in their respective sworn statements (Sinumpaang Salaysay) dated March 14, 2000. The Office of the City Prosecutor also observed that Lantion-Tom was merely in the company of the other respondents without performing any overt act showing her to be part of the illicit transaction and her drug test revealed negative results. On the other hand, it considered the conflicting claims of Emmanuel de Claro (i.e., that he was illegally arrested and that the drug deal was a mere fabrication) and the arresting officers (i.e., that Emmanuel de Claro was the seller/pusher in the drug deal and the shabu was seized from his vehicle) would be best ventilated during the trial on the merits.

In accordance with the foregoing resolution, the prosecution filed with the RTC a motion with leave of court to admit amended information.

In its Order[6] dated April 4, 2000, the RTC denied the prosecutions motion. Contrary to the finding of the Office of the City Prosecutor, the RTC adjudged that probable cause exists not only against accused-appellant Reyes and Emmanuel de Claro, but accused-appellant Rolando delos Reyes as well.

Accused-appellants were arraigned on May 23, 2000,[7] while Emmanuel de Claro was arraigned on July 12, 2000.[8] All three pleaded not guilty. After the pre-trial conference, trial ensued.

The prosecution presented in evidence the testimonies of Police Officer (PO) 3 Virgilio Santiago,[9] Senior Police Officer (SPO) 1 Eraldo Lectura,[10] PO3 Angel Yumul,[11] and SPO1 Benjamin David,[12] members of the Regional Mobile Group (RMG) of the Philippine National Police (PNP) National Capital Regional Police Office (NCRPO) who apprehended and/or investigated the case against accused-appellants, Emmanuel de Claro, and Lantion-Tom; and P/Insp. Benjamin Cruto, Jr.[13] (Cruto), the forensic chemist of the PNP Crime Laboratory.

PO3 Santiago was one of the police officers who arrested Emmanuel de Claro and Lantion-Tom on February 17. 2000. He testified that at around 10:30 a.m., their operation chief, Major Arnold Aguilar, received information from a confidential informant regarding an illegal drug deal that would take place between Botong and Mac-Mac at the parking lot of Shangri-La Plaza in Madaluyong City. Botong and Mac-Mac were identified during the investigation as accused-appellants Rolando delos Reyes and Reyes, respectively.

As narrated by PO3 Santiago, a team to bust the illegal drug deal was organized by Major Aguilar, composed of PO3 Santiago himself, SPO1 Lectura, and PO3 Yumul, along with PO3 Elmer Corbe, PO3 Marcelo Arcancia, Jr., PO3 Randy Fuentes, PO3 Dennis Padpad, and PO3 Edwin dela Cruz. At around 1:00 p.m. of the same day, the police team was dispatched, using four vehicles, to the location of the drug deal and upon arrival, they waited for the confidential informant to arrive. When the confidential informant arrived at around 3:30 p.m., he told the police team that the drug deal would possibly take place between 6:00 p.m. and 11:00 p.m., and that the suspects would utilize a red Toyota Corolla with plate number TRP-868 and a white Toyota Corolla with plate number ULF-706. The police team then positioned their cars strategically in such a way that they could see the vehicles coming from St. Francis Street and EDSA.

PO3 Santiago further recounted that at around 10:00 p.m., the suspected vehicles arrived, both stopping along the driveway of Shangri-La Plaza. The drivers of the vehicles alighted and talked to each other. The confidential informant recognized the driver of the white Toyota car as Mac-Mac and the driver of the red Toyota car as Botong. After a few minutes, Botong made a call on his cellular phone and then proceeded inside Whistle Stop Restaurant, leaving Mac-Mac behind. Inside the restaurant, Botong talked to another person, who was identified during the investigation as Emmanuel de Claro alias Cocoy. PO3 Santiago was about three to five meters away. Thereafter, Botong and Cocoy went out of the restaurant and approached a car parked right outside. The person at the back seat of the car, later on identified as Lantion-Tom, handed to Cocoy a white plastic bag containing a box. Cocoy gave the bag to Botong, who, in turn, handed the same bag to Mac-Mac. In the meantime, Cocoy went back inside the restaurant.

PO3 Santiago related that their team leader sensed that the drug deal had already been consummated, so the police team immediately effected the arrest of the suspected drug dealers. PO3 Santiago and PO3 Yumul arrested Cocoy and Lantion-Tom, while SPO1 Lectura and the remaining police team members arrested Botong and Mac-Mac. The plastic bag containing the box was seized from Mac-Mac. The arrested suspects were brought to the police office for investigation. The plastic bag, the box, and the 10 heat-sealed sachets of white crystalline substance inside the box, were marked for identification and physical examination at the police office.

According to PO3 Santiago, the physical examination of the contents of each of the 10 heat-sealed sachets yielded positive test results for methamphetamine hydrochloride or shabu. PO3 Santiago then signed a Joint Affidavit of Arrest dated February 18, 2000 together with the other arresting police officers, namely, SPO1 Lectura, PO3 Corbe, PO3 Arcancia, PO3 Fuentes, and PO3 Nelson Gene Javier.

On cross-examination, PO3 Santiago admitted that he did not actually see what was inside the plastic bag and that he did not even see Botong hand over such plastic bag to Mac-Mac. From PO3 Santiagos position, he could not conclude that the suspects were committing an illegal drug deal as he had no prior knowledge of the contents of the plastic bag, and that he and the other arresting officers just relied on the information relayed by the confidential informant. Also, the police team did not recover any money from the arrested suspects. The confidential informant merely informed the police the following morning that the money for the illegal drugs was already deposited in the bank. The police, however, failed to make further queries from the confidential informant about the bank.

SPO1 Lectura related that their office received a telephone call from a confidential informant about an illegal drug deal involving Cocoy, Botong, and Mac-Mac in the vicinity of Shangri-La Plaza in Mandaluyong City on February 17, 2000. SPO1 Lectura was designated as the leader of the team that will

bust said illegal drug deal. After the briefing, SPO1 Lecturas team proceeded to the subject location.

The confidential informant arrived and met SPO1 Lecturas team at around 3:30 p.m. SPO1 Lectura conducted a short briefing then positioned his team strategically within the vicinity. The confidential informant told the police team that the drug deal would take place between 6:00 p.m. and 11:00 p.m. At around 10:00 p.m., the confidential informant identified the suspected drug dealers Botong and Mac-Mac, who were arriving in two cars. After conversing for a moment with Mac-Mac, Botong went inside Whistle Stop Restaurant to talk to Cocoy. Botong and Cocoy then went outside the restaurant and approached another car. Cocoy took a white plastic bag from the car, which he handed to Botong. Thereafter, Cocoy went back inside the restaurant, while [Botong] proceeded to his car near [Mac-Mac]. SPO1 Lectura was positioned at the other lane of the road, approximately 10 to 15 meters away from the suspects. At that moment, SPO1 Lectura sensed that the drug deal had been consummated, so he decided to already arrest the suspects. SPO1 Lectura arrested Mac-Mac, from whom he seized the white plastic bag. PO3 Yumul and PO3 Padpad arrested Botong; and PO3 Santiago apprehended Cocoy. The police team brought the arrested suspects to the police office for investigation.

SPO1 Lectura submitted to SPO1 David the white plastic bag containing a box with 10 heat-sealed plastic sachets inside. In front of SPO1 Lectura, SPO1 David marked the said articles with his initials. After physical and chemical examinations revealed that the contents of the sachets were shabu, SPO1 Lectura signed the Joint Affidavit of Arrest dated February 18, 2000.

During cross-examination, SPO1 Lectura initially denied that Marlon David was with Botong when the latter was arrested, but he later admitted that the police also arrested Marlon David. Marlon David was brought to Camp Bagong Diwa, Taguig, together with the other arrested suspects, for verification, and was released the following day. SPO1 Lectura also admitted that during the preliminary investigation, he and PO3 Corbe, PO3 Arcancia, and PO3 Javier, answered that it was PO3 Santiago who seized the shabu from Mac-Mac; but SPO1 Lectura explained that what the investigating prosecutor actually asked during preliminary investigation was who saw where the shabu came from and

that he signed the minutes of the preliminary investigation without reading the same. SPO1 Lectura maintained that it was he who recovered the shabu from Mac-Mac. Lastly, SPO1 Lectura acknowledged that his team heavily relied on the information given by the confidential informant in identifying the suspects in the illegal drug deal, who were eventually arrested.

PO3 Yumul substantially narrated the same version of events as that of PO3 Santiago and SPO1 Lectura. On February 17, 2000, he was assigned at the Intelligence Investigation Division of the RMG based in Camp Bagong Diwa, Bicutan, Taguig. He was with SPO1 Lectura, PO3 Santiago, PO3 Fuentes, PO3 Padpad, and several other police officers at the vicinity of Shangri-La Plaza in Mandaluyong City, conducting surveillance operation regarding the tipped-off illegal drug deal. He was with SPO1 Lectura and PO3 Padpad in the car parked in front of Shangri-La Plaza, while PO3 Fuentes, PO3 Dela Cruz, and their confidential informant were in another car also parked along the driveway of Shangri-La Plaza. PO3 Santiago, PO3 Arcancia, and PO3 Corbe were in the car stationed in front of Whistle Stop Restaurant. PO3 Yumul could not recall where the other members of the team were located.

At around 10:00 p.m., the suspects Botong and Mac-Mac arrived in separate cars, stopping in front of Shangri-La Plaza. Botong and Mac-Mac alighted from their cars and talked to each other. At that time, PO3 Yumul was about five meters away from the two suspects. Moments later, Botong called someone on his cellular phone, and then went inside Whistle Stop Restaurant, leaving MacMac behind. PO3 Yumul followed Botong inside the restaurant and saw the latter talking to Cocoy. PO3 Yumul though did not hear the conversation between Botong and Cocoy. Afterwards, Botong and Cocoy went out of the restaurant and approached a parked car. From his position about three meters away, PO3 Yumul saw the passenger at the back seat of the car, Lantion-Tom, opening the window and handing over a white plastic bag with carton inside to Cocoy, who, in turn, gave the plastic bag to Botong. Cocoy then returned inside the restaurant and [Botong] went back to [Mac-Mac]. PO3 Yumul followed Cocoy inside the restaurant. A few minutes later, PO3 Santiago also went inside the restaurant informing PO3 Yumul that they would be arresting Cocoy, and that Botong and Mac-Mac were already arrested outside the restaurant. PO3 Santiago, assisted by PO3 Yumul, approached Cocoy and arrested him. The police team proceeded to the police office with all

the arrested suspects for further investigation. PO3 Yumul, however, failed to join the other arresting officers in signing the Joint Affidavit of Arrest dated February 18, 2000.

SPO1 David was an investigator at the Intelligence and Investigation Section of the RMG at Camp Bagong Diwa, Bicutan, Taguig, assigned to the instant case following the arrests of accused-appellants, Emmanuel de Claro and LantionTom. He also referred the case for inquest to the Office of the City Prosecutor.

SPO1 David testified that on February 17, 2000, he received from SPO1 Lectura a plastic bag containing a box with 10 heat-sealed sachets of suspected shabu inside. SPO1 Lectura told SPO1 David that the articles were seized from the suspected drug dealers. SPO1 David marked his initials BSD on the confiscated articles, then prepared a request to the PNP Crime Laboratory for examination of the specimens. SPO1 David disclosed that he prepared the Affidavit of Arrest of the arresting officers.

The last witness for the prosecution was P/Insp. Cruto of the PNP Crime Laboratory. P/Insp. Cruto was the forensic chemist who conducted the physical, chemical, and confirmatory examinations of the contents of the 10 heat-sealed plastic sachets submitted by the RMG-NCRPO on February 18, 2000.

P/Insp. Cruto conducted the physical examination by weighing the contents of each sachet, revealing that two sachets weighed 99.6 grams each; two sachets, 99.5 grams each; one sachet, 99.2 grams; two sachets, 98.4 grams each; one sachet, 98.3 grams; one sachet, 94.9 grams; and one sachet, 93.5 grams. P/Insp. Cruto then took a representative sample from each plastic sachet and proceeded with his chemical and confirmatory examinations. The contents of the 10 heat-sealed plastic sachets all tested positive for methamphetamine hydrochloride, otherwise known as shabu. P/Insp. Cruto recorded the result of the examinations in his Physical Sciences Report No. D-097-2000.[14]

The prosecution submitted the following object and documentary evidence: the Joint Affidavit of Arrest[15] dated February 18, 2000 signed by SPO1 Lectura, PO3 Santiago, PO3 Corbe, PO3 Arcancia, PO3 Dela Cruz and PO3 Javier; the Sketch prepared in open court by SPO1 Lectura;[16] the 10 heat-sealed plastic sachets recovered from the possession of accused-appellants;[17] the PNP-RMG Request for Laboratory Examination of the contents of the 10 heat-sealed plastic sachets;[18] the PNP Crime Laboratory Physical Sciences Report No. D097-2000 dated February 18, 2000 which revealed that the contents of the 10 heat-sealed plastic sachets positively tested for methamphetamine hydrochloride;[19] and the Letter (Referral of the case to the Office of the City Prosecutor)[20] dated February 18, 2000. The RTC admitted all the aforementioned evidence for the prosecution in its Order[21] dated March 1, 2001.

The defense, on the other hand, presented the testimonies of Marlon David,[22] accused-appellant Rolando delos Reyes,[23] Emmanuel de Claro,[24] Roberto de Claro,[25] and Mary Jane Lantion-Tom.[26] Accused-appellant Reyes did not testify.

Marlon David was 17 years old and a fourth year high school student of Rizal High School in Pasig City. He recalled that on February 17, 2000, at about 1:00 p.m., he accompanied accused-appellant Rolando delos Reyes, whom he referred to as Kuya Botong, to the Buenas Market in Cainta, Rizal, to collect some money.

While accused-appellant Rolando delos Reyes and Marlon David were inside their car at the parking area of said market, another car suddenly arrived, from which an armed male passenger alighted and approached them. Four other armed men followed and poked their guns at accused-appellant Rolando delos Reyes and Marlon David. The armed men, in civilian attire, were carrying an SM plastic shopping bag and questioned accused-appellant Rolando delos Reyes if he knew the owner of said plastic bag. Accused-appellant Rolando delos Reyes denied any knowledge about the plastic bag. Marlon David was also asked and he answered that he knew nothing about the plastic bag.

Thereafter, the armed men, who later introduced themselves as police officers, pulled accused-appellant Rolando delos Reyes from the driver seat of the latters car, transferred him and Marlon David to the back seat of said car, and blindfolded both of them. Two of the armed men sat in the front seats of the car, while one of them sat at the back, beside accused-appellant Rolando delos Reyes and Marlon David. The armed men drove the car around (paikot-ikot). The armed men then separated accused-appellant Rolando delos Reyes from Marlon David. They ordered Marlon David to alight from the car and transfer to another vehicle. While in the other car, the armed men boxed and mauled Marlon David to force him to admit to be the source of the plastic bag. Each question was accompanied with one punch. Marlon David remained blindfolded until they arrived at the police camp in Bicutan, Taguig, where he again saw accused-appellant Rolando delos Reyes. Marlon David was released the following morning, leaving accused-appellant Rolando delos Reyes behind at the police camp. Marlon David went home and told Virginia delos Reyes, the wife of accused-appellant Rolando delos Reyes, about the incident.

Marlon David, during his cross examination, denied knowing any person with the name Mac-Mac. Marlon David additionally relayed that he was told by accused-appellant Rolando delos Reyes that the latter was likewise mauled by the armed men.

Accused-appellant Rolando delos Reyes or Botong gave a similar account of the incident that took place at 1:00 p.m. on February 17, 2000, while he and Marlon David were at the Buenas Market in Cainta, Rizal. Their car was surrounded by four armed men. The armed men poked their guns at him and Marlon David, shouting at them to open the car doors. He lowered the car window and the armed men opened the car door. The armed men forced him and Marlon David to get down from the front seats of the car and to transfer to the back seat, blindfolded them, and asked them who were the owners of the SM plastic bag. After they left Buenas Market, he noticed that they were just driving around. The car stopped only when Marlon David was taken out and transferred to another car. It was already late in the evening when the car finally stopped. He then realized, after his blindfold had been removed, that he was at Camp Bagong Diwa in Bicutan, Taguig.

Accused-appellant Rolando delos Reyes denied the accusation of the police that he was selling or delivering shabu to anyone. He asserted that he was not arrested at Whistle Stop restaurant in Mandaluyong City, rather, he was illegally arrested at Buenas Market in Cainta, Rizal. Accused-appellant Reyes or Mac-Mac was his friend who owed him money. He and accused-appellant Reyes agreed to meet at Buenas Market for the settlement of the latters loan, but the meeting did not take place because the armed men arrived. He further claimed that he only met Emmanuel de Claro at Camp Bagong Diwa in Bicutan, Taguig. He never knew Emmanuel de Claro before that time, and he found out the latters name only when they were already detained at the Mandaluyong City Jail.

Emmanuel de Claro or Cocoy testified that on February 17, 2000 at around 10:00 a.m., he was at the Department of Trade and Industry in Buendia, Makati City, with his common-law wife Mary Jane Lantion-Tom to follow up their application for business permit. At around 1:00 p.m., they had lunch at Glorietta. Emmanuel de Claro was no longer feeling well so he and LantionTom passed by the house of his brother Roberto de Claro to request the latter to drive for them. James, Roberto de Claros friend, also went with them.

The vehicle driven by Emmanuel de Claro was a rented car because his own car was in the auto shop. Emmanuel de Claro, Lantion-Tom, Roberto de Claro, and James first went to Las Pias City to check on Emmanuel de Claros car at the auto shop. From there, they proceeded to Libertad in Pasay City and ate dinner at the Duty Free Philippines. Afterwards, the group made their way to Mandaluyong City where Lantion-Tom had a scheduled appointment with Daisy Milan (Milan), her accountant. Emmanuel de Claro and Lantion-Tom met Milan at Whistle Stop Restaurant located at Shangri-La Plaza in Mandaluyong City. Milan and Lantion-Tom discussed matters pertaining to the business permit. Emmanuel de Claro stepped outside the restaurant for a moment to smoke a cigarette, then, returned inside to wait for the meeting between Lantion-Tom and Milan to finish. After their meeting, Lantion-Tom walked Milan outside the restaurant, while Emmanuel de Claro waited for Lantion-Tom inside.

Three male persons suddenly approached Emmanuel de Claro and introduced themselves as police officers. They warned Emmanuel de Claro not to make a scene and just go with them peacefully. Emmanuel de Claro obeyed. He was brought outside the restaurant and was forced to get into a waiting car. For about three hours inside the car, he was punched, handcuffed, blindfolded, and told to bow down his head. He was likewise being forced to admit something about the shabu, but he denied knowing anything about it. He heard from the radio inside the car that the police officers were waiting for another car. After three hours of traveling, the car finally stopped and when his blindfold was removed, he learned that they were already at Camp Bagong Diwa in Bicutan, Taguig.

Emmanuel de Claro was placed in one room where he stayed for almost an hour, until he was called into another room where he met his co-accused for the first time. He later saw Lantion-Tom at the office of one of the police officers. They were interrogated by the police and being forced to admit that the drugs being shown to them belonged to them. They asked for a lawyer but their plea was ignored. The police told Emmanuel de Claro and Lantion-Tom that somebody should be held responsible for the shabu so they were made to choose whether both of them or only one of them would be charged. Emmanuel de Claro was compelled to choose the latter option.

Roberto de Claro corroborated Emmanuel de Claros testimony. On February 17, 2000, Roberto de Claro was at home playing video games when his brother Emmanuel de Claro and the latters wife, Lantion-Tom, arrived and requested him to drive their car because Emmanuel was not feeling well. James, Roberto de Claros friend, rode with them. They first went to Las Pias City to check on Emmanuel de Claros car at the auto shop, then they proceeded to Libertad, Pasay City, where they had dinner at Duty Free Philippines. They next drove to Whistle Stop Restaurant at Shangri-La Plaza in Mandaluyong City to meet Ms. Milan. Only Emmanuel de Claro and Lantion-Tom went inside the restaurant. Roberto de Claro and James stayed in the car.

Two hours later, Roberto de Claro saw Lantion-Tom and Ms. Milan walking towards them. As the two women were approaching, armed men suddenly appeared, surrounded their car, and pointed guns at them. Roberto de Claro

got terrified. It was as if an armed robbery (hold-up) was taking place. The armed men knocked at the car window. Out of fear, Roberto de Claro opened the window, then the door of the car. Roberto de Claro, James, and LantionTom were made to sit at the back seat of the car. Two of the armed men sat on the front seats of the car, while one sat at the back with Roberto de Claro, James, and Lantion-Tom. The armed men introduced themselves as police officers.

Inside the car, the police officers mauled (siniko, sinuntok sa ulo) Roberto de Claro, James, and Lantion-Tom, all the while ordering them to keep their heads bowed down. The police officers drove the car for two hours, stopping at a gas station for about five minutes. At this moment, Roberto de Claro was able to raise his head but was immediately told to bow down his head again. Roberto de Claro also heard from the police officers radio that they were still waiting for somebody. They travelled again for quite a long time and stopped in a dark place. The police officers took Roberto de Claros wallet containing P7,000.00 cash. Early in the following morning, they arrived at the police station where Roberto de Claro saw his brother Emmanuel de Claro once more. They stayed in one room until Roberto de Claro and James were released by the police the next day.

When Lantion-Tom was called to testify, the prosecution and the defense agreed to consider her Counter Affidavit dated March 23, 2000 and Supplemental Affidavit dated March 29, 2000 as her direct examination.

On cross-examination, Lantion-Tom confirmed that she was among those arrested on February 17, 2000 at the vicinity of Shangri-La Plaza in Mandaluyong City for her alleged involvement in an illegal drug deal. At the time of the arrest, she was with Emmanuel de Claro, Roberto de Claro, and James. She was also brought to Camp Bagong Diwa in Taguig where she was interrogated without a lawyer. She was shown a box containing shabu which she had never seen before. Lantion-Tom insisted that she was in Mandaluyong City to meet her accountant, Milan, regarding her application for a business permit. Lantion-Tom pointed out that the charge against her was eventually dismissed.

The documentary evidence for the defense consisted of Emmanuel de Claros Counter Affidavit dated March 23, 2000,[27] Lantion-Toms Counter Affidavit dated March 23, 2000,[28] Emmanuel de Claro and Lantion-Toms Supplemental Affidavit dated March 29, 2000,[29] Roberto de Claros Witness Affidavit dated March 29, 2000,[30] Marlon Davids Sinumpaang Salaysay dated March 14, 2000,[31] Virginia delos Reyes Sinumpaang Salaysay dated March 14, 2000,[32] Navarros Sinumpaang Salaysay dated March 14, 2000,[33] accused-appellant Rolando delos Reyes Sinumpaang Kontra Salaysay dated March 14, 2000,[34] and a Barangay Blotter dated February 19, 2000 by Virginia delos Reyes.[35] The RTC admitted all these documentary evidence for the defense in its Order[36] dated September 13, 2002.

In its Decision dated September 23, 2003, the RTC found accused-appellants and Emmanuel de Claro guilty beyond reasonable doubt of the crime charged, and decreed:

WHEREFORE, the prosecution having successfully proved the guilt of the accused beyond reasonable doubt for unlawfully possessing/selling, delivering, transporting and distributing methamphetamine hydrochloride otherwise known as shabu, a regulated drug, without lawful authority in violation of Sections 15 and 16 of Article III in relation to Section 21 of Article IV of R.A. No. 6425, as amended, they are hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of P20,000.00 each and the costs of suit.

Further, all the methamphetamine hydrochloride (shabu) taken and seized from the accused during the aforesaid operation are forfeited and confiscated in favor of the government shall be turned over to the PDEA pursuant to law for proper disposal without delay.[37]

Emmanuel de Claro filed his notice of appeal[38] on October 23, 2003. Accused-appellants Roberto delos Reyes and Reyes each filed his notice of appeal[39] on October 29, 2003 and December 30, 2003, respectively.

Emmanuel de Claro, however, subsequently moved to withdraw his notice of appeal,[40] instead, filing before the RTC an Omnibus Motion for Reconsideration and to Re-Open Proceedings Pursuant [to] Section 24, Rule 119 of the Rules of Court[41] on October 30, 2003, and a Supplemental Motion for Reconsideration[42] on November 3, 2003. Emmanuel de Claro asked the RTC to review its judgment of conviction based on the following grounds:

I. THE HONORABLE COURT GRAVELY ERRED IN RULING THAT THE ACCUSED DEFENSE OF FRAME-UP IS A MERE ALIBI AND HAS THUS ERRED IN ADOPTING THE THEORY OF THE PROSECUTION THAT ALL THE THREE (3) ACCUSED WERE PICKED-UP AT THE VICINITY OF EDSA SHANGRI-LA PLAZA HOTEL.

II. THAT THE HONORABLE COURT GRAVELY ERRED IN RULING THAT THE WARRANTLESS ARREST WAS LAWFUL SINCE THE ACCUSED WERE CAUGHT IN FLAGRANTE DELICTO.

III. THE HONORABLE COURT GRAVELY ERRED IN FINDING THAT THERE WAS CONSPIRACY AMONG THE THREE (3) ACCUSED IN THE ALLEGED COMMISSION OF THE CRIME OF UNLAWFUL SALE, DELIVERY AND TRANSPORTATION OF THE PROHIBITED DRUG.

IV. THE HONORABLE COURT GRAVELY ERRED IN FINDING BOTH ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED IN THE INFORMATION ON THE BASIS MAINLY OF A DISPUTABLE PRESUMPTION OF LACK OF IMPROPER MOTIVE ON THE PART OF THE POLICE OFFICERS.

V. THAT THE HONORABLE COURT GRAVELY ERRED IN ITS FAILURE TO CONSIDER THE FACT THAT ACCUSED EMMANUEL DE CLARO WAS NOT AFFORDED HIS CONSTITUTIONAL RIGHTS DURING CUSTODIAL INVESTIGATION.[43]

Emmanuel de Claro principally contended that the accusation that he was engaging in an illegal drug deal, levied against him by prosecution witnesses SPO1 Lectura, PO3 Santiago, and PO3 Yumul was suspicious, if not incredible. Emmanuel de Claro pointed out that although these police officers testified that Lantion-Tom, from the car, handed to him the plastic bag containing the box with sachets of shabu, the prosecution still dropped the criminal charges against Lantion-Tom. Emmanuel de Claro also strongly argued that the prosecution failed to contradict his well-supported alibi that he, his wife, and his brother went to Shangri-La Plaza in Mandaluyong City to meet his wifes accountant, so they could attend to several documents pertaining to a business permit. Emmanuel de Claro further insisted that the RTC should have highly regarded accused-appellant Rolando delos Reyes testimony which directly contradicted the police officers statements.

In its Order[44] dated November 11, 2003, the RTC granted Emmanuel de Claros motion to withdraw his notice of appeal and required the prosecution to comment to his motions for reconsideration.

The prosecution filed its Comment/Opposition[45] on December 19, 2003, objecting to Emmanuel de Claros motions for reconsideration and maintaining that its police-witnesses categorical, consistent, and straight-forward testimonies were sufficient to convict Emmanuel de Claro.

In a complete turnabout from its previous findings and conclusion, the RTC, in its Order[46] dated January 12, 2004, acquitted Emmanuel de Claro of the crime charged. The RTC explicitly admitted that it erred in giving full faith and credit to the testimonies of prosecution witnesses SPO1 Lectura, PO3 Santiago,

and PO3 Yumul, and in entirely rejecting the alibi of the defense. Thus, the RTC disposed:

WHEREFORE, the motion of accused-movant Emmanuel De Claro is hereby GRANTED and a new one entered, ACQUITTING him of the crime charged. Consequently, his immediate release from detention is hereby ordered unless he is detained for other cause or causes.[47]

Nevertheless, in view of the pending notices of appeal of accused-appellants, the RTC forwarded the complete records of the case to us on March 29, 2004, and we gave due course to the said appeals in our Resolution[48] dated June 21, 2004.

Accused-appellant Rolando delos Reyes filed his Appellants Brief[49] on September 15, 2004, while accused-appellant Reyes filed his Appellants Brief[50] on November 26, 2004. Pursuant to our pronouncement in People v. Mateo,[51] we transferred the case to the Court of Appeals for appropriate action and disposition.[52] Accordingly, the plaintiff-appellee, represented by the Office of the Solicitor General (OSG), filed before the appellate court its Consolidated Brief[53] on January 21, 2005.

The Court of Appeals, in its Decision dated July 12, 2006, sustained the conviction of accused-appellants, and merely modified the penalty imposed upon them, from life imprisonment to reclusion perpetua. According to the appellate court, the police officers testimonies deserve credence than accusedappellants defenses of denial and alibi, there being no evidence to rebut the presumption that the police officers regularly performed their official duties.

The case was then elevated to us for final review. In our Resolution[54] dated January 31, 2007, we required the parties to submit their supplemental briefs. Plaintiff-appellee and accused-appellants Rolando delos Reyes and Reyes filed their manifestations[55] on March 14, 2007, April 10, 2007, and April 13,

2007, respectively, opting to stand by the briefs they had already filed before the Court of Appeals.

In his Appellants Brief, accused-appellant Rolando delos Reyes assigned the following errors of the RTC:

I. THE COURT A QUO ERRED IN FAILING TO RESOLVE THE CONTRADICTORY TESTIMONY AS TO THE PLACE OF THE ARREST IN FAVOR OF THE ACCUSED.

II. THE COURT A QUO ERRED IN FINDING [THE] TESTIMONIES OF PO3 VIRGILIO SANTIAGO CREDIBLE.

III. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE PROSECUTIONS EVIDENCE WHICH WAS PREVIOUSLY CATEGORIZE[D] AS WEAK WHEN THE COURT A QUO GRANTED BAIL TO THE ACCUSED.[56]

Accused-appellant Reyes cited these errors in his Appellants Brief:

I. THE TRIAL COURT ERRED IN NOT FINDING THE WARRANTLESS ARREST OF ACCUSED-APPELLANT RAYMUNDO REYES AS UNLAWFUL.

II. ASSUMING ARGUENDO THAT THE WARRANTLESS ARREST WAS VALID, ACCUSED-APPELLANT RAYMUNDO REYES CANNOT BE CONVICTED FOR VIOLATION OF R.A. 6425.[57]

Accused-appellants essentially assert that the charge of illegal drug deal lodged against them by the police is a complete fabrication and frame-up. Accusedappellants called attention to the material inconsistencies in the prosecutions evidence. PO3 Santiago testified during direct examination that accusedappellant Rolando delos Reyes handed the plastic bag with box inside to accused-appellant Reyes, but he admitted during cross-examination that he did not see such transfer. The prosecution was unable to present any evidence to prove the source of the plastic bag containing the box with sachets of shabu, and the money paid as consideration for the illegal drugs. The prosecution likewise failed to rebut accused-appellant Rolando delos Reyes straightforward, coherent, and truthful narration, corroborated by Marlon David, that he was illegally arrested at Buenas Market in Cainta, Rizal, and not at Shangri-la Plaza in Mandaluyong City.

Accused-appellants additionally argued that even the prosecutions version of the arrests of the suspects and seizure of the shabu shows that the same were effected in violation of accused-appellants fundamental rights. The arrests were executed without any warrant or any of the exceptional circumstances to justify a warrantless arrest. The suspects, including accused-appellants, were arrested without warrants based on a mere tip from a confidential informant and not because of any apparent criminal activity. A tip does not constitute probable cause for a warrantless arrest or search and seizure incidental thereto. Thus, the shabu allegedly seized from accused-appellants is inadmissible in evidence.

Plaintiff-appellee, on the other hand, stand by the convictions of accused-appellants, maintaining that:

I. THE POSITIVE AND CREDIBLE TESTIMONIES OF THE PROSECUTION WITNESSES HAVE ESTABLISHED THE GUILT OF APPELLANTS BEYOND REASONABLE DOUBT.

II. THE WARRANTLESS ARREST CONDUCTED BY THE POLICE IS VALID SINCE IT FALLS SQUARELY UNDER RULE 113, SECTION 5(A) OF THE REVISED RULES ON CRIMINAL PROCEDURE.

III. THE EVIDENCE PRESENTED BY THE PROSECUTION MORE THAN SUFFICE TO CONVICT APPELLANTS OF THE CRIME CHARGED.

IV.

CONSPIRACY ATTENDED THE COMMISSION OF THE OFFENSE.

V. MERE DENIAL AND HULIDAP, WITHOUT MORE, CANNOT EXCULPATE APPELLANTS FROM CRIMINAL LIABILITY.

VI. THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY UNDER SECTION 3(M) OF RULE 131 OF THE REVISED RULES OF COURT HAD NOT BEEN OVERCOME BY DEFENSE EVIDENCE.

VII. CONCLUSION OF THE TRIAL JUDGE REGARDING THE CREDIBILITY OF WITNESSES COMMANDS GREAT RESPECT AND CONSIDERATION.[58]

Plaintiff-appellee avers that the inconsistencies in the police officers statements, as pointed out by accused-appellants, are trivial and do not affect the weight of their testimonies; while accused-appellants defenses of denial and frame-up could be easily concocted and, thus, should be looked upon with disfavor. Moreover, there is no need for proof of consideration for the illegal drug deal, since consideration is not an element of the crime charged.

Plaintiff-appellee avows that accused-appellants were caught while in the commission of a crime or in flagrante delicto, which justifies their warrantless arrests under Section 5(a), Rule 113 of the Rules of Court. Accused-appellants were arrested while in possession and in the act of distributing, without legal authority, a total of 980.9 grams of methamphetamine hydrochloride or shabu, on the night of February 17, 2000 at the parking area of Shangri-La Plaza in

Mandaluyong City. In addition, in the absence of satisfactory proof to the contrary, the warrantless arrests executed by the police officers enjoy the presumption that official duty has been regularly performed.

We grant the appeal and reverse the assailed decision of the Court of Appeals.

At the outset, we observe that the prosecutors and the RTC both displayed uncertainty as to the facts surrounding accused-appellants arrest on the night of February 17, 2000.

The Office of the City Prosecutor of Mandaluyong City, after preliminary investigation and reinvestigation, recommended that the RTC drop accusedappellant Rolando delos Reyes and Lantion-Tom from the criminal charge. The RTC only partially adopted the recommendations of the Office of the City Prosecutor: dropping the criminal charge against Lantion-Tom, but still finding probable cause against accused-appellant Rolando delos Reyes.[59]

Even after trial, the RTC wavered in its findings and conclusion. In its Decision[60] dated September 23, 2003, the RTC initially convicted accusedappellants and Emmanuel de Claro, but acting on Emmanuel de Claros motions for reconsideration, said trial court, in its Order[61] dated January 12, 2004, totally reversed itself and acquitted Emmanuel de Claro. This time, the RTC gave more weight to the evidence presented by the defense.

The Court of Appeals, on appeal, refused to consider the subsequent acquittal of Emmanuel de Claro by the RTC. Instead, the appellate court upheld the earlier ruling of the RTC giving absolute credence to the testimonies of the prosecution witnesses and convicted accused-appellants of the crime charged. Despite the varying judgments of the RTC, the Court of Appeals speciously ratiocinated in its assailed decision that when the issue involves the credibility of a witness, the trial courts assessment is entitled to great weight.[62]

Guided by the settled rule that where the inculpatory facts admit of several interpretations, one consistent with accused's innocence and another with his guilt, the evidence thus adduced fail[ed] to meet the test of moral certainty,[63] we find that the findings and conclusion of the RTC in its subsequent Order[64] dated January 12, 2004 (in which it acquitted Emmanuel de Claro) is more in keeping with the evidence on record in this case. It bears to stress that the very same evidence were presented against Emmanuel de Claro and accusedappellants; if the evidence is insufficient to convict the former, then it is also insufficient to convict the latter.

Indeed, the testimonies of prosecution witnesses SPO1 Lectura, PO3 Santiago, and PO3 Yumul are unreliable and suspiciously fabricated. In its Order dated January 12, 2004, the RTC correctly observed that:

Viewed vis--vis the peculiar factual milieu of this case, not to say the insistence by the accused-movant [Emmanuel de Claro] that a reevaluation or reassessment of the evidence by the prosecution be considered, this court has decided to revisit the evidence put forward by the prosecution through the crucible of a severe testing by taking a more than casual consideration of every circumstance of the case.

It is noted that the testimony given by the witnesses for the prosecution and that of the defense are diametrically opposed to each other. While this court had already made its conclusion that the testimonies of prosecution witnesses PO3 Santiago, SPO1 Lectura and PO3 Yumul are given full faith and credit and reject the frame-up and alibi story of the accused-movant [Emmanuel de Claro], nonetheless, upon reassessment of the same it appears that the court erred.

In sum, the conveniently dovetailing accounts of the prosecution eyewitnesses, all of them police officers, with regard to the material facts of how the crime was allegedly committed engenders doubt as to their credibility. Firstly, the court noted that these police officers gave identical testimonies of the events that happened from the moment they arrived at 2 oclock in the afternoon until the arrest of the accused at 10:30 oclock in the evening at the EDSA Shangri-

La premises. This uniform account given by these witnesses cannot but generate the suspicion that the material circumstances testified to by them were integral parts of a well thought-out and prefabricated story. Because of the close camaraderie of these witnesses who belong to the same police force it is not difficult for them to make the same story. Furthermore, their testimonies are so general which shows only too clearly that they testified uniformly only as to material facts but have not given the particulars and the details having relation with the principal facts. While they testified that they were at Shangri-La from 2 in the afternoon to 10 in the evening, they were not able to tell the court how their group positioned strategically at the premises without being noticed by their target. They could not also gave (sic) an explanation how their confidential informant was able to obtain information regarding the drug deal that was supposed to take place on that date involving several personalities. Except for their bare allegation that they have that information regarding the drug deal they were not able to present any proof of such report, say, entry in their logbook of such confidential report and a spot report. Even their operation is not recorded as no documentary evidence was presented. Worth remembering in this regard is People v. Alviar, 59 SCRA 136, where it is said that: . . . [i]t often happens with fabricated stories that minute particulars have not been thought of. It has also been said that an honest witness, who has sufficient memory to state one fact, and that fact a material one, cannot be safely relied upon as such weakness of memory not only leaves the case incomplete, but throws doubt upon the accuracy of the statements made. Such a witness may be honest, but his testimony is not reliable.[65] (Emphasis supplied.)

There are also material inconsistencies between the police-witnesses sworn statements following accused-appellants arrest and their testimonies before the RTC. The police officers attested in their Joint Affidavit of Arrest dated February 18, 2000 that upon sensing suspicious transactions being undertaken thereat, team leader thru hand signaled immediately accosted the suspects and introduced themselves as Police Officers and after that, subject persons deliberately admitted that they have in their possession illegal drugs and thereafter showed the same to the herein undersigned arresting officers thus they were placed under arrest.[66] Yet, during trial before the RTC, the police officers uniformly testified that they brought accused-appellants, Emmanuel de Claro and Lantion-Tom to the police office after arresting the

four suspects in flagrante delicto, without mention at all of the suspects purported admission.

We also consider the fact that Lantion-Tom was never charged with any criminal involvement even when, according to the prosecutions version of events, she was the first person to deliver the shabu. This seriously dents the prosecutions sequence of events on the night of February 17, 2000.

In contrast, accused-appellants presented clear and convincing evidence in support of their defenses, which the prosecution failed to rebut. Specifically, accused-appellant Rolando delos Reyes testified that he was illegally arrested without warrant at Buenas Market, Cainta, Rizal, not at Shangri-La Plaza in Mandaluyong City; and that he and Marlon David were coerced to incriminate themselves for possession of shabu. His claims were corroborated by Marlon Davids testimony and Navarros Sinumpaang Salaysay dated March 14, 2000. Also, Emmanuel de Claro, Lantion-Tom, and Roberto de Claro consistently testified that they were at Shangri-La Plaza to meet Milan, Lantion-Toms accountant, regarding documents for a business permit (photocopies of the said documents were presented during trial); and that they were illegally arrested without warrant and forced to admit criminal liability for possession of shabu. These pieces of evidence are overwhelmingly adequate to overthrow the presumption of regularity in the performance by the arresting police officers of their official duties and raise reasonable doubt in accused-appellants favor.

Furthermore, even assuming that the prosecutions version of the events that took place on the night of February 17, 2000 were true, it still failed to establish probable cause to justify the in flagrante delicto arrests of accusedappellants and search of accused-appellants persons, incidental to their arrests, resulting in the seizure of the shabu in accused-appellants possession.

Section 2, Article III of the Constitution provides:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Complementary to the above provision is the exclusionary rule enshrined in Section 3, paragraph 2 of Article III of the Constitution, which solidifies the protection against unreasonable searches and seizures, thus:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Emphases supplied.)

The foregoing constitutional proscription is not without exceptions. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures; and (6) stop and frisk situations.[67]

The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law requires that there be

first a lawful arrest before a search can be made the process cannot be reversed. As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without warrant, arrest a person: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (arrest in flagrante delicto); (b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (arrest of escaped prisoners).[68]

In People v. Molina,[69] we cited several cases involving in flagrante delicto arrests preceding the search and seizure that were held illegal, to wit:

In People v. Chua Ho San, the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria, probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.

As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence

and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin, it was held that "the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension."

Likewise, in People v. Mengote, the Court did not consider "eyes . . . darting from side to side . . . [while] holding . . . [one's] abdomen," in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, "[b]y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in [the arresting officers'] presence." So also, in People v. Encinada, the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs.

Then, too, in Malacat v. Court of Appeals, the trial court concluded that petitioner was attempting to commit a crime as he was "'standing at the corner of Plaza Miranda and Quezon Boulevard' with his eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them."' In declaring the warrantless arrest therein illegal, the Court said:

Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.

It went on to state that

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble . . .

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu.

Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.[70] (Emphases supplied.)

Similar to the above-cited cases in Molina, there is a dearth of evidence in this case to justify the in flagrante delicto arrests of accused-appellants and search of their persons incidental to the arrests.

A close examination of the testimonies of SPO1 Lectura, PO3 Santiago, and PO3 Yumul reveal that they simply relied on the information provided by their confidential informant that an illegal drug deal was to take place on the night of February 17, 2000 at Shangri-la Plaza in Mandaluyong City. Without any other independent information, and by simply seeing the suspects pass from one to another a white plastic bag with a box or carton inside, the police team

was already able to conclude that the box contained shabu and sensed that an illegal drug deal took place.

SPO1 Lectura testified on direct examination as follows:

Q: A:

What was the information gathered by your informant? That there will be a drug deal between 6 to 11 in the evening, sir.

Q: A:

You were there as early as 2:00 p.m.? Yes, sir.

Q:

What did you do after briefing?

A: We positioned ourselves strategically, we waited for the arrival of the subject, sir.

xxxx

Q: When you are already positioned in your respective area at the vicinity of Shangri-La Plaza, what happened next, if any? A: At around 10:00 p.m. two (2) cars arrived and they were identified by the informant that they were the personalities involved.

xxxx

Q:

When this two (2) cars arrive what happened next?

A:

They talked for a while after few minutes Botong entered, sir.

xxxx

Q: A:

Do you know this Botong prior this incident? No, sir.

Q: A:

How did you come to know that he is Botong? Through our informant, sir.

Q:

When Botong went to the Whistle Stop, what happened next?

A: According to my other companion he talked to another person then after that they went out, sir.

xxxx

Q: A:

How long did Botong stay in Whistle Stop Restaurant? One (1) minute, sir.

xxxx

Q: A:

When you say they who is the companion? Cocoy, sir.

xxxx

Q:

What happened next after they went out to the car?

A: They went to another car and Cocoy got something from his car and handed to Botong, sir.

xxxx

Q: A:

Did you see that something that was taken inside that car? White plastic bag, sir.

Q: A:

What happened after that? Cocoy went inside the Whistle Stop, sir.

Q: A:

With the bag? No, it was left with Botong, sir.

Q: A:

What happened next after that? Botong proceeded to his car near Mac-Mac, sir.

Q: A:

What happened next after that? We already sensed that drug deal has transpired, sir. We accosted him.

xxxx

Q:

What did you do?

A:

I arrested Mac-Mac, sir.

xxxx

Q: A:

Who of your companion apprehended Botong or Rolando delos Reyes? Botong was arrested by Yumul and Padpad, sir.

Q: A:

How about De Claro? Arrested by Santiago, sir.

xxxx

Q:

Then what did you do after apprehending these people?

A: We brought them to our office for investigation, sir.[71] (Emphases supplied.)

PO3 Santiagos testimony also did not offer much justification for the warrantless arrest of accused-appellants and search of their persons:

Q: When these two (2) persons went out of the restaurant and went to the place where blue Mazda car was parked, what happened next? A: The person inside the Mazda car, from the backseat, handed a white plastic bag with a box inside to Emmanuel de Claro [Cocoy], sir. Then, Emmanuel de Claro [Cocoy] gave it to Rolando Delos Reyes [Botong], sir.

Q: You mentioned about somebody handling box to De Claro [Cocoy] from inside that Mazda car? A: Yes, sir.

Q: A:

Who was this somebody handling that box? It was Mary Jane Lantion, sir.

xxxx

Q: When you see De Claro [Cocoy] handling the box to Botong, what happened after that? A: Botong proceeded to the place of Mac-Mac and Emmanuel De Claro [Cocoy] returned back inside the said restaurant, sir.

