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DEMURRER TO EVIDENCE DEFENSES DRUG CASE

XXX IN HOLDING THAT THE UNDISPUTED FACTS AND


CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE
WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III OF
THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS
AND CIRCUMSTANCES NEITHER JUSTIFIED THE
WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE
SEIZURE OF THE CONTRABAND THEREIN.

ll

XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH


IS CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE
VALID AS AN INCIDENT TO A LAWFUL ARREST.

lII

XXX IN DECLARING THE WARRANTLESS ARREST OF THE


ACCUSED AND THE SEARCH AND SEIZURE OF HIS
HANDGUNS UNLAWFUL.

IV

XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED,


AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST
THE SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT
AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS
OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED.

XXX IN NOT ADMITTING IN


EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE
PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER
TO EVIDENCE.

The Equipoise Rule and Mandatory Procedures in Drug


Operations are ignored by some judges. Noncompliance
with said Mandatory Procedures abets planting of
evidence, extortion and drug trafficking by Police
Scalawags.

One of the most common way which law enforcement agencies


apprehend persons accused of illegal sale of drugs is through a
buy-bust operation. A buy-bust operation is a form of entrapment,
whereby a police agent disguised as a buyer of illegal drugs
undertakes a sales transaction with a seller. Suppose, however,
that there is an irregularity in the buy-bust operation, and illegal
drugs are confiscated from an alleged seller, what are the
remedies and defenses of the accused seller?

To convict a person for the sale of illegal drugs under the


Comprehensive Dangerous Drugs Law, the prosecutor must prove
the following: (a) the identities of the buyer and seller, object, and
consideration; and (b) the delivery of the thing sold and the
payment for it. In short, the prosecutor must prove that the sale
took place and that the accused was the seller.

An important requirement to convict the accused under this law is


that the prosecution must establish and present the “corpus
delicti” or “body of the crime,” which in this case is the
confiscated drugs. Concomitant to this requirement is the duty of
the prosecution to establish the integrity and evidentiary value of
the seized items. Absent this requirement, there is no sufficiency
of evidence to convict the accused beyond reasonable doubt.

The case of People v. Sorin (G.R. No. 212635, March 25, 2015) is
instructive. Here, the accused was acquitted because of an
irregularity in the buy-bust operations. Specifically, the
apprehending officer who seized the sachets from the accused
Sorin during the buy-bust operation failed to mark the sachets
and, instead, turned them over unmarked to another police
officer. This officer was the person who marked the sachets of
shabu, and who eventually took custody of the confiscated drugs
and delivery to the PDEA.

According to the Supreme Court, the fact that the sachets of


drugs were not marked for inventory in the presence of the
apprehending officer who confiscated the drugs is fatal to the
case of the prosecution. “The Court cannot over-emphasize the
significance of marking in illegal drugs cases. 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
the criminal proceedings, thus, preventing switching, planting, or
contamination of evidence.”

The same case occurred in People v. Sabdula (G.R. No. 184758,


April 21, 2014), where the accused was also acquitted because of
failure of the apprehending officer to mark the confiscated drugs
in the buy-bust operations. The Supreme Court noted that due to
the procedural lapse in the first link of the chain of custody,
serious uncertainty hangs over the identification of the shabu that
the prosecution introduced into evidence.

It is well-settled that in criminal prosecutions involving illegal


drugs, the presentation of the drugs which constitute the corpus
delicti of the crime calls for the necessity of proving with moral
certainty that they are the same seized items. The lack of
conclusive identification of the illegal drugs allegedly seized from
the accused strongly militates against a finding of guilt, as in this
case. As reasonable doubt persists on the identity of the drugs
allegedly seized from the accused, the latter's acquittal should
come as a matter of course.