Q: A:

Where was Mac-Mac then at that time? Near their car, sir. He was waiting for Botong.

Q:

After that what happened next?

A: When Botong returned to Mac-Mac, he gave white plastic bag with box inside to Mac-Mac, sir.

Q:

What happened after that?

A: Our team leader, sensing that the drug deal have been consummated, we apprehended them, sir.

Q: How did you come to know that there was a drug deal at that particular place and time?

A:

Because of the information given to us by the informant, sir.

Q: A:

Are you aware of the contents of that box at that time? No, sir.

Q: deal?

How did you come to know that there was a consummation of a drug

A: Because of the information given to us by the informant that there will be a drug-deal, sir.

xxxx

Q: A:

Then what did you do? We brought them to our office for proper investigation, sir.

Q:

At your office, what else did you do?

A: We confiscated the evidence, marked them and a request for laboratory examination was made and other pertaining papers regarding the arrest of the accused.

Q: You mentioned about the confiscated evidence. confiscated evidence that you are saying?

What is that

A: Ten (10) pieces of white plastic transparent plastic bag with white crystalline substance suspected to be methamphetamine hydrochloride, sir.

Q: A:

How were these evidences confiscated by your group? They were confiscated from Mac-Mac, sir.

Q: In what condition were they at that time that they were confiscated from Mac-Mac? A: They were placed inside the box, sir.[72] (Emphases supplied.)

PO3 Yumuls narration of events was not any different from those of SPO1 Lectura and PO3 Santiago:

Q: A:

When did you meet the confidential informant? At the vicinity of EDSA Shangri-La Plaza, sir.

Q: And what was the information that was relayed to you by the confidential informant? A: The identities of the persons, sir.

Q: What did he particularly tells you in that particular time you meet the confidential informant at the vicinity of EDSA Shangri-La Plaza? A: That there will be a drug-deal and the people involved will arrived together with their car, sir.

xxxx

Q: And what happened after the confidential informant relayed to you the information? A: After we were brief by the confidential informant, we strategically positioned ourselves in the place where the drug-deal will occur, sir.

xxxx

Q: So what did you do after positioning yourselves in that place of EDSA Shangri-La Plaza and Whistle Stop restaurant, what happened next after that? A: At around 10:00, one car arrived, a white Toyota corolla . . .

Q: A:

10:00 what? In the morning or in the evening? In the evening, sir, of February 17, 2000, sir.

Q: A:

And you stated that two vehicles arrived? Yes, sir.

xxxx

Q: A:

So what happened when this vehicle arrived? The red Toyota corolla follows, sir.

xxxx

Q: A:

Then what happened? What did you do, if any? Our confidential informant told us that, that is our subject, sir.

xxxx

Q: A:

What happened next, if any, were they alighted from the car? Yes, sir.

xxxx

Q: A:

Then, what happened next, if any? They talked after they alighted from their car, sir.

Q: A:

When you say nag-usap sila to whom are you referring? To Mac-Mac and Botong, sir.

xxxx

Q: A:

What happened next after you see them talking to each other? When they talk Mac-Mac called through cellphone, sir.

Q: A:

By the way, did you hear the conversation of this two? No, sir.

xxxx

Q: How about the one calling over the cellphone, did you hear also what was the subject of their conversation? A: No, sir.

Q: So what happened next after seeing them having a conversation with each other? A: Botong immediately walked and proceeding to the Whistle Stop, sir.

xxxx

Q: A:

Then what happened when Botong went to Whistle Stop? He talked to somebody inside, sir.

xxxx

Q: A:

And did you hear what was the subject of their conversation? No, sir.

Q: Then what happened next when Botong talked to somebody inside the Whistle Stop? A: The companion stood up and they went outside and both of them went to the side of Whistle Stop in front of the blue car, sir.

xxxx

Q: A:

What did you do then? Somebody opened the window in back of the blue car, sir.

Q: A:

And then what happened next, if any? A white plastic bag was handed to him with carton inside, sir.

xxxx

Q: A:

And who received that item or article from the car? Cocoy, sir.

xxxx

Q: Were you able to know the person inside that car and who handed to Cocoy the white plastic bag? A: Yes, sir.

Q: A:

Who was that person? Mary Jane Lantion, sir.

xxxx

Q: And when this white plastic bag with carton placed inside handed to Cocoy, what did you do? A: It was first handed by Cocoy to Botong, the plastic bag and then they walked in different direction, Cocoy went back inside the Whistle Stop and then Botong went back to Mac-Mac, sir.

xxxx

Q:

And then what happened next after that?

A:

I followed Cocoy inside the Whistle Stop, sir.

xxxx

Q:

So what did you do then?

A: I observed him inside but after a few minutes PO3 Virgilio Santiago went inside and told me that we will going to get them, sir.

Q:

Why are you going to get them?

A: Because the two were already arrested outside the Whistle Stop, MacMac and Botong, sir.

xxxx

Q:

So what did you do when PO3 Santiago told you that?

A: PO3 Santiago approached Cocoy and I am just assisting him, PO3 Santiago to avoid commotion, sir.

Q: A:

Then what did you do next after that? We were able to get Cocoy and we went outside, sir.

Q:

And then what did you do, if any?

A: After arresting them we boarded to the car and we went to the office, sir.[73] (Emphases supplied.)

Evident from the foregoing excerpts that the police officers arrested accusedappellants and searched the latters persons without a warrant after seeing Rolando delos Reyes and Emmanuel de Claro momentarily conversing in the restaurant, and witnessing the white plastic bag with a box or carton inside being passed from Lantion-Tom to Emmanuel de Claro, to accused-appellant Rolando delos Reyes, and finally, to accused-appellant Reyes. These circumstances, however, hardly constitute overt acts indicative of a felonious enterprise. SPO1 Lectura, PO3 Santiago, and PO3 Yumul had no prior knowledge of the suspects identities, and they completely relied on their confidential informant to actually identify the suspects. None of the police officers actually saw what was inside that box. There is also no evidence that the confidential informant himself knew that the box contained shabu. No effort at all was taken to confirm that the arrested suspects actually knew that the box or carton inside the white plastic bag, seized from their possession, contained shabu. The police officers were unable to establish a cogent fact or circumstance that would have reasonably invited their attention, as officers of the law, to suspect that accused-appellants, Emmanuel de Claro, and LantionTom has just committed, is actually committing, or is attempting to commit a crime, particularly, an illegal drug deal.

Finally, from their own account of the events, the police officers had compromised the integrity of the shabu purportedly seized from accusedappellants.

In People v. Sy Chua,[74] we questioned whether the shabu seized from the accused was the same one presented at the trial because of the failure of the police to mark the drugs at the place where it was taken, to wit:

Furthermore, we entertain doubts whether the items allegedly seized from accused-appellant were the very same items presented at the trial of this case. The record shows that the initial field test where the items seized were identified as shabu, was only conducted at the PNP headquarters of Angeles City. The items were therefore not marked at the place where they were taken. In People v. Casimiro, we struck down with disbelief the reliability of the identity of the confiscated items since they were not marked at the place where they were seized, thus:

The narcotics field test, which initially identified the seized item as marijuana, was likewise not conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item allegedly seized from accused-appellant is the same brick of marijuana marked by the policemen in their headquarters and given by them to the crime laboratory.[75] (Emphases supplied.)

In the instant case, SPO1 Lectura, PO3 Santiago, and PO3 Yumul uniformly testified before the RTC that they brought the arrested suspects to the police office for investigation. SPO1 Lectura and PO3 Santiago were vague as to how they ascertained as shabu the contents of the box inside the white plastic bag, immediately after seizing the same from accused-appellant Reyes and before proceeding to the police office; while PO3 Yumul explicitly testified on crossexamination[76] that he saw the shabu for the first time at the police office. At any rate, all three police officers recounted that the shabu was marked by SPO1 Benjamin David only at the police office.

Without valid justification for the in flagrante delicto arrests of accusedappellants, the search of accused-appellants persons incidental to said arrests, and the eventual seizure of the shabu from accused-appellants possession, are also considered unlawful and, thus, the seized shabu is excluded in evidence as fruit of a poisonous tree. Without the corpus delicti for the crime charged, then the acquittal of accused-appellants is inevitable.

As we aptly held in People v. Sy Chua[77]:

All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much more cure, the illegality of the arrest and consequent warrantless search of accused-appellant. Neither can the presumption of regularity of performance of function be invoked by an officer in aid of the

process when he undertakes to justify an encroachment of rights secured by the Constitution. In People v. Nubla, we clearly stated that:

The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because, first, the presumption is precisely just that a mere presumption. Once challenged by evidence, as in this case, . . . [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.

xxxx

The government's drive against illegal drugs needs the support of every citizen. But it should not undermine the fundamental rights of every citizen as enshrined in the Constitution. The constitutional guarantee against warrantless arrests and unreasonable searches and seizures cannot be so carelessly disregarded as overzealous police officers are sometimes wont to do. Fealty to the constitution and the rights it guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply because they have blundered. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.[78]

WHEREFORE, the Decision dated July 12, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01733 is hereby REVERSED and SET ASIDE. Accused-appellants Rolando delos Reyes and Raymundo Reyes are ACQUITTED on the ground of reasonable doubt and they are ORDERED forthwith released from custody, unless they are being lawfully held for another crime. SO ORDERED.

People V Fermin DECISION

PEREZ, J.:

For our review is the Decision[1] of the Special Fifteenth Division of the Court of Appeals in CA-G.R. CR-HC No. 01852 dated 31 May 2007, convicting the herein accused-appellants Edgardo Fermin y Gregorio and Job Madayag, Jr. y Balderas guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act No. 9165. The dispositive portion of the assailed decision reads:

WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 103 in Criminal Case No. Q-03-119028, finding accused-appellants Edgardo Fermin y Gregorio and Job Madayag, Jr. y Balderas guilty beyond reasonable doubt of violation of Article 5 [Section 5], Article II of R.A. 9165, and sentencing them to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of FIVE HUNDRED THOUSAND PESOS (PhP 500, 000) each is AFFIRMED in toto.

The facts as presented by the prosecution follow:

At around 9 a.m. of 9 July 2003, a police informant went to La Loma Police Station in Quezon City and reported that two (2) male persons are engaged in illegal sale of drugs at No. 93 Iba St., Brgy. San Isidro, Quezon City. The two were eventually identified as the herein accused Job B. Madayag, Jr. (Madayag, Jr.) alias Rolan and Edgardo G. Fermin (Fermin) alias Jon-Jon. Acting upon the report, Station Chief Police Senior Inspector Oliver M. Villanueva (Senior Inspector Villanueva) created a team to conduct a buy-bust operation. The team was composed of the police members of the station namely, PO1 Roderick Valencia (PO1 Valencia), PO1 Albert Mabutol (PO1 Mabutol), PO2 Ronald Pascua (PO2 Pascua), PO2 Edsel Ibasco (PO2 Ibasco) and one identified only as PO De Guzman. In their briefing, Senior Inspector Villanueva gave

each member of the team their respective assignments; PO2 Ibasco will act as the poseur-buyer with the rest of the team completing the cast. Senior Inspector Villanueva gave PO2 Ibasco one (1) One Hundred Peso Bill for use as marked money. PO2 Ibasco, in turn, put his initial EI on the bill.[2]

At around 11 a.m. of the same day, the buy-bust team, together with Senior Inspector Villanueva and the confidential informant, went to the target area of operation at No. 93 Iba St., Brgy. San Isidro in Quezon City on board a Tamaraw FX. PO2 Ibasco and the confidential informant proceeded to the area where they saw the subject, Madayag, Jr., in front of the house. The rest of the team positioned themselves, more or less ten to fifteen meters away from the location of PO2 Ibasco, the informant and Madayag, Jr. The informant then introduced PO2 Ibasco to Madayag, Jr. as a drug-dependent who wanted to buy drugs. When Madayag, Jr. asked for payment, PO2 Ibasco paid in the onehundred-peso marked money. Madayag, Jr. then called another person from inside the house. The man, later identified as the co-accused Fermin, came out and gave three (3) plastic sachets to Madayag, Jr. Madayag, Jr. turned again to PO2 Ibasco and showed him the three (3) plastic sachets at his palm and told the poseur-buyer, Dahil kasama ka na namin, mamili ka dito sa tatlo para makasigurado kang di ka talo, sisiguraduhin kong babalik ka.[3] PO2 Ibasco then took one plastic sachet from Madayag Jr.s palm and examined its content. Being convinced that the content was positive for shabu, PO2 Ibasco made the pre-arranged signal of scratching his head in order to alert the other members of the buy-bust team. The members then immediately rushed to the location and introduced themselves as police officers.

PO2 Ibasco testified in his Direct Examination[4] that PO2 Pascua got hold of Fermin while PO1 Valencia got hold of Madayag, Jr. He added that PO2 Pascua was able to recover the buy-bust money and plastic sachet from Fermin while PO1 Valencia recovered a bente nueve knife from Madayag, Jr. PO2 Ibasco added that the plastic sachet which was the subject of illegal sale remained in his possession which he marked EI-JM, while the rest were in the custody of PO2 Pascua. The buy-bust team returned to the police station with the two (2) accused and all the [pieces of] of evidence were turned over to the desk officer, and the desk officer turned them over to the police investigator.[5]

PO2 Pascua affirmed in open court that he arrested and bodily frisked Fermin and was able to recover one plastic sachet and one (1) .38 Paltik Revolver.[6] However, he contradicted the previous statement of PO2 Ibasco that PO1 Valencia was the one who got hold of Madayag, Jr. He testified that it was PO2 Ibasco who arrested Madayag, Jr. and recovered from the latter the buy-bust money.[7] He contradicted himself when, on the earlier part of his testimony he said that all the pieces of evidence including the plastic sachet which was the subject of sale were in his possession until they were turned over to the investigator,[8] he later testified that PO2 Ibasco recovered one plastic sachet from Madayag, Jr.[9]

Nonetheless, the two police officers were one in testifying that a Joint Affidavit about the conducted operation was executed by them at the police station.[10]

PO2 Ibasco identified the one (1) hundred peso bill with serial number ZT427430 bearing his initial EI as the marked money used in the buy-bust operation.[11] PO2 Pascua, on the other hand, admitted that he put his initial RP-EF in all the plastic sachets he recovered[12] and in the .38 paltik revolver.[13]

The confiscated sachets of shabu were turned over to the Police Crime Laboratory at Central Police District in Quezon City for examination.[14] Police Forensic Chemist Officer Bernardino Banac, Jr. executed Chemistry Report No. D-605-03 finding the submitted specimen positive for methylamphetamine hydrochloride, a dangerous drug.[15]

The factual version presented by the defense is:

Madayag, Jr. testified that before 12 noon of 9 July 2003, while he was buying some cigarettes from a nearby store, he noticed that around eight (8) armed male persons wearing civilian clothes, who turned out to be police officers, were in front of his house located at No. 93 Iba St., Brgy. San Isidro, Quezon City. He approached them to ask what they were looking for. However, instead of

answering, two of the police officers, one identified as PO1 Valencia, drew their firearms and poked them at Madayag, Jr.s head.[16] One of them then pulled the accused inside the house. He was then made to lie down on the cement floor of the veranda. The police officers entered the house and when they came out after around ten minutes, the other accused Fermin, who was then sleeping inside one of the bedrooms of the same house, and his mother were brought to the veranda.[17] Fermin was also forced to lie down by the police officers.[18] PO1 Valencia recovered a cigarette lighter from Madayag, Jr., which the police described as, eto ang gamit mo sa shabu.[19] The police then took the two accused and Fermins mother to the police station where they were detained.[20]

Fermin, the other accused, said his mother was later released because she paid the police officers the amount of P11,000.00.[21] He added that they remained in detention because they could not produce the additional demanded amount of P14,000.00.[22]

Fermin corroborated the testimony of Madayag, Jr. in court. He said that at around 11:00 a.m. of 9 July 2003, while he was sleeping, together with his nieces, at one of the rooms of the house at No. 93 Iba St., Brgy. San Isidro, Quezon City, police officers entered the room and grabbed him on his nape and arrested his mother.[23] Then they were brought to the veranda of the house where he saw Madayag, Jr. lying facedown on the floor.[24] He was ordered to lie down by Valencia. He denied that a gun was taken from him or that he was called by Madayag, Jr.[25] He further denied having given three (3) plastic sachets to Madayag, Jr. or that he was frisked by the police for plastic sachets and money.[26]

Eventually, an Information was filed against Fermin alias Jon-Jon and Madayag, Jr. alias Rolan dated 14 July 2003 which reads:

That on or about 9th day of July 2003, in Quezon city, Philippines, the said accused, conspiring together, confederating with and mutually helping one another, not being authorized by law to sell, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense,

deliver, transport, distribute or act as a broker in the said transaction, zero point eleven (0.11) gram of white crystalline substance containing Methylamphetamine Hydrochloride, a dangerous drug.[27]

Upon arraignment, both the accused entered a plea of not guilty. On 19 December 2005, the trial court found both the accused guilty of the crime charged. The dispositive portion reads:

WHEREFORE, in view of the foregoing, the court hereby finds accused Job Madayag, Jr. y Balderas and accused Edgardo Fermin y Gregorio GUILTY as conspirator of the crime of drug pushing and each is hereby sentenced to suffer Life Imprisonment and to pay a fine of P500,000 each.

Upon appeal before the Court of Appeals, the accused in its Appellees Brief assigned the following errors:[28]

1. THE TRIAL COURT COMMITTED SERIOUS AND REVERSIBLE ERROR IN FINDING THAT A BUY-BUST OPERATION WAS CONDUCTED AGAINST APPELLANT AT ABOUT 11:30 OCLOCK IN THE MORNING OF JULY 9, 2003 IN FRONT OF HOUSE NO. 93 IBA ST., BRGY. SAN ISIDRO LABRADOR, QUEZON CITY.

2. THE TRIAL COURT COMMITTED SERIOUS AND REVERSIBLE ERROR IN FINDING APPELLANTS GUILTY AS CONSPIRATORS OF THE CRIME OF DRUG PUSHING AND SENTENCING EACH TO SUFFER LIFE IMPRISONMENT AND TO PAY A FINE OF 500,000.00 EACH.

3. THE TRIAL COURT COMMITTED SERIOUS AND REVERSIBLE ERROR IN FAILING TO ACQUIT APPELLANTS OF THE CHARGE ALLEGED IN THE INFORMATION.

In its Decision, the Court of Appeals agreed with the judgment of the trial court that the two accused were guilty beyond reasonable doubt of the offense charged against him.[29]

The appellate court found that the testimonies of PO2 Ibasco and PO2 Pascua were straightforward and candid as against the claim of alibi or frame-up and extortion of the two accused. Further, the appellate court found no motive on the part of the police officers to frame up both of the accused. Finally, it ruled against the alleged lack of verisimilitude of the prosecutions version because the improbabilities, inconsistencies contradictions and self-contradictions did not pertain to the actual buy-bust itself but only to peripheral matters.

The Courts Ruling

The defenses main argument is whether or not there was really a buy-bust operation on 9 July 2003. While we are not in total agreement with all the submissions of the defense, this Court is reversing the ruling of the lower courts and now acquits the two accused of the crime charged.

In a prosecution for illegal sale of dangerous drugs, the following elements must be proven: (1) that the transaction or sale took place; (2) that the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and seller were identified.[30] The presence of these elements is sufficient to support the trial courts finding of appellants guilt.[31] What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug. The delivery of the contraband to the poseur-buyer and the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the

accused.[32] The presentation in court of the corpus delicti the body or substance of the crime establishes the fact that a crime has actually been committed.[33]

We have repeatedly held that the trial courts evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal. However, this is not a hard and fast rule. We have reviewed such factual findings when there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the case.[34]

Cognate to this, while the entrenched rule is that the assessment of witnesses and their testimonies is a matter best undertaken by the trial court which had the opportunity to observe the demeanor, conduct or attitude of the witnesses, the findings of the lower court on this point will be reversed on appeal, if it overlooked substantial facts and circumstances which, if considered, would materially affect the result of the case.[35]

This Court believes that on application of the rule to the testimonies of the prosecution witnesses, the exception to the high value of the trial courts findings surfaces. We find irreconcilable conflicts in the recollections about the principal factum probandum which is the buy-bust itself. The varying versions about the pre-operation, the illegal sale itself and the immediately preceding actions put doubts about what really transpired on 9 July 2003.

PO2 Ibasco, in his testimony of 15 June 2004, stated that after the transaction, PO2 Pascua arrested Fermin and recovered the buy-bust money and the two plastic sachets; while PO1 Valencia was the one who arrested Madayag, Jr. and recovered from him a bente nueve knife.

Fiscal Araula: After giving the pre-arranged signal, what happened?

Ibasco: My companions rushed towards us and approached us sir.

Q: Now you said your companions approached the both accused at that time?

A: Yes sir.

Q: Who approached Fermin?

A: It was Ronald Pascua sir.

Q: How about Job Madayag? A: It was Valencia sir.

Q: After your companion Pascua and Valencia arrested them, what happened next?

A: After the arrest, Pascua was able to get the buy-bust money and the plastic sachet sir.

Q: From whom?

A: Fermin sir.

Q: How about from Madayag, was there anything recovered from him?

A: Knife bente nueve sir.

Q: How about the plastic sachet that you able to buy from him, where was it?

A: At that time I was holding it sir.

Q: You said Pascua arrested Fermin, he was able to recover the buy-bust money and plastic sachets and from Madayag, Valencia recovered the bente nueve?

A: Yes sir.

Q: What bente nueve?

A: Balisong sir.[36]

However, PO2 Pascua in his 19 April 2004 testimony stated that it was PO2 Ibasco who arrested Madayag, Jr. and recovered the buy-bust money while he, on the other hand, arrested Fermin and recovered the .38 paltik revolver and two plastic sachets.

Fiscal Araula: When Ibasco made the pre-arranged signal what happened Mr. Witness?

Pascua: When we saw Ibasco made the pre-arranged signal we rushed towards him.

Q: Were you able to approach them at that time?

A: Yes, sir. Q: What happened when you rushed to the transaction?

A: We introduced ourselves as police officer and I got hold of Fermin, sir.

Q: How about Madayag, where was he when you got hold of Fermin?

A: Ibasco got hold of him, sir.

Q: When you got hold of accused Fermin, what happened?

A: After it bodily frisked.

Q: You frisked Fermin at that time?

A: Yes, sir.

Q: What was the result?

A: We recovered one plastic sachet.

Q: From whom?

A: Fermin and one (1) .38 paltik Revolver, sir.

Q: How about Madayag, where was he when you frisked Fermin and got hold the two plastic sachets and got one (1) .38 paltik?

A: I saw that the buy-bust money was recovered.

Q: Who recovered that buy-bust money?

A: Ibasco, sir.

Q: After you frisked Fermin and got two plastic sachets and paltik revolver and Police Officer Ibasco recovered the buy-bust money which was held in possession of Madayag, what happened after that?

A: We proceeded to the vehicle.[37]

There is another material contradiction. The testimony of PO2 Ibasco dated 7 December 2004 corroborated by PO2 Pascua in his 5 October 2004 testimony was that coordination was made with the Philippine Drug Enforcement Agency (PDEA). However, as per Certification of PDEA dated 26 July 2003,[38] none was made. This was affirmed by Police Inspector Avelino Ecaldre[39] when he testified that no coordination was made by the La Loma Police Station with the PDEA.[40] This was viewed by the trial court as an administrative matter and not an element of a valid entrapment. Nonetheless, the difference in the prosecution testimonies is evident. And, evident too is the attempt to project regularity in the buy-bust operation by the disputed testimony on coordination. These are what matter.

Finally, PO2 Ibasco testified that the sachet which is the subject of the illegal sale remained in his possession and was subsequently marked as EI-JM.[41] However, PO2 Pascua, contradicted this statement when he testified on 19 April 2004 that the sachet was in his possession. This contradiction will be underscored in the discussion on the chain of custody of the corpus delicti.

The clear inconsistencies on important points cannot be disregarded where the issue is ones liberty. The contradictory statements of the main prosecution witnesses need not even be appreciated together with the defense position. The proof of the supposed buy-bust operation rests exclusively on the prosecution.[42] We now examine the chain of custody of the corpus delicti of this case. Section 21, paragraph 1, Article II of Republic Act No. 9165 provides for the custody and disposition of the confiscated illegal drugs, to wit:

(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;

Further, the Implementing Rules and Regulations of Republic Act No. 9165, provides:

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:

(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 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 x x x.

Strict compliance with the prescribed procedures is required because of the unique characteristic of illegal drugs, rendering them indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Hence, we have the rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court.[43]

While Section 21(a) of the Implementing Rules and Regulations of Republic Act No. 9165 excuses non-compliance with the afore-quoted procedure, the same holds true only for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. Here, the failure of the buy-bust team to comply with the procedural requirements cannot be excused since there was a break in the chain of custody of the substance taken from appellant. It should be pointed out that the identity of the seized substance is established by showing its chain of custody.[44]

The following are the links that must be established in the chain of custody in a buy-bust situation: first, 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.[45]

As provided by the implementing rules and jurisprudence, strict compliance of the requisites under Section 21 of Republic Act No. 9165 can be disregarded as long as the evidentiary value and integrity of the illegal drug are properly preserved; and its preservation can be well established if the chain of custody of illegal drug was unbroken. The break is clear in this case.

It must be noted that the police officer who had the initial custody and control of the illegal drug was not clearly identified. In the preceding discussion on the inconsistency in the statements of PO2 Ibasco and PO2 Pascua, it was pointed out that PO2 Ibasco admitted that he was in possession of the confiscated drug, but this was contradicted by PO2 Pascua who testified that he was the one who was in possession of the illegal drug which was the subject of sale when it was brought to the police station.

Fiscal Araula: After both accused were arrested and recovered buy-bust money and two plastic sachet[s], in which you recovered from the accused, what happened next?

PO2 Ibasco: We turned over all the evidence to the desk officer and the desk officer turned it to the police investigator for proper investigation sir.

xxxx

Fiscal Araula: All the recovered evidence that we recovered from the accused, can you tell to this Honorable Court what are these?

PO2 Ibasco: The plastic sachet that I bought, paltik, two sachets, one bente nueve and the buy-bust money sir.

Fiscal Araula: Who was in possession of the evidence when your group went to the police station?

PO2 Ibasco: I was the one holding the plastic sachet what I was able to buy, my companion was holding on the items that they recovered, sir.[46]

In his direct examination, PO2 Pascua testified differently:

Fiscal Araula: Now, who was in possession of that two plastic sachets and the paltik revolver taken from Fermin at that time when you proceeded to La Loma Police Station?

PO2 Pascua: I was in possession of that, together with the paltik, sir.

Fiscal Araula: How about the P100.00 bill and the plastic sachet which was the subject of sell [sale], who was in possession?

PO2 Pascua: All of them were in my possession, sir.[47]

Additionally, no photograph was taken of the substance immediately after its supposed seizure.

Atty. Madayag: When the alleged shabu was confiscated, was there any photographs taken?

PO2 Pascua: No sir.

Atty. Madayag: That is in violation of Section 21 of [R.A. No.] 9165. So there was no inventory and photographs?

PO2 Pascua: There was an inventory.

Atty. Madayag: On the night of the incident?

PO2 Pascua: All the evidences were turned over to Villanueva.

xxxx

Atty. Madayag: Where was the inventory made?

PO2 Pascua: At the office.

Atty. Madayag: At the office there was no photographing?

PO2 Pascua: None, sir.[48]

The fundamentals of a criminal prosecution were, indeed, disregarded. In considering a criminal case, it is critical to start with the laws own starting perspective on the status of the accused in all criminal prosecutions, he is presumed innocent of the charged laid unless the contrary is proven beyond reasonable doubt.[49] The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. To repeat, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In which case, the presumption prevails and the accused should necessarily be acquitted.[50]

The prosecution failed to prove beyond reasonable doubt the guilt of the two accused. The rule that high respect must be accorded the lower courts in their findings of facts cannot be misused to diminish the required evidence to overcome the presumption of innocence of the accused as guaranteed by the Constitution.

WHEREFORE, the appeal is GRANTED. The 31 May 2007 Decision of the Court of Appeals in CA-G.R. CR-HC No. 01852 in affirming the judgment of conviction dated 19 December 2005 of the Regional Trial Court, Branch 103 of Quezon City in Criminal Case No. Q-03-119028 is hereby REVERSED and SET ASIDE. Accused-appellant Edgardo Fermin y Gregorio and Job Madayag, Jr. y Balderas are hereby ACQUITTED and ordered immediately released from detention unless their continued confinement is warranted from some other cause or ground. SO ORDERED People V Garry De la Cruz DECISION

VELASCO, JR., J.:

The Case

This is an appeal from the Decision[1] dated June 30, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02727, which affirmed in toto the February 8, 2007 Decision[2] in Criminal Case No. Q-03-117814 of the Regional Trial Court (RTC), Branch 82 in Quezon City. The RTC found accused Garry de la Cruz y dela Cruz (Garry) guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

In an Information[3] filed on June 3, 2003, accused was indicted for the crime allegedly committed as follows:

That on or about the 29th of May, 2003, in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero two (0.02) gram of methylamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.

Upon arraignment on July 28, 2003, accused pleaded not guilty to the above charge.[4] Trial[5] on the merits ensued.

Version of the Prosecution

After conducting surveillance for a week, the Station Drug Enforcement Unit in La Loma, Quezon City planned a buy-bust operation against a certain Garry who was in the Barangay Watch List. The operation was coordinated with the Philippine Drug Enforcement Agency (PDEA).

On May 29, 2003, at around 9:00 a.m., the stations Officer-in-Charge (OIC), Police Inspector Oliver Villanueva (P/Insp. Villanueva), gave a briefing on the buy-bust operation. Police Officer 2 Edcel Ibasco (PO2 Ibasco) was designated as poseur-buyer, while PO1 Roderick Valencia (PO1 Valencia), PO1 Alfredo Mabutol, and PO2 Ronald Pascual were assigned as back-up operatives. Their informant attended the briefing.

Thereafter, the buy-bust team proceeded to Biak-na-Bato corner Mauban Streets, Quezon City and arrived there at around 9:30 a.m. The informant introduced PO2 Ibasco to the accused, who was standing in front of a shanty, as wanting to buy shabu. The accused asked for PhP 100, and when PO2 Ibasco paid the amount, the former handed over to him a white crystalline substance in a plastic sachet. Upon PO2 Ibascos prearranged signal, the other members of the buy-bust team approached them. The accused, sensing what was happening, ran towards the shanty but was caught by PO1 Valencia at the alley. PO1 Valencia introduced himself as a police officer and frisked the accused, in the process recovering the buy-bust money.

The buy-bust team then brought the accused to the station. The accused was turned over to the desk officer on duty, along with the substance in the sachet bought from him and the recovered buy-bust money. After inquest, the Information was filed on June 3, 2003. Accused was then committed to the Quezon City Jail.[6]

Consequently, the substance inside the sachet believed to be shabu was sent to and examined by a Philippine National Police forensic chemist, Engr. Leonard Jabonillo (Engr. Jabonillo). The laboratory result confirmed that the substance was positive for methylamphetamine hydrochloride or shabu.

Only PO2 Ibasco and PO1 Valencia testified for the prosecution during the trial. The testimony of Engr. Jabonillo was dispensed with upon stipulation by the defense.

Version of the Defense

The accused denied selling shabu to PO2 Ibasco. In short, the accused used the defense of denial and alleged a frame-up by the arresting officers.

The accused testified that he was arrested on May 29, 2003 at around 9:00 a.m. inside his house at Barangay Manresa, Quezon City while he was alone drinking coffee. While two neighbors were talking in front of his house, a Tamaraw FX arrived. Five armed men alighted from it, whereupon his neighbors ran away and were chased by them. The armed men then returned, saying, Nakatakas, nakatakbo. (They had escaped and ran.) One of the armed men saw the accused and entered his house. It was PO2 Ibasco, who frisked him and got PhP 60 from his pocket. PO1 Valencia also entered his house and came out with a shoe box, then said, Sige, isakay nyo na. (Take him in the car.) He asked the armed men what his violation was but was told to merely explain at the precinct.

In the police precinct, he was investigated and subsequently detained. They showed him a plastic sachet which they allegedly recovered from him. Then a man approached him and demanded PhP 30,000 for his release, but he said he did not have the money. Thereafter, he was presented for inquest.

A witness, Rodolfo Buencamino (Buencamino), narrated that in the morning of May 29, 2003, he called the police precinct to have a certain Taba, an alleged drug pusher in their area, arrested. PO2 Ibasco and other police officers responded immediately. When the police officers arrived, Buencamino pointed to Taba, who, however, was able to evade arrest. Thereafter, he was surprised to see the accused inside the vehicle of the policemen. But he did not know why and where the accused was arrested since he did not witness the actual arrest.

Another witness, Marbelita Collado Lepiten (Lepiten), testified that she was at the terrace of her house on 135 Manba St., Manresa, San Francisco del Monte, Quezon City, when she noticed the accused talking to a certain Taba, a resident of the area. When a maroon Tamaraw FX stopped in front of the house of accused, Taba ran away and was pursued by two men who alighted from the vehicle. The two men returned without Taba, who evidently escaped, and entered the house of the accused. She did not know what happened inside the house but she eventually saw the men push the accused outside into their vehicle.

The Ruling of the RTC

On February 8, 2007, the RTC rendered its Decision finding the accused guilty beyond reasonable doubt of the offense charged. The dispositive portion reads:

WHEREFORE, judgment is hereby rendered finding accused GARRY DELA CRUZ guilty beyond reasonable doubt of a violation of Section 5, Article II of R.A. No. 9165, and hereby sentencing him to suffer the penalty of LIFE IMPRISONMENT and to pay a fine in the amount of FIVE HUNDRED THOUSAND (P500,000.00) PESOS.

SO ORDERED.

In convicting the accused, the RTC relied on and gave credence to the testimony of prosecution witnesses PO2 Ibasco and PO1 Valencia. Citing People v. Jubail,[7] which enumerated the elements required to be established by the prosecution for the illegal sale of prohibited drugs, the trial court found that the prosecution had established the elements of the crime.

The RTC pointed out that Buencamino may, indeed, have called the police to arrest a certain Taba, an alleged pusher in the area, but he was not present when the accused was arrested. The trial court likewise did not accord evidentiary weight to the testimony of Lepiten, who testified that she saw the accused talking to Taba and that when the police officers entered the house of the accused, she was unaware of what transpired inside. Thus, the RTC concluded that her testimony did not provide clear and convincing justification to cast doubt on the candid and straightforward testimonies of the police officers.

Applying the presumption of the performance of official function, the lack of showing any ill motive on the part of the police officers to testify against the accused, and the principle that the bare denial of an accused is inherently weak, the RTC convicted the accused.

Consequently, with his conviction, the accused started to serve his sentence[8] and was subsequently committed to the New Bilibid Prison in Muntinlupa City.

Aggrieved, accused appealed[9] his conviction before the CA.

The Ruling of the CA

On June 30, 2008, the appellate court rendered the appealed decision, wholly affirming the findings of the RTC and the conviction of appellant. The fallo reads:

WHEREFORE, premises considered, herein appeal is hereby DENIED and the assailed Decision supra is hereby AFFIRMED in toto.

SO ORDERED.

The CA upheld the findings of the trial court that the essential elements required for the conviction of an accused for violation of Sec. 5, Art. II of RA 9165 were present in the instant case. The appellate court brushed aside the irregularities raised by accused-appellant by putting premium credence on the testimonies of the arresting police officers, who positively identified accusedappellant in open court. One with the trial court, the CA found no improper motive on the part of the police officers who, it said, were regularly performing their official duties. Besides, relying on People v. Barlaan,[10] the CA held that the irregularities raised that there was no coordination with the PDEA and that no inventory was made and no photograph taken of the seized drug, if true, did not invalidate the legitimate buy-bust operation conducted. Moreover, the CA found that the corpus delicti, i.e., the confiscated shabu and the PhP 100 bill, were presented as evidence of the commission of the offense.

The CA also ruled that accused-appellants mere denial, as corroborated by Buencamino and Lepiten, deserved scant consideration vis--vis the positive identification by the arresting officers who arrested him in flagrante delicto. Anent the questioned chain of custody, the CA found it unbroken and duly proven by the prosecution.

The Issues

Hence, We have this appeal.

Only accused-appellant, however, filed his Manifestation (In Lieu of Supplemental Brief),[11] while the Office of the Solicitor General (OSG), representing the People of the Philippines, submitted neither a Manifestation nor a Motion. Consequently, on July 27, 2009, the Court dispensed with the OSGs submission of a supplemental brief.[12] Since no new issues are raised nor supervening events transpired, We scrutinize the Brief for the AccusedAppellant[13] and the Brief for the Plaintiff-Appellee,[14] filed in CA-G.R. CRH.C. No. 02727, in resolving the instant appeal.

Thus, accused-appellant raises the same assignment of errors, in that:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF VIOLATION OF SECTION 5, ARTICLE II, REPUBLIC ACT NO. 9165.

II

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF DENIAL.[15]

The Courts Ruling

The appeal is meritorious.

Accused-appellant argues that, first, the prosecution has not proved his commission of the crime charged for the following irregularities: (1) the arresting officers did not coordinate with the PDEA, as required under Sec. 86 of RA 9165; (2) no physical inventory was conducted and photograph taken of the alleged seized drug in the presence of public officials, as required by Sec. 21 of RA 9165; and (3) the chain of custody was not duly proved by the prosecution. And second, his denial is worthy of credence upon corroboration by the credible witnesses presented by the defense.

After a careful and thorough review of the records, We are convinced that accused-appellant should be acquitted, for the prosecution has not proved beyond reasonable doubt his commission of violation of Sec. 5, Art. II of RA 9165.

A buy-bust operation is a form of entrapment, in which the violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime.[16] However, where there really was no buy-bust operation conducted, it cannot be denied that the elements for illegal sale of prohibited drugs cannot be duly proved despite the presumption of regularity in the performance of official duty and the seeming straightforward testimony in court by the arresting police officers. After all, the indictment for illegal sale of prohibited drugs will not have a leg to stand on.

This is the situation in the instant case.

The courts a quo uniformly based their findings and affirmance of accusedappellants guilt on: (1) the straightforward testimony of the arresting police officers; (2) their positive identification of accused-appellant; (3) no ill motive was shown for their testimony against accused-appellant; (4) the self-serving defense of denial by accused-appellant; (5) the seeming irregularities in the conduct of the buy-bust operation and the arrest of accused-appellant not invalidating the operation; and (6) the testimonies of Buencamino and Lepiten not showing that the buy-bust operation was not conducted.

Although the trial courts findings of fact are entitled to great weight and will not be disturbed on appeal, this rule does not apply where facts of weight and substance have been overlooked, misapprehended, or misapplied in a case under appeal,[17] as here.

For the prosecution of illegal sale of drugs to prosper, the following elements must be proved: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and its payment. What is material is the proof that the transaction actually took place, coupled with the presentation before the court of the corpus delicti.[18]

In People v. Doria,[19] the Court laid down the objective test in determining the credibility of prosecution witnesses regarding the conduct of buy-bust operations. It is the duty of the prosecution to present a complete picture detailing the buy-bust operationfrom the initial contact between the poseurbuyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of sale.[20] We said that [t]he manner by which the initial contact was made, x x x the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug x x x must be the subject of strict scrutiny by the courts to insure that law-abiding citizens are not unlawfully induced to commit an offense.[21]

No Surveillance Conducted

The testimony of PO2 Ibasco on direct examination did not mention an alleged surveillance conducted by PO2 Ibasco and PO1 Valencia prior to the alleged buy-bust operation, the corresponding intelligence report, and the written communiqu with the PDEA. The defense in cross-examination put to task both PO2 Ibasco and PO1 Valencia concerning these matters, as attested to in the Joint Affidavit of Apprehension[22] executed by the two police officers on May 30, 2003. PO2 Ibasco testified that his unit, specifically PO1 Valencia and himself, conducted surveillance on accused-appellant for a week prior to the

buy-bust operation on May 29, 2003 which, according to him, turned out positive, i.e., accused-appellant was, indeed, selling shabu.

PO2 Ibasco on cross-examination testified, thus:

ATTY. LOYOLA: Being an operative, you are of course, trained in intelligence work?

PO2 IBASCO: Yes, sir.

Q: You said you conducted surveillance but you cannot show any proof that there is an intelligence report, you have no proof? A: Yes, sir. There is, we were dispatched.

Q: A:

Where is your proof now? Its in our office.

Q: A:

Your dispatch order for the surveillance do you have any? I dont have it now sir but its in the office.

Q: right? A:

You said that you conducted surveillance for one week, did I hear you Yes, sir.

xxxx

Q: So, you are saying you did not actually see him selling drugs at that time during the surveillance? A: We saw him, sir.

xxxx

Q: A:

None. You did not even coordinate this operation with the PDEA? We coordinated it, sir.

Q: A:

What is your proof that you indeed coordinated? Its in the office, sir.

ATTY. LOYOLA: May I make a reservation for continuance of the cross-examination considering that there are documents that the witness has to present.

COURT: What documents?

ATTY. LOYOLA: The proof your Honor that there was indeed a coordination and the intelligence report.

COURT: Will you be able to produce those documents?

A:

Yes, sir. Titingnan ko po.

PROSECUTOR ANTERO: Titingnan?

COURT: You are not sure? You dont have any copy of those documents?

A:

You Honor, what we have in the office is the dispatch.[23]

PO1 Valencia, likewise, on cross-examination testified:

ATTY. LOYOLA: Mr. Witness, tell me during the orientation, you will agree with me that there was no coordination made to the PDEA regarding this intended buy bust operation?

PO1 VALENCIA: We have coordinated at the PDEA.

Q: You say that but you have no proof to show us that there was coordination? A: We have, sir.

Q: A:

What is your proof? We have files in our office for coordination.

Q: A:

Are you sure about that? Yes, sir.

Q: Now, Mr. Witness, based on the information, you already planned to conduct a buy bust operation against the accused? A: Yes, sir.

Q: But you will agree with me that there was no surveillance against the accused? A: We have conducted a surveillance one week before the operation and we conducted surveillance Pinakawalan namin ang informant.

Q:

What do you mean pinakawalan ang informant?

A: So that we have a spy inside to verify whether Garry was really selling shabu.

xxxx

Q: A:

In fact you dont have any information report? We have, sir. Its in the office. Its with Insp. Villanueva.

Q: And because you claim that you have submitted an information and report, of course, you should have come up with an intelligence report. A: Yes, sir. Its also in the office of Insp. Villanueva.

xxxx

Q: And the alleged recovered item, the plastic sachet which contained white crystalline substance was brought by whom to the PNP Crime Laboratory? A: ago.[24] I cannot remember who brought it sir because it was a long time

These documentsspecifically the dispatch order, the intelligence report of the alleged surveillance, and the written communiqu from the PDEA for the conduct of the surveillance and buy-bust operationwere not, however, presented in court. Evidently, these documents are non-existent, tending to show that there really was no surveillance and, consequently, no intelligence report about the surveillance or the averred written communiqu from PDEA attesting to coordination with said agency. Worse, the prosecution never bothered to explain why it could not present these documents. Thus, there is no basis to say that accused-appellant allegedly sold shabu a week before he was arrested.

Even putting this lapse aside, the other irregularities raised by accusedappellant in the backdrop of the uncontroverted testimonies of Buencamino and Lepiten tend to show that there was really no buy-bust operation conducted resulting in the valid arrest of accused-appellant.

Generally, non-compliance with Secs. 21 and 86 of RA 9165 does not mean that no buy-bust operation against appellant ever took place.[25] The prosecutions failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Sec. 21, Art. II of RA 9165 will not discharge the accused from the crime. Non-compliance with said section is not fatal and will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible.[26]

No Buy-Bust Operation

But where there are other pieces of evidence putting in doubt the conduct of the buy-bust operation, these irregularities take on more significance which are, well nigh, fatal to the prosecution.

Putting in doubt the conduct of the buy-bust operation are the uncontroverted testimonies of Buencamino and Lepiten, which gave credence to accusedappellants denial and frame-up theory. The Court is not unaware that, in some instances, law enforcers resort to the practice of planting evidence to extract information from or even to harass civilians.[27] This Court has been issuing cautionary warnings to trial courts to exercise extra vigilance in trying drug cases, lest an innocent person is made to suffer the unusually severe penalties for drug offenses.[28]

The defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the law enforcement agencies acted in the regular performance of their official duties.[29] Nonetheless, such a defense may be given credence when there is sufficient evidence or proof making it to be very plausible or true. We are of the view that accused-appellants defenses of denial and frame-up are credible given the circumstances of the case. Indeed, jurisprudence has established that the defense of denial assumes significance only when the prosecutions evidence is such that it does not prove guilt beyond reasonable doubt,[30] as in the instant case. At the very least, there is reasonable doubt that there was a buy-bust operation conducted and that accused-appellant sold the seized shabu. After all, a criminal conviction rests on the strength of the evidence of the prosecution and not on the weakness of the defense.[31]

Notably, Buencamino voluntarily testified to the effect that he called the police asking them to apprehend a certain Taba, a notorious drug pusher in their area. PO2 Ibasco and company responded to his call and Buencamino helped identify and direct the policemen but Taba unfortunately escaped. Thus, Buencamino testified:

ATTY. BARTOLOME: Mr. Witness, who asked you to testify today?