Respicio & Co. specializes in criminal law and defense of persons


accused of drug-related offenses.
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(1) Joint Affidavit of Arrest, (2) Custodial Investigation Report, (3)
Photocopy of the marked money, (4) Brown envelope containing
the subject illegal drugs, (5) Inventory of Property Seized, (6)
Laboratory Examination Request, and (7) Chemistry Report No. D-
0518-2002.

they argued that there were irregularities on the preservation of


the integrity and evidentiary value of the illegal items seized from
them. The prosecution witnesses exhibited gross disregard of the
procedural safeguards which generated clouds of doubts as to the
identity of the seized items presented in evidence

All the elements of the crime of illegal sale and possession of


marijuana. As to the chain of custody procedure, it insists that the
prosecution witnesses were able to account for the series of
events that transpired, from the time the buy-bust operation was
conducted until the time the items were presented in court.

from the testimony of PO2 Corpuz, there was an actual exchange


as Dahil took out from his pocket six (6) sachets containing
marijuana, while PO2 Corpuz handled out the two (2) ₱100.00
marked bills, after they agreed to transact ₱200.00 worth of the
illegal drug.16 The charge of illegal possession of marijuana, was
also thus established by the prosecution. 17

Establish the chain of custody. PO2 Corpuz and SPO1 Licu testified
that the said drugs were marked at the police station. An
inventory of the seized items was made as shown by the
Inventory Report of Property Seized, duly signed by Kagawad
Pamintuan. The Request for Laboratory Examination revealed that
the confiscated drugs were the same items submitted to the PNP
crime laboratory for examination. On the other hand, Chemistry
Report No. D-0518-2002 showed that the specimen gave positive
results to the test of marijuana. The accused failed to show that
the confiscated marijuana items were tampered with, or switched,
before they were delivered to the crime laboratory for
examination

PHILIPPINE NATIONAL POLICE MANUAL PNPM-D-0-2-14


(DO)
http://pro10.pnp.gov.ph/downloads/AIDSOTF_MANUAL.pdf
PNP ANTI-ILLEGAL DRUGS SPECIAL OPERATIONS TASK
FORCE CY 2010
REVISED PNP MANUAL ON ANTI-ILLEGAL DRUGS
OPERATIONS AND INVESTIGATION SEPTEMBER 2014

COORDINATION REQUIREMENTS

PNP Units, prior to any anti-illegal drugs operations shall, as far as


practicable, coordinate with the Philippine Drug Enforcement
Agency.

2.7 In any case, PNP Anti-Illegal Drugs Units shall coordinate/


inform the PDEA of anti-illegal drugs operations within 24 hours
from the time of the actual custody of the suspects or seizure of
said drugs and substances as well as paraphernalia and transport
equipment used in illegal activities involving illegal drugs and/or
substances and shall regularly update the PDEA on the status of
cases involving said anti-illegal drugs operations (Section 86 (a)
IRR RA 9165)

Section 9. Coordination Requirements


a. PNP units, prior to any anti-drug operations shall, as far as
practicable, coordinate with the Philippine Drug Enforcement
Agency.
b. In any case, the PNP anti-drug units shall coordinate/inform the
PDEA of the anti-drug operation within 24 hours from the time of
the actual custody of the suspects or seizure of said drugs and
substances as well as paraphernalia and transport equipment
used in illegal activities involving such drugs and/or substances
and shall regularly update the PDEA on the status of the cases
involving the said anti-drug operation. (Section 86(a) IRR RA
9165)
c. The word “As far as practicable” as being used in Section 86,
IRR, RA 9165, means that which prior coordination with the PDEA
may be done, practiced or accomplished and which is feasible and
possible to be performed. However, it admits exceptions. The
following instances, among others are deemed not practicable for
prior coordination, to wit:
1. In remote places where coordination is not possible;
2. When coordination will compromise the lives of police
operatives, informant and witnesses, involved in anti-drug
operation;
3. When coordination will prejudice the apprehension of drug
suspects and confiscation of dangerous drugs and CPECs;
4. When prior coordination will compromise the entire police
operation. (Note: In the above instances, post coordination shall
be made in lieu of prior coordination).

Section 10. Reporting Requirements - In every successful anti-


drug operation, PNP SAIDOTG, DAIDSOTG, PAIDSOTG, RAIDSOTG
and NOSUs shall submit to the PNP AIDSOTF and The Directorate
for Operations the following reports:
a. Spot Report
b. Development Report
c. After Operation Report
d. Progress Report
Section 11. Planning and Preparation a. As a general rule, all
operations must be preceded by adequate planning and
preparation to ensure the successful prosecution of cases,
observance of the human rights of suspects, safety of operating
elements and the security and integrity of seized items/ evidence

e. The team leader must, prior to the actual anti-drug operations,


conduct a detailed briefing to the operating personnel. Charts,
photographs, maps, etc., should be used as necessary. The
specific duties and responsibilities of each member must be
clearly discussed.
j. The team leader must also designate an investigator
who shall keep and preserve notes to record the actual
conduct of the operation including valuable information
that can be used in the prosecution of the case or in the
conduct of future operations

k. All operating units shall designate a “seizing officer” who shall


be responsible for taking into custody all drug and non-drug
evidence during the antidrug operations to ensure that all these
are safe and handled in accordance with Section 21 RA 9165 and
its IRR.
Section 12. Conduct of Operation
d. The desk officer shall maintain a record of the events, which
includes among others, jump-off time and date, name of team
leader, area/s of operation and vehicles used. A record book shall
be preserved for the purpose and shall form part of the
documents covering the operation.
h. All arrested suspects must be handcuffed. Should there be
shortage of handcuffs, suspects’ hands must be bound by any
restraining material. In case of children in conflict with law (CICL),
they shall not be handcuffed unless there is a valid reason to
restrain them.

j. Upon return of the operating personnel to their station, the duty


desk officer must record the time and date of return, name/s of
the arrested person/s, and other significant circumstances that
transpired during the operation.

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.

People v. Mateo, G.R. No. 179478, July 28, 2008, 560 SCRA 397,
417; citing People v. Ong, G.R. No. 137348, June 21, 2004, 432
SCRA 470, 484 and People v. Juatan, G.R. No. 104378, August 20,
1996, 260 SCRA 532, 538.
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.

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 operation from
the initial contact between the poseur-buyer 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]

[20]
Id. at 698.
[21]
Id. at 698-699; People v. Ong, supra note 16, at 485; People v.
De Guzman, G.R. No. 151205, June 9, 2004, 431 SCRA 516, 523.
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:

dispatch order for the surveillance do you have any

see him selling drugs at that time during the surveillance?


dont have any information report?
A: We have, sir. Its in the office. Its with Insp. Villanueva.
These documents specifically 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
operation were 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.
Thus, there is no basis to say that accused-appellant allegedly
sold shabu a week before he was arrested.

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.

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]

DID NOT PRESENT THE AFFIDAVIT OF THE SECURITY OF JOLLIBEE


WHO GAVE THE HANDCUFFED

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

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]
Whether or not the law enforcement officers substantially
complied with the chain of custody procedure required by
R.A. No. 9165.

A buy-bust operation gave rise to the present case. While this


kind of operation has been proven to be an effective way to flush
out illegal transactions that are otherwise conducted covertly and
in secrecy, a buy-bust operation has a significant downside that
has not escaped the attention of the framers of the law. It is
susceptible topolice abuse, the most notorious of which is its use
as a tool for extortion.22
he presentation of the dangerous drugs as evidence in court is
material if not indispensable in every prosecution for the illegal
sale and possession of dangerous drugs. As such, the identity of
the dangerous drugs should be established beyond doubt by
showing that the items offered in court were the same substances
boughtduring the buy-bust operation. This rigorous requirement,
known under R.A. No. 9165 as the chain of custody, performs the
function of ensuring thatunnecessary doubts concerning the
identity of the evidence are removed.23 In People v. Catalan,24
the Court said:

To discharge its duty of establishing the guilt of the accused


beyond reasonable doubt, therefore, the Prosecution must prove
the corpus delicti.That proof is vital to a judgment of conviction.
On the other hand, the Prosecution does not comply with the
indispensable requirement of proving the violation of Section 5 of
Republic Act No. 9165 when the dangerous drugs are missing but
also when there are substantial gapsin the chain of custody of the
seized dangerous drugs that raise doubts about the authenticity
of the evidence presented in court.