BUENCAMINO: I volunteered myself to testify.

xxxx

Q:

Can you tell us how, when and where the accused was arrested?

A: I was the one who called-up the precinct to arrest a certain Taba and not Garry. Taba was the target of the operation.

Q: A:

When was that? May 29, 2003.

Q: A:

Why did you call the police station? Ibasco talked to me to arrest Taba.

Q: A:

Why are they going to arrest Taba? Because he is a pusher in the area.

Q: A:

Why do you know Ibasco? Because he was a previous resident of Barangay Manresa.

Q:

You said you called police officer [sic] what was the topic. Mr. Witness?

A: That Taba is already there and he already showed up and they immediately responded to arrest Taba.

Q: A:

So, Ibasco immediately responded to your call? Yes, sir.

Q: A:

When they arrived in your place what happened else, if any? I pointed to Taba so they could arrest him.

Q: A:

Where they able to arrest Taba? No, sir. He was able to escape.

Q: Whey they were not able to arrest alias Taba what happened, next Mr. Witness? What happened to Garry Dela Cruz? A: I was surprised because I saw Garry Dela Cruz already inside the vehicle and I dont know why Garry was inside the vehicle.[32]

Buencaminos assertion of knowing PO2 Ibasco was likewise not rebutted. Moreover, the presentation of the police logbook on calls received in the morning of May 29, 2003 would indeed show if Buencamino or someone else made a call to the precinct about a certain Taba, but then, again, the prosecution did not bother to rebut the testimony of Buencamino. Verily, this time the presumption that evidence willfully suppressed would be adverse if

produced[33] applies. In fact, the prosecution did not even assail Buencaminos credibility as a witness but merely made the point in the crossexamination that he had no actual knowledge of the arrest of accusedappellant. Thus, Buencamino was cross-examined:

PROSECUTOR ANTERO: You were not with Garry at the time he was arrested?

BUENCAMINO: No, sir.

Q: A:

You dont know where he was arrested at that time? I dont know where Garry was, sir.

PROSECUTOR ANTERO: That will be all, your Honor.[34]

More telling is the testimony of Lepiten which, uncontroverted, shows that there was no buy-bust operation. Her testimony corroborates the testimony of Buencamino that police enforcers indeed responded to Buencaminos phone call but were not able to apprehend Taba. This destroys the buy-bust operation angle testified to by PO2 Ibasco and PO1 Valencia. Since the buybust operation allegedly happened not inside the house of accused-appellant but in an open area in front of a shanty, such cannot be sustained in light of what Lepiten witnessed: The policemen chased but were not able to arrest Taba; thereafter, the policemen went inside the house of accused-appellant, emerging later with him who was led to the vehicle of the policemen. Thus, Lepiten testified:

ATTY. BARTOLOME: Mrs. Witness, where were you on May 29, 2003, if you could still remember?

COURT: What time?

ATTY. BARTOLOME: At around 9:00 in the morning.

LEPITEN: I was at the terrace of the house we are renting while sipping coffee.

Q: A:

Where is that house located? No. 135 Mauban Street, Barangay Manresa, Quezon City.

COURT: Where is this, Novaliches?

A:

No, your Honor, near San Francisco Del Monte.

xxxx

ATTY. BARTOLOME:

While drinking coffee, what transpired next, Mrs. Witness or was there any unusual thing that happened? A: Yes, sir. While I was sitting on the terrace in front of the house we are renting is the house of Garry. Garry was talking to a certain Taba whom I know.

xxxx

Q: A:

While you saw them talking to each other, what happened next? Suddenly a maroon FX stopped.

Q: A:

Where? In front of the house of Garry.

Q: A:

When this maroon FX stopped, what happened next, if any? Taba ran, sir.

Q:

What happened next, if any?

A: Two (2) men in blue pants and white shirt alighted from the maroon FX and ran after Taba.

Q: A:

Were they able to arrest Taba, Ms. Witness? No, sir. They were not able to catch him.

Q:

When they failed to arrest Taba, what did these two (2) men do, if any?

A: They returned in front of the house and Garry and I saw them entered the house of Garry.

xxxx

Q:

What did they do, if any?

A: I dont know what they did inside because I could not see them, sir. Then I saw them went down and pushed Garry towards the FX.

xxxx

Q: A:

After that what else happened, if any? I just saw that they boarded Garry inside the FX.

xxxx

COURT: Any cross?

PROSECUTOR ANTERO: No cross, your Honor.[35]

Thus, taking into consideration the defense of denial by accused-appellant, in light of the foregoing testimonies of Buencamino and Lepiten, the Court cannot conclude that there was a buy-bust operation conducted by the arresting police officers as they attested to and testified on. The prosecutions story is like a sieve full of holes.

Non-Compliance with the Rule on Chain of Custody

Moreover, the prosecution failed to sufficiently prove the requisite chain of custody of the seized specimen. Chain of custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.[36] The CA found an unbroken chain of custody of the purportedly confiscated shabu specimen. However, the records belie such conclusion.

The testimonies of PO2 Ibasco and PO1 Valencia, as well as their Joint Affidavit of Apprehension, were bereft of any assertion on how the seized shabu in a heat-sealed sachet was duly passed from PO2 Ibasco, the chosen poseur-buyer, who allegedly received it from accused-appellant, to forensic chemist Engr. Jabonillo, who conducted the forensic examination. While the testimony of Engr. Jabonillo was dispensed with upon stipulation by the defense, as duly embodied in the RCT Order dated March 16, 2004, it is likewise bereft of any assertion substantially proving the custodial safeguards on the identity and integrity of the shabu allegedly received from accused-appellant. The stipulation merely asserts:

x x x that he is a Forensic Chemist of the Philippine National Police; that his office received a request for laboratory examination marked as Exhibit A; that together with said request is a brown envelope marked as Exhibit B; which contained a plastic sachet marked as Exhibit B-1; that he conducted a requested laboratory examination and, in connection therewith, he submitted a Chemistry Report marked as Exhibit C. The findings thereon showing the specimen positive for Methylamphetamine Hydrochloride was marked as Exhibit C-1, and the signature of the said police officer was marked as Exhibit C-2. He likewise issued a Certification marked as Exhibits D and D-1, and thereafter, turned over the specimen to the evidence custodian and retrieved the same for [sic] purposed proceeding scheduled today.[37]

While both PO2 Ibasco and PO1 Valencia testified on the identity of the plastic sachet duly marked with the initials EIGC, there was no sufficient proof of compliance with the chain of custody. The records merely show that, after the arrest of accused-appellant, the specimen was allegedly turned over to the desk officer on duty, whose identity was not revealed. Then it was the stations OIC, P/Insp. Villanueva, who requested the forensic examination of the specimen. In gist, from the alleged receipt of the plastic sachet containing 0.02 gram of shabu by PO2 Ibasco from the alleged buy-bust operation, the chain of custody of the specimen has not been substantially shown. The Court cannot make an inference that PO2 Ibasco passed the specimen to an unnamed desk officer on duty until it made its way to the laboratory examination. There are no details on who kept custody of the specimen, who brought it to the Crime Laboratory, and who received and kept custody of it until Engr. Jabonillo conducted the forensic examination. The stipulated facts merely made an allusion that the specimen custodian of the Crime Laboratory had possession of the specimen and released it for the proceedings before the trial court.

It is essential that the prohibited drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit; and that the identity of said drug be established with the same unwavering exactitude as that requisite to make a finding of guilt.[38] This, the prosecution failed to do. The prosecution must offer the testimony of key witnesses to establish a sufficiently complete chain of custody.[39]

As the Court aptly put in People v. Cantalejo:

x x x the failure of the police to comply with the procedure in the custody of the seized drugs raises doubt as to its origins.

x x x failure to observe the proper procedure also negates the operation of the presumption of regularity accorded to police officers. As a general rule, the testimony of police officers who apprehended the accused is usually accorded full faith and credit because of the presumption that they have performed their

duties regularly. However, when the performance of their duties is tainted with irregularities, such presumption is effectively destroyed.

While the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot by itself constitute proof of guilt beyond reasonable doubt.[40]

In sum, considering the multifarious irregularities and non-compliance with the chain of custody, We cannot but acquit accused-appellant on the ground of reasonable doubt. The law demands that only proof of guilt beyond reasonable doubt can justify a verdict of guilt.[41] In all criminal prosecutions, without regard to the nature of the defense which the accused may raise, the burden of proof remains at all times upon the prosecution to establish the guilt of the accused beyond reasonable doubt.[42] As the Court often reiterated, it would be better to set free ten men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit.[43]

In fine, We repeat what the Court fittingly held in People v. Ong, a case similarly involving a buy-bust operation, thus:

The Constitution mandates that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt. While appellants defense engenders suspicion that he probably perpetrated the crime charged, it is not sufficient for a conviction that the evidence establishes a strong suspicion or probability of guilt. It is the burden of the prosecution to overcome the presumption of innocence by presenting the quantum of evidence required.

In the case at bar, the basis of acquittal is reasonable doubt, the evidence for the prosecution not being sufficient to sustain and prove the guilt of appellants with moral certainty. By reasonable doubt is not meant that which of possibility may arise but it is that doubt engendered by an investigation of the

whole proof and an inability, after such an investigation, to let the mind rest easy upon the certainty of guilt. An acquittal based on reasonable doubt will prosper even though the appellants innocence may be doubted, for a criminal conviction rests on the strength of the evidence of the prosecution and not on the weakness of the evidence of the defense. Suffice it to say, a slightest doubt should be resolved in favor of the accused.[44]

WHEREFORE, the instant appeal is GRANTED. Accused-appellant Garry De La Cruz y Dela Cruz is hereby ACQUITTED of the crime charged on basis of reasonable doubt. Accordingly, the CA Decision dated June 30, 2008 in CAG.R. CR-H.C. No. 02727 is SET ASIDE. The Director of the Bureau of Corrections is ordered to cause the immediate release of accused-appellant, unless he is being lawfully held for another cause.

No costs.

SO ORDERED. People V Navarette G.R. No. 184170

Present:

CORONA, C.J., Chairperson VELASCO, JR., LEONARDO-DE CASTRO, DEL CASTILLO, and

PEREZ, JJ.

Promulgated:

February 2, 2011 x---------------------------------------------------------------------------------------- x

DECISION

PEREZ, J.:

On appeal is the Decision[1] of the Court of Appeals dated 31 January 2008 in CA-G.R. CR-H.C. No. 02610 affirming the Decision[2] of the Regional Trial Court (RTC), Fifth Judicial Region, Branch 42, Virac, Catanduanes in Criminal Case Nos. 3097, 3098, 3099 and 3100 finding appellant Vicente Bongat y Tariman (Vicente) guilty beyond reasonable doubt of the crime of rape.

On 2 May 2001, appellant Vicente, together with 15-year old Jerwin Quintal y Beo (Jerwin), 16-year old Felipe Quintal y Abarquez (Felipe) and Larry Panti y Jimenez (Larry) were charged in an Information for Rape allegedly committed as follows:

That on or about August 29, 2002, at around 9:30 oclock in the evening, in barangay [XXX],[3] municipality of Virac, province of Catanduanes, Philippines, jurisdiction of the Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another for a common purpose, with force and intimidation, did then and there willfully, unlawfully,

and feloniously lie and succeeded in having carnal knowledge of [AAA],[4] a minor 16 years of age, against her will and without her consent.

That the crime of rape was committed with an aggravating circumstance of minority, the fact that [AAA] is a minor 16 years of age when she was raped by the herein-named four (4) accused.[5]

Appellant Vicente, Jerwin and Felipe were arrested while Larry remained at large. Upon arraignment, the accused pleaded not guilty. Trial then proceeded.

The alleged rape victim, AAA, her mother, BBB,[6] the medico-legal officer, Dr. Elmer Tatad (Dr. Tatad), Barangay Kagawad Fernando Tajan (Fernando) and Barangay Tanod Eddie Tajan (Eddie) testified for the prosecution.

AAA narrated that on 29 August 2002 at around 9:45 p.m., she attended a wake in Barangay YYY,[7] Virac, Catanduanes. Upon leaving the wake to go to her grandmothers house in Barangay XXX, she noticed that Jerwin was following her. AAA recognized Jerwin because they go to the same school. When she was about to enter the house of her grandmother, Jerwin and Felipe, who were with a certain Maria, approached AAA and invited her to attend a birthday party. AAA acceded and went with the trio towards Barangay ZZZ.[8] They went inside a dark nipa hut near a rice field and AAA saw Vicente and Larry thereat. AAA was then made to sit on a bench by Felipe and the four accused went to converse with each other outside the nipa hut. When the accused came back, they covered her mouth with a handkerchief, and tied her hands and feet to the posts with a nylon string. The accused watched in delight while each of them took turns in raping her. Jerwin ravished her twice while the rest of the accused raped her once. After they finished with AAA, Jerwin untied her hands and feet. Vicente and Larry went home while Jerwin and Felipe accompanied AAA to her grandmothers house.[9]

Two days later, AAA told BBB about the incident only after the latter noticed and asked her why she could not walk properly. They went to Fernando, who is a Barangay Kagawad and later to Eddie, a Barangay Tanod to report the incident. Fernando summoned the accused and they were made to sign a document containing their statement regarding the incident.[10] Eddie testified that on 1 September 2002, Jerwins parents came to him and expressed their intention for their son, Jerwin to marry AAA. Appellant Vicente, Jerwin, Larry, Fernando, and BBB were also present at the meeting. Eddie saw Fernando prepare a one and a half sheet of yellow paper containing the admissions made by the accused that they raped AAA.[11]

BBB fetched Fernando and brought him to the house of Eddie to talk about a marriage proposal by Jerwin. BBB asked Fernando to put into writing all the conversations that transpired inside the house. He did so while BBB was dictating to him what to write. He stated that the accused admitted the crime.[12]

AAA and BBB then proceeded to the police station to report the incident. On 2 September 2002, they went to the medico-legal and AAA was examined by Dr. Tatad, who later issued a medico-legal certificate stating his findings as follow:

Abrasion Labia Minora

Round the Clock.[13]

For its part, the defense presented the testimonies of Jerwin, Felipe, appellant Vicente, Maria Talan (Maria), Ricardo Rin (Ricardo), and Federico Rey (Federico) to prove that there was no crime committed.

Jerwin, Felipe and Maria attended the wake of Federicos nephew in Barangay YYY on 29 August 2002 at around 7:00 p.m. While they were playing cards, AAA approached their table and sat beside Jerwin.[14] Federico saw AAA play

with Jerwins group on the table.[15] They stayed at the wake until 11:00 p.m. As Marias group was about to leave, AAA asked Jerwin if she could go with him. Jerwin then introduced AAA to Maria as his girlfriend. While on their way home, Jerwin and AAA were trailing behind Maria and Felipe. At that juncture, both Maria and Felipe saw Jerwin place his arm around the shoulders of AAA, while AAAs arm was wrapped around the waist of Jerwin. Thereafter, AAA invited Maria to go to the dance with her and Jerwin in another barangay. Maria turned down the invitation and went home. While Felipe was about to enter his house, Jerwin called him and asked if he likes to go to the dance, but Felipe declined because he needed to drive his pedicab on the following morning.[16]

Jerwin claimed that AAA was his girlfriend; that they had been together since 31 December 2001; and that they had sexual intercourse for three (3) or four (4) times to date. He admitted that coming from the dance, it was around 1 a.m. when they proceeded to a nipa hut in Barangay ZZZ where they had sexual intercourse. Thereafter, they went to sleep. When Jerwin woke up the following morning, AAA had already left.[17]

On 30 August 2002, Jerwin saw AAA crying at the house of Maria. AAA told her that she was scolded by her mother and grandmother when she arrived home in the morning. Jerwin suggested that he would talk to BBB and let her know that he wants to marry AAA.[18]

Ricardo, who lives just a few meters away from the nipa hut where the alleged rape was committed, stated that he did not notice any untoward incident that transpired in the nipa hut. He however admitted that he went to sleep at around 10:30 p.m.[19]

Jerwin and Felipe went to the house of Eddie on 1 September 2002 when they were summoned by the latter. Felipe saw the mother of Jerwin and AAA talking about marriage, but BBB did not consent to the wedding. His coaccused were also present at Eddies house. Felipe denied raping AAA when he was asked. Jerwin also denied raping AAA and replied that AAA was his girlfriend.[20] After a while, they all went home. In 2004, Jerwin and Felipe

were arrested for the crime of rape.[21] While Jerwin was detained, AAA visited her several times.

Appellant Vicente came to know AAA when she was introduced to him by Jerwin as his girlfriend sometime in January 2002. On 29 August 2002, appellant was harvesting rice at the back of Catanduanes National High School from 7:00 a.m. until 4:45 p.m. He got home at 4:50 p.m. and slept at 8:00 p.m. He woke up the following day at 6:30 a.m. On 30 August 2002, he was summoned to go to the house of Eddie. Upon reaching the house, he saw the parents of Jerwin and AAA conversing about the wedding of Jerwin and AAA. He was asked by Fernando if she raped AAA, but Vicente answered in the negative. He was made to sign his name on a blank sheet of yellow paper by Fernando.[22] While in detention, Vicente saw AAA visiting the jail house once.[23]

The defense also presented the entries in the Bureau of Jail Management and Penology (BJMP) logbook, certified by Jail Officer Bernardo Azansa to show that AAA visited Jerwin six (6) times in jail.[24]

On 16 November 2006, the RTC rendered judgment finding appellant guilty beyond reasonable doubt of the crime of rape. The dispositive portion of the Decision reads:

WHEREFORE, the Court finds VICENTE T. BONGAT, JERWIN B. QUINTAL AND FELIPE A. QUINTAL guilty beyond reasonable doubt of the crime of RAPE in Criminal Case Nos. 3097, 3098, 3099, 3100 and hereby sentences them as follows:

1) Vicente T. Bongat is sentenced to suffer the penalty of reclusion perpetua for each crime.

2) Appreciating the mitigating circumstance of minority, Jerwin B. Quintal is sentenced to suffer the penalty of 12 years of prision mayor, as minimum, to 14 years, 4 months and 1 day of reclusion temporal, as maximum, for each crime.

3) Appreciating the mitigating circumstance of minority, Felipe A. Quintal is sentenced to suffer the penalty of 12 years of prision mayor, as minimum, to 14 years, 4 months and 1 day of reclusion temporal, as maximum, for each crime.

Vicente T. Bongat, Jerwin B. Quintal and Felipe A. Quintal are ordered to individually pay the private complainant [AAA] the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages for each crime.

Pursuant to R.A. No. 9344, the judgment of conviction against Jerwin Quintal and Felipe Quintal is suspended. The parents or guardians of Jerwin Quintal and Felipe Quintal; the Social Worker of this Court, Nonita Manlangit; the Municipal Social Welfare Officer of Virac, Catanduanes Josefina T. Ramirez, the Provincial Social Welfare Officer of Catanduanes Priscilla T. Navar, the Director of Region V of the Department of Social Welfare and Development (DSWD) or his duly authorized representative; and the Head of the Social Services and Counseling Division of DSWD or his duly authorized representative are enjoined to attend the disposition conference on November 28, 2006 at 1:30 oclock in the afternoon.[25]

Jerwin and Felipe were both confined at the Home for Boys in Naga City for rehabilitation pursuant to the ruling of the RTC.

The RTC found AAAs testimony as credible and rejected the sweetheart theory and alibi of the defense. On appeal, the Court of Appeals affirmed the RTC decision.

Appellant filed a notice of appeal. On 29 September 2008, this Court required the parties to simultaneously submit their respective supplemental briefs. Appellant manifested that he would merely adopt their appellant's brief before the Court of Appeals.[26] The Office of the Solicitor General (OSG) filed a Manifestation stating that it would no longer file any supplemental briefs and instead adopt its appellee's brief filed on 31 August 2007.[27]

On 27 November 2009, the RTC ordered the dismissal of the cases against Jerwin and Felipe. The dispositive portion reads:

WHEREFORE, in view of the foregoing and upon the recommendation of the DSWD, the cases against JICL Jerwin B. Quintal and JICL Felipe A. Quintal, whose sentence have been suspended, are hereby DISMISSED.

Finding that the objective of the disposition measures has been fulfilled, the Court orders the final discharge of the said JICL. Let a copy of this Order be furnished the Regional Office of the Department of Social Welfare and Development, Baraguis, Legaspi City and Office of the Regional Director of the Department of Social Welfare and Development, Home for Boys, Naga City, for them to cause the discharge of JICL Jerwin B. Quintal and JICL Felipe A. Quintal and their return to their respective families.

The Municipal Social Welfare Officer of Virac, Catanduanes is ordered to submit a periodic report on both JICL within one (1) year after their discharge.[28] In the main, appellant assails the credibility of AAAs testimony. He insists that it was impossible for AAA to have clearly and positively identified him as one of the perpetrators considering that AAA claimed that it was very dark inside the nipa hut where she was supposedly raped. Appellant assails the testimony of AAA that she went with Jerwin to a place unknown to her, despite not personally knowing him. Appellant claims this incredibility in her testimony created serious doubt as to the reliability of her allegations. Appellant argues that contrary to AAAs allegations, there was no clear intent on her part to resist the alleged sexual acts. AAA failed to shout for help.

Neither did she present any proof of body injuries to clearly prove that she resisted the alleged rape. Moreover, AAA told her mother about the incident only because the latter noticed her to have been walking in an unusual manner. Appellant asserts that he should have been convicted only of simple seduction as conspiracy was not proven among the accused.[29]

The OSG maintains that AAA positively identified appellant as one of the four rapists. It counters that the visibility inside the nipa hut was not that poor as to render AAA incapable of seeing her rapists faces. AAA had a good view of appellants face because the moonlight illuminated the surroundings. It contends that there is nothing unusual when AAA voluntarily went with Jerwin and Felipe before she was raped. According to the OSG, AAA had a false sense of security because the two accused were minors like her and were even accompanied by another girl. The OSG avers that force and intimidation were employed against AAA because her hands and feet were tied to the nipa huts posts during her ordeal. There is likewise no basis for the claim that AAA did not immediately report the incident. When AAA saw her mother, she informed her at the earliest possible opportunity. Finally, the OSG asserts that there is conspiracy among the accused in committing rape considering their actions before, during and after raping AAA.

The gravamen of the offense of rape is sexual intercourse with a woman against her will or without her consent.[30] Hence, the elements necessary to sustain a conviction in the crime of rape are: (1) that the accused had carnal knowledge of the victim; and (2) that said act was accomplished (a) through the use of force or intimidation, or (b) when the victim is deprived of reason or otherwise unconscious, or (c) when the victim is under 12 years of age or is demented.[31]

The prosecution, with whom the burden of proof rests, seeks to establish these elements through the testimonies of its witnesses, particularly that of the victims.

There is a plethora of cases which tend to disfavor the accused in a rape case by holding that when a woman declares that she has been raped, she says in

effect all that is necessary to show that rape has been committed and where her testimony passes the test of credibility the accused can be convicted on the basis thereof.[32] A dangerous precedent as it may seem, there is however a guideline provided also by jurisprudence in scrutinizing the testimony of the victim, namely: (a) while an accusation for rape can be made with facility, it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense.[33]

Guided by these principles and upon a careful scrutiny of the records of this case, this Court is not convinced beyond reasonable doubt that appellant, as well as the other accused, committed the crime of rape against AAA.

The credibility of the testimonies of the prosecution witnesses, as well as the inconclusive medical finding, tends to create doubt if AAA was indeed raped. The RTC and the Court of Appeals relied largely on the testimony of AAA that she was raped. This Court is well aware of the rule that findings of trial court relative to the credibility of the rape victim are normally respected and not disturbed on appeal, more so, if they are affirmed by the appellate court. It is only in exceptional circumstances that this rule is brushed aside, such as when the courts evaluation was reached arbitrarily, or when the trial court overlooked, misunderstood or misapplied certain facts or circumstances of weight and substance which could affect the result of the case.[34] And one of these exceptions obtains in this case.

This Court cannot disregard this nagging doubt with respect to the credibility of AAAs testimony, the inconsistencies in the testimonies of the barangay tanod and barangay kagawad, the purported confession put into writing and signed by all the accused; and the subsequent incidents relating to the case.

First, AAA testified that she does not personally know Jerwin and Felipe. However, when the two allegedly invited her to go with them to a party, she

readily accepted the invitation and in fact, went with them. Moreover, AAA was seen playing cards with Jerwin and his group in the wake, as testified by Maria, Felipe, Jerwin and Federico.

Second, AAA recounted that the nipa hut where she was brought by the accused was very dark. And yet, AAA readily identified Vicente and Larry inside the hut, as two of those who raped her. Incidentally, it was unclear how AAA was able to identify Vicente and Larry because she was never asked, not by the prosecution nor the defense, on how she came to know the two accused.

Third, the medical certificate only contained one finding, that there was a round-the-clock abrasion in the labia minora. This is not at all conclusive nor corroborative to support the charge of rape. At most, this indicates that AAA had sexual intercourse. We find the medical finding lacking in relation to the testimony of AAA on how she was ravished by four men. Although a medical examination is not an indispensable element in a prosecution of rape, it could have corroborated an otherwise vague and dubious testimony of the victim. In fact, Dr. Tatad admitted that he only examined AAAs private parts based on her statement that she was raped, thus:

Q: Do you remember Doctor, the date when the examination was conducted?

A: 9/2/02, sir.

Q: That was on September 2, 2002?

A: Yes, sir.

Q: Now, when the person of [AAA] came to you, what did you do?

A: She consulted me and told me that she was raped, sir.

Q: And after informing that she was raped, what did you do?

A: I told her to lie down as if she was to deliver a child and I examined the vagina. There was abrasion in the labia minora round the clock, sir.

Q: How about laceration?

A: There was an abrasion, sir.

Q: What might have caused that abrasion round the clock?

A: It could be that something was inserted, sir.

Q: What kind of object might have been inserted?

A: According to the patient, penis was inserted in her vagina.

Q: Did she tell you as to the number of penis which were inserted in her vagina?

A: According to the patient the penis inserted to her was pushed and pulled, sir.[35]

Furthermore, in her sworn statement before the police, AAA related that her mouth was injured.[36] She also testified in court that her hands and feet were tied to a post by a nylon string.[37] Naturally, AAA would have sustained injuries in her hands and feet. But all these injuries were never examined by the medico-legal officer nor did AAA allege the existence of those injuries.

Fourth, AAAs belated reporting of the rape incident has relevance in this case, especially when it appears that she really had no intention at all to inform her mother, not until the latter actually asked her why she was walking in an unusual manner. AAA stated: Q: You said a while ago that your mother discovered your unusual movement in the morning of the following day of August 29, 2002, is that correct?

A: It was after two days when my mother noticed my unusual movement during the birthday of my brother, sir.

Q: Did you not go out of the house of your grandmother on August 30, 2002?

A: No, sir.

Q: When your mother noticed your movement, what did she do?

A: She asked me, sir.

Q: After she asked you, what did she do?

A: She asked me why I was walking that way and I told her that I was raped, sir.[38]

Fifth, BBB allegedly went to the Barangay Kagawad and the Tanod, who happens to be her cousin, to report the rape incidents. However, when Fernando and Eddie testified, they claimed that they were initially informed by BBB about a marriage proposal by Jerwins parents. It was only during the meeting that they learned about the alleged rape.

Sixth, to fuel further suspicion as to whether a rape incident actually transpired, BBB never bothered to ask AAA about the whole incident.[39] She accepted AAAs testimony hook, line and sinker. In the same breadth, it can be recalled that Eddie, the Barangay Tanod, testified that BBB dictated to him what was written in the yellow paper which contained the supposed admissions of rape by the accused. Eddie did not appear to have asked or interrogated the accused about the incident. Likewise, Dr. Tatad merely examined AAAs private parts on the basis of her claim that she was raped.

Seventh, in an unusual twist, records show that AAA was seen visiting Jerwin in jail for at least six (6) times. These incidents are documented in a logbook presented in court by the defense and which was not refuted by the prosecution.

The combination of all these circumstances are more than sufficient to create a reasonable doubt as to whether first, rape was actually committed and second, whether the accused were the perpetrators.

It is thus unnecessary to belabor the issues raised by the defense for it must be reiterated that conviction always rests on the strength of the prosecutions evidence and not on the weakness of the defense.

For the reasons cited above, we are constrained to entertain reasonable doubt. Hence, we acquit.

WHEREFORE, appellant Vicente Bongat y TARIMAN is ACQUITTED based on reasonable doubt. He is ordered RELEASED unless he is being detained for some other lawful cause.

SO ORDERED. People V Ulat DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal of the Decision[1] dated May 30, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01800 entitled, People of the Philippines v. Edwin Ulat y Aguinaldo @ Pudong, which affirmed the Decision[2] dated October 12, 2005 of the Regional Trial Court (RTC) of Makati, Branch 65, in Criminal Case No. 03-597. In said RTC Decision, the trial court found appellant Edwin Ulat y Aguinaldo @ Pudong guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 and imposed upon him the penalty of life imprisonment as well as a fine of Five Hundred Thousand Pesos (P500,000.00).

In an Information[3] dated February 11, 2003, appellant was charged with violation of Section 5, Article II of Republic Act No. 9165, as set forth below:

That on or about the 10th day of February 2003, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, without the necessary license or prescription and without being authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and distribute Methylamphetamine Hydrochloride,

a dangerous drug, weighing zero point zero two (0.02) gram, in consideration of P100.00.

Appellant pleaded not guilty to the charge leveled against him when arraigned on March 3, 2003.[4] Thereafter, trial commenced.

The prosecutions version of the events leading to appellants arrest and his being charged with the above-mentioned offense was summarized as follows:

On February 10, 2003, a confidential informant relayed information regarding the illegal drug pushing activities of one alias Pudong along Seabird Street, Barangay Rizal, Makati City to Barangay Chairman Dreu, head of the Makati Anti-Drug Abuse Council (MADAC, for brevity) Cluster 6 (TSN, Aug. 6, 2003, p. 5).

Consequently, the MADAC Cluster 6, in coordination with the Makati Police Drug Enforcement Unit (Makati DEU, for brevity), met and decided to go to the place of alias Pudong at Seabird Street, Barangay Rizal, Makati City to verify if alias Pudong is indeed selling illegal drugs and to conduct an entrapment operation under the supervision of PO1 Randy Santos. During the briefing, it was agreed that one of the MADAC volunteers, Armando Pol-ot (Pol-ot, for brevity), together with the confidential informant, would act as poseurbuyer and buy illegal drugs from alias Pudong that very same day. The pre-arranged signal for the back-up team to know that the transaction was already consummated would be the poseur-buyers act of lighting a cigarette. The buybust money was then marked and was handed to the poseur-buyer (TSN, Aug. 6, 2003, pp. 6-8, 10; TSN, Aug. 10, 2005, p. 9).

Thus, at about 7:15 p.m. of February 10, 2003, Pol-ot and the confidential informant went to Seabird Street, Barangay Rizal, Makati City on foot while the rest of the team rode a tricycle and followed the two. Upon reaching the place,

the members of the back-up team positioned themselves 10 to 15 meters from where Pol-ot and the confidential informant were, so they could see the transaction take pace (TSN, Aug. 10, 2005, pp. 10-12).

Meanwhile, Pol-ot, who was then accompanied by the confidential informant, approached alias Pudong and was introduced by the informant as a buyer in need of shabu. Alias Pudong asked how much and Pol-ot replied Piso lang naman, meaning One Hundred Pesos only. Thereafter, alias Pudong took the marked money and left. Upon his return, he handed Pol-ot a small plastic sachet containing suspected substance. Pol-ot then gave the pre-arranged signal and lighted a cigarette, signifying that the transaction was consummated (TSN, Aug. 6, 2003, pp. 9-10).

Upon seeing the pre-arranged signal, PO1 Santos and Rogelio Patacsil (Patacsil, for brevity) approached alias Pudong and apprehended him. Pol-ot then identified himself as member of the MADAC. Alias Pudong was then ordered to empty the contents of his pockets and the marked money was recovered. PO1 Santos immediately asked alias Pudong his real name. PO1 Santos then informed him of the nature of his arrest and apprised him of his Constitutional rights in Tagalog. Thereafter, alias Pudong was brought to the barangay hall of Barangay Rizal to have the incident listed in the barangay blotter. The confiscated substance contained in the plastic sachet which Pol-ot bought from alias Pudong was then marked EUA (TSN, Aug. 6, 2003, pp. 23-24; TSN, Aug. 10, 2005, pp. 13-15)

Subsequently, alias Pudong was brought to the Makati DEU office for proper investigation. The duty investigator prepared a request for laboratory examination of the specimen (the substance contained in the plastic sachet bought from the accused) marked EUA and a drug test for the accused (TSN, Aug. 6, 2005, pp. 15-16).

P/Insp. Richard Allan B. Mangalip conducted the laboratory examination on the contents of the plastic sachet marked EUA and it tested positive for Methylamphetamine Hydrochloride (TSN, May 6, 2003, pp. 4-9).

The following day, or on 11 February 2003, PO1 Santos and MADAC volunteers Pol-ot and Patacsil executed a sworn statement entitled Pinagsanib na Salaysay ng Pag-aresto in connection to the buy-bust operation which led to the arrest of appellant Edwin Ulat y Aguinaldo alias Pudong (TSN, Aug. 10, 2005, pp. 16-18; Records, p. 6).[5]

On the other hand, the defense narrated a different version of the incident, to wit:

In the evening of 10 February 2003, at about 7:30 oclock p.m., the accused, EDWIN ULAT (Ulat for brevity), was at home watching television when he saw five (5) to seven (7) men in front of their door whom he thought were looking for someone. He approached them and asked who they were looking for. Suddenly, a gun was poked at him and he was told to go with them to the barangay hall. Ulat then asked who they were but he was told not to ask question or else he might get hurt. Two (2) of the men forced him out of the house. He resisted but he was punched in the stomach and was dragged towards a blue Revo. The accused was likewise asked if he knew a certain Sandy. He denied knowing the said person. He was brought to the barangay hall and then to the Criminal Investigation Division (CID).[6]

After due proceedings, the trial court convicted appellant of violation of Section 5, Article II of Republic Act No. 9165 in its Decision dated October 12, 2005. The dispositive portion of said Decision reads:

THE FOREGOING CONSIDERED, the court is of the opinion and so holds accused Edwin Ulat y Aguinaldo guilty beyond reasonable doubt of the offense charged. He is hereby sentenced to life imprisonment and is fined the sum of five hundred thousand pesos (Php500,000.00) without subsidiary imprisonment in case of insolvency.

The period of detention of the accused should be given full credit.

Let the dangerous drug subject matter of this case be disposed of in the manner provided for by law.[7]

On review, the Court of Appeals, in its Decision dated May 30, 2007, affirmed the ruling of the trial court and disposed of the appeal in this wise:

WHEREFORE, premises considered, appeal is hereby DISMISSED for lack of merit and EDWIN ULAT y AGUINALDO should be made to suffer the penalty correctly imposed by the trial court.[8]

Hence, appellant interposed the present appeal with this Court wherein he submits the following assignment of errors:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY WITH VIOLATION OF SECTION 5, ARTICLE II OF R.A. 9165 DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE OFFENSE CHARGED BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCONSISTENT AND CONTRADICTING TESTIMONIES OF THE PROSECUTION WITNESSES.[9]

In the instant petition, appellants chief argument highlights the fact that the witnesses for the prosecution allegedly presented conflicting testimonies on material points regarding the chain of custody of the illegal drug taken from appellant, resulting in the failure of the prosecution to sufficiently establish the corpus delicti and engendering doubt as to appellants guilt.

In light of the attendant circumstances in the case at bar, the argument is persuasive.

The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. This basic constitutional principle is fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left for the trial courts to determine. However, an appeal throws the whole case open for review such that the Court may, and generally does, look into the entire records if only to ensure that no fact of weight or substance has been overlooked, misapprehended, or misapplied by the trial court.[10]

Moreover, owing to the built-in dangers of abuse that a buy-bust operation entails, the law prescribes specific procedures on the seizure and custody of drugs, independently of the general procedures geared to ensure that the rights of people under criminal investigation and of the accused facing a criminal charge are safeguarded.[11]

In this regard, Section 21, paragraph 1, Article II of Republic Act No. 9165 states:

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.

Furthermore, Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 expounds on the aforementioned provision of law:

(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.

In the crime of sale of dangerous drugs, the prosecution must be able to successfully prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.[12] 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 corpus delicti which means the actual commission by someone of the particular crime charged.[13]

A meticulous review of the records of this case has led us to the conclusion that the prosecution failed to demonstrate with moral certainty that the identity and integrity of the prohibited drug, which constitutes the corpus delicti, had been duly preserved.

First, the records reveal that the prosecution did not establish the exact location where the confiscated illegal drug was marked and the identity of the person who marked it because of contradicting testimonies from the prosecutions witnesses.

According to witness Armando Pol-ot (Pol-ot), a Makati Anti-Drug Abuse Council (MADAC) civilian volunteer who acted as poseur-buyer in the entrapment operation, it was Police Officer 1 Randy Santos (PO1 Santos), the leader of the buy-bust team, who placed the marking on the confiscated sachet of shabu that was obtained from appellant. The relevant portion of the transcript is quoted here:

Q: Why do you say it is the same plastic sachet containing white crystalline substance delivered to you by alias Pudong?

A:

Because of the markings, sir.

Q:

And who placed these markings?

A:

PO1 Santos, sir.

Q: Where were you when PO1 Santos placed these markings in this plastic sheet?

A:

In front of him.

Q:

Now, can you tell us what is that marking placed by PO1 Santos?

A:

Name of the accused.

Q:

What is that mark, Mr. Witness?

A:

Edwin Ulat Y Aguinaldo.

Q:

Can you read these markings?

A:

E.U.E. (sic)[14]

This testimony contradicts what Pol-ot declared in the Pinagsanib na Salaysay ng Pag-aresto or the Joint Affidavit of Arrest[15] which was executed by the members of the buy-bust team on February 11, 2003. The pertinent portion of which reads:

Na, ang aking (Madac Armando Pol-ot) nabiling isang sachet na naglalaman ng pinaghihinalaang shabu mula kay @ Pudong ay aking minarkahan sa harapan ng mga akusado ng inisyal na EUA (subject of sale) bago ito isinumite sa PNP Crime Laboratory Field Office para sa kaukuilang (sic) pagsisiyasat.[16]

When confronted by the defense counsel about this discrepancy, Pol-ot merely surmised that it might be the product of typographical error, to wit:

Q: You mentioned that it was Santos who made the markings on the sachet EAU, is that correct?

A:

Yes, sir.

Q:

You were present when Santos placed these markings?

A:

Yes, sir.

Q:

Are you sure?

A:

Yes, sir.

Q:

Very, very sure.

A:

Yes, sir.

Q: I am just wondering Mr. Witness, in your Pinagsanib na Salaysay ng Pag aresto, the second to the last sentence, and I quote; Na, ang aking (Madac Armando Pol-ot) nabiling isang sachet na naglalaman ng pinaghihinalaang shabu mula ka @ Pudong ay aking minarkahan sa harapan ng mga akusado na inisyal na EUA (subject of sale). Mr. Witness, your testimony earlier and your affidavit, is conflicting, which is correct, your testimony or your affidavit?

A:

PO1 Santos marked, sir.

Q:

So your affidavit is not true?

PROS. SALAZAR:

In so far as the marking is concerned, not all affidavit, your Honor.

PROS. SALAZAR:

Q:

This paragraph is not true?

THE COURT:

Read your affidavit.

A:

Maybe its just typographical error, sir.

Q:

Who prepared this affidavit, Mr. Witness?

A:

At the DEU office, sir.

Q:

Did you read this affidavit before you sign?

A:

Not any more, sir.

THE COURT:

You did not read?

A:

No, your honor.

Q:

How did you know if its right?

A:

I reviewed it after several days.

THE COURT:

After you signed, you read it after signing?

A:

Yes, sir.[17]

However, when it was PO1 Santos turn to testify, he discredited Pol-ots testimony with regard as to who marked the confiscated sachet of shabu:

Q: Why do you say this is the same plastic sachet containing white crystalline substance purchased from the accused in this case?

A:

Because of the marking EUA, sir.

Q:

And who placed this marking, Mr. Witness?

A:

Armando Pol-ot, sir.

Q:

Where were you when this marking were placed, Mr. Witness?

A:

In front of him, sir.

Q:

By the way what does that marking EUA represents, Mr. Witness?

A:

Edwin Ulat y Aguinaldo, sir.[18]

Indubitably, this conspicuous variance in the testimonies for the prosecution casts serious doubt on the arresting teams due care in the custody of the confiscated illegal drug. Worse, the foregoing is not the only instance of conflict between the narrations of Pol-ot and PO1 Santos with regard to the handling of the confiscated sachet of shabu.

In his testimony, Pol-ot declared that he was present when an inventory report of the confiscated illegal drug, which is required by Section 21 of Republic Act No. 9165, was prepared by PO1 Santos at the barangay hall where they brought appellant immediately after arresting him. The pertinent portion of his testimony reads:

Q: Did you make any inventory report to the item that was allegedly confiscated from the accused?

A:

Yes, sir.

Q:

Where is your inventory report?

A:

With the police, then brought to the Crime Laboratory for examination?

Q:

Inventory report, you examine the inventory report to the crime lab?

A:

The item that was confiscated.

Q:

Were you present when this police made this inventory report?

A:

Yes, sir at the Barangay.

Q:

Can you tell us the name of the police who made the inventory report?

A:

PO1 Santos, sir.

Q:

Again, Santos?

A:

Yes, sir.[19]

On the other hand, PO1 Santos emphatically denied ever making any inventory report:

Q:

Did you make an inventory of those items that were confiscated?

A:

None, maam.[20]

Furthermore, when Pol-ot was asked by the defense counsel if the confiscated sachet of shabu was photographed, as mandated by Section 21 of Republic Act No. 9165, he answered in the affirmative, and, when asked by the trial court if the accused was present when this was being done as required by the law, he likewise answered yes to the query, as can be gleaned from this portion of the transcript:

Q:

Did you photograph the item that was confiscated from the accused?

A:

Yes, sir.

Q:

Who was the photographer?

A:

Our companion, sir.

Q:

Who?

A:

Mr. Baisa, sir.

Q:

When you took the picture of the item, who were present?

PROS. SALAZAR:

Misleading, your Honor. He was not the one who took the pictures.

THE COURT:

When the pictures were taken who were present?

A:

My teammates.

THE COURT:

With the accused?

A: He was present, but they photographed only the items confiscated from him, your Honor.

Q:

The items only.

A:

Yes, your honor.[21]

However, PO1 Santos did not corroborate Pol-ots claim and instead testified that:

Q:

Do you take photos of the items that were recovered, Mr. Witness?

A:

None, maam.[22]

Taking into consideration all the conflicting accounts of Pol-ot and PO1 Santos, the Court believes that any reasonable mind would entertain grave reservations as to the identity and integrity of the confiscated sachet of shabu submitted for laboratory examination. As likewise correctly raised by appellant, apart from the testimony that PO1 Santos turned over the accused to an unnamed duty inspector,[23] the prosecution evidence does not disclose with clarity how the confiscated sachet passed hands until it was received by the chemical analyst at the Philippine National Police (PNP) crime laboratory. In other words, the prosecution could not present an unbroken chain of custody for the seized illegal drug.

In Zaragga v. People,[24] we held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. Thus, the accused were acquitted due to the prosecutions failure to indubitably show the identity of the shabu. In People v. Sitco,[25] we enumerated other occasions wherein acquittal was proper for failure of the prosecution to establish a complete chain of custody, such as:

In a string of cases, we declared that the failure of the prosecution to offer the testimony of key witnesses to establish a sufficiently complete chain of custody of a specimen of shabu, and the irregularity which characterized the handling of the evidence before it was finally offered in court, fatally conflicts with every proposition relative to the culpability of the accused.

As in People v. Partoza, this case suffers from the failure of the prosecution witness to provide the details establishing an unbroken chain of custody. In Partoza, the police officer testifying did not relate to whom the custody of the drugs was turned over. The evidence of the prosecution likewise did not disclose the identity of the person who had the custody and safekeeping of the drugs after its examination and pending presentation in court.[26] (Emphases supplied; citations omitted.)

We are not unaware of existing jurisprudence holding that non-compliance by the apprehending/buy-bust team with Section 21 of Republic Act No. 9165 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[27]

It is this assurance of evidentiary integrity that is lacking in the case at bar. Thus, as a consequence thereof, appellants acquittal from the criminal charge against him would be in order.

Recently, we held that 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 them in the pursuit of their official duties.[28] As a rule, the testimony of arresting police officers in drug cases is accorded faith and credit because of the presumption that they have performed their duties regularly.[29] Slight infractions or nominal deviations by the police from the prescribed method of handling the corpus delicti should not exculpate an otherwise guilty defendant.[30] However, in the present case, there were not merely trifling lapses in the handling of the evidence taken from the accused but the prosecution could not even establish what procedure was followed by the

arresting team to ensure a proper chain of custody for the confiscated prohibited drug.

WHEREFORE, premises considered, the assailed Decision dated May 30, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01800 is REVERSED and SET ASIDE. For failure of the prosecution to prove his guilt beyond reasonable doubt, appellant Edwin Ulat y Aguinaldo is ACQUITTED of the crime charged.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections, Muntinlupa City, who is ORDERED to cause the immediate release of appellant, unless he is being lawfully held for another cause, and to inform this Court of action taken thereon within ten (10) days from notice.

SO ORDERED.

People V Alcuizar DECISION

PEREZ, J.:

On appeal is the Decision[1] of the Court of Appeals affirming the conviction of appellant Alberto Bacus Alcuizar (appellant) by the Regional Trial Court, Branch 17 of Cebu City[2] in Criminal Case No. CBU-66345 which found him guilty beyond reasonable doubt of illegal possession of dangerous drugs in violation of Section 11, Article II of Republic Act No. 9165.

Appellant was charged with violation of Sections 5 (illegal sale), 6 (maintaining a drug den), 11 (illegal possession) and 12 (illegal possession of dangerous drug paraphernalia) of Republic Act No. 9165 in Criminal Cases Nos. CBU-66343,

CBU-66344, CBU-66345 and CBU-66346. He was tried in two (2) separate criminal proceedings. Criminal Cases Nos. CBU-66343 and CBU-66344 went to RTC Branch 15 of Cebu City (RTC Branch 15). The instant appeal involved the joint trial of Criminal Cases Nos. CBU-66345 and CBU-66346 before RTC Branch 17 of Cebu City (RTC Branch 17).

The Information relating to the criminal case appealed from pertains to illegal possession of shabu in violation of Section 11 of Republic Act No. 9165, and it reads:

That on or about the 15th day of June, 2003 at about 2:00 oclock in the afternoon, in Barangay Awayan, Municipality of Carcar, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, without authority of law, did then and there, willfully, unlawfully, and feloniously have in his possession, custody, and control, the following: twenty-six (26) heat-sealed plastic packets containing white crystalline substance with a total weight of 0.52 grams; one (1) heat-sealed plastic pack containing 10.26 grams of white crystalline substance; two (2) strips of tin foil containing traces of white crystalline powder; and one (1) heatsealed packet containing 0.02 gram of white crystalline substance, which when subjected to laboratory examination gave positive result for the presence of methamphetamine hydrochloride, a dangerous drug.[3]

Upon arraignment, appellant pleaded not guilty to the crime charged.

During the pre-trial conference, the defense admitted the genuineness, authenticity and truthfulness of the Forensic Chemistry Report. Both parties thus agreed to dispense with the testimony of the forensic chemist.[4] The lone witness for the prosecution, SPO1 Meliton Agadier (SPO1 Agadier), testified on the following facts:

SPO1 Agadier, PO3 Rolando Gantuangco (PO3 Gantuangco), SPO1 Roland Navales (SPO1 Navales), who were all assigned at the Municipality of

Carcar Police Station in Cebu City, secured a search warrant[5] from the court to search the house of appellant on the suspicion that the latter is selling and in possession of shabu. On 15 June 2003, they first conducted a buy-bust operation in Sitio Awayan. The subject of the operation is appellant.

SPO1 Agadier was standing in a store across the house of appellant. He witnessed the poseur buyer hand the marked money to appellant in exchange for one deck of shabu.[6] Upon the consummation of the sale, SPO1 Agadier immediately pursued appellant, who ran to his parents house where he was eventually caught. After effecting the arrest, SPO1 Agadier and his team went back to the house of appellant to conduct a search.[7] The items recovered inside appellants house were one (1) big heat-sealed transparent plastic pack with white crystalline substance believed to be shabu, two (2) packs containing thirteen (13) decks each of suspected shabu, three (3) disposable lighters, a tooter, a tin foil with traces of shabu residue, and an improvised lamp.[8]

SPO1 Agadier related that appellant, appellants sister-in-law, one barangay captain, one barangay tanod, and several photographers were present during the implementation of the search warrant.[9] A receipt of the seized items was prepared and the barangay captain, barangay tanod, and two (2) photographers were asked to sign the receipt. The seized items were initially in the custody of SPO1 Navales. Upon reaching the police station, SPO1 Navales turned them over to SPO1 Agadier for marking. SPO1 Agadier prepared the request for laboratory examination before turning them over back to SPO1 Navales, who then delivered the items and the request to the Philippine National Police (PNP) Crime Laboratory.[10] Forensic Chemistry Report No. D983-03 was issued confirming that the specimen submitted are positive for shabu.[11]

On 24 October 2006, the RTC Branch 15 of Cebu City,[12] acquitted appellant of the charge of illegal sale of shabu and maintaining a drug den in violation of Sections 5 and 6 of Republic Act No. 9165 in Criminal Cases Nos. CBU-66343 and CBU-66344.[13]

On 20 December 2006, RTC Branch 17 of Cebu City[14] rendered a Consolidated Judgment acquitting appellant in Criminal Case No. CBU-66346 for illegal possession of drug paraphernalia, but finding him guilty in Criminal Case No. CBU-66345 for illegal possession of shabu. The dispositive portion reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Case No. CBU-66345, the Court finds accused ALBERTO BACUS ALCUIZAR alias Albie GUILTY beyond reasonable doubt of the offense charged therein (violation of Section 11 of RA 9165), and hereby sentences him to suffer life imprisonment and a fine of P400,000.00;

2. In Criminal Case No. CBU-66346, accused ALBERTO BACUS ALCUIZAR alias Albie is ACQUITTED based on reasonable doubt.[15]

The trial court held that the prosecution has clearly proven that appellant was guilty of illegal possession of dangerous drugs since the plastic packs of shabu were found inside his room. The trial court relied on the presumption that when prohibited drugs are found in a house or building belonging to and occupied by a particular person, such person is in possession of such drugs in violation of the law. Moreover, the trial court dismissed appellants defense of denial as weak and debunked his claim that the evidence were planted as such was not supported by any evidence on record.[16]

On appeal, the Court of Appeals affirmed appellants conviction.

The core issue in this appeal is whether the prosecution was able to establish beyond reasonable doubt the guilt of appellant. Appellant insists on his innocence and imputes to the trial court the following errors:

1. The Honorable Regional Trial Court erred in convicting the accused notwithstanding the failure of the prosecution to prove the very corpus delicti of the crime considering that the chain of custody of the same is unreliable;

2. The Honorable Regional Trial Court erred in convicting the accused despite the fact that the said conviction would be tantamount to violation of the constitutional right of the accused against double jeopardy;

3. The Honorable Regional Trial Court erred in convicting the accused by not taking into account some evidences of vital importance like the improper motive on the part of the police officers;

4. The Honorable Regional Trial Court erred [in] convicting the accused in spite of [the] failure of the prosecution to prove with moral certainty the guilt of the accused beyond reasonable doubt.[17]

The dangerous drug itself, the shabu in this case, constitutes the very corpus delicti of the offense and in sustaining a conviction under Republic Act No. 9165, the identity and integrity of the corpus delicti must definitely be shown to have been preserved. This requirement necessarily arises from the illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Thus, to remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the accusedappellant; otherwise, the prosecution for possession under Republic Act No. 9165 fails.[18]

The chain of custody rule requires that the marking of the seized items should be done in the presence of the apprehended violator and immediately upon confiscation to ensure that they are the same items that enter the chain and

are eventually the ones offered in evidence.[19] In Lopez v. People[20] citing Catuiran v. People,[21] this Court held that:

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. Indeed, it is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.[22]

The aforesaid step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence and on allegations of robbery or theft.[23]

Appellant cites the failure of the police officer to mark the evidence immediately after purportedly taking it from him. This omission, appellant contends, renders the chain of custody dubious.

SPO1 Agadier admitted that he only marked the seized items at the police station. While the rule allows marking of evidence to be done in the nearest police station, this contemplates a case of warrantless searches and seizures.[24] In this case, the police officers were able to secure a search warrant prior to their operation. SPO1 Agadier did not offer an explanation or a justification on why he did not immediately mark the plastic packs of shabu seized inside appellants house notwithstanding that an inventory receipt was even prepared while the police officers were still inside the house of appellant. They were given sufficient time and opportunity to prepare for its

implementation. Thus, failure to comply with the marking of evidence immediately after confiscation constitutes a first gap in the chain of custody.

Appellant also points out the failure of the police officers to give or leave a copy of the inventory receipt upon the accused or any of his family members pursuant to Section 21 of Republic Act No. 9165. Adherence to the guidelines under Section 21 of Republic Act No. 9165 relating to custody and disposition of confiscated or seized dangerous drugs accounts for a crucial link in the chain of custody rule. It provides:

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 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.

But it was provided further under Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 that non-compliance with the prescribed procedures does not necessarily result in the conclusion that the identity of the seized drugs has been compromised so that an acquittal should

follow as long as the prosecution can demonstrate that the integrity and evidentiary value of the evidence seized have been preserved.

SPO1 Agadier narrated that a certain photographer took pictures of the items seized from the house of appellant. However, the photograph/s do not appear on the records nor were they offered by the prosecution as evidence. Thus, the requirement of taking a photograph was not clearly proven. Anent the inventory receipt, while it was prepared and appeared on records, the police officers failed to provide appellant a copy of the inventory receipt. Appellant construed this omission as fatal. This omission alone is not necessarily fatal to the cause of the prosecution. However, this Court cannot ignore the nagging doubt created in our mind with respect to the barangay tanods testimony pertaining to the inventory receipt which affects the integrity of the corpus delicti in general.

He testified:

Q: On June 15, 2003, could you please tell us whether you were there when the police officers of Carcar implemented the search warrant against him for violation of RA 9165, the Anti-Drugs Law?

A: We were there but we arrived late than the policemen.

Q:

When you said we arrived at what place you are referring to, Mr. Witness?

A:

In the house of Alberto Alcuizar.

Q: You said you were late. Why are you late, Mr. Witness? Why, are you not ready of your duties and responsibilities, preparedness in times of emergency?

A: We were late in going because we were only fetched by the barangay councilor. That is why we arrived late.

Q: Who is the barangay councilor you are referring to that allegedly fetched you?

A:

Barangay Councilor Imperio.

Q: Nevertheless, Mr. Witness, when you arrived what did you observe there at the place of Alberto Alcuizar, if you remember?

A: When we arrived there we were provided with flashlights and we were told to assist them in looking for shabu.

Q: What happened next after you were given flashlights to look for shabu?

A: I was continuously looking but I did not find any.

Q:

How about you co-barangay tanod, did he also recover or find something?

A:

No, sir.

Q: How about the policemen, did they recover shabu in that house of Alberto Alcuizar, Mr. Witness?

A: When we arrived the alleged shabu were already on top of the table.

Q: You were only told by the police that there was shabu on top of the table?

A: No, we were not told by the policemen but we were told to sign before we left.

Q:

What is the affixing of signature stands for according to the police?

A: He told us that the document we signed was to attest only that we were there and assist the apprehension. I do not know that it refers to the shabu.

Q: Meaning you thought all the while that there was shabu recovered inside the house?

A:

I really thought but I saw some shabu on top of the table.

Q:

It was only the policemen who pointed you the shabu on top of the table?

A:

They did not also tell us, they just asked us to sign.

Q:

They never told you that they were able to recover shabu?

A:

No, sir.

Q: You only assumed that what was put on the table colored white is shabu, Mr. Witnes?

A:

I only believe that it was the shabu.

Q: Nevertheless, Mr. Witness, you only went there not to the fact as witness to the recovery of shabu, you thought all the while you were there as witness wherein the policemen went there?

A:

That is right.[25]

Note from the testimony of the barangay tanod that he and the barangay captain arrived later than the police officers. And when they reached appellants house, the alleged confiscated shabu were already on top of a table. He was merely asked to sign the inventory receipt, which he did without hesitation. As can be gleaned from his testimony, the barangay tanod did not witness how the police officers conducted their search and how they were able to discover the packets of shabu inside appellants house. Aside from the barangay tanod, no other signatories in the receipt were presented by the prosecution to authenticate the document.

In People v. Garcia,[26] the Court enumerated several cases dealing with the legal repercussions of failing to comply with Section 21 of Republic Act No. 9165, thus:

In People v. Orteza, the Court, in discussing the implications of the failure to comply with Paragraph 1, Section 21, Article II of R.A. No. 9165, declared:

In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti.

The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug.

More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu.

We reached the same conclusion in People v. Nazareno and People v. Santos, Jr., and recently, in the cases of People v. Dela Cruz and People v. De la Cruz where we again stressed the importance of complying with the prescribed procedure. We also held that strict compliance is justified under the rule that penal laws shall be construed strictly against the government, and liberally in favor of the accused.[27]

The first gap in the chain of custody was compounded by the vague recollection of SPO1 Agadier regarding the transfer of custody of the shabu. This second gap in the chain of custody was evident in SPO1 Agadiers statements, thus:

Q: After the recovery all these items by you and officer Gantuangco, what happened next?

A: After the witnesses signed the application we brought the accused to our police station.

Q: Who have custody of all the items recovered from the residence of the accused and when you brought him to the police station?

A: I turned over to the recorder SPO1 Roland Navales.

Q: And at the police station, please tell us what happened there?

A: After that SPO1 Navales entered in the police blotter and he turned over the evidence to me for marking to the crime laboratory.

Q: You mentioned that the items were also turned over to you by Navales for marking so that you can have this request for the crime laboratory, was that request reduced into writing?

A: Yes, sir.

Q: Will you please go over this Mr. Witness and tell us if this is the one?

A: This is the request I prepared.

FISCAL PARADIANG

Q: Please tell us who sign this request?

A: Chief of Police, PSI Edgardo Sanchez Aldemita.

We request that the written request for laboratory examination be marked as Exhibit H; the signature of the requesting party by PSI Edgar Sanchez Aldemita be sub marked as Exhibit H-1.

Q: After making the request, what happened?

A: It was SPO1 Navales who delivered the items and the request for the PNP Crime Laboratory.[28]

Based on his testimony, it was not indicated who had initial control and custody of the plastic packs of shabu upon their confiscation. SPO1 Agadier merely claims that he turned them over to SPO1 Navales without specifying whether the latter received it while they were still inside the appellants house or at the police station. It is also not clear who was in possession of the plastic packs of shabu while in transit. Moreover, SPO1 Navales did not testify to confirm the statement of SPO1 Agadier.

Verily, the failure of the police officers to mark the dangerous drugs immediately after their seizure and the vague recollection of SPO1 Agadier concerning the custody of the drugs from the residence of appellant up to the time it was submitted to the crime laboratory constitute a huge and significant gap in the chain of custody which substantially affects the identity of the corpus delicti.

To successfully prosecute a case of illegal possession of dangerous drugs, the following elements must be established: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[29]

The Court of Appeals ruled that appellant is presumed to have been in possession of the prohibited drugs when they were found in his house. While this presumption may be true, it is certainly not conclusive and may be rebutted by contrary evidence. It is worthy to reiterate that this Court entertains serious doubts as to whether the prohibited drugs were indeed found in appellants house considering that there were no other witnesses presented to prove it. And it is by the same doubt that constrains this Court to acquit appellant.

At this juncture, it is no longer necessary to discuss the other assigned errors.

WHEREFORE, the 4 December 2008 Decision of the Court of Appeals in CAG.R. CR-HC No. 00716 affirming the conviction of the Regional Trial Court, Branch 17, Cebu City in Criminal Case No. CBU-66345 for illegal possession of shabu under Section 11 of Republic Act No. 9165, is hereby REVERSED and SET ASIDE. Appellant ALBERTO BACUS ALCUIZAR is declared ACQUITTED and ordered immediately RELEASED from detention, unless he is confined for any other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED. People V Hermogenes de Guzman DECISION MENDOZA, J.: This is an appeal from the February 9, 2010 Decision 1 of the Court of

Appeals (CA) in CA-G.R. CR-HC No. 03458, which affirmed the May 2, 2008 Decision 2 of the Regional Trial Court, Branch 45, San Jose, Occidental Mindoro (RTC), in Criminal CasS! No. R-5285, finding accused Hermogenes De Guzman @ Mong (De Guzman) guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code and sentencing him to suffer the penalty of reclusion perpetua. * Designated Acting Member in lieu of Associate Justice Roberto A. Abad, per Special Order No. 1244 dated June 26, 2012. 1 Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justice Ricardo R. Rosario and Associate Justice Priscilla J. Baltazar-Padilla, concurring; rolla, pp. 2-11. 2 Penned by Judge Jose. S. Jacinto, Jr.; records. pp. G.R. No. 192250 THE FACTS De Guzman was charged with the crime of Murder in the Information, 3 dated November 12, 2002, the accusatory portion of which reads: That on or about the 20th day of April, 2002 at around 11:00 148-153. DECISION 2

oclock in the evening, in Brgy. San Francisco, Municipality of Sablayan, Province of Occidental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the accused being then armed with a sharp bladed instrument, with intent to kill, with treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab with the said weapon one Noriel Rosales Urieta, thereby inflicting upon the latter serious wounds which caused his untimely death. CONTRARY TO LAW. When arraigned, De Guzman entered a plea of Not Guilty 4 to the offense charged. After pre-trial was terminated, trial on the merits ensued. The prosecution presented the testimonies of Ignacio Flores (Flores), the childhood friend of victim Noriel Urieta (Urieta) and the purported eyewitness to the stabbing incident; Dr. Ma. Socorro Ragos (Ragos), who conducted a post-mortem examination on the cadaver of the victim; and Gina Urieta (Gina), the wife of the victim. The defense, on the other hand, presented the lone testimony of De Guzman. The Version of the Prosecution The version of the prosecution is succinctly summarized by the Office of the Solicitor General (OSG) in its Brief 5 as follows:

3 Id. at 1. 4 Id. at 26. 5 CA rollo, pp. 55-72. DECISION 3 On April 20, 2002 at around 11:00 oclock in the evening, Noriel Urieta was in Brgy. Francisco, Sablayan, Occidental Mindoro along with Ignacio Flores. They were drinking in the amusement area. When they were about to leave the premises, appellant suddenly approached them and without any provocation, suddenly stabbed Noriel Urieta with a knife on his left chest. After the first blow, the victim was already kneeling down and appellant proceeded to stab him three (3) more times. Appellant thereafter ran away. Ignacio Flores called out for help and one Elmer Honato arrived to give them aid and bring the victim to a secure place and thereafter proceeded to call for help. He waited for Elmer Honato to arrive but he did not return anymore. With the condition of the victim uncertain and as he was afraid, he decided to leave the victim and go home. Two days later, Police Officer Gamba, together with the father of Noriel Urieta and Gina Urieta, the wife of Noriel Urieta, went to the house of Ignacio Flores in order to get the G.R. No. 192250

sworn statement as to the facts that happened in this case. They were able to do so. Subsequently, an arrest on the person of Hermogenes de Guzman was made. The Office of the Provincial Prosecutor then filed the appropriate charges thereafter. 6

The Version of the Defense In his Brief, 7 De Guzman denied the charge against him and presented his version of the events:

6 Id. at 60-62. 7 Id. at 25-41. DECISION 4 G.R. No. 192250

On the evening of April 21, 2002, Hermogenes De Guzman joined a drinking spree at the house of a relative at barangay San Francisco. He was there from 8:00 oclock in the morning until 12:00 oclock midnight, when he went home with his wife. The following day, he was drying palay when his wife informed him that police officers were looking for him. He

approached and inquired from the officers what was the reason. He was told to go with them to the municipal hall for questioning. Thereat, he was incarcerated because of his alleged involvement in a stabbing incident. De Guzman does not personally know the victim, his wife, nor the supposed eyewitness, Ignacio Flores. He (De Guzman) was not with Urieta when the former had a drinking spree. He denied having stabbed and killed Urieta. 8

The RTC Ruling On May 2, 2008, the RTC rendered judgment finding that the prosecution was able to establish with certitude, through the credible testimony of prosecution witness Flores, that De Guzman stabbed and killed Urieta on that fateful night of April 20, 2002. The RTC rejected the unsubstantiated defense of alibi proffered by De Guzman in the face of the positive identification of Flores pointing him as the perpetrator of the crime. It held that treachery attended the commission of the crime which qualified the killing to murder. The RTC adjudged: WHEREFORE, this Court finds the accused HERMOGENES DE GUZMAN alias Mong GUILTY beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code and with neither aggravating nor mitigating circumstance and in line with the mandate of Republic Act No. 9346, hereby imposes the penalty of Reclusion Perpetua.

8 Id. at 31-32. DECISION 5 G.R. No. 192250

Also, this Court hereby orders the said accused to PAY the surviving heirs of the victim the following: 1) The sum of 50,000.00 as civil indemnity ex-delicto; 2) The sum of 38,000.00 as actual damages; 3) The sum of 50,000.00 as moral damages; and 4) The costs of this suit. The said accused is hereby credited of his total duration of preventive imprisonment in the service of his imposed imprisonment. SO ORDERED.9 The CA Decision On appeal, the CA affirmed the judgment of conviction of De Guzman holding that his guilt for the crime of murder was proven beyond reasonable doubt by the prosecution's evidence. The CA added that the facts established by the unwavering testimony of eyewitness Flores could not be displaced by the empty denials and self-serving alibi of De Guzman. It sustained the RTC in appreciating the presence of the qualifying circumstance of treachery which elevated the killing to Murder. The dispositive portion of the February 9, 2010 Decision reads: WHEREFORE, premises considered, the appeal is hereby DISMISSED. The decision of Branch 45, Regional Trial Court of San Jose, Occidental, Mindoro in Criminal Case No. R-5285 is

hereby AFFIRMED. SO ORDERED. 10 On February 18, 2010, De Guzman filed a Notice of Appeal, 11 which was given due course by the CA in its March 3, 2010 Minute Resolution. 12

9 Records p. 153. 10 CA rollo p. 87. 11 Id. at 88-89. 12 Id. at 91. DECISION 6 G.R. No. 192250

On July 2, 2010, this Court issued a resolution 13 notifying the parties that they could file their respective supplemental briefs, if they so desire, within thirty days from notice. Both parties manifested that they would no longer file supplemental briefs. THE ISSUES Insisting his innocence, De Guzman imputes to the RTC the following

errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE INCONSISTENT AND DOUBTFUL TESTIMONY OF THE PROSECUTIONS EYEWITNESS. II THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF MURDER DESPITE THE EYEWITNESS' FAILURE TO POSITIVELY IDENTIFY THE FORMER. III THE TRIAL COURT GRAVELY ERRED IN FINDING THAT TREACHERY ATTENDED THE SUBJECT KILLING. 14 De Guzman argues that the evidence for the prosecution did not meet that quantum of proof necessary to convict him of the crime charged. The testimony of Flores was riddled with inconsistencies and contradictions which tend to erode his credibility and raise doubt on the veracity of the prosecution evidence. It was highly improbable for Flores to clearly identify the assailant considering that the stabbing incident took place suddenly and quickly at 11:00 o'clock in the evening in a remote barangay with no good

13 Rollo, pp. 17-18. 14

CA rollo, p. 27. DECISION 7

G.R. No. 192250

source of illumination. The prosecution miserably failed to show any ill motive on his part that could have possibly impelled him to commit the crime. Since the prosecution's case is weak, his defense of alibi assumes importance and can effectively negate his criminal liability. Finally, De Guzman asserts that even granting arguendo, that he indeed stabbed Urieta, he cannot be convicted of murder because the prosecution failed to establish the presence of the qualifying circumstance of treachery. For the prosecution, the OSG urges this Court to affirm in toto the challenged decision for failure of De Guzman to show that the RTC committed any error in rendering a judgment of conviction. It contends that the narration of Flores regarding the bloody assault on Urieta had clearly established the corpus delicti of the crime which rendered inconsequential the alleged inconsistencies in his testimony. It is of the position that eyewitness Flores testified in clear and unequivocal terms as to the identity of the author of the crime. Lastly, it posits that treachery was alleged and duly proved by the prosecution during the trial and, hence, the conviction of De Guzman for murder was correct. THE COURT'S RULING The crucial issue in this case is the sufficiency of evidence to convict De Guzman. More particularly, the Court has to inquire whether there had been sufficient identification of De Guzman as the perpetrator of the crime. In every criminal case, the task of the prosecution is always two-fold, that is, (1) to prove beyond reasonable doubt the commission of the crime charged; and (2) to establish with the same quantum of proof the identity of

the person or persons responsible therefor, because, even if the commission DECISION 8 G.R. No. 192250 of the crime is a given, there can be no conviction without the identity of the malefactor being likewise clearly ascertained. 15

Although it is entrenched in this jurisdiction that findings of the trial court on the credibility of the witnesses are accorded great weight and respect because it had ample opportunity to observe the demeanor of the declarants at the witness stand, this rule admits exceptions. The saving instance is said to be when a fact or circumstance of weight and influence has been overlooked, or its significance misconstrued by the trial court sufficient to harbor serious misgivings on its conclusions. 16 After a painstaking review of the records and the transcripts of stenographic notes of the testimonies of the witnesses, the Court is not convinced with moral certainty that De Guzman committed the crime charged. Reasonable doubt bothers the conscience. With a cloud of doubt continuously hovering, the mind cannot rest easy. The case for the prosecution was woven basically on the testimony of Flores, who claimed to be a childhood friend of Urieta. 17 This alleged eyewitness recounted that on April 20, 2002, at around 11:00 o'clock in the evening, he and Urieta were drinking beer at a store near a peryahan in

Barangay Francisco, Sablayan, Occidental Mindoro; that after they had finished their third bottle of beer, they decided to leave their table; that when Urieta was about to stand up, De Guzman suddenly appeared from nowhere and stabbed Urieta using a knife with a red handle, without any reason or provocation; that the stab blow landed on the left breast of Urieta and caused him to fall down; that while in a kneeling position, De Guzman stabbed him three more times; that Flores cried for help but no one came to their aid; and that thereafter, De Guzman ran away.

15 People v. Bacalso, 395 Phil. 192, 199 (2000). 16 Id. 17 CA rollo, pp. 44 and 79. DECISION 9 G.R. No. 192250

Flores claimed that a certain Elmer Honato (Honato) came and brought Urieta to the corner of the street; that Honato then went to the barangay hall allegedly to look for a physician who would attend to the seriously injured Urieta; that he waited for Honato but sensing that the latter would no longer return, he hurriedly went home leaving Urieta alone on the ground; and that he did not know whether Urieta was still alive when he left him. Flores testified that he was just a meter (an arms length) away from Urieta when the latter was stabbed by De Guzman; that the light of the moron coming from the peryahan illuminated the table where they were

drinking, enabling him to see the face of the perpetrator whom he identified to be De Guzman; that two (2) days after the stabbing incident, Police Officer Gamba, Gina and Urietas father came to his house; that he then executed a sworn statement before a police officer narrating his accounts of the stabbing incident which led to the death of Urieta; that he did not know De Guzman and it was on the night of the stabbing incident that he first saw him; and that he came to know of the name of De Guzman from the policemen. A nexus of logically related circumstances, however, rendered the testimony of Flores as highly suspect. His testimony is laden with improbabilities that detract from his credibility. The totality of the evidence for the prosecution leaves much to be desired. Somehow, the Court cannot help but entertain serious doubts on the veracity of the malefactor's identity. It is almost as if it was merely contrived to pin criminal culpability upon De Guzman. DECISION 10 G.R. No. 192250

First, the condition of visibility at the time of the stabbing incident did not favor the witness Flores, as it did not lend credence to his testimony. The incident took place during nighttime at 11:00 o'clock in a remote barangay with no electric lighting in the surroundings and the only source of light then was the illumination of a moron coming from a peryahan. Apart from the testimony of Flores, no other competent and corroborative evidence was adduced to settle this question of visibility and lighting condition as well as to confirm that indeed the light of the moron was existent and adequate for purposes of identification on the night of the incident. The Court observes that in his Sinumpaang Salaysay,

18 Flores stated that the moron (de gas) was just on the table where they were drinking which was contrary to what he had testified in court. The distance of the moron in the peryahan from the site of the stabbing incident was not disclosed either. It could have helped determine if the place was well illuminated. It is important to note that illumination or brightness diffuses as the distance from the source increases. Moreover, it is clear from the records that the stabbing incident was so swift for ample observation and Flores, who had three bottles of beer, was admittedly very afraid so much so that all he did was to cry for help. Under these circumstances, the Court finds the positive identification of De Guzman by Flores hazy. In People v. Faustino, 19 the Court stated that the identification of an accused by an eyewitness is a vital piece of evidence and most decisive of the success or failure of the case for the prosecution. In the case at bench, however, the inconclusive and unreliable identification by Flores of De Guzman as the culprit failed to break the barrier of proof beyond reasonable doubt.

18 Records, pp. 11-12. 19

394 Phil. 236, 259 (2000).DECISION 11

G.R. No. 192250

Second, Flores' story, that a certain Honato came to their aid and brought the seriously wounded Urieta to the corner of the street but left thereafter supposedly to seek a physician at the barangay hall, simply does not make sense. It appears strange that Honato should proceed to the barangay hall to look for a doctor when natural instinct and reason would dictate that he and Flores should have brought Urieta straight to the hospital for the immediate medical treatment of his wounds. It appears even stranger that this Honato was not presented in court to corroborate the testimony of Flores. Besides, can one really find a physician at the barangay hall at that late hour of the night? His story about Honato being nebulous, the Court doubts if Flores ever shouted for help at all. If he really did, many people in the peryahan would have surely come to their aid. Indeed, if he was a childhood friend, he would not have second thoughts in bringing Urieta to the hospital himself. As he merely abandoned his dying friend, one cannot help but harbor a suspicion. Furthermore, the reaction of Flores, in hurriedly going home and leaving Urieta alone to die, was unnatural and contrary to common human experience. The seemingly apathetic behavior displayed by Flores in leaving Urieta without even checking his condition to see if he was still breathing and his failure to report the matter to the police or at least inform the victim's family about what happened on the same night were highly inconsistent with the natural/common reaction of one who had just witnessed the stabbing of his childhood friend. The Court cannot accept a story that defies reason and

leaves much to the imagination. The failure of Flores to lend a touch of realism to his tale leads to the conclusion that he was either withholding an incriminating information or was not telling the truth. DECISION 12 G.R. No. 192250

The time-honored test in determining the value of the testimony of a witness is its compatibility with human knowledge, observation and common experience of man. 20 Thus, whatever is repugnant to the standards of human knowledge, observation and experience becomes incredible and must lie outside judicial cognizance. Consistently, the Court has ruled that evidence to be believed must proceed not only from the mouth of a credible witness but must be credible in itself as to hurdle the test of conformity with the knowledge and common experience of mankind. 21 In the case at bench, the testimony of Flores, the lone eyewitness of the prosecution does not bear the earmarks of truth and, hence, not credible.

Third, the Court finds disturbing how the police officers were able to identify De Guzman as the killer of Urieta. It is undisputed that on the day following the stabbing incident, De Guzman was invited by the police officers to the municipal hall, was informed by them that he was a suspect in the commission of a crime and then placed behind bars. De Guzman

testified, to wit: Atty. Jennifer Garcia (On Direct Examination) Q: The following day, what did you do? A: I was drying our palay, sir. Q: While drying your palay, do you know if there was anything that happened? A: My wife arrived, sir. Q: When your wife arrived what happened? A: According to her I was being looked by some policemen, sir. Q: Why are these policemen were looking at you? A: Because according to them they are going to ask something from me, sir. Q: After knowing that some policemen are looking for you, what did you do then? A: I was the one who approached them, sir.

20 Ocampo v. People, G.R. No. 163705, July 30, 2007, 528 SCRA 547, 560. 21 Zapatos v. People, G.R. No. 192250 457 Phil. 969, 985 (2003).DECISION 13

Q: Where did you approach them? A: I asked them why they are looking for me, sir. Q: Did they told you why they are looking for you?

A: They are inviting me to go with them in the Municipal Hall, sir. Q: For what purpose they are asking you to come with them in the Municipal Hall? A: According to them they are going to ask something from me, sir. Q: Did you reach the Municipal Hall? A: Yes, sir. Q: While in the Municipal Hall, what happened? A: I was incarcerated, sir. Q: Did you come to know from them why you are incarcerated? A: They said that I was involved in a stabbing incident, sir.22

Also, on April 21, 2002, Gina, the wife of the victim, executed her Sinumpaang Salaysay 23 wherein she declared, among others, that she came to know the identity and the name of the assailant from the police officers. Thus: T: Kung ikaw ay nasa inyong bahay sa bukid naroroon kagabi ng maganap ang pananaksak ni HERMOGENES DE GUZMAN alias Mong sa iyong asawa, papaano mong nalaman na itong si HERMOGENES DE GUZMAN nga ang may kagagawan ng pananaksak sa iyong asawa, gayong wala ka naman kagabi sa lugar ng pinangyarihan? S: Napag-alaman ko po sa mga Pulis na sumurender na ang sumaksak sa aking asawa kaya't ako nga ay pumunta dito at

ipinagtanong ko ang kanyang pangalan sa mga Pulis kaya ko siya nakilala at napag-alamang siya nga ang sumaksak sa aking asawang si Noriel. During the trial, Gina stated the same thing as she testified, to wit: Asst. Pros. Dante V. Ramirez (On Direct Examination) Q: Who was the person who killed your husband? A: Hermogenes de Guzman, sir.24

22 TSN, dated July 17, 2007, pp. 3-4. 23 Records, p. 10. 24 TSN, dated October 12, 2005, p. 8. DECISION 14 192250 COURT Q: You mentioned a while ago that when you were asked who killed your husband, you answered Hermogenes de Guzman, how did you come to know the killer of your husband? A: I came to know from the Police Officer, Your Honor. Q: Have you known Hermogenes de Guzman before the death of your husband?? A: No, Your Honor. Q: You came to know him only upon the death of your husband? G.R. No.

A: Yes, Your Honor. Q: Do you know any reason why Hermogenes de Guzman killed your husband? A: I do not know any reason, Your Honor.25

Two days after the incident in question or on April 22, 2002, Flores executed his Sinumpaang Salaysay and gave his account of the stabbing incident only because Police Officer Gamba together with the father and the wife of Urieta came to his house. 26 Even so, nowhere in the record does it show that Flores gave the police officers a description of the physical features and attributes of the assailant. During the trial, he admitted that he did not know De Guzman or his name at the time of the stabbing incident. Thus: Atty. Jennifer Garcia (On Cross-Examination) Q: How about accused, did you know him personally? A: I only saw him on that night when he stabbed Noriel Urieta and I only learned his name from the Police Officer.27 The foregoing sequence of events clearly reveals that the police officers had already a suspect, De Guzman, in the killing of Urieta, even before Flores could give his statement and despite the absence of any description from Flores himself as to how the culprit looked like. Curiously, no police officer was called to the witness stand to shed light on the matter.

25 Id. at 12-13. 26 TSN, dated August 25, 2004, p. 10. 27 Id. at 14. DECISION 15 G.R. No. 192250

This gray area in the case of the prosecution is fatal to its cause and casts serious doubt on the veracity and credibility of its evidence. The Court is likewise puzzled as to how the prosecution came into possession of the alleged murder weapon marked as Exhibit B. During the trial, a knife with a red handle was shown to Flores who specifically identified it to be the same bladed weapon used by De Guzman in stabbing Urieta. The information, however, as to who recovered that knife, and from whom it was seized remained a mystery. At any rate, considering the visibility condition and other attending circumstances on the night of the stabbing incident, the Court indeed doubts how Flores could have positively identified the murder weapon.

Lastly, it has not been shown that De Guzman had any motive for killing Urieta. The brutal and gruesome attack on Urieta, who sustained two stab wounds on the chest, a stab wound along the waist area which hit the liver, and a stab wound on the elbow, clearly manifested the intention of the perpetrator to purposely bring death upon the victim. There was no evidence, however, that De Guzman carried a grudge or had an axe to grind against the

victim or his family, or even knew the victim at all. Prosecution witnesses Flores and Gina even attested that they did not know of any reason why De Guzman killed Urieta. Generally, the motive of the accused in a criminal case is immaterial and does not have to be proven. Proof of the same, however, becomes relevant and essential when, as in this case, the identity of the assailant is in question. 28 In People v. Vidad, 29 the Court said:

28 People v. Garcia, 390 Phil. 519, 528 (2000). 29 369 Phil. 954, 965 (1999), citing US v. Carlos, 15 Phil. 47 (1910). DECISION 16 G.R. No. 192250 It is true that it is not indispensable to conviction for murder that the particular motive for taking the life of a human being shall be established at the trial, and that in general when the commission of a crime is clearly proven, conviction may and should follow even where the reason for its commission is unknown; but in many criminal cases, one of the most important aids in completing the proof of the commission of the crime by the accused is the introduction of evidence disclosing the motive which

tempted the mind to indulge in the criminal act. (Underscoring ours) In light of the weakness in the prosecution's case, the alibi of De Guzman assumes credence and importance. While alibi is a weak defense and the rule is that it must be proved to the satisfaction of the court, the said rule has never been intended to change the burden of proof in criminal cases. Otherwise, an absurd situation will arise wherein the accused is put in a more difficult position where the prosecution evidence is vague and weak as in the present case. 30 The burden of proof still lies in the prosecution to establish that De Guzman was responsible for the killing. It is oft-repeated that a finding of guilt must rest on the evidence of the prosecution not on the weakness or even absence of evidence for the defense. Thus, it is required that every circumstance favoring the innocence of the accused must be duly taken into account. The proof against him must survive the test of reason and the strongest suspicion must not be permitted to sway judgment. 31 In the case at bench, the evidence for the prosecution was unable to pass the exacting test of moral certainty that the law demands. In People v. Fernandez, 32 this Court has aptly said:

30 People v. Caverte, 385 Phil. 849, 873 (2000). 31 People v. Mejia, 341 Phil. 118, 145 (2002). 32 434 Phil. 435, 455 (2002).: DECISION 17 G.R. No. 192250 It is better to liberate a guilty man than tq unjustly keep in prison one whose guilt has not been proved by the required quantum of evidence. Hence, despite the Court's support of ardent crusaders waging all-out war against felons on the loose, when the People's evidence fails to prove indubitably the accused's authorship of the crime of which they stand accused, it is the Court's duty -- and the accused's right -- to proclaim their innocence. Acquittal, therefore, is in order. WHEREFORE, the appeal is GRANTED. The February 9, 2010 Decision of the Court of Appeal~ in CA-G.R. CR-H.C. No. 03458 is hereby REVERSED and SET ASIDE. Accused Hermogenes De Guzman is hereby ACQUITTED of the crime charged against him and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The Director of the Bureau of Corrections is ORDERED to forthwith implement this decision and to INFORM this Court, within five ( 5) days from receipt hereof, of the date when De Guzman was actually released from confinement.

SO ORDERED.

People V Pajarin DECISION

ABAD, J.:

This case is about the need for the prosecution and all law enforcement agencies involved in illegal drugs operations to ensure proper observance of the rules governing entrapment of peddlers of prohibited substances.

The Facts and the Case

The City Prosecutor of Manila charged the accused Luis Pajarin and Efren Pallaya before the Regional Trial Court (RTC) of Manila in Criminal Cases 05237756 and 05-237757 with violation of Section 5 in relation to Sections 26 and 11 (3) in relation to Section 13, respectively, of Article II of Republic Act (R.A.) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The prosecution presented PO2 Nestor Lehetemas, member of the buy-bust team and PO2 James Nolan Ibaez, the poseur-buyer. They testified that on June 1, 2005 at around 10:00 p.m., an informant arrived at their Station AntiIllegal Drugs (SAID) with the report that drugs would be sold on P. Ocampo and Dominga Streets the next day at around 5:00 pm. As the poseur-buyer, PO2 Ibaez marked a P 500.00 bill with SAID on top of its serial number.

On June 2, 2005 the buy-bust team went to the site of the operation on board a Tamaraw FX which they parked near Dominga Street. The informant pointed to the two accused, Luis Pajarin and Efren Pallaya. They stood 10 to 20 steps away beside a red scooter. PO2 Ibaez and the informant approached them.

After the informant introduced PO2 Ibaez as an interested buyer, the police officer bought shabu from the two, using the marked P 500.00 bill. Pajarin opened the compartment of the red scooter and took from it one heat-sealed transparent plastic sachet containing a white crystalline substance. When Pallaya asked for the money, PO2 Ibaez handed it to him. Then Pajarin gave one plastic sachet containing the suspected shabu to the officer, who raised his right hand as a pre-arranged signal. PO2 Ibaez's companions immediately rushed to the group. PO2 Ibaez grabbed Pallaya. Pajarin tried to escape but PO2 Lehetemas got hold of him.

The police searched the red scooter's compartment and recovered another plastic sachet containing the same substance. They then brought the accused to their station. The arresting officers turned over the seized suspected shabu to PO3 Roel Young who marked the plastic sachet seized from the scooter with the letters "ETP," and the sachet Pajarin handed over with the letters "LDCP." Chemistry Report D-369-05 showed that upon examination of the submitted specimen, the same yielded positive result for Methylamphetamine hydrochloride, a regulated drug.

The defense had a completely different version. Pajarin said that at around 2:00 p.m. of June 2, 2005 he was at Pallaya's house, repairing the latter's motor pump. As he left the house and got into the street, someone hit his helmet, grabbed him, and dragged him into a Tamaraw FX. They then brought him back to Pallaya's house where four police officers got in and brought Pallaya out with them after about three minutes. The officers brought the two accused to the police station where they were investigated. PO2 Ibaez showed Pajarin a plastic sachet which he supposedly recovered from Pajarin's scooter. Pajarin denied owning the sachet. It was a police officer who drove the scooter to the police station.

For his part, Pallaya testified that on June 2, 2005 he was taking a bath at the fourth floor of his four-storey house when he heard knocking at the door. When he opened it, he was surprised to see four men there, claiming to be police officers. They broke open the doors of the house from the ground to the third floor. The officers ordered him to dress up and forced him to go with them. Pallaya asked for a warrant of arrest or a search warrant but he got no

response from them. They made him board a Tamaraw FX where Pajarin sat. They then brought the accused to the police station.

On March 31, 2008 the RTC found both accused guilty of the crime charged and imposed on them the penalty of life imprisonment and a fine of P 500,000.00 in Criminal Case 05-237756. In Criminal Case 05-237757, the RTC sentenced Pajarin to suffer 12 years and 1 day to 17 years and 4 months of imprisonment and to pay a fine of P 300,000.00. The RTC absolved Pallaya of this second offense.

On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 03291, the latter rendered a decision dated September 30, 2009, affirming the RTC decision, hence the present appeal to this Court.

The Issues Presented

Accused Pajarin and Pallaya raise two issues: chanrob1esvirtwallawlibrary

1. Whether or not the CA erred in not excluding the evidence of the seized shabu on the ground that the prosecution failed to prove their integrity by establishing the chain of custody of the same until they got to the trial court; and

2. Whether or not for this reason the CA erred in affirming their conviction.

The Rulings of the Court

Appellants chiefly argue that the police officers involved in the buy-bust operation failed to comply with Section 21 (a), Article II of the Implementing Rules and Regulations of R.A. 9165, which requires them to take immediate

inventory of and photograph the seized item in the presence of the accused or his representative or responsible third persons mentioned but always taking care that the integrity and evidentiary value of the seized articles are preserved.

The Court has held in numerous cases that the failure of the police to comply with the procedure laid down in R.A. 9165 would not render void the seizure of the prohibited substance for as long as the apprehending officers give justifiable reason for their imperfect conduct1cralaw and show that the integrity and evidentiary value of the confiscated items had not been compromised.2cralawredlaw

Here, the prosecution failed to show that the substances allegedly seized from the accused were the same substances presented in court to prove their guilt. Usually, the seized article changes hands from the police officer who takes it from the accused, to the supervising officer at their station, to the messenger who brings them to the police crime laboratory, and then to the court where it is adduced as evidence. Since custody and possession change over time, it has been held indispensable that the officer who seized the article places it in a plastic container unless it is already in one, seals it if yet unsealed, and puts his marking on the cover. In this way there is assurance, upon inspection, that the substance reaches the laboratory in the same condition it was seized from the accused.3cralawredlaw

Here, the police officers did not mark the sealed plastic sachets to show that they were the same things they took from the accused. Rather, the marking on the items were done by the station investigator who would have no way of knowing that the substances were really seized from the accused. The marking of captured items immediately after they are seized from the accused is the starting point in the custodial link. This step is vital because succeeding handlers of the specimens will use the markings as reference. Failure to place such markings paves the way for swapping, planting, and contamination of the evidence.4cralaw These lapses seriously cast doubt on the authenticity of the corpus delicti, warranting acquittal on reasonable doubt.5cralawredlaw

Further, as a rule, the police chemist who examines a seized substance should ordinarily testify that he received the seized article as marked, properly sealed and intact; that he resealed it after examination of the content; and that he placed his own marking on the same to ensure that it could not be tampered pending trial. In case the parties stipulate to dispense with the attendance of the police chemist, they should stipulate that the latter would have testified that he took the precautionary steps mentioned. Here, the record fails to show this.