Although R.A. No. 9165 does not define the meaning of chain of
custody, Section 1(b) of Dangerous DrugsBoard Regulation No. 1,
Series of 2002, which implements R.A. No. 9165, explains the said
term 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.

s a means of ensuring the establishment of the chain of custody,


Section 21 (1) of R.A. No. 9165 specifies that:
(1) The apprehending team having initial custody and control of
the drugs shall, immediately after seizure and confiscation,
physically inventory and photographthe 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.
Specifically, Article II, Section 21(a) of the Implementing Rules
and Regulations (IRR)of R.A. No. 9165 enumerates the procedures
to be observed by the apprehending officers toconfirm the chain
of custody, to wit:
xxx
(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 strict procedure under Section 21 of R.A. No. 9165
was not complied with.
Although the prosecution offered in evidence the Inventory of the
Property Seized signed by the arresting officers and Kagawad
Pamintuan, the procedures provided in Section 21 of R.A. No.
9165 were not observed. The said provision requires the
apprehending team, after seizure and confiscation, to
immediately (1) conduct a physically inventory; and (2)
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 DOJ, and any elected public official who shall
be required to sign the copies of the inventory and be given a
copy thereof.
First, the inventory of the property was not immediately
conducted after seizure and confiscation as it was only
done at the police station. Notably, Article II, Section 21(a)
of the IRR allows the inventory to be done at the nearest
police station or at the nearest office of the apprehending
team whichever is practicable, in case of warrantless
seizures. In this case, however, the prosecution did not even
claim that the PDEA Office Region 3 was the nearest office from
TB Pavilion where the drugs were seized. The prosecution also
failed to give sufficient justification for the delayed conduct of the
inventory. PO2 Corpuz testified, to wit:

limsy excusethat they failed to immediately conduct an inventory


because they did not bring with them the material or equipment
for the preparation of the documents. Such explanation is
unacceptable considering that they conducted a surveillance on
the target for a couple of weeks.26 They should have been
prepared with their equipment even before the buy-bust
operation took place.

buy-bust operation should never be used as a cover for an


illegal warrantless search and arrest.

BOARD REGULATION NO. 1 Series of 2002


SUBJECT: GUIDELINES ON THE CUSTODY AND DISPOSITION
OF SEIZED DANGEROUS DRUGS, CONTROLLED
PRECURSORS AND ESSENTIAL CHEMICALS, AND
LABORATORY EQUIPMENT

b. Within the same period, and in conformity with prescribed


operational reporting procedures, the seizing officer/team shall
also prepare a report of the confiscation/seizure, which include
particulars of: (i) the time, place and date of seizure; (ii) the
particulars of the person(s) arrested; (iii) the identity of the
seizing officer and all persons present; (iv) the circumstances in
which seizure took place; (v) a description of the vehicle, vessel,
place or person searched and the location where the substance or
equipment was found; (vi) a description of packaging, seals and
other identifying features; (vii) a description of quantity, volume
and units and the measurement method employed; (viii) a
description of the substance or equipment found; (ix) a
description of any preliminary identification test used and results
(e.g. test kit); (x) all subsequent movements of the substance or
chain of custody; and (xi) any other prescribed matter by PDEA