It is a serious concern that quite often the failure of the police to observe the rules governing buy-bust operations results in acquittals. Drug enforcement agencies should continually train their officers and agents to observe these rules and transfer out those who would not. The prosecutors conducting preliminary investigation should not file in court drugs cases where the sworn statements of the police officers, the report of the chemical analyst, and the object evidence do not show compliance with the same. And trial courts should order the case dismissed and the accused released from detention if on examination the supporting documents are wanting in this respect. They should not waste their precious time to useless exercise where the police and the prosecution fail to observe the rule of law especially in so serious offenses.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals dated September 30, 2009 in CA-G.R. CR-HC 03291 as well as the decision of the Regional Trial Court of Manila, Branch 2, in Criminal Cases 05-237756 and 05-237757, and ACQUITS the accused-appellants Luis Pajarin and Efren Pallaya on the ground of reasonable doubt. The Court orders their immediate RELEASE from custody unless they are being held for some other lawful cause.

SO ORDERED. People V Lorenzo DECISION

PEREZ, J.

Assailed in this appeal via Notice of Appeal is the 14 June 2007 Decision[1] of the Court of Appeals in CA-GR HC No. 02184 which affirmed the 05 October 2005 Decision[2] promulgated by the Regional Trial Court (RTC) of San Mateo, Rizal, in Criminal Case Nos. 6991-93, finding accused-appellant Paterno Lorenzo y Casas guilty beyond reasonable doubt of violating Sections 5 and 11, Article II, of Republic Act No. 9165, otherwise known as the Dangerous Drugs Act of 2002.[3]

Accused-appellant was arrested and charged following a buy-bust operation.

On 12 September 2003, two (2) Informations were filed against accusedappellant Paterno Lorenzo y Casas (Lorenzo) charging him with violating Sections 5 and 11, Article II of Republic Act No. 9165, the accusatory portions thereof reading.

Criminal Case No. 6992 That on or about the 10th day of September 2003 in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control a total of 2.04 grams of white crystalline substance contained in two (2) heat-sealed transparent plastic sachets which gave positive result to the test for Methylamphetamine Hydrochloride, a dangerous drug.[4]

Criminal Case No. 6993 That on or about the 10th day of September 2003, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to

another 0.20 gram of white crystalline substance contained in one (1) heatsealed transparent plastic sachet which gave positive result to the test for Metamphetamine Hydrochloride, a dangerous drug.[5]

The cases were raffled to Branch 76 of the RTC of San Mateo, Rizal and docketed as Criminal Case Nos. 6992-93.

One Conrado Estanislao y Javier (Estanislao) was similarly charged in a different Information, which case was docketed as Criminal Case No. 6991. Estanislao was accused of possessing illegal drugs in violation of the provisions of Section 11, Article II of Republic Act No. 9165, the Information containing the following averments:

Criminal Case No. 6994

That on or about the 10th day of September 2003, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control of 0.05 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet which gave positive result to the test for Methylamphetamine Hydrochloride, a dangerous drug.

On arraignment, both accused, with the assistance of counsel, entered NOT GUILTY pleas.

The three (3) cases having been consolidated, joint trial on the merits ensued.

The prosecution presented as its lone witness, Police Officer 1 (PO1) Noel P. Pineda, who was a member of the buy-bust team.

The evidence for the prosecution sought to establish that on 9 September 2003, upon a series of reports relayed by a confidential informant that a certain Paterno Lorenzo was peddling shabu in the Barangay Dulongbayan area, the team of PO3 Pineda embarked on a buy-bust operation against said drug peddler. Anticipating the operation, PO3 Pineda prepared two (2) pieces of marked P100.00 bills to be used as buy-bust money. At around 10:00 oclock in the evening of the same day, PO3 Pineda, along with SPO1 Arellano and PO3 Tougan, proceeded to Barangay Dulongbayan and secretly met with their confidential informant. According to the confidential informant, he had not seen Lorenzo and raised the possibility that he was not in the area at the time. Assessing the situation, the police officers instructed the confidential informant to continue with his surveillance of the area and to inform them immediately if he comes across Lorenzo.

At around 1:00 oclock in the morning of 10 September 2003, while PO1 Pineda and his companions were waiting at Gen. Luna Street, the confidential informant reported that Lorenzo was already at the Daangbakal, Dulongbayan I area and was selling prohibited drugs. Riding an unmarked vehicle, the team proceeded to where Lorenzo was. On their arrival, Lorenzo was talking to a man at the corner of Pulong Diablo and Daangbakal. PO3 Tougan stepped out of their vehicle and hid in a place where he was not visible to Lorenzo. PO3 Pineda stayed close to SPO1 Arellano, who was then hiding inside a tricycle near Lorenzo. While this was happening, the confidential informant approached Lorenzo for the transaction. Lorenzo and the confidential informant were approximately four (4) meters away from PO3 Pineda. Because PO3 Pineda knew who Lorenzo was and considering the place was illuminated, PO3 Pineda recognized the suspect. The confidential informant and Lorenzo were talking for about one minute, after which the informant gave the marked money to Lorenzo. After taking the marked money, Lorenzo handed the shabu to the informant. PO3 Pineda and SPO1 Arellano alighted from the tricycle and approached Lorenzo, and introduced themselves as police officers. They arrested Lorenzo.

Upon being arrested, Lorenzo was bodily searched and PO1 Pineda was able to retrieve the marked money and 2 other sachets of shabu from him. Seeing what had happened to Lorenzo, the man he was talking to and later on identified as a certain Estanislao, attempted to escape the police officers and ran, but he was soon accosted by PO3 Tougan. A search of his pockets yielded one (1) sachet of shabu.

After the buy-bust operation, Lorenzo and Estanislao were taken to the police station where the incident was recorded in the police blotter. The plastic sachets containing 2.04 and 0.20 grams of white crystalline substance bought from Lorenzo was sent to the PNP Crime Laboratory for laboratory examination. The results as contained in Chemistry Report no. D-1741-03E showed that the substance sold by Lorenzo was positive for Methylamphetamine Hydrochloride or shabu.[6]

Interposing the twin defenses of denial and frame-up, accused-appellant Lorenzo and Estanislao stood before the witness stand and presented their version of the facts.

Lorenzo was in his mountain bike on the way home to Dulongbayan sometime between 12:00 oclock in the evening and 1:00 oclock in the morning of 10 September 2003. Estanislao, who was also with him at the time, was riding in his motor cross style bike and was supposed to buy food at said place after playing tong-its.

While the two (2) were traversing Daangbakal and Delos Angeles Street, the chain on Estanislaos bike went loose. During the time Estanislao was repairing his bike, PO3 Tougan, PO3 Pineda, and SPO1 Arellano, who were then on board an owner type jeepney, arrived and arrested Lorenzo and Estanislao. According to the police officers, they were to be brought to the Municipal Hall. The two (2) suspects protested, claiming not having done anything wrong but the police officers continued with the arrest. It was later that they were informed that the arrest was for illegal drugs.

On 5 October 2005, the RTC rendered a Decision convicting Lorenzo for illegal possession and sale of dangerous drugs, but acquitting Estanislao, disposing as follows:

WHEREFORE, judgment is hereby rendered: (a) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable doubt for violation of Section 5, first paragraph, Article II of Republic Act No. 9165 (Criminal Case No. 6993) or illegal selling of 0.20 gram of methylamphetamine hydrochloride (shabu), a dangerous drug, and is sentenced to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).

(b) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable doubt for Violation of Section 11, second paragraph, No.3, Article II of Republic Act No. 9165 (Criminal Case No. 6992) or illegal possession of 2.04 gram of methylamphetamine hydrochloride (shabu), a dangerous drug, and is sentenced to suffer imprisonment of Twelve (12) years and one (1) day as minimum to Twelve years and six (months) as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

(c) Finding accused Conrado Estanislao y Javier, for violation of Section 11, second paragraph, sub paragraph 3, Article II of Republic Act No. 9165, NOT GUILTY for failure of the prosecution to prove his guilt beyond reasonable doubt.

Detained accused Conrado Estanislao y Javier is ordered released from detention at the San Mateo Jail unless detained for some other lawful cause.

The plastic sachets of shabu subject matter of the instant cases are ordered forfeited in favor of the government and the Officer-In-Charge of the Court is hereby ordered to safely deliver or cause the safe delivery of the same to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.[7]

Weighing the testimonies of the prosecution and defense witnesses, as well as the other evidence presented during trial, the trial court gave more veracity to the prosecutions version that Lorenzo was caught in flagrante delicto selling illegal drugs to a poseur-buyer during a buy-bust operation. The trial court gave credence to the prosecutions evidence in accordance with the presumption of regularity in the performance of official functions accorded to police officers. According to the trial court, the prosecution proved beyond reasonable doubt the identity of the buyer in the buy-bust operation and the seller, object and consideration, including the delivery of the shabu sold by Lorenzo and the payment of the buy-bust money.

Invoking his innocence, Lorenzo appealed his conviction to the Court of Appeals, questioning the procedure followed by the police operatives in the seizure and custody of the evidence against him.

On 14 June 2007, the Court of Appeals affirmed the judgment of conviction rendered by the RTC, disposing to wit:

WHEREFORE, premises considered, appeal is hereby dismissed and the assailed October 5, 2005 Decision of the Regional Trial Court of San Mateo Rizal, Branch 76, in Criminal Case Nos. 6991-93, is hereby AFFIRMED.

Pursuant to Section 13 (C), Rule 124 of the 2000 Rules of Criminal Procedure, as amended by AM No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004. This judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed with the Clerk of Court of the Court of Appeals.

SO ORDERED.

Unyielding, Lorenzo appealed before this Court on Notice of Appeal,[8] adopting the same arguments raised before the Court of Appeals:

I. THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF VIOLATION OF SECTIONS 5 AND 11, REPUBLIC ACT NO. 9165; AND

II. THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF DENIAL.

The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Corollary thereto, conviction must rest on the strength of the prosecutions evidence and not on the weakness of the defense.

In fact, if the prosecution fails to meet the required quantum of evidence, the defense may logically not even present evidence on its behalf. In which case, the presumption of innocence shall prevail and, hence, the accused shall be acquitted. However, once the presumption of innocence is overcome, the defense bears the burden of evidence to show reasonable doubt as to the guilt of the accused.

Whether the degree of proof has been met is largely left for the trial courts to be determined. Consistent with the rulings of this Court, it is but a fundamental and settled rule that factual findings of the trial court and its calibration of the

testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accusedappellant, we have carefully reviewed and evaluated the records of the case and find it necessary to reverse the appellate courts decision convicting accusedappellant.

Essentially, Lorenzo questions his conviction on the basis of reasonable doubt. The defense anchors its claim on the failure of the prosecution to adopt the required procedure under Section 21, Article II, Republic Act No. 9165, on the custody and disposition of confiscated, seized, or surrendered dangerous drugs. According to the defense, this alleged failure to follow proper procedure, i.e. inventory and photographing of the retrieved evidence, raises doubts as to whether the specimen examined by the forensic chemist and presented in court were indeed retrieved from accused-appellant. The defense also faults the police operatives for not having coordinated with the PDEA regarding the buybust.

Thus, for resolution by this Court is the sole issue of whether the prosecution discharged its burden of proving Lorenzos guilt beyond reasonable doubt for the crime charged.

We rule in the negative. The prosecutions case fails for failure to establish the identity of the prohibited drug with moral certainty.

In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.[9] Material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale had actually taken place, coupled with the presentation in court of evidence of corpus

delicti.[10] The term corpus delicti means the actual commission by someone of the particular crime charged.

On the other hand, in illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond doubt.

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.

While buy-bust operations have been proven to be an effective way to flush out illegal transactions that are otherwise conducted covertly and in secrecy, a buy-bust operation is susceptible to police abuse. Thus, courts have been mandated to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses.

Taking the aforementioned into consideration, specific procedures relating to the seizure and custody of drugs have been laid down under the Implementing Rules and Regulations (IRR) for Republic Act No. 9165 and it is the prosecutions burden to adduce evidence that these procedures have been complied with in proving the elements of the offense.

The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among others, is provided under Section 21 (a), paragraph 1 of Article II of Republic Act No. 9165, to wit:

(a) 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;

Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements said provision, reads:

(a) 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; 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 officers/team, shall not render void and invalid such seizures of and custody over said items.

Section 21(a), Article II of the IRR offers some flexibility in complying with the express requirements. Indeed, the evident purpose of the procedure is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt of or innocence of the accused. Thus, the proviso stating that non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers.

In People v. Sanchez,[11] we clarified that this saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds.

Accused-appellant claims that no physical inventory and no photographing of the drugs took place. Non-compliance by the police operatives with the foregoing requirements in the instant case is fatal to the prosecutions case. Although the prosecution recognized its failure to coordinate with the PDEA because of the urgency of the situation, it ignored the issue of specifically identifying the prohibited drug at the point of confiscation. There is absolutely nothing in the records to show that the inventory and photography requirements, or their credible substitute to prove integrity and evidentiary value, were ever followed. In People v. Lim,[12] this Court held:

xxx any apprehending team having initial custody and control of said drugs and/or paraphernalia, should immediately after seizure and 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 such a requirement raises a doubt whether what was submitted for laboratory examination and presented in court was actually recovered from the appellants. It negates the presumption that official duties have been regularly performed by the PAOC-TF agents.

In Bondad, Jr. v. People,[13] where the prosecution did not inventory and photograph the confiscated evidence, this Court acquitted therein accused reasoning that failure to comply with the aforesaid requirements of the law compromised the identity of the items seized.

In People v. Ruiz,[14] this Court acquitted accused due to the failure of the prosecution to comply with the procedures under Republic Act No. 9165 and its IRR as no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required.

In People v. Orteza,[15] the Court explained the implications of the failure to comply with Paragraph 1, Section 21, Article II of Republic Act No. 9165, to wit:

In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti.

The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the

accused was arrested and to observe the procedure and take custody of the drug.

More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu.

To reiterate, the flexibility offered by the IRR of Republic Act No. 9165 is coupled with the proviso that the integrity and evidentiary value of the seized items must be preserved.

Thus, in Malillin v. People,[16] the Court explained that the chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed. The chain of evidence is constructed by proper exhibit handling, storage, labeling and recording, and must exist from the time the evidence is found until the time it is offered in evidence.[17] Failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from accused is fatal to the prosecutions case. There can be no crime of illegal possession or illegal sale of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.[18]

PO1 Pineda testified that it was their confidential agent who purchased the shabu from accused-appellant and that he only retrieved it from said informant. He further testified that he marked the retrieved sachet of shabu together with the two other sachets of shabu that were allegedly seized from the accused, but it was not certain when and where the said marking was done nor who had specifically received and had custody of the specimens thereafter.

The Court also observes that the prosecution did not present the poseur-buyer who had personal knowledge of the transaction. The lone prosecution witness was at least four meters away from where accused-appellant and the poseurbuyer were. From this distance, it was impossible for him to hear the conversation between accused-appellant and the poseur-buyer.

The foregoing facts and circumstances create doubt as to whether the sachets of shabu allegedly seized from accused-appellant were the same ones that were released to Camp Crame and submitted for laboratory examination. We therefore find that this failure to establish the evidences chain of custody is damaging to the prosecutions case.[19]

In sum, the totality of the evidence presented in the instant case failed to support accused-appellants conviction for violation of Sections 5 and 11, Article II, Republic Act No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense.

Accordingly, the presumption of innocence should prevail.

WHEREFORE, the assailed Court of Appeals Decision dated 14 June 2007 in CA-G.R. CR-H.C. No. 02184, is hereby REVERSED and SET ASIDE. Accusedappellant PATERNO LORENZO y CASAS is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this Decision the action he has taken. Copies shall also be furnished the Director General, Philippine National Police, and the Director General, Philippine Drugs Enforcement Agency, for their information. SO ORDERED. People V Sapia Andongan DECISION

CARPIO MORALES, J.:

Following her arrest during an alleged drug buy-bust operation conducted on June 25, 2004, Sapia Andongan y Sandigang (appellant) was charged for violation of Section 5, Article II of Republic Act (R.A.) No. 9165[1] before the Regional Trial Court (RTC) of Manila in Criminal Case No. 04-227859.

The accusatory portion of the June 29, 2004 Information[2] filed against appellant reads:

That on or about June 25, 2004 in the City of Manila, Philippines, the said accused, not being 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 ZERO POINT ONE HUNDRED FORTY SIX (0.146) grams of white crystalline substance known as shabu placed in a transparent plastic sachet marked as SSA containing methylamphetamine hydrochloride, which is a dangerous drug.

CONTRARY TO LAW. (underscoring supplied)

Culled from the evidence for the prosecution consisting, in the main, of the testimony of PO2 Elymar Garcia (PO2 Garcia), a police officer assigned at the Station Anti-Illegal Drugs (SAID) Office of the Moriones, Tondo Police Station, is the following version:

On the information of a confidential informant, the SAID Office formed a team to conduct a buy-bust operation against appellant for her alleged illegal drugs trade. With a P500.00 bill on which RR, representing the initials of team leader SPO3 Rolando del Rosario (SPO3 del Rosario), was marked. The team, together with the confidential informant, met appellant at Abad Santos Avenue along Bambang Street at around 7:50 p.m. of June 25, 2004.

Informed that PO2 Garcia wanted to buy shabu, appellant inquired how much, to which PO2 Garcia replied P500.00 worth. As PO2 Garcia handed that amount to appellant, the latter drew from her pocket a plastic sachet of white crystalline substance which she gave to him. At that instant, PO2 Garcia introduced himself as a police officer, apprised appellant of her constitutional rights and, together with the team members, arrested her.

The seized item was submitted for laboratory examination and found positive for shabu (Exhibit C), hence, appellants indictment.

At the Pre-trial, the defense counsel from the Public Attorneys Office (PAO) declared that it was interposing a negative defense and that it was not entering into any stipulation other than on the trial courts jurisdiction and appellants identity.[3]

During the trial, the parties stipulated on the qualification of forensic chemist, P/Insp. Elisa G. Reyes (Elisa), and on the genuineness and due execution of the documents brought over by her. The prosecution admitted though that Elisa had no personal knowledge as to the source of the specimen which she subjected to laboratory examination. Her testimony was thereupon dispensed with.[4]

By Decision dated June 5, 2006, Branch 2 of the Manila RTC convicted appellant as charged, penalizing her with life imprisonment and a fine of P500,000.00. Thus it disposed:

WHEREFORE, finding accused, Sapia Andongan y Sandigang, GUILTY beyond reasonable doubt of the crime charged, she is hereby sentenced to life imprisonment and to pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs.

The specimen is forfeited in favor of the government and the Branch Clerk of Court, accompanied by the Branch Sheriff, is directed to turn over with dispatch and upon receipt the said specimen to the Philippine Drug Enforcement Agency (PDEA) for proper disposal in accordance with the law and rules.

SO ORDERED.[5]

On appeal, the Court of Appeals, by Decision[6] of March 31, 2008, affirmed the trial courts decision and, by Resolution dated May 13, 2008, it elevated the case to this Court for further review.[7]

Both parties adopted their briefs filed before the appellate court as theirs before this Court.

Appellant, an ukay-ukay clothing vendor married to one Sammy Sapak who worked as a security guard, gave the following version:

At about 6:00 p.m. on the day she was arrested, she was at her husbands workplace along Bambang St., Tondo, Manila where she brought him dinner. After her husband partook of his dinner, six armed men suddenly arrived, apprehended her, and forced her to go along with them to the police precinct where the policemen emptied her bag and took her P600.00.

Assailing her conviction, on the basis of the testimony of the sole prosecution witness-PO2 Garcia, appellant questions why the buy-bust team leader, SPO3 del Rosario, was not presented to corroborate PO2 Garcias testimony. Appellant goes on and argues:

Granting arguendo that the accused-appellant was a drug pusher peddling along Bambang St., how come only one (1) sachet containing 0.146 grams of shabu was confiscated from her by the five (5) police officers who arrested her? If the accused-appellant was indeed caught in a legitimate entrapment operation, then the policemen had every right and all the opportunity to search her person, even including the premises. The fact, however, is that the policemen could only present a single 0.146-gram sachet of shabu, the source

of which was not even clearly established.[8] (emphasis and underscoring supplied)

Further, appellant questions the chain of custody of the shabu as not properly established.[9]

The Court finds for appellant.

The following testimony of prosecution witness PO2 Garcia, upon which the prosecution mainly anchored its case and which both the trial and appellate courts accorded credence, sheds light on appellants claim that the chain of custody of the 0.146 grams of shabu allegedly seized from her was not properly established.

ASSISTANT PROSECUTOR YAP:

Upon receipt of the shabu, what did you do with that?

WITNESS:

I introduced myself as (sic) police officer.

Now, tell us you said shabu, how did you know that that it is shabu?

After submitting it to the Crime Lab. for examination, sir.

Q At that time when you received the same, describe to us the physical appearance of what was given to you? (sic)

It is containing (sic) white crystalline substance, sir.

What was the container?

Transparent plastic, sir.

So, what was your conclusion upon examining the same?

I believe it was shabu, sir.

What follows next?

A I informed her of her violation, sir, then I appraised (sic) her constitutional rights.

Then what did you do with the body of the accused?

A After taking care (sic) into custody I saw SPO3 Del Rosario together with the team rushing for assistance, sir.

What was recovered from the person of the accused?

A After requesting to empty her pocket, sir, we recovered the marked money, sir.

You mean the P500.00 bill?

Yes, sir.

Q Now, where did you bring the accused as well as the specimen, the evidence you confiscated?

A We brought the accused at (sic) the Station Anti-Illegal Drugs Office then we made a request for laboratory exam. then we submitted the evidence recovered to the Crime Lab. for examination.

xxxx

Q Now, you mentioned also a transparent plastic sachet given to you by the accused. Could you still recognize the same if shown to you again?

Yes, sir.

How were you able to recognize the same?

I put an initial marked in the evidence, sir. The initial is SSA, sir.

What is the meaning of SSA?

The initial of the subject Sapia Andongan Sandigang.

What was the time you made the marking on the specimen?

After bringing the suspect at (sic) the station.

Who was present at that time?

SPO3 Del Rosario, sir.

At the station?

Yes, sir.[10] (emphasis and underscoring supplied)

It bears noting from the foregoing testimony that there is no claim or indication that the shabu allegedly seized from appellant was the same shabu subjected to laboratory examination.

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.[11] (emphasis and underscoring supplied)

Parenthetically, there is also no showing that the buy-bust team complied with the procedural requirements of Section 21, paragraph 1 of Article II of R.A. No. 9165.[12]

With the flawed evidence for the prosecution, the presumption of regularity in the performance of official duty by the prosecution witness-police officer does not arise.[13]

People v. Santos instructively tells us that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. Without the presumption of regularity, the evidentiary gap in identifying the seized evidence from its turnover by the poseur-buyer, its handling and custody, until its turnover to the forensic laboratory for analysis, stands out in bold relief. This gap renders the case for the prosecution less than complete in terms of proving the guilt of the accused beyond reasonable doubt.[14] (emphasis and underscoring supplied)

In another vein, the following testimony of the prosecution witness on the circumstances surrounding the alleged buy-bust during which only one sachet of shabu containing 0.164 gram was seized from appellant additionally spawns doubts on the case for the prosecution.

CROSS-EXAMINATION:

Q When you first saw the accused in this case Sapia Andongan, where was she?

She was along Bambang, sir.

What was she doing then at that time?

She was just standing, sir.

Q Merely standing in Bambang. (sic) Was she beside of (sic) Bambang at 7:40 in the evening?

Yes, sir.

Were there still people at the vicinity?

A Thats crossing the parking area. There were no people around at the parking area but on the other side of Sapia there were so many people there, sir.

Then you approached the accused?

Yes, sir.

xxxx

And when you approached this accused, did you talk to the accused?

The informant introduced me as a prospective buyer, sir.

The informant was with you when you approached?

Yes, sir.

Q What did the informant do? How was (sic) the informant introduced (sic) you to the accused?

According to her ako daw ay kukuha.

And then, what was the response of the accused?

The subject asked me ilan ang kukunin mo. (sic)

Q That was the only words that were given by the accused to you? She did not inquire who you are?

A I was already introduced as a prospective buyer, sir.[15] (emphasis supplied)

For, among other things, it is incredible for an allegedly known drug-peddler to be standing at a corner of a street at 7:50 in the evening instead of plying her trade secretly, and with only a 0.146-gram sachet worth P500.00 of prohibited drugs in her possession the value of which happens to be what a poseur-buyer wants to buy.

WHEREFORE, the assailed Decision of the Court of Appeals dated March 31, 2008 in CA-G.R. CR.-H.C. No. 02467 is REVERSED and SET ASIDE. Appellant,

Sapia Andongan y Sandigang, is ACQUITTED of the crime charged and her immediate release from custody is ordered, unless she is being lawfully held for another cause.

SO ORDERED. People V Ronaldo De Guzman DECISION

NACHURA, J.:

Before this Court is an appeal by Ronaldo de Guzman y Danzil, accused in Criminal Case No. V-1118, filed before the Regional Trial Court (RTC) of Villasis, Pangasinan. He was charged with Illegal Sale of Dangerous Drugs, punishable under Republic Act (R.A.) No. 9165.[1] In a decision[2] dated December 5, 2006, the trial court found De Guzman guilty beyond reasonable doubt of the crime charged. His conviction was affirmed by the Court of Appeals (CA) in a Decision[3] dated June 26, 2008.

On June 10, 2003, a confidential informant reported De Guzmans drug pushing activities to Alcala, Pangasinans Chief of Police, Sotero Soriano, Jr. Soriano immediately formed a team to conduct a buy-bust operation.[4] After a short briefing, the team proceeded to De Guzmans house. Once there, the confidential informant introduced appellant to Senior Police Officer (SPO)1 Daniel Llanillo, who was designated as poseur-buyer. Llanillo tried to buy P200 worth of shabu. He handed two marked P100 bills to De Guzman, and the latter, in turn, gave him two heat-sealed transparent plastic sachets containing what was suspected as shabu. Thereafter, Llanillo gave the prearranged signal to the rest of the team. Appellant was arrested and frisked. The team recovered from De Guzman two packs of empty transparent sachets, three disposable lighters, and P3,380.00 in cash, which included the marked money paid by SPO1 Llanillo. The team then brought De Guzman to the police station in Alcala, Pangasinan.[5]

At the police station, De Guzman and the items seized during the buy-bust operation were turned over to the police investigator, SPO3 Eduardo Yadao. SPO3 Yadao entered the incident in the police blotter. He then placed his initials on the packets of suspected shabu, which were later submitted to the Philippine National Police (PNP) Crime Laboratory in Urdaneta City.[6] Confirmatory tests revealed that the substance in the packets that appellant handed to SPO1 Llanillo was indeed shabu.[7]

At the trial, appellant denied the charges against him. He claimed that, on the morning of June 10, 2003, he was on the second floor of his house watching television when he was informed by his wife that police officers were looking for him. He claimed that SPO1 Llanillo informed him about a report that he (De Guzman) was repacking shabu, which he denied. Thereafter, the police officers frisked him and took the P3,000.00 from his pocket. The police officers also searched the cabinet, where his television was, and found a lighter. Then, he was handcuffed and brought to the police station.[8]

After trial, the RTC rendered a decision, finding De Guzman guilty beyond reasonable doubt of violating R.A. No. 9165. He was sentenced to life imprisonment and to pay a fine of P500,000.00.[9]

De Guzman appealed his conviction to the CA, which affirmed the RTC decision in toto.[10]

De Guzman now comes to this Court on a Petition for Review. He argues that the prosecution failed to show that the police officers complied with the mandatory procedures under R.A. No. 9165.[11] In particular, he points to the fact that the seized items were not marked immediately after his arrest; that the police officers failed to make an inventory of the seized items in his presence or in the presence of his counsel and of a representative from the media and from the Department of Justice (DOJ); and that no photographs were taken of the seized items and of appellant.[12] Appellant also claims that the unbroken chain of custody of the evidence was not established.[13]

Further, appellant contends that the failure of the police officers to enter the buy-bust operation in the police blotter before the said operation, the lack of coordination with the Philippine Drug Enforcement Agency (PDEA), and the failure to observe the requirements of R.A. No. 9165 have effectively overturned the presumption of regularity in the performance of the police officers duties.[14]

The findings of fact of the trial court are accorded great respect, even finality when affirmed by the CA, in the absence of any clear showing that some facts and circumstances of weight or substance that could have affected the result of the case have been overlooked, misunderstood, or misapplied.[15]

Although the question of whether the degree of proof has been met is largely left for the trial courts to determine, an appeal throws the whole case open for review.[16] Thus, the factual findings of the trial court may be reversed if, by the evidence or the lack of it, it appears that the trial court erred.[17]

A review of the records of this case reveals that circumstances warrant a reversal of the trial courts decision.

The Constitution mandates that an accused in a criminal case shall be presumed innocent until the contrary is proven beyond reasonable doubt. The prosecution is laden with the burden to overcome such presumption of innocence by presenting the quantum of evidence required.

Consequently, courts are required to put the prosecution evidence through the crucible of a severe testing, and the constitutional right to presumption of innocence requires them to take a more than casual consideration of every circumstance or doubt favoring the innocence of the accused.[18]

When the circumstances are capable of two or more inferences, as in this case, one of which is consistent with innocence and the other is compatible with

guilt, the presumption of innocence must prevail, and the court must acquit.[19]

The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights.[20]

In a prosecution for illegal sale of dangerous drugs, the following elements must be proven: (1) that the transaction or sale took place; (2) that the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and seller were identified.[21] What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug. The delivery of the contraband to the poseurbuyer and the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the accused.[22] The presentation in court of the corpus delicti the body or the substance of the crime establishes the fact that a crime has actually been committed.[23]

Contrary to De Guzmans contention, the trial court correctly found that the buy-bust transaction took place. The buyer (SPO1 Llanillo) and seller (De Guzman) were both identified and the circumstances of how the purported sale of the illegal drugs took place were clearly demonstrated. Thus, the prosecution successfully established the first and third elements of the crime. However, there is a problem in the prosecutions effort to establish the integrity of the corpus delicti.

In a prosecution for violation of the Dangerous Drugs Act, the existence of the dangerous drug is a condition sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime.[24]

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.[25] The corpus delicti should be identified with unwavering exactitude.[26]

The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.[27] Section 21 of R.A. No. 9165 states:

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 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.

On the other hand, the Implementing Rules and Regulations (IRR) of R.A. No. 9165 provides:

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:

(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.

The Court finds that the apprehending officers failed to comply with the guidelines set under R.A. No. 9165 and its IRR.

SPO1 Llanillo himself admitted that the marking of the seized items was done in the police station and not immediately after the buy-bust operation. He testified:

Q:

What did you do after you said you bought P200.00 worth of shabu?

A: In return, he handed to me two (2) heat sealed transparent plastic sachet containing a suspected methamphetamine hydrochloride (shabu), sir.

Q:

After that what did you do next?

A: The team made a frisking on [Ronaldo] de Guzman to see if there are other things he is keeping in his body, sir.

Q:

And what was the result of your frisking [Ronaldo] de Guzman?

A: We recovered from him 2 packs of empty transparent plastic sachets, 3 disposable lighters, sir.

Q: Aside from those items, what else did you recover from [Ronaldo] de Guzman? A: Money, sir, amounting to P3,380.00 including the marked money.

Q: What did you do with those things that you were able to confiscate from [Ronaldo] de Guzman? A: We brought it to the police station for investigation and the specimen were (sic) brought to the crime laboratory for examination, sir.[28]

It is true that the IRR of R.A. No. 9165 provides that the physical inventory of the seized items may be done at the nearest police station, if the same cannot be done at the place where the items were seized. However, it must be emphasized that the IRR also provides 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.[29]

The failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained. The justifiable ground for non-compliance must

be proven as a fact. The court cannot presume what these grounds are or that they even exist.

Accordingly, non-compliance with the procedure shall not render void and invalid the seizure and custody of the drugs only when: (1) such noncompliance is attended by justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. There must be proof that these two (2) requirements were met before such non-compliance may be said to fall within the scope of the proviso.[30]

In this case, it was admitted that it was SPO3 Yadao, the assigned investigator, who marked the seized items, and only upon seeing the items for the first time at the police station. Moreover, there was no physical inventory made or photographs of the seized items taken under the circumstances required by R.A. No. 9165 and its IRR. There was also no mention that representatives from the media and from the DOJ, and any elected official, were present during this inventory. The prosecution never explained the reasons for these lapses. On cross-examination, SPO1 Llanillo admitted:

Q: Do you know if your team or any member of your team issued an Inventory receipt of those confiscated items? A: I could not remember, sir.

Q: A:

And you have not seen any, right? Yes, sir.

Q: A:

Do you know if there were pictures taken on (sic) the confiscated items? I dont know, sir.

Q: A:

And you have not seen pictures taken? Yes, sir.[31]

Thus, we find no justifiable ground for such non-compliance.

Readily apparent in the prosecutions evidence, likewise, is a gaping hole in the chain of custody of the seized illegal drugs. SPO3 Yadao, in his testimony, narrated how the evidence was handled, thus:

Q: You did not place or put your initials on the buy-bust money, the 2 pieces of P100.00 bil (sic) that was used in the buy-bust operation, you did not (sic)? A: I did not maam (sic).

Q: Is it not that this is the standard operating procedure (SOP) as police investigator that after your receipt of the specimens or items allegedly confiscated in the buy-bust operation that you should place your initials after you signed the same? A: Unless there is a directive from our Chief of Police, maam (sic).

Q: So you are telling this Court that it is not your SOP, you should wait for your Chief of Police to direct you to place your initials on the specimens you received in the buy-bust operation, is that what you mean? A: Yes, maam (sic).

Q: So you are telling us now that there was no instruction from your Chief of Police in this particular case that you will place your initials on the 2 pieces

of P100.00 bill, thats why you did not put your initials thereof (sic), is that what you mean? A: Yes, maam (sic).

Q: Likewise, you did not place your initials on the transparent plastic sachets, disposable lighters and the P3,380.00 that were allegedly confiscated from the accused? A: I was directed to place my initials before submitting it to the PNP Crime Laboratory, Urdaneta City.

Q: So the directive in this particular case is only limited or focused on the suspected plastic sachets containing shabu, is that what you mean? A: Yes, maam (sic).

Q: But you submitted likewise to the PNP Crime Laboratory, Urdaneta City, the empty transparent plastic sachets and disposable lighters, is it not, Mr. Witness? A: Yes maam (sic).

Q: A:

For laboratory examination? Yes, maam (sic).

Q: But there was no instruction from your Chief of Police to place your initials on the specimens? A: There was instruction maam (sic).

Q: But you did not place your initials on the disposable lighters and transparent plastic sachets?

A:

I dont know if I put my initials on the disposables lighters maam (sic).

Q: You are now certain that you placed your initials on the suspected shabu but you are not sure if you placed your initials on the transparent plastic sachets and the disposable lighters? A: Yes, maam (sic).

Q: What time on June 10, 2003 did you receive the specimens allegedly confiscated from the accused? A: On the same date maam.

Q: You earlier said that at around 10:35 a.m. you conducted a buy bust operation and the specimens were turned over to you by your Chief of Police. My question is, what time did your Chief of Police turn over to you the specimens that were allegedly confiscated from the accused? A: 2:00 p.m. when I recorded the incident in the police blotter.

Q: My question is, what time did the Chief of Police turn over to you the alleged specimens or items? A: 2:00 p.m. on June 10, 2003 and that was the time I immediately recorded the incident in the police blotter.

Q: A:

And you immediately prepared a request for laboratory examination? Yes, maam (sic).

Q: A:

What time did you finish preparing the request? I cant remember, maam (sic).

Q: You said that you immediately prepared it, how long did you prepare that request for laboratory examination? A: Until the following day because it was on the following day that the specimens were submitted.

Q:

What was submitted the following morning?

A: If I remember it right, it was on June 11, 2003 when we submitted and received by (sic) the PNP Crime Laboratory and that was on June 11, 2003.[32]

The length of time that lapsed from the seizure of the items from De Guzman until they were given to the investigating officer for marking is too long to be inconsequential. The buy-bust operation took place at about 10:30 a.m. From the accounts of SPO1 Llanillo and another member of the buy-bust team, SPO1 Romeo Manzano, De Guzmans house was very near the police station and the team could easily walk to it. Likewise, the transaction took place rather quickly and appellant was brought to the police station immediately thereafter. All told, it should not have taken 3 1/2 hours, or until 2:00 p.m., for the seized items to be turned over to the investigating officer. There was no explanation why it took the Chief of Police that long to turn over the seized items.

From the time SPO3 Yadao took custody of the seized items, it took yet more time before the same were submitted to the PNP Crime Laboratory, and without any clear explanation on who had custody in the meantime. This vacuum in the chain of custody of the seized items cannot simply be brushed aside.

These circumstances cast a strong shadow of doubt on the identity and integrity of the evidence presented before the court.

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.[33] It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in 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.[34] Indeed, it is from the testimony of every witness who handled the evidence that a reliable assurance can be derived that the evidence presented in court and that seized from the accused are one and the same.[35]

While testimony about a perfect chain is not always the standard, because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination, and even substitution and exchange.[36]

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 simply close its eyes to the likelihood, or at least to the possibility, that, at any point in the chain of custody, there could have been tampering, alteration or substitution of substances from other casesby accident or otherwisein 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 that are readily identifiable must be applied, a more exacting standard that entails establishing a chain of custody of the item with sufficient completeness, if only to make it improbable that the original item has either been exchanged with another or been contaminated or tampered with.[37]

Accordingly, the failure to establish, through convincing proof, that the integrity of the seized items has been adequately preserved through an unbroken chain of custody is enough to engender reasonable doubt on the guilt of an accused. Reasonable doubt is that doubt engendered by an investigation of the whole proof and an inability after such investigation to let the mind rest upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict a person charged with a crime, but moral certainty is required as to every proposition of proof requisite to constitute the offense.[38] A conviction cannot be sustained if there is a persistent doubt on the identity of the drug.[39]

Indeed, the prosecutions failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from appellant is fatal to the prosecutions case.[40]

Finally, the prosecution cannot find solace in its invocation of the presumption of regularity in the apprehending officers performance of official duty.

The presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.[41] Moreover, the failure to observe the proper procedure negates the operation of the presumption of regularity accorded to police officers. As a general rule, the testimonies of the police officers who apprehended the accused are accorded full faith and credit because of the presumption that they have performed their duties regularly. But when the performance of their duties is tainted with failure to comply with the procedure and guidelines prescribed, the presumption is effectively destroyed.[42]

Thus, even if the defense evidence is weak, the prosecutions whole case still falls. The evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.[43]

WHEREFORE, the foregoing premises considered, appellant RONALDO DE GUZMAN y DANZIL is hereby ACQUITTED of the crime charged. The Director of the Bureau of Prisons is ordered to cause the IMMEDIATE RELEASE of appellant from confinement, unless he is being held for some other lawful cause, and to REPORT to this Court compliance herewith within five (5) days from receipt of this Decision.

SO ORDERED. Julius Cacao V People DECISION

DEL CASTILLO, J.:

In order to safeguard its citizenry from the harmful effects of dangerous drugs on their physical and mental well-being, the State pursued an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances.[1] However, in our desire to totally eradicate this social ill, we must adhere to the constitutional pronouncement that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.[2] This case illustrates once more our faithful adherence to said constitutional requirement.

Factual Antecedents

For review is the Decision[3] of the Court of Appeals (CA) in CA-G.R. CR No. 29985 dated July 27, 2007 affirming in toto the Decision[4] of the Regional Trial Court (RTC) of Laoag City, Branch 13 in Criminal Case No. 11489-13 dated November 25, 2005 finding herein petitioner Julius Cacao y Prieto (Cacao) guilty beyond reasonable doubt of violating Section 11, Article II of

Republic Act (RA) No. 9165 (The Comprehensive Dangerous Drugs Act of 2002) and sentencing him to suffer the penalty of imprisonment ranging from 12 years and one day to 15 years and ordering him to pay a fine of P400,000.00. Also assailed is the Resolution[5] of the CA dated December 11, 2007 denying the motion for reconsideration.

On October 15, 2004, two separate informations were filed against Joseph Canlas y Naguit[6] and Cacao[7] indicting them for violation of Section 11, Article II of RA 9165 before the RTC of Laoag City. Insofar as pertinent to this petition, we shall quote the information only against Cacao in Criminal Case No. 11489-13 which reads:

That on or about the 14th day of October, 2004, at Laoag City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously [sic] have in his possession, control and custody 1 plastic sachet of methamphetamine hydrochloride or shabu containing a total of 1.6 grams including plastic sachets [sic] without any license or authority, in violation of the aforesaid law.

CONTRARY TO LAW.[8]

When arraigned on November 30, 2004, Cacao pleaded not guilty.[9] Thereafter trial on the merits followed.

The inculpatory facts, as unveiled by the prosecution in its evidence given during the trial, were briefly synthesized by the Office of the Solicitor General, viz: On October 14, 2004, at around 7:45 in the evening, Police Officer 3 (PO3) Celso Pang-ag of the Intelligence and Operation Section of the Laoag City Police Station received a telephone call from an informant about a drug session being held inside Room 5 of the Starlight Hotel located at Barangay 5, Ablan Avenue, Laoag City.

Acting on the information, PO3 Pang-ag, together with PO2 Jonel Mangapit, went immediately to the Starlight Hotel to determine the veracity of the report. Upon arrival at the target area, PO3 Pang-ag and PO2 Mangapit approached the lady clerk manning the information counter of Starlight Hotel and inquired about the alleged drug session at Room 5 of the hotel.

The lady clerk informed PO3 Pang-ag and PO2 Mangapit that the roomboy of the hotel was about to deliver a softdrink to Room 5 and they could follow him if they [so wish]. Thus, PO3 Pang-ag and PO2 Mangapit followed the roomboy to Room 5. Upon arrival, the roomboy knocked at the door and a woman, later identified as Mylene, opened the door wide enough to enable the police officers to look inside.

PO3 Pang-ag and PO2 Mangapit saw petitioner seated on top of the bed sniffing shabu while Joseph Canlas was on the floor assisting petitioner sniffing shabu. At this juncture, PO3 Pang-ag and PO2 Mangapit arrested petitioner and Joseph and confiscated from them the drug paraphernalia, glass tooter, scissors, lighters and plastic sachets.

PO2 Mangapit frisked petitioner and recovered from him one plastic sachet containing shabu.

After informing petitioner and Joseph of their constitutional rights, PO3 Pang-ag and PO2 Mangapit brought them to the Laoag City Police Station and turned them over to the police officer on duty while the confiscated items were turned over to SPO3 Loreto Ancheta.

The Philippine National Police (PNP) laboratory conducted an examination on the specimen recovered from appellant and his companion which tested positive for shabu.[10]

Cacao professed his innocence and presented his defense in this wise:

In the afternoon of 14 October 2004, petitioner was waiting for a ride going home along the National Road at the rotunda of San Nicolas, Ilocos Norte. Joseph Canlas [who was on his way to] Laoag City aboard his motorcycle x x x pulled over and asked the petitioner if the latter could spare a moment to estimate a work he wanted to be done in his house. Admittedly, the petitioner is a contractor. Petitioner agreed and they both boarded Canlas motorcycle for Laoag City.

While in Laoag City, petitioner and Canlas stopped at the public market for the latter to collect [loan payment] as he is also a money lender. Petitioner stayed [by] Canlas motorcycle. When Canlas returned, it was then that they decided to have chicks (or womanize). They then proceeded to Starlight Hotel located along Ablan Ave., Laoag City on board Canlas motorcycle.

x x x at the Starlight Hotel, petitioner asked for a room and [was given] Room 5 x x x. Thereafter, Canlas stayed inside Room 5 while petitioner went out to the hotels counter to wait for the woman they [had] contacted. Present at the counter at the time was the lady cashier [named] Cherry Corpuz.

In about thirty (30) minutes, a tricycle-for-hire arrived with a man and a woman on board as passengers. The tricycle went inside the hotel and stopped right in front of the counter where the petitioner and the lady cashier were. After alighting from the tricycle, the woman companion inquired where Room 5 is [and was directed] by the lady cashier. The woman [who] alighted from the tricycle in the company of another male person was later on identified to be Mylene Daquioag. Thereafter, Mylene Daquioag proceeded to Room 5 while the male companion stayed behind with the petitioner at the hotels counter. When petitioner could not wait [any] longer because there was only one woman who arrived, he x x x asked the male companion of Mylene Daquioag if another woman is coming. The male companion answered in the negative. A couple of minutes [later], petitioner followed to Room 5 so he could [sic] go home instead because it was then getting late.

Upon entering the room, petitioner saw Mylene Daquioag and Canlas seated at the table inside the room. He also saw Mylene Daquioag offer something contained in plastic x x x to Canlas. The latter refused as he said it is a woman that he was asking [for].

Barely a moment after entering Room 5, the two then heard a knock on the door from the outside. Mylene Daquiaog immediately stood up and told the petitioner and Canlas that they are (her) companions.

As soon as the door was unlocked by Mylene Daquioag, several policemen barged inside the room with their guns drawn out. Petitioner was shoved to the bed by one of the police. He was later bodily searched but nothing was found from [sic] him except his wallet containing cash of about P 7,000.00. The wallet was later turned over to the petitioners wife at the Police Station of Laoag, City. The P7,000.00 was never seen again.

As petitioner was made to sit at [sic] the bed, one of officers pointed to a plastic sachet on the floor. It was about two away from him and about a meter from the police pointing [to] it. police then explained that the plastic sachet belongs to the Immediately, petitioner cried foul on the assertion.

the police (2) meters The same petitioner.

Due to the suddenness of events, the petitioner was not as much as able to notice what the other police did to Canlas.

Without much ado, the petitioner and Canlas were apprehended, handcuffed and brought to the Laoag City Police Station. Charges were later on filed against them.[11]

Ruling of the Regional Trial Court

On November 25, 2005, the trial court rendered its judgment finding Cacao guilty of the offense charged and sentenced him accordingly, viz:

WHEREFORE x x x

The accused Julius Cacao is likewise found GUILTY beyond reasonable doubt as charged of illegal possession of methamphetamine hydrochloride weighing 1.3987 grams in Criminal Case No. 11489 and is therefore sentenced to suffer the indeterminate penalty of imprisonment from TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS and to pay the fine of Four hundred thousand (P400,000.00) pesos, Philippine Currency.

The sachets of shabu confiscated from the accused are all confiscated in favor of the Government, the same to be disposed as the law prescribes. Cost de oficio.

SO ORDERED.[12]

Ruling of the Court of Appeals

Aggrieved by the Decision of the trial court, Cacao interposed an appeal to the CA. On July 27, 2007, the appellate court rendered judgment affirming Cacaos conviction. It held that the circumstances obtaining in this case validly cloaked the arresting officers with the authority to search and seize any

contraband or prohibited material which may be used as proof of the offense of which Cacao is charged. It also ruled that there is no proof that the police officers compelled Cacao to admit a crime. As to the alleged contradictory statements, the appellate court ruled that they refer only to minor details which are not sufficient to overthrow the probative value accorded them by the trial court.

Petitioner moved for reconsideration[13] but the motion was denied by the appellate court in its Resolution[14] dated on December 11, 2007.

Issues

In this petition, Cacao ascribes to the trial court the following errors:

I. The lower court gravely erred in ruling that the guilt of the accused was proven beyond reasonable doubt considering the myriad material inconsistencies, discrepancies, and incredible statements in the prosecution evidence.[15]

II. The lower court gravely erred in failing to lend credence to the critical testimony of Benedict Villanueva.[16]

III. The lower court erred in not finding that the crucial first link in the chain of custody of the specimen subjected for examination was not proven.[17]

IV. The lower court gravely erred in declaring that the defense of frame-up cannot be given weight.[18]

V. weakness of the defense.[19]

The lower court gravely erred in relying on the

VI. The lower court gravely erred in failing to find that the presumption of innocence of the petitioner stands unrebutted, hence, his conviction is erroneous.[20]

Our Ruling

We find merit in the petition.

As a general rule, factual findings and conclusions of the trial court and the CA are entitled to great weight and respect and will not be disturbed on appeal. However, if there is any indication that the trial court overlooked certain facts or circumstances which would substantially affect the disposition of the case,[21] we will not hesitate to review the same. In this case, we find it imperative to review the factual findings of the trial court because of certain inconsistencies in the testimonies of the prosecution witnesses on material points. Jurisprudence holds that in prosecution of cases involving illegal possession of prohibited drugs, the prosecution must establish with moral certainty the elemental act of possession of a prohibited substance coupled with the fact that such possession is not authorized by law. Essential, however, in a drug-related case is that the identity of the dangerous drug be established beyond reasonable doubt.[22] Since the dangerous drug constitutes the corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction,[23] it behooves upon the prosecution to establish and prove with certainty that the dangerous drug presented in court as evidence against the accused is the same item recovered from his possession.

We have scrutinized in detail the testimonies of the prosecution witnesses and found not only glaring inconsistencies on material points but

more importantly a failure to identify indubitably the prohibited drug allegedly confiscated from Cacao.

The testimonies of the prosecutions principal witnesses are inconsistent as to who delivered the prohibited drug to the evidence custodian.

PO3 Celso Pang-ag (Pang-ag) and PO2 Jonel Mangapit (Mangapit) both testified that it was the latter who brought the item confiscated from petitioner to the evidence custodian, SPO3 Loreto Ancheta (Ancheta). Thus:

Q: What about the two plastic sachets you confiscated from the possession of the accused Joseph and the one plastic sachet which Jonel Mangapit confiscated from the possession of Julius Cacao as well as the drug paraphernalia you mentioned, what did you do with them? A: We turned over the confiscated drug paraphernalia and the one I confiscated to the evidence custodian, SP03 Loreto Ancheta and the one confiscated by P02 Mangapit was also turned over by him to the evidence custodian, sir. Q: Who was the evidence custodian whom you and Jonel Mangapit turned over the items you said? A: SPO3 Loreto Ancheta, Sir.[24]

Mangapit corroborated Pang-ags testimony that it was he who delivered to Ancheta the item he seized from Cacao. Thus:

Q: How about the one big plastic sachet you were able to seize from the right front pocket of accused Cacao, what did you do? A: I turned it over to the evidence custodian, Sir.

Q: Who was that evidence custodian to whom you turned over that plastic sachet? A: SP02 Loreto Ancheta, Sir.[25]

The foregoing assertions are totally at odds with the testimony of Ancheta, the evidence custodian. The latter denied that it was Mangapit who delivered the item allegedly recovered from Cacao. Instead, he repeatedly and categorically declared that it was SP03 Balolong (Balolong) from whom he received the plastic sachet of shabu.

Q: Who delivered to you the specimen allegedly confiscated from the possession of Cacao? A: SP03 Balolong, Sir.[26]

During his cross-examination, Ancheta confirmed his declaration that it was Balolong and definitely not Mangapit who handed to him the plastic sachet of shabu. Ancheta testified thus:

Q: You said that it was officer Balolong who handed to you the plastic sachet of shabu which was allegedly taken from the possession of accused Julius Cacao, did I hear you right? A: Julius Cacao, yes sir.

Q: shabu? A:

It was not officer Mangapit who handed to you the plastic sachet of Balolong, sir.

Q: A:

It was not Mangapit? No sir.[27]

When confronted with the afore-quoted testimony of Ancheta, Mangapit cannot explain the variance. He just gave a sweeping answer I do not know.[28]

We cannot understand why the courts below did not doubt or suspect the patently inconsistent and contradictory testimonies of the principal witnesses of the prosecution. Contrary to the findings of the appellate court, we are of the considered view that this contradiction is not so inconsequential or minor but a discrepancy touching on substantial and significant matter which could well affect the credibility of the witnesses.

The prosecution failed to satisfactorily establish that the item presented in court was the same item confiscated from Cacao.

The patent inconsistency between the testimonies of Mangapit and Pang-ag, on one hand, and the testimony of Ancheta on the other hand, necessarily leads us to doubt that the plastic sachet of shabu identified in court is the same item that was allegedly seized and confiscated from petitioner. If the version of Mangapit is to be believed, then the most lamentable aspect pertains to his failure to identify the seized item with certainty. For sure Mangapit, who is the most competent person to make the proper identification being the officer who confiscated the item from Cacao, never actually identified the same:

Q: If shown to you again that one big plastic sachet where you put markings would you be able to recognize and identify the same? A: Yes, sir.

Q: Giving to you an already opened brown envelope with several contents, will you please sort out [the] contents and bring out that big plastic sachet you claimed you confiscated from the custody of accused Cacao?

A: (Witness sorting out the contents of the plastic bag containing several items). (Witness examining the plastic sachet mounted on the bond paper marked as Exhibit B-1).

Q: Are the markings you claimed which were placed in the plastic sachet still visible and readable? A: Yes, sir.

Q: A:

Will you please read for record purposes the markings? Initial JPC and my signature, sir.

(Witness pointing to the initials and signature written on a darker masking tape on the plastic sachet).[29]

Verily, there was no actual and effective identification of the subject specimen. After sorting out the contents of the plastic bag, witness Mangapit merely pointed to the initial and signature written on a masking tape attached to the plastic sachet. At no instance did he make a categorical and accurate declaration that the sachet contained the shabu allegedly confiscated from Cacao.

The only other person who could have identified the subject drug is Pang-ag. However, we cannot lend credence to his supposed identification, the same not being also positive, certain and unequivocal. Besides, there is no showing that this witness actually saw the shabu at the time it was allegedly seized from petitioner. In fact, Pang-ag is even incompetent to make the identification since from all indications, he has never been in possession of it.

Be that as it may, any identification made by these witnesses on the item allegedly seized from petitioner is rendered meaningless and bereft of probative value in view of the categorical denial of the evidence custodian that he received the same from Mangapit. It is now clearly evident from the records that the sachet of shabu which the evidence custodian received, marked and

submitted for examination and later presented in court is not the same sachet of shabu which Mangapit claimed to have confiscated from petitioner and subsequently transmitted to the evidence custodian.

Moreover, considering the testimony of Ancheta, it was Balolong who forwarded the seized item. It is quite strange that Ancheta would point to Balolong as the sender of the seized items if he had no basis in saying so. However, our own scrutiny of the records failed to show the role of Balolong in the operation since admittedly, the only lawmen who participated therein were Mangapit and Pang-ag. In fact, as testified to by Mangapit, Balolong proceeded to the hotel after the operation.[30] How then was Balolong able to get hold of the confiscated substance when he was neither a party to nor present during the operation? Who entrusted the substance to him assuming that somebody requested him to submit it for safekeeping? These are only some of the lingering questions which must be answered convincingly and satisfactorily so as to ensure that there had been no substitution, contamination or tampering with the sachet of shabu allegedly taken from petitioner. It must be noted that Balolong was never presented to testify in this case. Thus, there is no evidence to prove that what was turned over to the evidence custodian by Balolong and later presented in court was the same substance recovered from petitioner. The failure to establish the chain of custody is fatal to the prosecutions case. There can be no crime of illegal possession of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.[31] In People v. Casimiro,[32] citing People v. Mapa,[33] we acquitted the accused for failure of the prosecution to establish the identity of the prohibited drug which constitutes the corpus delicti. Equally true in Zarraga v. People,[34] we also acquitted the accused in view of the prosecutions failure to indubitably show the identity of the shabu.

At this juncture, it must be stressed that the corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof beyond reasonable doubt of the identity of the prohibited drug is essential.[35]

Likewise, our ruling in People v. Gutierrez[36] on chain of custody rule is instructive. Thus:

As a mode of authenticating evidence, the chain of custody rule requires the presentation of the seized prohibited drugs as an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. This would ideally cover the testimony about every link in the chain, from seizure of the prohibited drug up to the time it is offered in evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, to include, as much as possible, a description of the condition in which it was delivered to the next in the chain.

Finally, petitioners defenses of denial and frame-up are concededly inherently weak and commonly used in drug-related cases. However, it must be stressed that conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence of the prosecution.

Based on the foregoing, we are of the considered view that the quantum of evidence needed to convict, that is proof beyond reasonable doubt, has not been adequately established by the prosecution. While as a rule we desist from disturbing the findings and conclusions of the trial court especially with respect to the credibility of witnesses, we must bow to the superior and immutable rule that the guilt of the accused must be proved beyond reasonable doubt because the law presumes that the accused is innocent unless and until proven otherwise. Presumption of regularity in the performance of official duty cannot by itself override the constitutional right of the accused to be presumed innocent unless overcome by strong, clear and compelling evidence.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 29985 dated July 27, 2007 affirming in toto the Decision of the Regional Trial Court of Laoag City, Branch 13, in Criminal Case No. 11489-13, and its Resolution dated December 11, 2007 denying the motion for reconsideration, are REVERSED and SET ASIDE. Petitioner Julius Cacao y Prieto is ACQUITTED on ground of reasonable doubt. SO ORDERED.

People V Kimura and Kizaki DECISION AUSTRIA-MARTINEZ, J.:

Appellants Tomohisa Kimura and Akira Kizaki seek reversal of the decision[2] dated June 27, 1997 in Criminal Case No. 94-5606, rendered by the Regional Trial Court (Branch 66), Makati City, finding them guilty beyond reasonable doubt of violation of Section 4, Article II of Republic Act No. 6425, as amended by R.A. No. 7659, otherwise known as the Dangerous Drugs Act of 1972, and sentencing each of them to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00.

The Information dated August 8, 1994 against the accused alleges:

The undersigned State Prosecutor of the Department of Justice accuses TOMOHISA KIMURA and AKIRA KIZAKI of violation of Section 4, Article II of Republic Act 6425, as amended by R.A. 7659, otherwise known as the Dangerous Drugs Act of 1972, committed as follows:

That on or about June 27, 1994 in Makati, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously transport and deliver without lawful authority approximately 40,768 grams of Indian hemp (marijuana), a prohibited drug, in violation of the aforecited law.

CONTRARY TO LAW. [3]

Upon arraignment on October 10, 1994, the two accused, through counsel, entered their separate pleas of Not Guilty to the crime charged;[4] whereupon, the trial of the case ensued.

The testimonies of the following prosecution witnesses, to wit: SPO4 Juan Baldovino, Jr.,[5] SPO1 Rolando Cabato,[6] SPO1 Edmundo Badua, Chief Inspector Nilo Anso, PO3 Alfredo Cadoy, SPO1 Manuel Delfin and Forensic Chemist, Police Inspector Sonia Ludovico, sought to establish the following facts:

In the morning of June 27, 1994, Maj. Anso, head of Delta Group, Narcotics Command (NARCOM) I, North Metro District Command, Camp Karingal, Quezon City, received information from a confidential informant that a certain Koichi Kishi and Rey Plantilla were engaged in the selling of illegal drugs at the Cash and Carry Supermarket, Makati City.[7] Acting on said information, Maj. Anso organized a team composed of SPO4 Baldovino, Jr., SPO1 Cabato and PO3 Cadoy to conduct surveillance of the area.[8] A buy-bust operation was launched and PO3 Cadoy was designated to act as poseur-buyer and they prepared the buy-bust money consisting of one P500.00 bill and five pieces of P100.00 bill.[9]

At around 3:00 in the afternoon of the same day, the team together with the informant arrived at the Cash and Carry Supermarket and conducted surveillance of the area.[10] Later, the informant was able to contact the targets who told him that they will be arriving at 8:00 in the evening at the parking area of the Cash and Carry Supermarket.[11] At around 8:00 in the evening, Koichi and Rey arrived and were met by PO3 Cadoy and the informant.[12] PO3 Cadoy gave the marked money worth P1,000.00 to Rey and Koichi who then handed him the shabu. PO3 Cadoy scratched his head as a pre-arranged signal of the consummation of the sale.[13] The operatives were about five meters from the suspects.[14] While the team was approaching, PO3 Cadoy held Koichi by the hand while Rey scampered away to the direction of the South Superhighway.[15] The team brought Koichi to a safe area within the Cash and Carry Supermarket and interrogated him. They learned from Koichi that his friends/suppliers will arrive the same evening to fetch him.[16] Several minutes later, a white Nissan Sentra car driven by appellant Kimura with his co-appellant Kizaki seating at the passenger seat arrived at the parking area. Koichi pointed to them as the ones who will fetch him. Appellants remained inside the car for about ten to fifteen minutes.[17] Then, a certain Boy driving a stainless jeep, without a plate number, arrived and parked the jeep two to

three parking spaces away from the Sentra car.[18] Boy approached the Sentra car and after a few minutes, appellants got out of their car. Appellant Kizaki went to the stainless jeep and sat at the passenger seat. Boy and appellant Kimura went to the rear of the Sentra car and opened its trunk.[19] Appellant Kimura got a package wrapped in a newspaper and gave it to Boy who walked back to his jeep.[20] While Maj. Anso and SPO4 Baldovino, Jr. were approaching to check what was inside the wrapped newspaper, appellant Kimura ran but was apprehended while Boy was able to board his jeep and together with appellant Kizaki who was seated at the passenger seat sped off towards South Superhighway.[21] The police operatives then inspected the contents of the trunk and found packages of marijuana.[22] They brought Koichi and appellant Kimura to the headquarters and turned over the seized marijuana to the investigator who made markings thereon.[23] Maj. Anso reported the escape of appellant Kizaki to their investigation section.[24]

The seized packages which were contained in 3 sacks were brought to the PNP Crime Laboratory on June 29, 1994.[25] Forensic Chemist Sonia SahagunLudovico testified that the contents of the sacks weighed 40,768 grams and were positive to the test of marijuana.[26]

On June 29, 1994, appellant Kizaki while having dinner with his friends at the Nippon Ichi Restaurant located at Mabini, Malate, Manila[27] was arrested by another NARCOM group led by Maj. Jose F. Dayco.[28]

Appellants defense is denial and alibi. were called to the witness stand.

In support thereof, both appellants

Appellant Kimuras testimony is as follows: In the afternoon of June 27, 1994, Kimura was in the house of his co-appellant Kizaki at Dian Street, Makati City, together with Koichi Kishi, Luis Carlos and a certain Sally and Boy.[29] In the evening of the said date, Kimura borrowed the car of Kizaki in order to get his (Kimuras) television from his house located in Evangelista Street, near the Cash and Carry Supermarket, and bring the same to a repair shop.[30] On their way to Kimuras house, Koichi requested Kimura to pass by Cash and Carry Supermarket because Koichi needed to meet a certain Rey who was

borrowing money from him. Upon reaching Cash and Carry, Kimura parked the car about twenty meters from its entrance, then Koichi and Carlos alighted from the car and Koichi handed something to Rey.[31] Shortly thereafter, Koichi and Carlos were grabbed by two men from behind. Then four men approached the car and one guy ordered him to sit at the back and together with Koichi and Carlos, they were all brought to Camp Karingal allegedly for violating Sec. 4 of Republic Act No. 6425.[32] Kimura was asked questions about the address and business of Kizaki. Kimura denied that there was marijuana in the car on the night of June 27, 1994 but claims that he saw marijuana placed at the car trunk the following day at Camp Karingal. Kizaki was not with him at Cash and Carry on the night of June 27, 1994. There was no stainless jeep near the car on the same night. Carlos was released and was not charged because Kimuras girlfriend, Sally, served as Carlos guarantor.

On the other hand, appellant Kizaki testified that on the date that the alleged crime was committed, he was in the company of his friends, Mr. and Mrs. Takeyama, his co-appellant Kimura, and his driver Boy and maid Joan at his house in Dian Street, Makati City;[33] that appellant Kimura borrowed his car on the night of June 27, 1994 to pick up Kimuras broken TV and bring it to the repair shop.[34]

Appellant Kizakis alibi was corroborated by Rosario Quintia, his former housemaid, and his friend, Akiyoshi Takeyama, who both testified that they were at Kizakis house on the night of June 27, 1994 from 7:00 to 10:00 in the evening and never saw Kizaki leave the house.[35]

Appellant Kizaki was arrested on June 29, 1994, two days after the Cash and Carry incident, in the Nippon Ichi Restaurant located at Mabini, Manila. He was having dinner with Lt. Col. Rodolfo Tan, Masami Y. Nishino, Anita Takeyama and Akiyoshi Takeyama. These witnesses executed a joint affidavit[36] and testified that while they were about to leave the restaurant, a man got near Kizaki and asked for his passport whom they thought was from the Immigration. Later, they learned that Kizaki was brought to Camp Karingal.[37]

On June 27, 1997, the trial court rendered the herein assailed judgment, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused Akira Kizaki and Tomohisa Kimura GUILTY beyond reasonable doubt for violation of Section 4 of Republic Act 6425, as amended by Republic Act 7659, and the Court hereby sentences them to suffer, taking into consideration the absence of mitigating or aggravating circumstances, the amount of marijuana seized from the accused which weigh 40,768 grams, the penalty of RECLUSION PERPETUA and to pay a fine of P500,000.00 each.

The Bureau of Immigration and Deportation is hereby ordered to deport Akira Kizaki and Tomohisa Kimura without further proceedings after the service of their sentence.

Let the marijuana, the subject matter of this case be immediately forwarded to the Dangerous Drugs Board for proper disposition.

SO ORDERED.[38]

In convicting appellants, the trial court made the following findings:

The settled jurisprudence is that alibi is inherently a weak defense. Like the defense of alibi, denial by the accused of the offense charged against him is also inherently a weak defense. It is also the settled jurisprudence that the defense of alibi and denial cannot prosper over the positive identification of the accused by the prosecution witnesses. For alibi to prosper, the accused must show that it was impossible for him to have been at the scene of the commission of the crime at the time of its commission.

Akira testified that on the evening of June 27, 1994, he was in his house located at Dian Street corner Ampil Street, Makati City, Metro Manila, which is a walking distance to Cash and Carry Supermarket, the scene of the offense. It was not therefore impossible for accused Akira Kizaki to have been present at the scene of the crime at the time of its commission.

Accused Kimura testified that on the evening of June 27, 1994, he was with his co-accused Kizaki at the Cash and Carry Supermarket but for another purpose, i.e., to meet Rey Plantilla who was borrowing money from him. In fine accused Kimura merely denied the offense charged against him, which is weak defense.

Both accused, Kizaki and Kimura, were positively identified by prosecution witnesses SPO4 Baldomino, SPO1 Cabatu, Maj. Anso and PO3 Cadoy as the persons whom they arrested for drug trafficking in a buy-bust operation at the Cash and Carry Supermarket on June 27, 1994.

Finally, although the evidence show that there is a doubt in the illegality of the arrest of accused Kimura by Major Dayco, the jurisprudence is that the illegality of warrantless arrest cannot deprive the state of its right to convict the guilty when all the facts on record point to their culpability.[39]

Hence, this appeal before us. Appellants assert the following:

THE COURT A QUO GRAVELY ERRED IN DISREGARDING ACCUSEDAPPELLANTS DEFENSE.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANTS HAD BEEN PROVEN BEYOND REASONABLE DOUBT.

Appellants claim that although the defense of alibi and denial are weak, it is still the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt to support a judgment of conviction; that the trial court mainly relied on the weakness of the defense rather than on the strength of the evidence for the prosecution. They argue that appellant Kizakis claim that he was not at the Cash and Carry Supermarket on the night of June 27, 1994 was corroborated by three independent witnesses including appellant Kimura who testified that he was not with appellant Kizaki at Cash and Carry Supermarket on the said night.

Appellants further question how the trial court could have been certain that the marijuana presented in court are the same articles confiscated from the appellants when the arresting officers did not place identifying marks on the confiscated items.

Appellant Kizaki further contends that he was arrested two days after the alleged buy-bust operation without a valid warrant of arrest. He points out that although the trial court expressed doubts as to the legality of his arrest, it nevertheless convicted him of the crime charged, which is in violation of the Constitution. Kizaki argues that he could not have been caught in flagrante delicto to justify the warrantless arrest when he was arrested two days after the alleged Cash and Carry incident while he was only having dinner with his friends at a restaurant.

In the appellees brief, the Solicitor General prays that the decision of the trial court finding appellants guilty as charged be affirmed. He argues that appellants were positively identified by four prosecution witnesses, all police officers, as among the three persons engaged in the transportation and delivery of about 40,768 grams of marijuana on June 27, 1994 at the Cash and Carry

Supermarket; that the police operatives were able to seize the marijuana from the Sentra car they were using to transport the marijuana; that the marijuana introduced and offered at the trial were positively identified by the arresting officers as those seized from the car of the appellants; that the contention of appellant Kizaki that his warrantless arrest two days after the alleged incident, was unlawful, is legally inconsequential in this case considering that his conviction was not based on his arrest on June 29, 1994 but on his having participated in the transport and delivery of marijuana on June 27, 1994; that appellant Kizaki never questioned the validity of the warrantless arrest of his co-appellant Kimura on June 27, 1994, either before the trial court or before this Court; thus, any challenge against the search and seizure of the marijuana based on constitutional ground is deemed waived insofar as appellant Kizaki is concerned.

We will first resolve the issue on the alleged warrantless arrest of appellant Kizaki.

Appellant Kizaki assails the legality of his warrantless arrest. Indeed, SPO1 Delfin, one of those who arrested appellant Kizaki at the Nippon Ichi restaurant, admitted that they did not have a warrant of arrest when his group arrested Kizaki on the night of June 29, 1994. Rule 113, Section 5 of the Revised Rules of Criminal Procedure provides that a peace officer or a private person may, without a warrant, arrest a person only under the following circumstances:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

The alleged crime happened on June 27, 1994 and appellant Kizaki was arrested on June 29, 1994 or two days after the subject incident. At the time appellant Kizaki was arrested, he was at a restaurant having dinner with a group of friends, thus, he was not committing or attempting to commit a crime. Neither was he an escaped prisoner whose arrest could be effected even without a warrant. It bears stressing that none of the arresting officers of appellant Kizaki was present on the night of June 27 where appellant Kizaki allegedly sold and transported marijuana and escaped, thus the arresting officers had no personal knowledge of facts or circumstances that appellant Kizaki committed the crime. None of the exceptions enumerated above was present to justify appellant Kizakis warrantless arrest.

However, notwithstanding the unjustified warrantless arrest of appellant Kizaki, the records show that he did not raise such question before he pleaded to the offense charged.[40] Neither did he move to quash the information on that ground before the trial court.[41] He thus waived objection to the illegality of his arrest.[42] Moreover, appellant Kizakis application for bail[43] which was denied by the trial court likewise constitutes a waiver of his right to question whatever irregularities and defects which attended his arrest.[44]

Nevertheless, we find the other claims of appellants meritorious.

In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime of violation of the Dangerous Drugs Act.[45]

In People vs. Casimiro,[46] we acquitted appellant for failure of the prosecution to establish the identity of the prohibited drug which constitutes the corpus delicti and held:

In People vs. Mapa, the accused-appellant was granted an acquittal after the prosecution failed to clarify whether the specimen submitted to the NBI for laboratory examination was the same one allegedly taken from the accused. In People vs. Dismuke, this Court ruled that the failure to prove that the specimen of marijuana examined by the forensic chemist was that seized from the accused was fatal to the prosecutions case. In People vs. Laxa, the policemen composing the buy-bust team failed to mark the confiscated marijuana immediately after the alleged apprehension of the accusedappellant. One policeman admitted that he marked the seized items only after seeing them for the first time in the police headquarters. It was held:

This deviation from the standard procedure in the anti-narcotics operations produces doubts as to the origins of the marijuana. Were the allegedly confiscated from the scene of the crime the same ones which the investigator marked in the police headquarters? This question gives rise to surmises and speculations, and cannot prove beyond reasonable doubt the guilt of accusedappellant.

In this case, the prosecution failed to prove the crucial first link in the chain of custody. The prosecution witnesses PO2 Supa, SPO2 Madlon and PO3 Piggangay admitted they did not write their initials on the brick of marijuana immediately after allegedly seizing from accused-appellant outside the grocery store but only did so in their headquarters. The narcotics field test, which initially identified the seized item as marijuana, was likewise not conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item allegedly seized from accusedappellant is the same brick of marijuana marked by the policemen in their headquarters and given by them to the crime laboratory for examination.

After examining the evidence for the prosecution, and tested in the light of the Casimiro case, we find that the prosecution failed to establish the identity of

the marijuana allegedly seized from appellants Kimura and Kizaki. Extant in the records were the admissions made by the police operatives of their failure to place any markings on the seized marijuana immediately after they had allegedly apprehended appellants, thus failing to prove that the marijuana presented in court was the very same marijuana seized from appellants. Maj. Anso, head of the police operatives, testified on cross-examination as follows:

ATTY. BALICUD:

With respect to the packages which you identified yesterday, before you showed that to your investigation section, did you make any markings thereat?

WITNESS:

None, sir.

ATTY. BALICUD:

Did any of your men place any markings at least to identify that that is the drugs confiscated by you at the Cash and Carry?

WITNESS:

What I know your honor, is that the investigation section is the one who will mark the evidence.

...

COURT:

You mean to say when you have already surrender(sic) the shabu(sic) to the investigation section that was the time when the investigator mark them?

WITNESS:

It is already their duty to mark them, your honor.

...

ATTY. BALICUD:

And did you see if any of those men in the investigation section did the corresponding markings?

WITNESS:

I did not already see sir.[47]

The testimony of Maj. Anso was confirmed by SPO4 Baldovino, Jr. when the latter testified on cross-examination as follows:

ATTY. SENSON:

Q. When the packages contained in Exhibits B, C and D were recovered at the car, did you not make any markings on them, is that correct?

WITNESS:

A.

That is true, sir.[48]

SPO4 Baldovino, Jr. further clarified on his re-direct examination why no markings were made, thus:

FISCAL MANABAT:

Q. Why is it that no markings were made on these marijuana packages?

...

WITNESS:

We did not put markings there because after we confiscated those packages, there was a press conference conducted and after that we submitted it to PCCL or Philippine Crime Laboratory, sir.[49]

The failure to establish the chain of custody of the evidence is further shown by the testimony of SPO1 Badua, the person assigned to bring the alleged seized marijuana to the PNP Crime Laboratory. His testimony is as follows:

PROS. MANABAT:

Do you recall your activities on that day, June 29, 1994?

WITNESS:

I was ordered to bring the marijuana to the Crime Laboratory.

PROS. MANABAT:

Who ordered you to bring the marijuana to the Crime Laboratory?

WITNESS:

Superintendent Eduardo Cario, sir.

PROS. MANABAT:

Where did this marijuana come from, if you know?

WITNESS:

In our office confiscated from Japanese nationals.

PROS. MANABAT:

Do you know the name of the Japanese nationals you are referring to?

WITNESS;

I do not know, sir.

PROS. MANABAT:

Can you describe this marijuana which you said you were required to bring to the PNP Crime Laboratory?

WITNESS:

They are contained in sacks, sir.

COURT:

How many sacks?

WITNESS:

Three (3), sir.

PROS. MANABAT:

What kind of sacks were these, can you recall?

WITNESS:

Rice sacks.

...

PROS. MANABAT:

Now, if you see this marijuana you said you were required to bring to the PNP Crime Laboratory which you described as being contained in three (3) sacks, will you be able to identify these three (3) sacks of marijuana.

WITNESS:

Yes, sir.

PROS. MANABAT:

Now, I am showing to you SPO1 Badua, there are three (3) sacks (sic) here already deposited in Court, please examine these three (3) sacks carefully and tell us the relation of these three sacks to that marijuana contained in sacks which you said you were required to bring to PNP Crime Laboratory.

WITNESS:

These are the three sacks I brought.

PROS. MANABAT:

...

Now, you said that this marijuana was contained in three sacks, three rice sacks, will you please examine the sacks and tell us if these are the same sacks which you brought to the PNP Crime Laboratory?

WITNESS:

Yes, sir, these are the same sacks I brought.

COURT:

What made you so sure that these are the same sacks that you brought from your office to the Crime Laboratory?

WITNESS:

Because of the markings A, B, C.

COURT:

Who affixed those markings?

WITNESS:

The investigator, sir.

COURT:

Did you see the investigator affixed those markings?

WITNESS:

Yes, sir.

COURT:

Who was the investigator?

WITNESSS:

SPO1 Delfin, sir.

PROS. MANABAT:

Now, what proof do you have that you actually brought these three sacks of marijuana which you identified to the PNP Crime Laboratory?

WITNESS:

There is a request for laboratory examination.

PROS. MANABAT:

Who prepared this request for laboratory examination of the marijuana?

WITNESS:

SPO1 Delfin.[50]

And on cross-examination as follows:

ATTY. BALICUD:

Now, were you present when this request for laboratory examination was prepared?

WITNESS:

Yes, sir.

ATTY. BALICUD:

Who specifically typed the request?

WITNESS:

SPO1 Delfin, sir.

ATTY. BALICUD:

And this was made on June 28, 1994?

WITNESS:

Yes, sir.

...

ATTY. BALICUD:

And then about what time on June 28 was it prepared?

WITNESS:

Morning, sir.

ATTY. BALICUD:

But then this request was received already by the Crime Laboratory on June 29, 1994, where were the three sacks deposited from June 28 up to the time you picked it up on June 29 to be brought to the Crime Laboratory?

WITNESS:

It was deposited inside our supply room.

ATTY. BALICUD:

Why did you not deposit or deliver it immediately to the Crime Laboratory?

WITNESS:

We were still preparing the necessary papers.

ATTY. BALICUD:

What papers were still being prepared?

WITNESS:

Request for laboratory, medical, drug dependency.

...

ATTY. BALICUD:

Now, when the request for laboratory examination was made, did you already see the contents inside the sack?

WITNESS:

Yes, sir.

ATTY. BALICUD:

Why did you open the sacks?

WITNESS:

Yes, sir.

ATTY. BALICUD:

Who opened the sacks?

WITNESS:

The investigator.

ATTY. BALICUD:

So that they were placed in three sacks?

WITNESS:

Yes, sir.

ATTY. BALICUD:

And you opened each and every sack?

WITNESS:

Yes, sir.

ATTY. BALICUD:

You brought the same to the Crime Laboratory?

WITNESS:

Yes, sir.

ATTY. BALICUD:

Were there markings in the 3 sacks when the same were brought to the PNP Crime Laboratory?

WITNESS:

Yes, sir. A, B, C.

ATTY. BALICUD:

So that one sack is marked A, the other sack is B and the other is marked C.

WITNESS:

Yes, sir.

ATTY. BALICUD:

How about the contents of these three sacks, were they also marked when you brought the same to the PNP Crime Laboratory?

WITNESS:

Yes, sir, but it was marked at the Crime Laboratory already.

ATTY. BALICUD:

So, it is clear that when the alleged marijuana was brought to the PNP Crime Laboratory, there was no marking yet?

WITNESS:

Yes, sir. [51]

While SPO1 Baduas testimony showed that it was investigator SPO1 Delfin who made the markings A, B, C on the three sacks containing the marijuana which he brought to the laboratory, nowhere in his testimony did he say that such markings were made on the night the appellants were arrested, i.e., on June 27, 1994. Investigator Delfin did not initial said markings nor did he testify affirming his markings.

Moreover, although the three sacks of alleged marijuana were marked as A, B, C, the contents of these three sacks however had no markings when they were kept inside the supply room on June 28 since as Badua intimated, the contents of these three sacks were only marked when he brought the same to the PNP Crime Laboratory on June 29, 1994.

The records of the case do not show that the police operatives complied with the procedure in the custody of seized prohibited and regulated drugs as embodied in the Dangerous Drugs Board Regulation No. 3 Series of 1979 amending Board Regulation No. 7 Series of 1974,[52] i.e., any apprehending team having initial custody and 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. In this case, there was no inventory made in the crime scene despite the fact that Maj. Anso testified that he saw eighteen packages neatly wrapped in a newspaper but the inventory was made already in the headquarters. SPO1 Badua testified that the marijuana confiscated from appellant Kimura was contained in three sacks.

Consequently, the failure of the NARCOM operatives to place markings on the alleged seized marijuana coupled with their failure to observe the procedure in the seizure and taking custody of said drug seriously bring to question the existence of the seized prohibited drug. It is not positively and convincingly clear that what was submitted for laboratory examination and presented in court was actually recovered from the appellants.

Evidently, the prosecution has not proven the indispensable element of corpus delicti of the crime which failure produces a grevious doubt as to the guilt of the appellants. In criminal cases, proof beyond reasonable doubt is required to establish the guilt of the accused. Similarly, in establishing the corpus delicti, that unwavering exactitude is necessary. Every fact necessary to constitute the crime must be established by proof beyond reasonable doubt.[53]

Although the defense raised by appellants Kimura and Kizaki were denial and alibi, respectively, which are inherently weak, we have repeatedly declared that the conviction of the accused must rest not on the weakness of the defense but on the strength of the prosecution.[54] The denial of appellant Kimura that he was caught in the Cash and Carry Supermarket delivering marijuana on the night of June 27, 1994 may be weak but the evidence for the prosecution is clearly even weaker. In People vs. Laxa,[55] we acquitted the appellant for failure of the prosecution to establish the identity of the prohibited drug which constitutes the corpus delicti, an essential requirement in a drug related case. In the present case, the prosecution also failed to indubitably show the identity of the marijuana which mere allegedly seized from appellants.

The alibi of appellant Kizaki that he was in his house on the same night assumes weight and significance considering that the scenario depicted by the prosecution on the alleged escape of appellant Kizaki at the Cash and Carry left much to speculations and surmises. The prosecution tried to show that appellant Kizaki who was on board the stainless jeep was able to escape even if the police operatives were only about five meters away from the jeep[56] which was heading to the entrance of the Cash and Carry along South Superhighway. It is quite difficult for us to accept its veracity considering that despite the short distance of the operatives from the jeep when it started to speed off, the operatives who were all armed with service revolvers[57] chased on foot the stainless jeep and did not even fire any warning shot to stop the driver and appellant Kizaki nor did they fire a shot at the tire of the jeep to immobilize it. The alibi of Kizaki found corroboration from his friend Akiyoshi Takeyama and appellant Kizakis former housemaid Rosaria Quintia that he was in his house and never left it on the night of the alleged delivery or transport of marijuana in Cash and Carry Supermarket. In fact, co-appellant Kimura testified that appellant Kizaki was not one of his companions in going to Cash and carry Supermarket on June 27, 1994.[58] Moreover, in the request for laboratory examination dated June 28, 1994, signed by P/CI Jose F. Dayco, Chief, Investigation Section, NMDU, NARCOM, the suspects named therein were only Koichi Kishi and Tomohisa Kimura.[59] Hence, the constitutional presumption of innocence has not been overcome by the prosecution.

In fine, for failure of the prosecution to establish the guilt of both appellants beyond reasonable doubt, they must perforce be exonerated from criminal liability.

WHEREFORE, the decision of the trial court in Criminal Case No. 94-5606 is hereby REVERSED and appellants Tomohisa Kimura and Akira Kizaki, are hereby ACQUITTED on ground of reasonable doubt. They are ordered immediately released from prison, unless they are being detained for some other lawful cause. The Director of Prisons is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt hereof.

Let the PNP Director be furnished a copy of herein decision for the proper information and guidance of his police operatives. The marijuana is hereby

ordered confiscated in favor of the government for its proper disposition under the law.

Costs de oficio.

SO ORDERED. People V Partoza DECISION

TINGA, J.:

On appeal is the Decision[1] of the Court of Appeals promulgated on 5 October 2007 affirming the conviction by the Regional Trial Court[2] (RTC) of San Mateo, Rizal of Edwin Partoza y Evora (appellant) for the crime of possession and sale of dangerous drug.

Appellant was charged in two (2) separate Informations before the Regional RTC with possession and sale of shabu, viz:

Criminal Case No. 6524

That on or about the 2nd day of November 2002, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control one (1) heat-sealed transparent plastic sachet of white crystalline substance weighing 0.04 gram, which substance, after confirmatory test, was found positive to the test of Methamphetamine Hydrochloride, a dangerous, popularly known as shabu a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[3]

Criminal Case No. 6525

That on or about the 2nd day of November 2002, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to another person one (1) heat-sealed transparent plastic sachet weighing 0.04 gram of white crystalline substance which gave positive result to the screening and confirmatory test for Methamphetamine Hydrochloride, a dangerous, popularly known as shabu a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[4]

Upon arraignment, appellant pleaded not guilty to both Informations. Trial ensued.

PO3 Juanito Tougan (PO3 Tougan) testified for the prosecution and narrated that on 2 November 2002 at around 7:30 p.m., the police received an information from an informant that a certain Parto was selling shabu at Sta. Barbara Subdivision, Brgy. Ampid I, San Mateo, Rizal. Parto had apparently been under surveillance by the police for selling prohibited drugs. They immediately planned a buy-bust operation, with PO3 Tougan acting as the

poseur-buyer. Tougan received a P100.00 bill from the police chief and placed the serial numbers of the bill on the police blotter.[5]

PO3 Tougan, together with PO2 Pontilla and the civilian informant then proceeded to Sta. Maria Subdivision. However, before the actual buy-bust operation, the group responded to a commotion in the area where they arrested a certain Noel Samaniego.[6] Thereafter, they went to Neptune corner Jupiter Street and spotted Parto in the tricycle terminal. The informant initially approached appellant. The latter then went near the tricycle where PO3 Tougan was in and asked him, How much[?] PO3 Tougan replied, Piso lang, which means P100.00. Upon exchange of the money and the plastic sachet containing the white crystalline substance, PO3 Tougan immediately alighted from the tricycle, grabbed Partos hand and introduced himself as a policeman. PO3 Tougan was able to recover another plastic sachet from the hand of Parto.[7]

At the police station, the two (2) plastic sachets confiscated from Parto were marked. After marking, the police immediately prepared the request for laboratory examination.[8]

Chemistry Report No. D-2157-02E confirmed that the two (2) plastic sachets seized from appellant were positive for methamphetamine hydrochloride, or shabu.[9]

Appellant denied the charges against him. He claimed that he was driving a female passenger in his tricycle at around 7:00 p.m. on 2 November 2002 going to Sta. Maria. Upon reaching Jupiter Street, appellant turned left and noticed the police officers trying to arrest a person who was then causing trouble. PO2 then Pontilla approached appellant and asked why he was driving drunk. Appellant explained that he had been offered a drink by his friends. He was asked to alight from his tricycle, took his drivers license and invited him to go to the police station.[10]

On 28 April 2005, the trial court convicted appellant beyond reasonable doubt of illegal possession and illegal sale of dangerous drugs. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in these two cases, as follows:

1. In Criminal Case No. 6524 finding accused EDWIN PARTOZA Y EVORA GUILTY BEYOND REASONABLE DOUBT of the crime of Possession of Dangerous Drug (Violation of Section 11, 2nd par.[,] No. 3 of Art. II of R.A. [No.] 9165) and sentencing him to suffer the penalty of imprisonment of Twelve (12) years and one (1) day to Twenty (20) years and a fine of Three Hundred Thousand Pesos (P300,000.00);

2. In Criminal Case No. 6525 finding accused EDWIN PARTOZA Y EVORA GUILTY BEYOND REASONABLE DOUBT of the crime of Sale of Dangerous Drug (Violation of Sec. 5, 1st par.[,] Art. II of R.A. No. 9165) and sentencing him to suffer the penalty of life imprisonment and a fine of P500.000.00.

The drugs shabu confiscated from accuseds possession are forfeited in favor of the government and is directed to be turned over to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.

SO ORDERED.[11]

The trial court ruled that the prosecution was able to prove that appellant had taken the money in exchange for the shabu. It gave full faith and credence to the testimony of PO3 Tougan.

On appeal, the Court of Appeals affirmed the conviction.

The appellate court held that the prosecution had successfully adduced evidence which proved beyond reasonable doubt that appellant had sold one (1) sachet of shabu to PO3 Tougan, who had acted as the poseur buyer during a legitimate buy-bust operation. The Court of Appeals held further that appellant, after having been validly arrested and in the course of the subsequent incidental search, had been found with another sachet of shabu in his body.[12]

Appellant elevated the case to this Court via Notice of Appeal.[13] In its Resolution[14] dated 30 June 2008, this Court resolved to notify the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice. Both parties adopted their respective appellant's and appellee's briefs, instead of filing supplemental briefs.[15]

Appellant maintains that the presumption of regularity, upon which his conviction rests, should not take precedence over the presumption of innocence. He challenges PO3 Tougans account of the events that transpired on 2 November 2002 considering that the police were present in the vicinity to respond to a report that Samaniego had been causing trouble and not to conduct a buy-bust operation. Appellant also questions the integrity of the evidence used against him on the grounds of failure to mark the items seized from him immediately and failure to observe the chain of custody as required under Section 21 of R.A. No. 9165.[16]

The Office of the Solicitor-General (OSG), on the other hand, insists that the direct testimony of PO3 Tougan sufficiently established the elements of illegal sale and possession of shabu. With respect to the marking, the OSG argues that PO3 Tougan held on to the sachets from the time he confiscated them

from appellant until such time that he was able to place his initials on them and submitted the duly accomplished request for examination of said sachets to the crime laboratory. Finally, the OSG avers that Section 21 of R.A. No. 9165 which pertains to the chain of custody and disposition of confiscated or seized drugs was not yet applicable at the time appellant committed his crimes.

In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.[17] What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale or had actually taken place, coupled with the presentation in court of evidence of corpus delicti.[18]

Otherwise stated, in illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[19] Similarly, in this case, the evidence of the corpus delicti must be established beyond doubt.

Section 21(1) of R.A. No. 9165 mandates that 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.

In People v. Obmiranis,[20] appellant was acquitted due to the flaws in the conduct of the post-seizure custody of the dangerous drug allegedly recovered from appellant, taken together with the failure of the key persons who handled the same to testify on the whereabouts of

the exhibit before it was offered in evidence in court. [21] In Bondad v. People,[22] this Court held that the failure to comply with the requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant, hence his acquittal is in order.[23] And in People v. De la Cruz,[24] the apprehending team's omission to observe the procedure outlined by R.A. No. 9165 in the custody and disposition of the seized drugs significantly impairs the prosecution's case. [25]

In the instant case, it is indisputable that the procedures for the custody and disposition of confiscated dangerous drugs in Section 21 of R.A. No. 9165 were not complied with.

PO3 Tougan stated that he marked the two plastic sachets containing white crystalline substance in the police station, thus:

Q And after handing to him the P100.00 bill[,] what reaction was there, if any, from this alias Parto? A sir. He immediately handed to me one (1) plastic sachet containing shabu,

xxx

After placing him under arrest what, if any, did you do next?

A sir.