The prosecution failed to establish that the integrity and


evidentiary value of the seized items were preserved.
Notwithstanding the failure of the prosecution to establish
the rigorous requirements of Section 21 of R.A. No. 9165,
jurisprudence dictates that substantial compliance is
sufficient. Failure to strictly comply with the law does not
necessarily render the arrest of the accused illegal or the
items seized or confiscated from him inadmissible. 30The
issue of non-compliance with the said section is not of
admissibility, but of weight to be given on the
evidence.31 Moreover, Section 21 of the IRR requires
"substantial" and not necessarily "perfect adherence," as long as
it can be proven that the integrity and the evidentiary value of the
seized items are preserved as the same would be utilized in the
determination of the guilt or innocence of the accused. 32
To ensure that the integrity and the evidentiary value of the
seized items are preserved, the proper chain of custody of the
seized items must be shown. The Court explained in People v.
Malillin33 how the chain of custody or movement of the seized
evidence should be maintained and why this must be shown by
evidence, viz:
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.
In People v. Kamad,34 the Court identified the links that the
prosecution must establish in the chain of custody in a buy-bust
situation to be as follows: first, the seizure and marking,
ifpracticable, of the illegal drug recovered from the accused by
the apprehending officer; second, the turnover of the illegal drug
seized bythe apprehending officer to the investigating officer;
third, the turnover by the investigating officer of the illegal drug
to the forensic chemist for laboratory examination; and fourth, the
turnover and submission of the marked illegal drug seized by the
forensic chemist to the court.
First link: Marking of the Drugs Recovered from the Accused by
the Apprehending Officer
Crucial in proving the chain of custody is the marking of the
seized drugs or other related items immediately after they have
been seized from the accused. "Marking" means the placing by
the apprehending officer or the poseur-buyer of his/her initials
and signature on the items seized. Marking after seizure is the
starting point in the custodial link; hence, it is vital that the seized
contraband be immediately marked because succeeding handlers
of the specimens will use the markingsas reference. The marking
of the evidence serves to separate the markedevidence 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 the criminal proceedings, thus, preventing switching, planting
or contamination of evidence.35
It must be noted that marking isnot found in R.A. No. 9165 and is
different from the inventory-taking and photography under
Section 21 of the said law. Long before Congress passed R.A. No.
9165, however, this Court had consistently held that failure of the
authorities to immediately mark the seized drugs would cast
reasonable doubt on the authenticity of the corpus delicti. 36
In the present case, PO2 Corpuz and SPO1 Licu claimed that they
had placed their initials on the seized items. They, however, gave
little information on how they actually did the marking. It is clear,
nonetheless, that the marking was not immediately done at the
place of seizure, and the markings were only placed at the police
station based on the testimony of PO2 Corpuz, to wit: Q: So, after
recovering all those marijuana bricks and plastic sachets of
marijuana and the marked money from the accused, what else did
you do?

Hence, from the place of the seizure to the PDEA Office Region 3,
the seized items were not marked. It could not, therefore, be
determined how the unmarked drugs were handled. The Court
must conduct guesswork on how the seized drugs were
transported and who took custody of them while in transit.
Evidently, the alteration of the seized items was a possibility
absent their immediate marking thereof.
Still, there are cases whenthe chain of a custody rule is relaxed
such as when the marking of the seized items is allowed to be
undertaken at the police station rather than at the place of arrest
for as long as it is done in the presence of the accused in illegal
drugs cases.38 Even a less stringent application of the
requirement, however, will not suffice to sustain the conviction of
the accused in this case. Aside from the fact that the police
officers did not immediately place their markings on the seized
marijuana upon their arrival at the PDEA Office, there was also no
showing that the markings were made in the presence of the
accused.

The team leader must also designate an investigator who


shall keep and preserve notes to record the actual conduct of the
operation including valuable information that can be used in the
prosecution of the case or in the conduct of future operations.