After holding his hand, I immediately introduced myself as a policeman,

What else did you do after that?

A I was able to recover another plastic sachet from his hand and also the P100.00 bill that I used in buying the shabu with serial number EN-668932, sir.

xxx

Q And having informed him of his constitutional rights[,] where did you take him, if any? A It did not take long PO2 Pontilla arrived [sic] and we brought him to the police station together with his tricycle, sir.

xxx

Q At the station[,] what happened to the two (2) plastic sachets, one that was the subject of the sale and one which was the subject of your confiscation? A I placed my initial, sir.[26]

PO3 Tougan did not mark the seized drugs immediately after he arrested appellant in the latter's presence. Neither did he make an inventory and take a photograph of the confiscated items in the presence of appellant. There was no representative from the media and the Department of Justice, or any elected public official who participated in the operation and who were supposed to sign an inventory of seized items and be given copies thereof. None of these statutory safeguards were observed.

While this Court recognizes that non-compliance by the buy-bust team with Section 21 is not fatal as long as there is a justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items are properly preserved by the apprehending team,[27] yet these conditions were not met in the case at bar. No explanation was offered by PO3 Tougan for his failure to observe the rule.

Furthermore, while PO3 Tougan admitted to have in his possession the shabu from the time appellant was apprehended at the crime scene to the police station, records are bereft of proof on how the seized items were handled from the time they left the hands of PO3 Tougan. PO3 Tougan mentioned a certain Inspector Manahan as the one who signed the request for laboratory examination. He did not however relate to whom the custody of the drugs was turned over. Furthermore, the evidence of the prosecution did not reveal the identity of the person who had the custody and safekeeping of the drugs after its examination and pending presentation in court. The failure of the prosecution to establish the chain of custody is fatal to its cause.

All told, the identity of the corpus delicti in this case was not proven beyond reasonable doubt.

The courts below heavily relied on the testimony of PO3 Tougan and in the same breadth, banked on the presumption of regularity. In People v. Garcia,[28] we said that the presumption only arises in the absence of contrary details in the case that raise doubt on the regularity in the performance of official duties. Where, as in the present case, the police officers failed to comply with the standard procedures prescribed by law, there is no occasion to apply the presumption.[29]

WHEREFORE, in view of the foregoing, the Decision dated 5 October 2007 of the Court of Appeals affirming the judgment of conviction of the Regional Trial Court, Branch 76, San Mateo, Rizal is hereby REVERSED and SET ASIDE. Appellant Edwin Partoza y Evora is ACQUITTED based reasonable doubt and is

ordered immediately RELEASED from detention, unless he is confined for any other lawful cause. The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED. People V Marian Coreche DECISION

CARPIO, J.:

The Case

This is an appeal from the Decision[1] of the Court of Appeals dated 19 November 2007, affirming the conviction of appellant Marian Coreche y Caber (appellant) for violation of Sections 5 and 11, Article II of Republic Act No. 9165 (RA 9165), the Comprehensive Dangerous Drugs Act of 2002, for selling and possessing the prohibited drug methamphetamine hydrochloride or shabu.

The Facts

The prosecutions evidence showed that between 4:00 to 4:30 in the morning of 10 September 2003, SPO1 Herminio V. Arellano (Arellano), PO1 Juanito L. Tougan (Tougan), and PO1 Noel P. Pineda (Pineda), members of the Philippine National Police (PNP) of San Mateo, Rizal station, received a tip from

an unnamed informant that appellant was peddling shabu. The police officers decided to conduct a sting operation. After Arellano prepared the sting money, consisting of two (2) one hundred peso bills marked HVA, the three officers and their informant proceeded to appellants house on San Mateo Street, Dulongbayan, San Mateo, Rizal. Arellano and the informant posed as buyers, while Tougan and Pineda posted themselves nearby as back-up. After appellant and another woman opened the door, the informant asked appellant for two pesos worth of shabu and handed appellant the marked bills. Appellant took the money, turned to the other woman and said Emily, pahinge ka nga ng dalawang piso (Emily, can I have two pesos worth). After receiving from Emily a plastic sachet supposedly containing shabu, appellant gave the sachet to the informant. Arellano immediately arrested appellant and recovered from her the marked bills and two more plastic sachets. Tougan, who had drawn nearer, arrested the other woman, later identified as Emily Coreche (Emily), appellants sister and co-accused. Tougan recovered from Emily two plastic sachets containing what was suspected to be shabu.

The police officers brought appellant and Emily to the San Mateo police station for detention. The plastic sachets taken from appellant and Emily were marked. The station chief, Police Senior Inspector Jesus Fetalino, requested the PNP laboratory for chemical analysis of the sachets contents.

The specimens tested positive for methamphetamine hydrochloride.

Appellant and Emily were separately charged before the Regional Trial Court of San Mateo, Rizal, Branch 76 (trial court), with violation of Section 11 of RA 9165 for possession of methamphetamine hydrochloride.[2] Appellant was further charged with violation of Section 5 of RA 9165 for the sale of methamphetamine hydrochloride.[3] Appellant and Emily posted bail and, during arraignment, entered not guilty pleas. Emily was tried in absentia for failing to appear at the trial.

Denying the charges, appellant claimed never to have transacted with Arellano in a drug deal. According to appellant, Arellano, Tougan, and Pineda went to her house in the early morning of 10 September 2003 and tried to

mulct P50,000 to free Emily whom the police officers had arrested. When appellant could not produce the amount, the police officers detained her and Emily at the San Mateo police station and filed the charges in question.

The Ruling of the Trial Court

In its Decision dated 6 July 2006, the trial court convicted appellant of the charges.[4] The trial court gave credence to the prosecution evidence and found it sufficient to prove beyond reasonable doubt appellants violation of Sections 5 and 11 of RA 9165. The trial court rejected appellants defense for lack of credence in the face of the presumption of regularity in the performance of official duties accorded to the actions of Arellano, Tougan, and Pineda.

Appellant appealed to the Court of Appeals, contending that the trial court erred in ruling that the prosecution discharged its burden of proving her guilt beyond reasonable doubt. Appellant argued that the testimonies of Arellano and Pineda were far from credible because they failed to coordinate with the Philippine Drug Enforcement Agency, did not conduct surveillance prior to the sting operation, and failed to give details on the marking of the seized shabu. Appellant also called the appellate courts attention to gaps in the chain of custody of the seized plastic sachets and their contents.

The Ruling of the Court of Appeals

In its Decision dated 19 November 2007, the Court of Appeals sustained the trial court. The appellate court saw no reason to disturb the trial courts assessment of the credibility of the prosecution witnesses. Turning the table on appellant, the Court of Appeals noted that appellants denial and defense of frame-up strain credulity, no improper motive having been shown on the part of the police officers who took part in the sting operation.

Hence, this appeal. In separate manifestations, the parties waived the filing of supplemental briefs.

The Issue

The issue is whether appellant is guilty of sale and possession of methamphetamine hydrochloride under Sections 5 and 11, respectively, of RA 9165.

The Ruling of the Court

We find merit in the appeal and accordingly reverse the Court of Appeals.

The Prosecution Failed to Prove Beyond Reasonable Doubt the Corpus Delicti

In drug-related prosecutions, the State not only bears the burden of proving the elements of the offenses of sale and possession of methamphetamine hydrochloride under RA 9165,[5] but also carries the obligation to prove the corpus delicti, the body of the crime,[6] to discharge its

overall duty of proving the guilt of the accused beyond reasonable doubt.[7] The prosecution fails to comply with the indispensable requirement of proving corpus delicti not only when it is missing[8] but also when there are substantial gaps in the chain of custody of the seized drugs which raise doubts on the authenticity of the evidence presented in court.[9]

Failure to Mark at the Arrest Site the Shabu Allegedly Seized from Appellant Created the First Gap in the Chain of Custody

Crucial in proving chain of custody is the marking[10] of the seized drugs or other related items immediately after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband are immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, planting, or contamination of evidence.

Long before Congress passed RA 9165, this Court has consistently held that failure of the authorities to immediately mark the seized drugs raises reasonable doubt on the authenticity of the corpus delicti and suffices to rebut the presumption of regularity in the performance of official duties,[11] the doctrinal fallback of every drug-related prosecution. Thus, in People v. Laxa[12] and People v. Casimiro,[13] we held that the failure to mark the drugs immediately after they were seized from the accused casts doubt on the

prosecution evidence, warranting acquittal on reasonable doubt. These rulings are refinements of our holdings in People v. Mapa[14] and People v. Dismuke[15] that doubts on the authenticity of the drug specimen occasioned by the prosecutions failure to prove that the evidence submitted for chemical analysis is the same as the one seized from the accused suffice to warrant acquittal on reasonable doubt.[16]

The records of this case show that the plastic sachets allegedly seized from appellant were indeed marked (as HVA, HVA-1 and HVA-2). However, there is nothing on record to show when and where this was done. The policeman who arrested appellant, Arellano, testified only as to the following: (1) after he arrested appellant, he retrieved from her two pieces of P100 bills and another two sachets of suspected shabu; (2) he prepared a document regarding the plastic sachet [sic] for examination; and (3) the contents of five plastic sachets marked HVA, HVA-1 and HVA-2 and JLT-1 tested positive for methamphetamine hydrochloride, thus:

[Prosecutor Gonzales] Q. What if any, happened next?

[Arellano] A. After I was able to hold the hands of the woman with short hair [appellant], she was able to free herself and told me, Sir, maawa ka nag-iipon lang ako ng pampyansa para sa aking asawa, sir.

Q. A.

After that, what happened? I asked her to empty her pocket, sir.

Q. A.

Did that person comply with your order? Yes, sir.

Q.

What did she do, if she did anything?

A. She showed to me the contents of her pocket and I was able to retrieve from her the two pieces of P100.00 bills and another two sachets of suspected shabu, sir.

Q.

And thereafter, what happened next?

A. After I was able to retrieve from her the evidence, we brought her to our station for investigation, sir.

Q. You said there was a previous transaction between your informant and the person with short hair, tell us what happened to the plastic sachets of shabu that had been the subject of the sale between your informer and the woman with short hair [appellant]? A. sir. We prepared a document regarding the plastic sachet for examination,

Q. A.

What plastic sachets? All of the plastic sachets, sir.

xxxx

Q. You said that the plastic sachets which had been confiscated and as well as the subject of the sale had been sent to the Crime Laboratory for examination, what evidence, if any, do you have that the said specimens or objects had been submitted for examination? A. We prepared a laboratory request, sir.

xxxx

Q. If that laboratory request will be shown to you, will you be able to identify the same? A. Yes, sir.

Q. I am showing to you Exhibit D, which is a request for laboratory examination of the specimens which had been identified as one heat-sealed transparent plastic sachet marked HVA for Section 5, two heatsealed transparent sachets containing suspected shabu marked HVA-1 and HVA-2 for Section 11 confiscated from suspect, No. 1 two (2) heatsealed transparent plastic sachets containing suspected shabu marked as JLT-1, what is the relation of this document to that you said is the request for laboratory examination on the object confiscated from the persons of the accused as well as the subject of the sale? A. This is the request for laboratory examination we prepared, sir.

Pros. Gonzales: Witness identifying Exhibit D, your Honor.

Q.

What was the result of this request, if you know?

A. It gave positive result for methamphetamine hydrochloride, sir.[17] (Emphasis supplied)

On the other hand, Tougan, who arrested Emily, specified that he marked the plastic sachets he seized from Emily at the San Mateo police station, thus:

Pros. Gonzales: Q. At the station, what happened to the plastic sachets which you said were confiscated from the person of the accused?

[Tougan] A. I marked it with my initial JLT-1, sir.

Q. And this transparent plastic bag of shabu marked as JLT-1 referred to whom [sic]? A. The one I confiscated from Emily Coreche, sir.[18] (Emphasis supplied)

Tougans clear admission that he marked the plastic sachet at the police station gives rise to the strong inference that like him, Arellano also marked the plastic sachets he took from appellant at the San Mateo police station.

In Zarraga v. People,[19] we reversed a guilty verdict for violation of Section 5 of RA 9165 (sale of shabu) largely due to the conflicting testimonies of the police officers who conducted the sting operation on when and where the seized drugs were marked. There, we observed that:

[T]here are material inconsistencies in the testimonies of Guevarra and Luna particularly with regard to when and where the markings on the shabu were made. Guevarra testified that he handed the shabu to Manglo and that he put markings on the substance.

xxxx Guevarras account leaves a gap as regards when the shabu was marked, i.e., whether it was marked before or after it was handed over to Manglo. He also did not say specifically in what place he put the identifying marks. Lunas testimony on this score fills the gap and, more, it creates reasonable doubt as to the identity of the corpus delicti.

xxxx

Luna unequivocally declared that he and Guevarra wrapped the shabu in tissue only at the office and that the latter put markings on the tissue and plastic wrapper, suggesting that Guevarra did not follow the standard procedure of marking the confiscated items immediately after the accused were apprehended.[20] (Emphasis supplied)

Equivocal Evidence on Post-Chemical Examination Custody of the Seized Drugs Created the Second Gap in the Chain of Custody

The prosecutions failure to prove that the sachets of shabu presented in court were marked immediately after they were allegedly seized from appellant is compounded by the equivocal evidence on the specimens post-examination custody. According to the prosecution, the plastic sachets seized from the accused were transferred to the custody of Police Senior Inspector Isidro L. Cario (Cario) of the Eastern Police District (EPD) Laboratory for chemical analysis of their contents. In lieu of Carios testimony, the prosecution and defense stipulated on the following facts, as contained in the Order of the trial court dated 18 February 2004:

1) That upon the request of the San Mateo Police Station, PSI Isidro Cario conducted an examination over five (5) heat sealed transparent plastic bags each with 0.20 gram. and the rest 1.20 gram each respectively;

2) That after the said examination had been conducted by the said witness, the result is positive for methylamphetamine [sic] hydrochloride, a dangerous drug;

3) That the same had been reduced into writing under Chemistry Report No. D-1742-03E;

4) That the said witness signed the same and approved by Pol. Chief Insp. Jose Arnel Marquez;

5) That after the examination, the specimens had been placed in a transparent plastic bag with markings D-1742-03E and initialed by the said witness;

6) That he is a Pol. Sr. Inspector and Forensic Chemical Officer of the Eastern Police District, Mandaluyong City;

7) That the witness had no personal knowledge as to the origin or source of the specimen subject of the examination.[21] (EMPHASIS SUPPLIED)

When taken together with the contents of Chemistry Report No. D-174203E,[22] what the stipulation proves is that upon chemical analysis by Cario, the contents of five plastic sachets marked HVA thru E (JLT1)[23] tested positive for methylamphetamine [sic] hydrochloride. This fact leaves unanswered the question of post-examination custody. Did the plastic sachets

remain in Carios safekeeping? Were they transferred to another location until they were presented in court? The stipulation in the fifth paragraph that after the examination, the specimens had been placed in a transparent plastic bag with markings D-1742-03E and initialed by the said witness [Cario] merely settles the issue of how the specimens were packaged after testing, not who took custody of them.[24]

The Presumption of Innocence Prevails Over the Presumption of Regular Performance of Official Duty

In sustaining the prosecutions case, the lower courts inevitably relied on the evidentiary presumption that official duties have been regularly performed.[25] This presumption, it must be emphasized, is not conclusive.[26] Not only is it rebutted by contrary proof, as here, but it is also inferior[27] to the constitutional presumption of innocence.[28] All told, we find merit in appellants claim that the prosecution failed to discharge its burden of proving her guilt beyond reasonable doubt due to substantial gaps in the chain of custody, raising reasonable doubt on the authenticity of the corpus delicti.

The disposition of this appeal once more underscores the need for trial courts to conduct a more exacting scrutiny of prosecution evidence to meet the stringent standard of proof beyond reasonable doubt with due regard to relevant jurisprudence. In the long run, this redounds to the benefit of the criminal justice system by protecting civil liberties and at the same time instilling rigorous discipline on prosecutors.

WHEREFORE, the Decision dated 19 November 2007 of the Court of Appeals is REVERSED. Appellant Marian Coreche y Caber is ACQUITTED of

the charges in Criminal Case No. 6989 and Criminal Case No. 6990 on the ground of reasonable doubt.

The Director of the Bureau of Corrections is ORDERED to immediately RELEASE appellant Marian Coreche y Caber from custody, unless she is detained for some other lawful cause, and to report to this Court compliance within five (5) days from receipt of this Decision.

Costs de oficio.

SO ORDERED. Bondad V People DECISION

CARPIO MORALES, J.: Elpidio Bondad, Jr., y Burac (appellant) was charged before the Regional Trial Court (RTC) of Marikina City[1] for violation of Section 5, paragraph 2(3), Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as follows:[2]

That on or about the 29th day of January 2004, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, without being authorized by law, did then and there willfully, unlawfully, feloniously and knowingly sell to poseur buyer 0.02 gram of Methamphetamine Hydrochloride (shabu) contained in one (1) heat-sealed transparent plastic sachet, a dangerous drug, in violation of the above-cited law.[3] (Underscoring supplied)

He was likewise charged for violation of Section 11, par. 2(3), Article II also of R.A. No. 9165, allegedly committed as follows:

That on or about the 29th day of January 2004, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, without being authorized by law to possess or otherwise use any dangerous drugs, did then and there willfully, unlawfully and feloniously have in his possession direct custody and control 0.04 gram of white crystalline substance contained in two (2) heat-sealed plastic sachets which gave positive result to the test for Methamphetamine Hydrochloride (shabu), which is a dangerous drug, in violation of the above-cited law.[4] (Underscoring supplied)

The cases were lodged at Branch 272 of the RTC of Marikina.

From the evidence for the prosecution, particularly the testimony of its principal witness PO2 Edwin Dano and its documentary evidence, the following version is culled:

At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand Brubio, PO1 Christopher Anos, and PO1 Roberto Muega were at the Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF), Office of the Marikina City Police Station, PO2 Nelson Arribay arrived together with a confidential informant. The confidential informant reported, among other things, about the rampant sale of shabu in a billiard hall along Bonifacio Avenue, Barangka, Marikina City and named a certain alias Jun as the vendor.

The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at once formed a buy-bust team composed of, among others, PO2 Ramiel Soriano and

PO2 Dano who was designated as the poseur-buyer. PO2 Dano was given a one hundred peso bill bearing Serial No. Q487945 to be used as buy-bust money. It was agreed that PO2 Danos removal of his cap would signal that the buy-bust was consummated.

The conduct of a buy-bust operation was recorded in the police blotter and was coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number NOC-012904-28.

The buy-bust team, together with the confidential informant, proceeded to 3 Cs billiard hall at the corner of M. Cruz St. and Bonifacio Avenue in Barangka, Marikina City. On entering the hall, the confidential informant pointed to appellant who was then holding a cue stick beside the billiard table as the alias Jun. The confidential informant approached appellant and talked to him. Within minutes, appellant approached PO2 Dano and asked him if he wanted to buy shabu, to which PO2 Dano answered piso lang. Appellant at once took out a Vicks container from his right front pocket[5] which, when opened, yielded heat-sealed plastic sachets containing substances suspected to be shabu. From the container, appellant drew out one sachet in exchange for which PO2 Dano gave the marked one hundred peso bill. At that instant, PO2 Dano removed his cap.

As the back-up police officers were closing-in, PO2 Dano grabbed appellants arm, identified himself, and apprised appellant of his constitutional rights. Upon PO2 Danos order, appellant returned the buy-bust money, handed the Vicks container, and gave his name as Elpidio Burac Bondad, Jr.

Still at the place of arrest, PO2 Dano placed the markings EBB-ED BUYBUST 01/29/04 on the substance-filled sachet sold to him, and EBB-ED, POS 1 and 2, 01/29/04 on the sachets that remained inside the Vicks container. The buy-bust team thereupon brought appellant and the seized items to the Marikina City Police Station where a memorandum dated January 29, 2004[6]

was prepared by P/Sr. Insp. Chief Haveria, Jr., addressed to the Chief of the Eastern Police District Crime Laboratory Office, requesting for the conduct of laboratory examination on the seized items to determine the presence of dangerous drugs and their weight. PO2 Dano also requested that appellant be subjected to a drug test.[7]

The following day or on January 30, 2004, at 3:00 P.M., upon receipt of three sachets, a laboratory examination was conducted thereon by Police Senior Inspector Annalee R. Forro, Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office, who, in Physical Science Report No. D-009404E[8], recorded, among other things, the specimen submitted, her findings and conclusion as follows:

SPECIMEN SUBMITTED:

Three (3) heat-sealed transparent plastic sachets with markings marked as A through C respectively, each containing white crystalline substance with following recorded net weights and markings:

A = 0.02 gram EBB-ED BUYBUST 01/29/04 B = 0.02 gram EBB-ED POSS 1 01/29/04 C = 0.02 gram EBB-ED POSS 2 01/29/04

x-x-x

x-x-x

x-x-x

F I N D I N G S:

x x x

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine Hydrochloride, a dangerous drug.

x-x-x

x-x-x

x-x-x

C O N C L U S I O N:

Specimens A through C contain Methamphetamine Hydrochloride, a dangerous drug. [9] (Italics and emphasis in the original) Denying the charges against him, appellant, a former police officer, claimed that he was framed up and gave the following version:

On January 29, 2004, while he was playing inside 3 Cs billiard hall, PO2 Brubio, whom he knew was a policeman, entered the billiard hall. After greeting PO2 Brubio in Bicolano, he continued playing but PO2 Brubio suddenly handcuffed him and asked him Sumama ka muna. Another person who was at his back pushed him out of the billiard hall in the course of which he felt PO2 Brubio reaching his (appellants) right front pocket,[10] drawing him to restrain the hand of PO2 Brubio, telling him pera ko yan!

Aware that his son was inside the billiard hall, appellant summoned and handed him his wallet containing P2,000. PO2 Brubio, however, took the wallet from his son, telling him Huwag ka makialam dito. He was then made to board a car and taken to the Office of the SAIDSOTF at the police station.

Appellants defense was corroborated by his son Christian Jeffrey C. Bondad, and Roberto U. Mata who was a spotter (referee) at the billiard hall at the time appellant was arrested.

Finding for the prosecution, the trial court convicted appellant in both charges, disposing as follows:

WHEREFORE, foregoing premises considered, the Court finds the accused ELPIDIO BONDAD, JR. y BURAC guilty beyond reasonable doubt of the crime of Violation of Sec. 11 par. 2(3), Art. II of R.A. 9165 and is sentenced to suffer the penalty of imprisonment for a period of TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE HUNDRED THOUSAND PESOS (PhP300,000.00) as provided for in Sec. 11 par. 2(3), Art. II of RA 9165. The accused is likewise found guilty of the crime of Violation of Sec. 5 Art. II of RA 9165 and is sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of FIVE HUNDRED THOUSAND PESOS (PhP500,00.00) pursuant to Sec. 5, Art. II of RA 9165 the methamphetamine hydrochloride (shabu) is ordered confiscated in favor of the government for proper destruction by the proper agency.

SO ORDERED.[11] (Underscoring supplied)

By Decision of February 8, 2006,[12] the Court of Appeals affirmed the trial courts decision with modification, disposing as follows:

WHEREFORE, in the light of the foregoing, the appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with the MODIFICATION that the accused-appellant is sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

SO ORDERED.[13] (Underscoring supplied)

Specifically with respect to the charge of possession of shabu, the appellate court held:

The evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a prohibited drug, namely, (a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug, (b) such possession is not authorized by law and (c) the accused freely and consciously possessed said drug.

Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of possessing any dangerous drug consummates the crime. There is no doubt that the charge of illegal possession of shabu was proven beyond reasonable doubt since the accused-appellant knowingly possessed plastic sachets with white crystalline granules, without legal authority at the time he was caught during the buybust operation. The white crystalline granules found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a dangerous drug.[14] (Italics in the original, underscoring supplied)

Hence, the present Petition for Review on Certiorari, appellant faulting the appellate court:

I. . . . IN CONVICTING [HIM] OF THE CRIME[S] CHARGED ON THE BASIS OF THE LONE TESTIMONY OF THE POSEUR BUYER AS AGAINST THE CORROBORATED STATEMENTS OF THE ACCUSED AND HIS WITNESSES;

II. . . . IN ADMITTING THE EVIDENCE OF THE PROSECUTION DESPITE CLEAR VIOLATION OF SECTION 21 (1) OF R.A. 9165;

III. . . . IN COMPLETELY DISREGARDING THE CLEAR EVIDENCE ON THE EXISTENCE OF IRREGULARITY IN THE PERFORMANCE OF OFFICIAL

FUNCTIONS BY POLICE OFFICER/S IN THE CONDUCT OF THE BUY BUST OPERATIONS.[15] (Emphasis and underscoring supplied)

As the resolution of the second assignment of error is determinative of whether there is still necessity of segueing to the first and third assignments of error, it shall early on be passed upon.

Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items.

Sec. 21 of R.A. No 9165 provides:

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 or 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 persons/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 (Emphasis and underscoring supplied)

Appellant claims that no physical inventory and photographing of the drugs took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellants claim, viz:

Atty. Puentebella: When you brought him to the police, it was there that the items taken from him were inventoried, is it not?

Witness: We did not make inventory because we simply brought the evidence confiscated.

xxxx

Atty. Puentebella: You also did not take photographs of the items taken from the accused?

Witness: Yes, sir.

Atty. Puentebella: And you know for a fact that under the new drugs law, this is a requirement for the apprehending team to do, is it not?

Pros. Gapuzan:

Counsel is asking for a conclusion of law. I will object.

Court: Witness may answer the question.

Witness: Yes, sir.

xxxx

Atty. Puentebella: So it is very clear now Mr. Witness that at the time you apprehended the accused, you did not make an inventory in the presence of the accused nor you did not [sic] make a photograph of the items seized in the presence of the accused, an elective official, a representative from the Department of Justice, or the media, thats very clear?

Witness: Yes, sir.

Atty. Puentebella: Since you did not make any inventory, it follows that you did not require them to sign your inventory as required by law?

Witness: Yes, sir.[16] (Emphasis and underscoring supplied)

Clearly then, the apprehending police officers failed to comply with the abovequoted provision of Section 21 of R.A. No. 9165.

People v. Pringas holds, however:

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[17] (Citation omitted, emphasis, italics and underscoring supplied)

The Courts pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations[18] of R.A. No. 9165, viz:

x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and 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 and underscoring supplied)

In the present case, by PO2 Danos claim, he immediately marked the seized items which were brought to the Crime Laboratory for examination. By his

admission, however, he did not conduct an inventory of the items seized. Worse, no photograph of the items was taken. There was thus failure to faithfully follow the requirements of the law.

Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO2 Dano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 9165[19], despite PO2 Danos awareness of such requirements. And the defense raised it again during the offer of evidence by the prosecution, thus:

Atty. Puentebella:

xxxx

Exhibits B which is the brown envelope, B-1, B-2 and B-3 are objected to for being product of irregular functions of police and therefore fruit of poisonous thinking [sic] and they are not admissible and they were not photographed in the presence of the accused as provided for by Sec. 21, par.1, R.A. 9165;[20] (emphasis supplied)

IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant,[21] his acquittal is in order.

This leaves it unnecessary to still dwell on the first and third assignments of error.

WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof.

SO ORDERED. DECISION CARPIO MORALES, J.: Elpidio Bondad, Jr., y Burac (appellant) was charged before the Regional Trial Court (RTC) of Marikina City[1] for violation of Section 5, paragraph 2(3), Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as follows:[2] That on or about the 29th day of January 2004, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully, feloniously and knowingly sell to poseur buyer 0.02 gram of Methamphetamine Hydrochloride (shabu) contained in one (1) heat-sealed transparent plastic sachet, a dangerous drug, in violation of the above-cited law.[3] (Underscoring supplied)

He was likewise charged for violation of Section 11, par. 2(3), Article II also of R.A. No. 9165, allegedly committed as follows: That on or about the 29th day of January 2004, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or otherwise use any dangerous drugs, did then and there willfully, unlawfully and feloniously have in his possession direct custody and control 0.04 gram of white crystalline substance contained in two (2) heat-sealed plastic sachets which gave positive result to the test for Methamphetamine Hydrochloride (shabu), which is a dangerous drug, in violation of the above-cited law.[4] (Underscoring supplied)

The cases were lodged at Branch 272 of the RTC of Marikina. From the evidence for the prosecution, particularly the testimony of its principal witness PO2 Edwin Dano and its documentary evidence, the following version is culled: At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand Brubio, PO1 Christopher Anos, and PO1 Roberto Muega were at the Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF), Office of the Marikina City Police Station, PO2 Nelson Arribay arrived together with a confidential informant. The confidential informant reported, among other things, about the rampant sale of shabu in a billiard hall along Bonifacio Barangka, Marikina City and named a certain alias Jun as the vendor. Avenue,

The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at once formed a buybust team composed of, among others, PO2 Ramiel Soriano and PO2 Dano who was designated as the poseur-buyer. PO2 Dano was given a one hundred peso bill bearing Serial No. Q487945 to be used as buy-bust money. It was agreed that PO2 Danos removal of his cap would signal that the buy-bust was consummated. The conduct of a buy-bust operation was recorded in the police blotter and was coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number NOC-012904-28. The buy-bust team, together with the confidential informant, proceeded to 3 Cs billiard hall at the corner of M. Cruz St. and Bonifacio Avenue in Barangka, Marikina City. On entering the hall, the confidential informant pointed to appellant who was then holding a cue stick beside the billiard table as the alias Jun. The confidential informant approached appellant and talked to him. Within minutes, appellant approached PO2 Dano and asked him if he wanted to buy shabu, to which PO2 Dano answered piso lang. Appellant at once took out a Vicks container from his right front pocket[5] which, when opened, yielded heat-sealed plastic sachets containing substances suspected to beshabu. From the container, appellant drew out one sachet in exchange for which PO2 Dano gave the marked one hundred peso bill. At that instant, PO2 Dano removed his cap. As the back-up police officers were closing-in, PO2 Dano grabbed appellants arm, identified himself, and apprised appellant of his constitutional rights. Upon PO2 Danos order,

appellant returned the buy-bust money, handed the Vicks container, and gave his name as Elpidio Burac Bondad, Jr. Still at the place of arrest, PO2 Dano placed the markings EBB-ED BUYBUST 01/29/04 on the substance-filled sachet sold to him, and EBB-ED, POS 1 and 2, 01/29/04 on the sachets that remained inside the Vicks container. The buy-bust team thereupon brought appellant and the seized items to the Marikina City Police Station where a memorandum dated January 29, 2004[6] was prepared by P/Sr. Insp. Chief Haveria, Jr., addressed to the Chief of the Eastern Police District Crime Laboratory Office, requesting for the conduct of laboratory examination on the seized items to determine the presence of dangerous drugs and their weight. PO2 Dano also requested that appellant be subjected to a drug test.[7] The following day or on January 30, 2004, at 3:00 P.M., upon receipt of three sachets, a laboratory examination was conducted thereon by Police Senior Inspector Annalee R. Forro, Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office, who, in Physical Science Report No. D-0094-04E[8], recorded, among other things, the specimen submitted, her findings and conclusion as follows: SPECIMEN SUBMITTED: Three (3) heat-sealed transparent plastic sachets with markings marked as A through C respectively, each containing white crystalline substance with following recorded net weights and markings: A = 0.02 gram EBB-ED BUYBUST 01/29/04 B = 0.02 gram EBB-ED POSS 1 01/29/04 C = 0.02 gram EBB-ED POSS 2 01/29/04 x-x-x F I N D I N G S: x x x x-x-x x-x-x

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine Hydrochloride, a dangerous drug. x-x-x x-x-x x-x-x

C O N C L U S I O N:

Specimens A through C contain Methamphetamine Hydrochloride, a dangerous drug. [9] (Italics and emphasis in the original) Denying the charges against him, appellant, a former police officer, claimed that he was framed up and gave the following version: On January 29, 2004, while he was playing inside 3 Cs billiard hall, PO2 Brubio, whom he knew was a policeman, entered the billiard hall. After greeting PO2 Brubio inBicolano, he continued playing but PO2 Brubio suddenly handcuffed him and asked him Sumama ka muna. Another person who was at his back pushed him out of the billiard hall in the course of which he felt PO2 Brubio reaching his (appellants) right front pocket,[10] drawing him to restrain the hand of PO2 Brubio, telling him pera ko yan! Aware that his son was inside the billiard hall, appellant summoned and handed him his wallet containing P2,000. PO2 Brubio, however, took the wallet from his son, telling him Huwag ka makialam dito. He was then made to board a car and taken to the Office of the SAIDSOTF at the police station. Appellants defense was corroborated by his son Christian Jeffrey C. Bondad, and Roberto U. Mata who was a spotter (referee) at the billiard hall at the time appellant was arrested. Finding for the prosecution, the trial court convicted appellant in both charges, disposing as follows: WHEREFORE, foregoing premises considered, the Court finds the accused ELPIDIO BONDAD, JR. y BURAC guilty beyond reasonable doubt of the crime of Violation of Sec. 11 par. 2(3), Art. II of R.A. 9165 and is sentenced to suffer the penalty of imprisonment for a period of TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE HUNDRED THOUSAND PESOS (PhP300,000.00) as provided for in Sec. 11 par. 2(3), Art. II of RA 9165. The accused is likewise found guilty of the crime of Violation of Sec. 5 Art. II of RA 9165 and is sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of FIVE HUNDRED THOUSAND PESOS (PhP500,00.00) pursuant to Sec. 5, Art. II of RA 9165 the methamphetamine hydrochloride (shabu) is ordered confiscated in favor of the government for proper destruction by the proper agency. SO ORDERED.[11] (Underscoring supplied)

By Decision of February 8, 2006,[12] the Court of Appeals affirmed the trial courts decision with modification, disposing as follows: WHEREFORE, in the light of the foregoing, the appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with the MODIFICATION that the accused-appellant is sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00). SO ORDERED.[13] (Underscoring supplied)

Specifically with respect to the charge of possession of shabu, the appellate court held: The evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a prohibited drug, namely, (a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug, (b) such possession is not authorized by law and (c) the accused freely and consciously possessed said drug. Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of possessing any dangerous drug consummates the crime. There is no doubt that the charge of illegal possession of shabu was proven beyond reasonable doubt since the accused-appellant knowingly possessed plastic sachets with white crystalline granules, without legal authority at the time he was caught during the buy-bust operation. The white crystalline granules found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a dangerous drug.[14] (Italics in the original, underscoring supplied)

Hence, the present Petition for Review on Certiorari, appellant faulting the appellate court: I. . . . IN CONVICTING [HIM] OF THE CRIME[S] CHARGED ON THE BASIS OF THE LONE TESTIMONY OF THE POSEUR BUYER AS AGAINST THE CORROBORATED STATEMENTS OF THE ACCUSED AND HIS WITNESSES; II. . . . IN ADMITTING THE EVIDENCE OF THE PROSECUTION DESPITE CLEAR VIOLATION OF SECTION 21 (1) OF R.A. 9165;

III. . . . IN COMPLETELY DISREGARDING THE CLEAR EVIDENCE ON THE EXISTENCE OF IRREGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS BY POLICE OFFICER/S IN THE CONDUCT OF THE BUY BUST OPERATIONS.[15] (Emphasis and underscoring supplied)

As the resolution of the second assignment of error is determinative of whether there is still necessity of segueing to the first and third assignments of error, it shall early on be passed upon. Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items. Sec. 21 of R.A. No 9165 provides: 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 or 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 ofthe accused or the persons/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 (Emphasis and underscoring supplied)

Appellant claims that no physical inventory and photographing of the drugs took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellants claim, viz: Atty. Puentebella:

When you brought him to the police, it was there that the items taken from him were inventoried, is it not? Witness: We did not make inventory because we simply brought the evidence confiscated. xxxx Atty. Puentebella: You also did not take photographs of the items taken from the accused? Witness: Yes, sir.

Atty. Puentebella: And you know for a fact that under the new drugs law, this is a requirement for the apprehending team to do, is it not? Pros. Gapuzan: Counsel is asking for a conclusion of law. I will object. Court: Witness may answer the question. Witness: Yes, sir. xxxx Atty. Puentebella: So it is very clear now Mr. Witness that at the time you apprehended the accused, you did not make an inventory in the presence of the accused nor you did not [sic] make a photograph of the items seized in the presence of the accused, an elective official, a representative from the Department of Justice, or the media, thats very clear?

Witness: Yes, sir. Atty. Puentebella: Since you did not make any inventory, it follows that you did not require them to sign your inventory as required by law?

Witness: Yes, sir.[16] (Emphasis and underscoring supplied)

Clearly then, the apprehending police officers failed to comply with the above-quoted provision of Section 21 of R.A. No. 9165. People v. Pringas holds, however: Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[17] (Citation omitted, emphasis, italics and underscoring supplied)

The Courts pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations[18] of R.A. No. 9165, viz: x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and 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 and underscoring supplied)

In the present case, by PO2 Danos claim, he immediately marked the seized items which were brought to the Crime Laboratory for examination. By his admission, however, he did not conduct an inventory of the items seized. Worse, no photograph of the items was taken. There was thus failure to faithfully follow the requirements of the law. Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO2 Dano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 9165[19], despite PO2 Danos awareness of such requirements. And the defense raised it again during the offer of evidence by the prosecution, thus:

Atty. Puentebella: xxxx Exhibits B which is the brown envelope, B-1, B-2 and B-3 are objected to for being product of irregular functions of police and therefore fruit of poisonous thinking [sic] and they are not admissible and they were not photographed in the presence of the accused as provided for by Sec. 21, par.1, R.A. 9165;[20] (emphasis supplied)

IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant,[21] his acquittal is in order. This leaves it unnecessary to still dwell on the first and third assignments of error. WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof. SO ORDERED.

People V Obmiranis DECISION

TINGA, J.:

This is an appeal filed by Samuel Obmiranis y Oreta (appellant) who was charged with violation of Section 5 in relation to Section 26 of Republic Act (R.A.) No. 9165.[1] He was allegedly caught in a buy-bust operation by

elements of the Manila Western Police District (MWPD) while offering to sell methylamphetamine hydrochloride, a dangerous drug locally known as shabu. The criminal information filed with the Regional Trial Court (RTC) of Manila, Branch 2[2] accused him as follows:

That on or about May 18, 2004, 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 attempt to sell or offer for sale one (1) transparent plastic sachet containing TWO POINT EIGHT ZERO ZERO (2.800) grams of white crystalline substance known as SHABU containing methylamphetamine hydrochloride, a dangerous drug.

Contrary to law.[3]

At the pre-trial, both the prosecution and the defense stipulated on the qualification of Forensic Chemist Elisa Reyes and, thus, both parties dispensed with her testimony. The prosecution further admitted that the forensic chemist who analyzed the seized the confiscated substancewhich yielded positive for methylamphetamine hydrochloride contentdid not have personal knowledge of the ultimate source of the drug.[4]

Appellant was brought to trial after having entered a negative plea.[5] The prosecution then proceeded to prove the charge against him through the lone testimony of police officer Jerry Velasco (Velasco). Velasco was the alleged leader of the raiding team that apprehended appellant on 18 May 2004 at the corner of G.Tuazon and Jhocson Streets in Sampaloc, Manila.[6]

The narrative woven by Velasco established the following facts: On 17 May 2004, Police Superintendent Marcelino Pedrozo (Pedrozo) of the MWPD

organized a buy-bust team on the information of a confidential informant that the latter was able to place an order for half a bulto of shabu with appellant. Velasco was designated as the team leader and the poseur-buyer, with Police Officers Wilfredo Cinco, Edgardo Palabay, Roberto Benitez and one[7]confidential informant as members.[8] Pedrozo gave the team a marked 500-peso bill to be used as buy-bust money which was placed on top of a deck of boodle money. The team informed the Philippine Drug Enforcement Agency (PDEA) of the impending operation,[9] entered the same in the blotter[10] and proceeded to Bambang in G.Tuazon Street just before 12 a.m. of 18 May 2004the appointed time and date that the confidential informant and appellant had agreed to meet. The informant joined Velasco in his car, and they awaited the arrival of appellant at the corner of G.Tuazon and Jhocson Streets.[11] At around 12:30 a.m., appellant on board a car arrived at the scene and seeing the informant he approached the latter. The informant introduced Velasco to appellant and said that Velasco would like to buy onehalf bulto of shabu. Velasco negotiated with appellant to lower the price but the latter refused. Velasco then insisted that he must first see the merchandise. Appellant went back to his car, took the item and brought it to Velasco. Velasco readily recognized the item as a plastic sachet containing a white crystalline substance. When appellant asked for payment, he seemed to have recognized Velascos co-officer because he uttered the words, May pulis yata. At that point, he was arrested just as he was trying to get back to his car.[12]

According to Velasco, he was the one who effected the arrest but it was Cinco who seized the plastic sachet from appellant. He further stated that immediately after the arrest, he and his team brought the seized item to the police headquarters and there, in his presence, Cinco marked the same with the initials SOO. At the trial, he identified the plastic sachet as that seized from appellant as well as the marking made by Cinco on it. Furthermore, he admitted on cross-examination that there was no evidence custodian designated and that he could not remember if the seized item had been inventoried and photographed in the presence of the accused; that Cinco put the item in his pocket after the same was recovered and did not mark it on the spot and that the markings made on the buy-bust money had not been entered in the blotter.[13]

The chemistry report issued at the instance of Pedrozo and signed by Forensic Chemical Officer Maritess Mariano of the PNP Crime Laboratory revealed that the specimen supposedly seized from appellant yielded positive of methylamphetamine hydrochloride content.[14]

Taking the stand, appellant boldly asserted that he was merely framed up by the buy-bust team, and strongly denied having transacted the alleged sale of shabu with Velasco and the confidential informant. He claimed that he was taken by Velasco and his team not on 18 May 2004 but rather on 17 May 2004 at 7:00 p.m. along Santa Teresita Street, Sampaloc, Manila;[15] that he was there to see his girlfriend who was residing in that area; that when he was arrested by two men in civilian clothes, he was not committing any crime; that he asked them why they were arresting him but neither of them gave an answer and instead one of them grabbed him by his shoulder and ushered him inside a police car; that once inside the car, one of the men pulled out a gun with which he hit his neck, kicked him and uttered, Makulit ka ha, yuko!; that he asked them why they were doing that to him when in fact he merely told them to park their car properly on the street; that they cuffed his hands at the back and the driver, Velasco, asked if he could give them P200,000.00; that he answered he did not have that much money; that they drove the car around and told him that if he could not give them the money then he must just find for them someone who sells drugs in large-scale (Magturo ka ng nagbebenta ng droga, iyong malakihan ha!); that because he said he did not know anyone who was into selling drugs, he was taken to the U.N. Avenue police headquarters; that he was not detained at the headquarters but rather, he was brought to the second floor where the two arresting officers demanded P50,000.00 from him; that the demand was then reduced to P30,000.00 in exchange for the mitigation of his case.[16] Olivia Ismael, another defense witness who introduced herself as a friend of appellants girlfriend and who admitted having witnessed appellants arrest, corroborated the material points of appellants testimony.[17]

In its 23 February 2006 Decision, the RTC found appellant guilty beyond reasonable doubt of the offense charged. He was sentenced to suffer the penalty of life imprisonment, and to pay a P500,000.00 fine without subsidiary imprisonment as well as the costs.[18]

Appellant interposed an appeal with the Court of Appeals in which he reiterated that the prosecution was unable to establish his guilt beyond reasonable doubt in view of the failure to establish the chain of custody of the illegal drugs and that it was likewise unable to establish the consummation of the alleged sale of drugs.[19] For its part, the People, through the Office of the Solicitor General (OSG), posited that the fact that all the essential elements of a consummated sale of dangerous drug had not been completely shown was immaterial because the charge involved a mere attempt or offer to sell which had been duly established by the prosecution.[20] It also maintained that the chain of custody of the seized shabu had been duly established because the requirements in taking custody of seized narcotics provided for in Dangerous Drugs Board Regulation No. 1, series of 2002[21] admit of liberal interpretation.[22]

In its 4 September 2007 Decision,[23] the Court of Appeals affirmed in toto the trial courts decision. Appellants Notice of Appeal[24] was approved, and the records of the case were elevated to this Court. This Courts 24 March 2008 Resolution[25] allowed the parties to file their supplemental briefs, but only appellant complied; the OSG manifested instead that there was no need for its part to file a supplemental brief as the merits of the case had already been extensively discussed in its brief before the appellate court.[26]

The appeal has to be granted.

In criminal prosecutions, fundamental is the requirement that the elemental acts constituting the offense be established with moral certainty as this is the critical and only requisite to a finding of guilt. In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt.[27] It is therefore of prime importance that in these cases, the identity of the dangerous drug be likewise established beyond reasonable doubt.[28] In other words, it must be established with unwavering exactitude that the dangerous drug presented in court as evidence against the accused is the same as that seized from him in the first place. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.[29]

Board Regulation No. 1, series of 2002 defines chain of custody as 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. As a method of authenticating evidence, the chain of custody rule requires that the admission of the exhibit be preceded by evidence sufficient to

support a finding that the matter in question is what the proponent claims it to be.[30] It would thus include testimony about every link in the chain, from the moment the item was seized to the time it is offered in court as evidence, such that every person who handled the same would admit 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. The same 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.[31] It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.

The prosecution evidence in the case at bar, however, does not suffice to afford such assurance. Of all the people who came into direct contact with the sachet of shabu purportedly seized from appellant, only Velasco was able to observe the uniqueness thereof in court. Cinco, who, according to Velasco, took initial custody of the plastic sachet at the time of arrest and who allegedly marked the same with the initials SOO at the police station, was not even presented in court to directly observe the uniqueness of the specimen and, more importantly, to acknowledge the marking as his own. The same is true with respect to the laboratory personnel who could have but nevertheless failed to testify on the circumstances under which he received the specimen at the laboratory for analysis and testing, as well as on the conduct of the examination which was administered on the specimen and what he did with it

at the time it was in his possession and custody. Aside from that, it was not reasonably explained why these same witnesses were not able to testify in court. While indeed the prosecution and the defense had stipulated on the qualification of the forensic chemist, dispensed with his testimony and admitted that said forensic chemist had no personal knowledge of the ultimate source of the drug submitted for examination, nevertheless, these stipulations and admission pertain only to a certain Elisa G. Reyes and not to Forensic Chemical Officer Maritess Mariano who, based on the chemistry report, was the one who examined the contents of the plastic sachet at the crime laboratory.

In view of these loopholes in the evidence adduced against appellant, it can be reasonably concluded that the prosecution was unable to establish the identity of the dangerous drug and in effect failed to obliterate the hypothesis of appellants guiltlessness.

Be that as it may, although testimony about a perfect chain does not always have to be the standard because it is almost always impossible to obtain, an unbroken chain of custody indeed becomes indispensable and essential when the item of real evidence is a narcotic substance. A unique characteristic of narcotic substances such as shabu is that they are not distinctive and are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature.[32] And because they cannot be readily and properly distinguished visually from other substances of the same physical and/or chemical nature, they are susceptible to alteration, tampering, contamination,[33] substitution and exchange[34] whether the alteration, tampering, contamination, substitution and exchange be inadvertent or otherwise not.[35] It is by reason of this distinctive quality that the condition of the exhibit at the time of testing and trial is critical.[36] Hence, in authenticating narcotic specimens, a standard more stringent than that applied to objects which are readily identifiable must be applieda 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 contaminated or tampered with.[37]

The Court certainly cannot reluctantly close its eyes to the possibility of substitution, alteration or contaminationwhether intentional or unintentionalof narcotic substances at any of the links in the chain of custody thereof especially because practically such possibility is great where the item of real evidence is small and is similar in form to other substances to which people are familiar in their daily lives.[38] Graham v. State[39] in fact acknowledged this danger. In that case, a substance later shown to be heroin was excluded from the prosecution evidence because prior to examination, it was handled by two police officers who, however, did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession. The court in that case pointed out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It thus declared that the state must be able to show by records or testimony the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition.[40]

Reasonable safeguards are provided for in our drugs laws to protect the identity and integrity of narcotic substances and dangerous drugs seized and/or recovered from drug offenders. Section 21[41] of R.A. No. 9165 materially requires the apprehending team having initial custody and control of the drugs to, 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, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The same requirements are also found in Section 2[42] of its implementing rules[43] as well as in Section 2[44] of the Dangerous Drugs Board Regulation No. 1, series of 2002.[45]

These guidelines, however, were not shown to have been complied with by the members of the buy-bust team, and nothing on record suggests that they had extended reasonable efforts to comply with the statutory requirements in handling the evidence. Velasco, the leader of the raiding team, himself admitted that as soon as appellant was arrested, Cinco had taken custody of the plastic sachet of shabu, placed it in his pocket and brought the same together with appellant to the police station. It was at the police stationand

not at the place where the item was seized from appellantwhere according to him (Velasco), Cinco had placed the initials SOO on the specimen. Velasco never even mentioned that the identifying mark on the specimen was placed in appellants presence; he could not even remember whether or not the specimen had been properly inventoried and photographed at least in appellants presence. Even more telling is the fact that, as elicited from Velasco himself during his cross-examination, no evidence custodian had been designated by the raiding team to safeguard the identity and integrity of the evidence supposedly seized from appellant.[46]

All these aforementioned flaws in the conduct of the post-seizure custody of the dangerous drug allegedly recovered from appellant, taken together with the failure of the key persons who handled the same to testify on the whereabouts of the exhibit before it was offered in evidence in court, militates against the prosecutions cause because it not only casts doubt on the identity of the corpus delicti but also tends to discredit, if not totally negate, the claim of regularity in the conduct of official police operation.

What we can fairly assume is that the Court of Appeals had overlooked the significance of these glaring details in the records of the case as it placed blind reliance right away on the credibility of Velascos testimony and on the presumption of regularity and thereby it failed to properly account for the missing substantial links in the chain of custody of the evidence. In the same vein the liberality, suggested by the OSG relative to post-seizure custody of narcotics under paragraph 1 Section 2 of Board Regulation No. 1, can hardly be given merit precisely because the proviso in that section of the regulation requires that the integrity and the evidentiary value of the evidence be properly preserved by the apprehending officer/team in order that non-compliance with the post-seizure custody requirements be excused on justifiable grounds.[47]

It needs no elucidation that the presumption of regularity in the performance of official duty must be seen 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, in other words, obtains only where nothing in the records is suggestive of the fact that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. Otherwise, where the official act in question is irregular on its face, an adverse presumption arises as a matter of course.[48] There is indeed merit in the contention that where no ill motives to make false charges was successfully attributed to the members of the buy-bust team, the presumption prevails that said police operatives had regularly performed their duty, but the theory is correct only where there is no showing that the conduct of police duty was irregular. People v. Dulay[49] and People v. Ganenas[50] in fact both suggest that the presumption of regularity is disputed where there is deviation from the regular performance of duty. Suffice it to say at this point that the presumption of regularity in the conduct of police duty is merely just thata mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth.[51]

It must be emphasized at this juncture that what can reasonably be presumed based on the records of this case is that Velasco is aware of his duties and responsibilities as an agent of the government in its anti-narcotics campaign. A member of the anti-narcotics division of the police since 1997,[52] Velasco can be reasonably presumed to be adept in and mindful of the proper procedure in apprehending drug offenders, securing and taking custody of the evidence obtained in police operations such as this one and preserving the integrity of the evidence by protecting the chain of custody thereof.[53] However, for reasons as obvious as intimated above, even this presumption is unworthy of credit.

All told, in view of the deviation by the buy-bust team from the mandated conduct of taking post-seizure custody of the dangerous drug in this case, there is no way to presume that the members thereof had performed their duties regularly. Even granting that we must blindly rely on the credibility of Velascos testimony, still, the prosecution evidence would fall short of satisfying the quantum of evidence required to arrive at a finding of guilt beyond reasonable doubt inasmuch as the evidence chain failed to solidly connect appellant with the seized drug in a way that would establish that the specimen is one and the same as that seized in the first place and offered in court as evidence. The Court cannot indulge in the presumption of regularity of official

duty if only to obliterate the obvious infirmity of the evidence advanced to support appellants conviction. In Mallillin v. People,[54] we categorically declared that the failure of the prosecution to offer in court the testimony of key witnesses for the basic purpose of establishing a sufficiently complete chain of custody of a specimen of shabu and the irregularity which characterized the handling of the evidence before the same was finally offered in court, materially conflict with every proposition as to the culpability of the accused. For the same plain but consequential reason, we will not hesitate to reverse the judgment of conviction in the present appeal.

One final word. In no uncertain terms must it be stressed that basic and elementary is the presupposition that the burden of proving the guilt of an accused rests on the prosecution which must draw strength from its own evidence and not from the weakness of the defense. The rule, in a constitutional system like ours, is invariable regardless of the reputation of the accused because the law presumes his innocence until the contrary is shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.[55]

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02158 affirming the judgment of conviction rendered by the Regional Trial Court of Manila, Branch 2, is REVERSED and SET ASIDE. Appellant Samuel Obmiranis y Oreta is ACQUITTED on reasonable doubt and is thus accordingly ordered released immediately from confinement, unless he is lawfully confined for another offense.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court his action hereon within five (5) days from receipt hereof.

SO ORDERED. Mallillin V People CISION

TINGA, J.: The presumption of regularity in the performance of official functions cannot by its lonesome overcome the constitutional presumption of innocence. Evidence of guilt beyond reasonable doubt and nothing else can eclipse the hypothesis of guiltlessness. And this burden is met not by bestowing distrust on the innocence of the accused but by obliterating all doubts as to his culpability.

In this Petition for Review[1] under Rule 45 of the Rules of Court, Junie Malillin y Lopez (petitioner) assails the Decision[2] of the Court of Appeals dated 27 January 2006 as well as its Resolution[3] dated 30 May 2006 denying his motion for reconsideration. The challenged decision has affirmed the Decision[4] of the Regional Trial Court (RTC) ofSorsogon City, Branch 52[5] which found petitioner guilty beyond reasonable doubt of illegal possession of methamphetamine hydrochloride, locally known as shabu, a prohibited drug. The antecedent facts follow. On the strength of a warrant[6] of search and seizure issued by the RTC of Sorsogon City, Branch 52, a team of five police officers raided the residence of petitioner in Barangay Tugos, Sorsogon City on 4 February 2003. The team was headed by P/Insp. Catalino Bolanos (Bolanos), with PO3 Roberto Esternon (Esternon), SPO1 Pedro Docot, SPO1 Danilo Lasala and SPO2 Romeo Gallinera (Gallinera) as members. The search conducted in the presence of barangay kagawad

Delfin Licup as well as petitioner himself, his wife Sheila and his mother, Normaallegedly yielded two (2) plastic sachets of shabu and five (5) empty plastic sachets containing residual morsels of the said substance. Accordingly, petitioner was charged with violation of Section 11,[7] Article II of Republic Act No. 9165, otherwise known as The Comprehensive Dangerous Drugs Act of 2002, in a criminal information whose inculpatory portion reads: That on or about the 4th day of February 2003, at about 8:45 in the morning in Barangay Tugos, Sorsogon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and control two (2) plastic sachets of methamphetamine hydrochloride [or] shabu with an aggregate weight of 0.0743 gram, and four empty sachets containing shabu residue, without having been previously authorized by law to possess the same. CONTRARY TO LAW.[8] Petitioner entered a negative plea.[9] At the ensuing trial, the prosecution

presented Bolanos, Arroyo and Esternon as witnesses. Taking the witness stand, Bolanos, the leader of the raiding team, testified on the circumstances surrounding the search as follows: that he and his men were allowed entry into the house by petitioner after the latter was shown the search warrant; that upon entering the premises, he ordered Esternon and barangay kagawad Licup, whose assistance had previously been requested in executing the warrant, to conduct the search; that the rest of the police team positioned themselves outside the house to make sure that nobody flees; that he was observing the conduct of the search from about a meter away; that the search conducted inside the bedroom of petitioner yielded five empty plastic sachets with suspected shabu residue contained in a denim bag and kept in one of the cabinets, and two plastic sachets containing shabu which fell off from one of the pillows searched by Esternona discovery that was made in the presence of petitioner.[10] On cross examination, Bolanos admitted that during the search, he was explaining its progress to petitioners mother, Norma, but that at the same time his eyes were fixed on the search being conducted by Esternon.[11]

Esternon testified that the denim bag containing the empty plastic sachets was found behind the door of the bedroom and not inside the cabinet; that he then found the two filled sachets under a pillow on the bed and forthwith called on Gallinera to have the items recorded and marked.[12] On cross, he admitted that it was he alone who conducted the search because Bolanos was standing behind him in the living room portion of the house and that petitioner handed to him the things to be searched, which included the pillow in which the two sachets of shabu were kept;[13] that he brought the seized items to the Balogo Police Station for a true inventory, then to the trial court[14] and thereafter to the laboratory.[15]

Supt. Lorlie Arroyo (Arroyo), the forensic chemist who administered the examination on the seized items, was presented as an expert witness to identify the items submitted to the laboratory. She revealed that the two filled sachets were positive of shabu and that of the five empty sachets, four were positive of containing residue of the same substance.[16] She further admitted that all seven sachets were delivered to the laboratory by Esternon in the afternoon of the same day that the warrant was executed except that it was not she but rather a certain Mrs. Ofelia Garcia who received the items from Esternon at the laboratory.[17] The evidence for the defense focused on the irregularity of the search and seizure conducted by the police operatives. Petitioner testified that Esternon began the search of the bedroom with Licup and petitioner himself inside. However, it was momentarily interrupted when one of the police officers declared to Bolanos that petitioners wife, Sheila, was tucking something inside her underwear. Forthwith, a lady officer arrived to conduct the search of Sheilas body inside the same bedroom. At that point, everyone except Esternon was asked to step out of the room. So, it was in his presence that Sheila was searched by the lady officer. Petitioner was then asked by a police officer to buy

cigarettes at a nearby store and when he returned from the errand, he was told that nothing was found on Sheilas body.[18] Sheila was ordered to transfer to the other bedroom together with her children.[19] Petitioner asserted that on his return from the errand, he was summoned by Esternon to the bedroom and once inside, the officer closed the door and asked him to lift the mattress on the bed. And as he was doing as told, Esternon stopped him and ordered him to lift the portion of the headboard. In that instant, Esternon showed him sachet ofshabu which according to him came from a pillow on the bed.[20] Petitioners account in its entirety was corroborated in its material respects by Norma, barangay kagawadLicup and Sheila in their testimonies. Norma and Sheila positively declared that petitioner was not in the house for the entire duration of the search because at one point he was sent by Esternon to the store to buy cigarettes while Sheila was being searched by the lady officer.[21] Licup for his part testified on the circumstances surrounding the discovery of the plastic sachets. He recounted that after the five empty sachets were found, he went out of the bedroom and into the living room and after about three minutes, Esternon, who was left inside the bedroom, exclaimed that he had just found two filled sachets.[22]

On 20 June 2004 the trial court rendered its Decision declaring petitioner guilty beyond reasonable doubt of the offense charged. Petitioner was condemned to prison for twelve years (12) and one (1) day to twenty (20) years and to pay a fine of P300,000.00.[23] The trial court reasoned that the fact that shabu was found in the house of petitioner was prima facie evidence of petitioners animus possidendi sufficient to convict him of the charge inasmuch as things which a person possesses or over which he exercises acts of ownership are presumptively owned by him. It also noted petitioners failure to ascribe ill motives to the police officers to fabricate charges against him.[24] Aggrieved, petitioner filed a Notice of Appeal.[25] In his Appeal Brief[26] filed with the Court of Appeals, petitioner called the attention of the court to certain irregularities in the manner by which the search of his house was conducted. For its part, the Office of the Solicitor General (OSG) advanced that on the contrary, the prosecution evidence sufficed for petitioners conviction and that the defense never advanced any proof to show that the members of the raiding team was improperly motivated to hurl false charges against him and hence the presumption that they had regularly performed their duties should prevail.[27]

On 27 January 2006, the Court of Appeals rendered the assailed decision affirming the judgment of the trial court but modifying the prison sentence to an indeterminate term of twelve (12) years as minimum to seventeen (17) years as maximum.[28] Petitioner moved for reconsideration but the same was denied by the appellate court.[29] Hence, the instant petition which raises substantially the same issues. In its Comment,[30] the OSG bids to establish that the raiding team had regularly performed its duties in the conduct of the search.[31] It points to petitioners incredulous claim that he was framed up by Esternon on the ground that the discovery of the two filled sachets was made in his and Licups presence. It likewise notes that petitioners bare denial cannot defeat the positive assertions of the prosecution and that the same does not suffice to overcome the prima facie existence of animus possidendi. This argument, however, hardly holds up to what is revealed by the records. Prefatorily, although the trial courts findings of fact are entitled to great weight and will not be disturbed on appeal, this rule does not apply where facts of weight and substance have been overlooked, misapprehended or misapplied in a case under appeal. [32] In the case at bar, several circumstances obtain which, if properly appreciated, would warrant a conclusion different from that arrived at by the trial court and the Court of Appeals. Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction.[33] Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt.[34] Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.[35]

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.[36] 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, th e 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.[37] While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness.[38] The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination[39] and even substitution and exchange.[40] In other words, the exhibits level of susceptibility to fungibility, alteration or tamperingwithout regard to whether the same is advertent or otherwise notdictates the level of strictness in the application of the chain of custody rule. Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives.[41] Graham vs. State[42] positively acknowledged this danger. In that case where a substance later analyzed as heroinwas handled by two police officers prior to examination who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession was excluded from the prosecution evidence, the court pointing out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratorys findings is inadmissible.[43] 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 casesby accident or otherwisein 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. A mere fleeting glance at the records readily raises significant doubts as to the identity of the sachets of shabu allegedly seized from petitioner. Of the people who came into direct contact with the seized objects, only Esternon and Arroyo testified for the specific purpose of establishing the identity of the evidence. Gallinera, to whom Esternon supposedly handed over the confiscated sachets for recording and marking, as well as Garcia, the person to whom Esternon directly handed over the seized items for chemical analysis at the crime laboratory, were not presented in court to establish the circumstances under which they handled the subject items. Any reasonable mind might then ask the question: Are the sachets of shabu allegedly seized from petitioner the very same objects laboratory tested and offered in court as evidence? The prosecutions evidence is incomplete to provide an affirmative answer. Considering that it was Gallinera who recorded and marked the seized items, his testimony in court is crucial to affirm whether the exhibits were the same items handed over to him by Esternon at the place of seizure and acknowledge the initials marked thereon as his own. The same is true of Garcia who could have, but nevertheless failed, to testify on the circumstances under which she received the items from Esternon, what she did with them during the time they were in her possession until before she delivered the same to Arroyo for analysis. The prosecution was thus unsuccessful in discharging its burden of establishing the identity of the seized items because it failed to offer not only the testimony of Gallineraand Garcia but also any sufficient explanation for such failure. In effect, there is no reasonable guaranty as to the integrity of the exhibits inasmuch as it failed to rule out the possibility of substitution of the exhibits, which cannot but inure to its own detriment. This holds true not only with respect to the two filled sachets but also to the five sachets allegedly containing morsels of shabu.

Also, contrary to what has been consistently claimed by the prosecution that the search and seizure was conducted in a regular manner and must be presumed to be so, the records disclose a series of irregularities committed by the police officers from the commencement of the search of petitioners house until the submission of the seized items to the laboratory for analysis. The Court takes note of the unrebutted testimony of petitioner, corroborated by that of his wife, that prior to the discovery of the two filled sachets petitioner was sent out of his house to buy cigarettes at a nearby store. Equally telling is the testimony of Bolanos that he posted some of the members of the raiding team at the door of petitioners house in order to forestall the likelihood of petitioner fleeing the scene. By no stretch of logic can it be conclusively explained why petitioner was sent out of his house on an errand when in the first place the police officers were in fact apprehensive that he would flee to evade arrest. This fact assumes prime importance because the two filled sachets were allegedly discovered by Esternon immediately after petitioner returned to his house from the errand, such that he was not able to witness the conduct of the search during the brief but crucial interlude that he was away. It is also strange that, as claimed by Esternon, it was petitioner himself who handed to him the items to be searched including the pillow from which the two filled sachets allegedly fell. Indeed, it is contrary to ordinary human behavior that petitioner would hand over the said pillow to Esternon knowing fully well that illegal drugs are concealed therein. In the same breath, the manner by which the search of Sheilas body was brought up by a member of the raiding team also raises serious doubts as to the necessity thereof. The declaration of one of the police officers that he saw Sheila tuck something in her underwear certainly diverted the attention of the members of petitioners household away from the search bei ng conducted by Esternon prior to the discovery of the two filled sachets. Lest it be omitted, the Court likewise takes note of Esternons suspicious presence in the bedroom while Sheila was being searched by a lady officer. The confluence of these circumstances by any objective standard of behavior contradicts the prosecutions claim of regularity in the exercise of duty. Moreover, Section 21[44] of the Implementing Rules and Regulations of R.A. No. 9165 clearly outlines the post-seizure procedure in taking custody of seized drugs. In a language too plain to require a different construction, it mandates that the officer acquiring initial custody of drugs under a search warrant must conduct the photographing and the physical inventory of the item at the place where the warrant has been served. Esternon deviated from this procedure. It was elicited from him that at the close of the search of petitioners house, he brought the seized items immediately to the police station for the alleged purpose of making a true inventory

thereof, but there appears to be no reason why a true inventory could not be made in petitioners house when in fact the apprehending team was able to record and mark the seized items and there and then prepare a seizure receipt therefor. Lest it be forgotten, the raiding team has had enough opportunity to cause the issuance of the warrant which means that it has had as much time to prepare for its implementation. While the final proviso in Section 21 of the rules would appear to excuse non-compliance therewith, the same cannot benefit the prosecution as it failed to offer any acceptable justification for Esternons course of action. Likewise, Esternons failure to deliver the seized items to the court demonstrates a departure from the directive in the search warrant that the items seized be immediately delivered to the trial court with a true and verified inventory of the same,[45] as required by Rule 126, Section 12[46] of the Rules of Court. People v. Go[47] characterized this requirement as mandatory in order to preclude the substitution of or tampering with said items by interested parties.[48] Thus, as a reasonable safeguard, People vs. Del Castillo[49] declared that the approval by the court which issued the search warrant is necessary before police officers can retain the property seized and without it, they would have no authority to retain possession thereof and more so to deliver the same to another agency.[50] Mere tolerance by the trial court of a contrary practice does not make the practice right because it is violative of the mandatory requirements of the law and it thereby defeats the very purpose for the enactment.[51] Given the foregoing deviations of police officer Esternon from the standard and normal procedure in the implementation of the warrant and in taking post-seizure custody of the evidence, the blind reliance by the trial court and the Court of Appeals on the presumption of regularity in the conduct of police duty is manifestly misplaced. The presumption of regularity is merely just thata mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth.[52] Suffice it to say that this presumption cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.[53] In the present case the lack of conclusive identification of the illegal drugs allegedly seized from petitioner, coupled with the irregularity in the manner by which the same were placed under police custody before offered in court, strongly militates a finding of guilt. In our constitutional system, basic and elementary is the presupposition that the burden of proving the guilt of an accused lies on the prosecution which must rely on the strength of its own evidence and not on the weakness of the defense. The rule is invariable whatever may

be the reputation of the accused, for the law presumes his innocence unless and until the contrary is shown.[54] In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right. WHEREFORE, the assailed Decision of the Court of Appeals dated 27 January 2006 affirming with modification the judgment of conviction of the Regional Trial Court ofSorsogon City, Branch 52, and its Resolution dated 30 May 2006 denying reconsideration thereof, are REVERSED and SET ASIDE. Petitioner Junie Malillin y Lopez isACQUITTED on reasonable doubt and is accordingly ordered immediately released from custody unless he is being lawfully held for another offense. The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt. SO ORDERED. People V Monalyn Cervantes DECISION

VELASCO, JR., J.:

This is an appeal from the Decision dated July 19, 2007 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00476 which affirmed the April 23, 2004 Decision in Criminal Case No. 00-181929 of the Regional Trial Court (RTC), Branch 53 in Manila. The RTC found accused-appellant Monalyn Cervantes guilty beyond reasonable doubt of violation of Section 15, Article III of Republic Act No. (RA) 6425 or the Dangerous Drugs Act of 1972, as amended.

The records show the following facts:

In an Information dated April 7, 2000, accused-appellant and three others were charged with violation of Sec. 15, Art. III of RA 6425 (selling or distributing a regulated drug), allegedly committed as follows:

That, on or about April 5, 2000, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, accused ISIDRO ARGUSON y ARENDELA, @ Tisoy, MONALYN [CERVANTES] y SOLAR @ Mona, WILSON DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard, conspiring, confederating and mutually helping one another, acting in common accord, did then and there, willfully, unlawfully and feloniously, for the amount of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, Philippine Currency, sell, deliver and give away to a poseur-buyer, FOUR HUNDRED SEVENTY THREE POINT SEVENTY SIX (473.76) GRAMS OF METHAMPHETAMINE [HYDROCHLORIDE], commonly known as shabu, a regulated drug, without authority of law or the corresponding license therefor.

CONTRARY TO LAW.[1]

Accused-appellant and her co-accused pleaded not guilty to the charge. In the ensuing trial, the prosecution presented in evidence the oral testimonies of William Todavia, PO3 Reynaldo Ramos of the Philippine National Police Regional Office IV (PNP R-IV), and P/Sr. Inspector Lorna Tria, a forensic chemical officer of the same regional office.

The Peoples version of the incident, as summarized by the CA in the decision now on appeal, is as follows:

On April 5, 2000, the Regional Special Operations Group IV (RSOG-IV), based at Camp Vicente Lim in Calamba, Laguna, received a tip from a deep penetration agent (DPA) about a group of drug traffickers led by Isidro Arguson operating in Cavite. Acting on this bit of information, a team led by SPO2 Geronimo Pastrana, PO3 Ramos, and PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted at Argusons rest house in Barangay

Lambingan, Tanza, Cavite.[2] Upon arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as poseur-buyers, were introduced by the DPA to Arguson as the buyers of PhP 500,000 worth of shabu, simultaneously showing him a bundle of money. Since Arguson did not have enough supply of shabu in the premises, he instructed the would-be-buyers to follow him to Pasay City. For the purpose, he hired a vehicle owned by Todavia. At about three oclock in the afternoon of that day, in front of the McDonalds branch in P. Ocampo St., Pasay City,[3] Arguson instructed the would-bebuyers to wait for someone who will come out from the nearby Estrella St. Very much later, accused-appellant emerged from Estrella St. and approached PO3 Ramos to check if he still had the money. After being shown the money bundle, accused-appellant left, only to return a few minutes later this time with Arguson, Wilson Del Monte, who was holding a black plastic bag, and Richard Requiz. Arguson then took from Del Monte the bag, later found to contain 473.76 grams of shabu packed in six small self-sealing transparent bags, and handed it to PO2 Balosbalos, who in turn gave him the bundle of boodle money. Finally, PO3 Ramos gave the pre-arranged signal to indicate the consummation of the drug deal and introduced himself as policeman. Accusedappellant and her scampering companions were later arrested and brought to and booked at Camp Vicente Lim.

The black plastic bag containing the six small self-sealing bags of white crystalline substance was likewise taken to Camp Vicente Lim where PO3 Ramos prepared the booking sheets and arrest reports and the request for a qualitative analysis of the seized items. Regional Crime Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then conducted the standard physical and chemical examinations on the specimen referred to her.

On April 6, 2000, C/I Geronimo prepared and completed Chemistry Report No. D-115800 on the crystalline substance. Per her report, the substance tested positive for methamphetamine hydrochloride or shabu.

Apart from the witnesses affidavits and other documents, the prosecution, in the hearing of March 4, 2002, offered in evidence the following exhibits,[4] inclusive of its sub markings, which, as may be expected, were objected to by

the defense: (a) Exhibit B Chemistry Report No. D-115800 prepared by C/I Geronimo; (b) Exhibit C Memorandum of RSOG-IV dated April 5, 2000 to the Chief, Laboratory Service, requesting for qualitative analysis of the contents of the six transparent plastic bags; (c) Exhibits D and D-1 to D-6 Black plastic bag with markings; and six (6) self-sealing transparent bags allegedly containing the confiscated shabu; and (d) Exhibit F Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3 Ramos as witnesses.

The CA decision likewise summarized the defenses account of what purportedly transpired, to wit:

Accused-appellant testified that after she did laundry works at her house in Estrella Street near F.B. Harrison on April 4, 2000, her youngest child asked her to go to [McDonalds], Vito Cruz branch, to buy ice cream. When they arrived thereat at about 4:30 in the afternoon, there was a commotion going on in front of the restaurant. She then saw a woman who alighted from a nearby van and pointed her out to her companions, one of whom [was] an old man boarded her inside the van causing her to lose hold of her child. Thereafter, two (2) younger male persons, whom she later came to know as DEL MONTE and REQUIZ, were also boarded into the same van. They were taken to a cemetery where another vehicle came and took them to Camp Vicente Lim, where she allegedly met ARGUSON for the first time.

On the other hand, accused DEL MONTE testified that he was a parking boy around Vito Cruz and that on the day in question, while he was watching a vehicle near [McDonalds], Vito Cruz branch, a commotion happened near his post. As he moved backward from where he stood, he was suddenly approached by a policeman who arrested him and boarded him inside a vehicle together with CERVANTES and REQUIZ, whom he did not know prior to that incident.

For his part, accused REQUIZ testified that on the date and time in question, he was riding a borrowed bicycle on his way to the Cultural Center, passing by F.B. Harrison St., when he bumped a parked van, wherefrom a man alighted and cursed him, saying pulis ako wag kang aalis dyan[!] The man left and

when he returned, accused CERVANTES was with him. Thereafter, he was boarded into the van together with the other accused.[5]

While not stated in the CA decision, Del Monte testified, like accused-appellant, that he was taken to a cemetery somewhere in Cavite where the arresting officers lingered for an hour before bringing him to Camp Vicente Lim.[6] These testimonies remained uncontroverted. Arguson died during the course of the trial resulting in the dismissal of the case against him.[7]

On April 23, 2004, the RTC rendered judgment acquitting Del Monte and Requiz but finding accused-appellant guilty as charged and meting upon her the penalty of reclusion perpetua. The fallo of the RTC Decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Finding accused MONALYN CERVANTES Y SOLAR GUILTY beyond reasonable doubt of violation of Sec. 15, Article III, of Republic Act No. 6425 as amended, and is sentenced to Reclusion Perpetua and to pay a fine in the amount of Php500,000.00; and

2. Finding the prosecutions evidence insufficient to prove the guilt of accused WILSON DEL MONTE and RICHARD REQUIZ beyond reasonable doubt, and who are hereby ACQUITTED.

SO ORDERED.[8]

On May 18, 2004, accused-appellant filed a Notice of Appeal, pursuant to which the RTC forwarded the records of the case to this Court.

Conformably with People v. Mateo,[9] the Court directed the transfer of the case to the CA where it was docketed as CA-G.R. CR-H.C. No. 00476. Before the appellate court, accused-appellant urged her acquittal on the ground of insufficiency of evidence, particularly stating that the forensic chemist who actually conducted the laboratory examination on the specimens allegedly recovered from the accused was not presented in court x x x [and] hence, there was no clear identification of the contents of the confiscated sachets.[10]

By its Decision[11] dated July 19, 2007, the CA, finding the elements necessary for the prosecution of illegal sale of drugs[12] to have sufficiently been satisfied and the identification of accused-appellant having been established, affirmed her conviction.

The CA rejected accused-appellants lament about one Inspector Tria testifying on the chemistry report she did not prepare. As the appellate court stressed, C/I Geronimos forensic report carries the presumption of regularity in the performance of official functions [and] the entries thereon x x x are prima facie evidence of the facts therein stated. The CA added the observation that absent any evidence overturning the presumption of regularity in the performance of official functions, the probative value and admissibility of the forensic report prepared by C/I Geronimo, who had resigned from the service, must be upheld even if she did not personally testify in court.

On August 17, 2007, accused-appellant filed a Notice of Appeal of the CA affirmatory decision.

On March 24, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties manifested their willingness to submit the case on the basis of the records already submitted, thus veritably reiterating their principal arguments raised in the CA, which on the part of accused-appellant would be:

THE [CA] GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION. For its part, the People, thru the Office of the Solicitor General, counters that the prosecution has established that the buy-bust transaction took place, has identified accused-appellant and her complicity in Argusons illegal trade, and has presented the corpus delicti, as evidence.

The Courts Ruling

After a circumspect study, the Court resolves to acquit accused-appellant, considering certain circumstances engendering reasonable doubt as to her guilt.

We start off with the most basic, the testimony of the prosecutions principal witness, PO3 Ramos, who identified accused-appellant and described her role in the conspiracy to sell shabu. In the witness box, PO3 testified that, after being told by Arguson to wait for someone who will come out from the street whence Arguson would enter, accused-appellant emerged from said street, checked on the purchase money, asked the operatives to wait, and later reappeared. What happened next is captured by the following answers of PO3 Ramos to the prosecutors questions:

Q: What did you see when Cervantes already returned? A: When Monalyn return the one holding the plastic bag was Wilson, sir.

Q: Wilson? A: Yes, sir, together with Richard, Wilson, Arguson, they were four (4).

Atty. Cruz: Your honor, may we move to strike that out x x x.

Fiscal Formoso: Thats part of the answer x x x now, when all these accused here return with Monalyn Cervantes, what happen[ed]?

A: Arguson took the plastic bag from Wilson, sir and handed it to Balosbalos, Balosbalos gave Arguson the boodle money while I flash the signal x x x then we apprehended them.[13]

As may be noted, PO3 Ramos categorically stated that Del Monte was among the four who emerged with Arguson from a street. Without hesitation, PO3 Ramos pointed to Del Monte as the one holding the plastic bag allegedly containing the prohibited substance until Arguson took it from him and handed it over to PO2 Balosbalos. There is no suggestion that accusedappellant, while at the crime scene, ever handled the merchandise or its container. Yet, the trial court acquitted Requiz and Del Monte, but convicted accused-appellant, stating: Clearly, accused Monalyn Cervantes complicity with accused Isidro Arguson in the sale of shabu has been established by the testimony of PO3 Ramos.[14] But two paragraphs later, the RTC went on to write:

x x x While PO3 Ramos testified that the bag was initially held by accused Del Monte and then taken from him by accused Arguson, there is no other evidence which can support the charge of conspiracy with Arguson and Cervantes x x x. The court does not find the evidence sufficient to pass the test of moral certainty to find accused Del Monte liable as charged. Even if PO3 Ramos saw him to have held the bag for Arguson, it could have been possible that he was merely asked by Cervantes or Arguson to carry the bag.[15]

Before us then is a situation where two personsaccused-appellant, a laundry woman; and Del Monte, a car park boy, in the company of the ostensible pusher, Arguson, during the actual buy bustare being indicted, on the basis alone of the testimony of a witness, with confederating with each and several others to sell shabu. The overt acts performed by accused-appellant, as indicia of conspiracy, consisted of allegedly verifying whether the poseur-buyer still

had the purchase money, disappearing from the scene and then coming back with the principal player. On the other hand, Del Monte came accompanying Arguson carrying the drug-containing plastic bag no less. As between the two acts performed, carrying the bag would relatively have the more serious implication being in itself a punishable act of possession of regulated drugs. Both offered the defenses of denial and instigation, each testifying that they just happened to be near or passing by McDonalds at about 4:30 in the afternoon of April 4, 2000 when they were apprehended. But the trial court, in its observation that it could have been possible that [Del Monte] was merely asked by x x x Arguson to carry the bag, extended to Del Monte the benefit of the doubt, a benevolence denied to accused-appellant without so much of an acceptable explanation. Any reasonable mind might ask: Why the contrasting treatment? Why consider PO3 Ramos as a highly credible eyewitness as against accused-appellant, but an unreliable one as against Del Monte, when both accused are complete strangers to the policeman?

To paraphrase an unyielding rule, if the inculpatory testimony is capable of two or more explanations, one consistent with the innocence of the accused persons and the other consistent with their guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[16]

But even if we were to cast aside the foregoing equipoise rule, a reversal of the appealed decision is indicated on another but more compelling ground. We refer to the postulate that the prosecution, having failed to positively and convincingly prove the identity of the seized regulated substance, is deemed to have also failed to prove beyond reasonable doubt accused-appellants guilt. We shall explain.

In every prosecution for illegal sale of dangerous drug, what is crucial is the identity of the buyer and seller, the object and its consideration, the delivery of the thing sold, and the payment for it. Implicit in these cases is first and foremost the identity and existence, coupled with the presentation to the court of the traded prohibited substance, this object evidence being an integral part of the corpus[17] delicti[18] of the crime of possession or selling of regulated/prohibited drug.[19] There can be no such crime when nagging

doubts persist on whether the specimen submitted for examination and presented in court was what was recovered from, or sold by, the accused.[20] Essential, therefore, in appropriate cases is that the identity of the prohibited drug be established with moral certainty. This means that on top of the key elements of possession or sale, 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. And as we stressed in Malillin v. People, the chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.[21] So it is that in a slew of cases the Court has considered the prosecutions failure to adequately prove that the specimen submitted for laboratory examination was the same one supposedly seized from the offending seller or possessor as ground for acquittal.[22]

Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002, or the Guidelines on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment, defines chain of custody, thusly:

Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals x x x 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 [was] made in the course of safekeeping and use in court as evidence, and the final disposition.[23]

As a mode 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. In context, this would ideally include testimony about every link in the chain, from the seizure of the prohibited drug up to the time it is offered into evidence,

in such a way that everyone 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.[24] The need for the punctilious observance of the chain-of-custody process in drug-related cases is explained in Malillin in the following wise:

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibits level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise notdictates the level of strictness in the application of the chain of custody rule.

xxxx

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 casesby accident or otherwisein 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.[25] (Emphasis added.)

As the Court distinctly notes in this case, of the individuals who came into direct contact with or had physical custody of the seized regulated items, only PO3 Ramos testified for the specific purpose of identifying the evidence. In the witness box, however, he did not indicate how he and his companions, right after the buy bust, handled the seized plastic bag and its contents. He did not name the duty desk officer at Camp Vicente Lim to whom he specifically turned over the confiscated bag and sachets at least for recording. What is on record is Exhibit C, which, as earlier described, is a memorandum[26] PO3 Ramos prepared[27] dated April 5, 2000 from the RSOG-IV Director to the Chief, PNP R-IV Crime Laboratory Service, submitting for qualitative analysis the white crystalline substance confiscated by the buy-bust group. Needless to stress, the unnamed person who delivered the suspected shabu and the recipient of it at the laboratory were no-show in court to testify on the circumstances under which they handled the specimen or whether other persons had access to the specimen before actual testing. And C/I Geronimo, the analyzing forensic chemist, was not also presented. Then, too, no one testified on how the specimen was cared after following the chemical analysis. As the Court observed aptly in People v. Ong, [T]hese questions should be answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. Otherwise, the prosecution cannot maintain that it was able to prove the guilt of appellants beyond reasonable doubt.[28]

It cannot be overemphasized that Inspector Tria was really not part of the custodial chain. And she did not as she could not, even if she wanted to, testify on whether or not the specimen turned over for analysis and eventually offered in court as exhibit was the same substance received from Arguson.

Given the foregoing perspective, it is fairly evident that the police operatives trifled with the procedures in the custody of seized prohibited drugs in a buybust operation, as embodied in Sec. 21(1), Art. II of RA 9165, i.e., the apprehending officer/team having initial custody and control of the drug shall:

immediately after seizure and confiscation, physically inventory and photograph the [drug] 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.[29]

In this case, no physical inventory was made and no photograph taken nor markings made on the seized articles at the crime scene. PO3 Ramos admitted as much, thus:

Q. Now, you were able to arrest all the accused here, after their arrest, what did you do? A. After informing their rights and the reason why we arrest them we brought them immediately to our office in Canlubang.

xxxx

Q. Now, what about this Shabu, who was in possession of this Shabu x x x when you left the place and proceeded to Canlubang? A. PO2 Balosbalos, sir.

xxxx

Q. Now, when you reach your office, what did you do there? A. I made the booking sheet and I requested for their medical/physical examination x x x.[30]

Just as clear is the fact that the exacting chain of custody rule was not observed. Withal, there is no reasonable assurance that no tampering or substitution occurred between the time the police seized the black bag in P. Ocampo St. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang, Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the seized items. The prosecution cannot, thus, rightfully assert that the six

sachets seized from Arguson were the very same objects tested by C/I Geronimo and offered in court in proving the corpus delicti.

Adding a negative dimension to the prosecutions case is the non-presentation of C/I Geronimo and the presentation in her stead of Inspector Tria to testify on the chemical report C/I Geronimo prepared. While Inspector Tria can plausibly testify on the fact that C/I Geronimo prepared the chemical report in the regular course of her duties, she, Inspector Tria, was incompetent to state that the specimen her former colleague analyzed was in fact shabu and was the same specimen delivered to the laboratory for chemical analysis.

To be sure, the Court, notably in People v. Bandang, has held that the non-presentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal. In it, the accused persons were convicted of illegal sale of shabu even if the forensic chemist who prepared the corresponding laboratory report was not presented. Thus, we wrote:

x x x In People vs. Uy, we ruled that a forensic chemist is a public officer and as such, his report carries the presumption of regularity in the performance of his function and duties. Corollarily, under Section 44 of Rule 130, x x x entries in official records made in the performance of official duty are prima facie evidence of the facts therein stated. Omeros reports that the seven sachets of white crystalline substance were positive for methylamphetamine hydrochloride or shabu are, therefore, conclusive in the absence of evidence proving the contrary, as in this case.

Second, it must be stressed that Atty. Enriquez raises his objection to the Initial Laboratory Report and Chemistry Report No. D-1585-00 only now. He should have objected to their admissibility at the time they were being offered. Otherwise, the objection shall be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. The familiar rule in this jurisdiction is that the admissibility of certain documents x x x cannot be raised for the first time on appeal.[31] (Emphasis added.)

It should be pointed out, however, that the Bandang ruling was cast against a different backdrop where: (1) the seized crystalline substance was the same item examined and tested positive for shabu and presented in court, implying that the identity and integrity of prohibited drug was safeguarded throughout, a circumstance not obtaining in this case; (2) there was a compelling reason for not presenting the examining forensic chemist, i.e., the parties stipulated that the confiscated seven plastic bags have been identified and examined and that the chemist stated in his report that the substance is positive for shabu. In this case, C/I Geronimos resignation from the service is not, standing alone, a justifying factor for the prosecution to dispense with her testimony; and (3) accused Bandang, et al. did not raise any objection to the chemical report during trial, unlike here where accused-appellant objected to Inspector Trias competency to testify on the Geronimo chemical report.

At any rate, Inspector Trias testimony on, and the presentation of, the chemistry report in question only established, at best, the existence, due execution, and authenticity of the results of the chemistry analysis.[32] It does not prove compliance with the requisite chain of custody over the confiscated substance from the time of seizure of the evidence. In this regard, the Court in effect stated in Malillin that unless the state can show by records or testimony that the integrity of the evidence has not been compromised by accounting for the continuous whereabouts of the object evidence at least between the time it came into the possession of the police officers until it was tested in the laboratory,[33] then the prosecution cannot maintain that it was able to prove the guilt of the accused beyond reasonable doubt. So it was that in People v. Kimura the Court said that in establishing the corpus delicti, proof beyond reasonable doubt demands that unwavering exactitude[34] be observed, a demand which may be addressed by hewing to the chain-of-custody rule. Evidently, the prosecution has not proved that the substance seized in front of the McDonalds was the same substance adduced in evidence as an indispensable element of corpus delicti of the crime, which failure produces a serious doubt as to accused-appellants guilt.[35]

Both the trial and appellate courts made much of the presumption of regularity in the performance of official functions both with respect to the acts of PO3 Ramos and other PNP personnel at Camp Vicente Lim. To a point, the reliance

on the presumptive regularity is tenable. This presumption is, however, disputable and may be overturned by affirmative evidence of irregularity or failure to perform a duty;[36] any taint of irregularity vitiates the performance and negates the presumption. And as earlier discussed, the buy bust team committed serious lapses in the handling of the prohibited item from the very start of its operation, the error of which the PNP R-IV command later compounded. The Court need not belabor this matter anew.

Lest it be overlooked, the presumption of regularity in the performance of official duty always yields to the presumption of innocence and does not constitute proof beyond reasonable doubt.[37] We held in one case:

The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellants conviction because, [f]irst, the presumption is precisely just thata mere presumption. Once challenged by evidence, as in this case, x x x [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.[38]

For failure then of the prosecution to establish the guilt of accused-appellant beyond reasonable doubt, she must perforce be exonerated from criminal liability. The facts and the law of the case call for this kind of disposition.

But a final consideration. The Court is cognizant of the campaign of the police and other drug enforcement agencies against the growing drug menace in the country. Unfortunately, their best efforts, particularly successful honest-togoodness buy-bust operations, sometimes still end up in the acquittal of illegal drug manufacturers, distributors, pushers and/or lesser players, even when nabbed in flagrante, simply because drug enforcement operatives tend to compromise the integrity and evidentiary worth of the seized illegal items. This aberration is oftentimes in turn attributable to the unfamiliarity of police operatives of extant rules and procedures governing the custody, control, and

handling of seized drugs. This is, thus, an opportune time to remind all concerned about these rules and procedures and the guiding jurisprudence. And to put things in the proper perspective, non-compliance with the legal prescriptions of the Dangerous Drugs Act, as amended, is, as we made abundantly clear in People v. Sanchez, not necessarily fatal to the prosecution of drug-related cases; that police procedures may still have some lapses. These lapses, however, must be recognized, addressed, and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved by the apprehending officer or team.

To be forewarned is to be forearmed.

WHEREFORE, the CA Decision dated July 19, 2007 in CA-G.R. CR-H.C. No. 00476, affirming that of the RTC, Branch 53 in Manila which found her guilty of violating Sec. 15, Art. III of RA 6425 and imposed upon her the penalty of reclusion perpetua and a fine of PhP 500,000, is hereby REVERSED and SET ASIDE. Accused-appellant Monalyn Cervantes y Solar is ACQUITTED on the ground of reasonable doubt and is accordingly immediately RELEASED from custody unless she is being lawfully held for some lawful cause.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt of this Decision.

SO ORDERED.