All operating units shall designate a “seizing officer” who shall be


responsible for taking into custody all drug and non-drug evidence
during the antidrug operations to ensure that all these are safe
and handled in accordance with Section 21 RA 9165 and its IRR. l.
The Team Leader shall submit to PDEA a copy of the case folder
after the filing of the case.

d. The desk officer shall maintain a record of the events, which


includes among others, jump-off time and date, name of team
leader, area/s of operation and vehicles used. A record book shall
be preserved for the purpose and shall form part of the
documents covering the operation

i. The team leader must see to it that all pieces of evidence from
the suspect/ s or those found in the area of operation are handled
in accordance with Section 6 of this Manual.
Section 6. Standardization of Forms – To avoid confusion, maintain
uniformity,
and preserve the chain of custody of evidence vital to the
accomplishment of antiillegal
drug operation, all pertinent documents shall conform to the
standardized
pro-forma forms enumerated in Annex “A” and Annex “B” of this
Manual.
Seizing/Inventory Officer - the police officer who is designated to
seize and inventory the evidence from the arrested suspect.

h. All arrested suspects must be handcuffed. Should there be


shortage of
handcuffs, suspects’ hands must be bound by any restraining
material.
j. Upon return of the operating personnel to their station, the duty
desk officer must record the time and date of return, name/s of
the arrested person/s, and other significant circumstances that
transpired during the operation.

Section 13. Handling, Custody and Disposition of Drug


Evidence

a. In the handling, custody and disposition of the evidence, the


provision of Section 21, RA 9165 and its IRR shall be strictly
observed. 10 Manual on Anti-Illegal Drugs Operation and
Investigation
b. Photographs of the pieces of evidence must be taken upon
discovery without moving or altering its position in the
place where it is situated, kept or hidden, including the
process of recording the inventory and the weighing of
dangerous drugs, and if possible under existing
conditions, with the registered weight of the evidence on
the scale focused by the camera, in the presence of
persons required, as provided under Section 21, Art II, RA
9165.
c. The seizing officer must mark the evidence with his initials
indicating therein the date, time and place where the evidence
was found and seized. The seizing officer shall secure and
preserve the evidence in a suitable evidence bag or in an
appropriate container for further laboratory examinations.
f. In every negation operation, a “seizing officer” shall be
designated who shall be responsible for the inventory and initial
custody of all drug and non-drug evidence during the anti-drug
operations. These will later be turned over to the investigation
officer or any member of the apprehending team, as the case
may be, up to the Crime Laboratory for laboratory examination
and proper disposition. g. Cellphones, Computers/laptops or any
other electronic equipment or gadgets.
A- Drug Evidence
a. Upon seizure or confiscation of the dangerous drugs or
controlled
precursors and/or essential chemicals (CPECs), laboratory
equipment, apparatus
and paraphernalia, the operating unit’s seizing officer/ inventory
officer must
conduct the physical inventory, markings and photograph the
same in the place of
operation in the presence of:
a. The suspect/s or the person/s from whom such items were
confiscated and/or seized or his/her representative or counsel.
b. A representative from the media.
c. A representative from the Department of Justice; and
d. Any elected public official who shall affix their signatures
and who shall be given copies of the inventory.

b. For seized drugs covered by search warrants, the inventory


must be conducted in the place where the search warrant was
served. c. In warrantless seizures like buy-bust operations, the
inventory and the taking of photographs should be done at the
nearest police station or office of the apprehending officer or
team. However, the apprehending authority is not precluded from
conducting the inventory at the place where the drugs were
seized. d. If the said procedures in the inventory, markings and
taking of photographs of the seized items were not observed,
(Section 21, RA 9165), the law enforcers must present an
explanation to justify non-observance of prescribed procedures
and “must prove that the integrity and evidentiary value of the
seized items are not tainted.”
inventory receipt of confiscation/ seizure to include but not limited
to the
following:
1. Time, date and place of occurrence/seizure.
2. Identity of person/s arrested.
3. Identity of the seizing officer and all persons present.
4. Circumstances in which seizure took place.
5. Description of a vehicle, vessel, place or person searched
where the substance was found.
6. Description of packaging, seals and other identifying features.
7. Description of quantity, volume and units and the
measurement method employed.
8. Description of the substance found.
9. Description of any preliminary identification test
(test kit) used and results.

g. Within 24 hours upon confiscation/ seizure when practicable, all


seized drugs and/ or CPECs shall be submitted to the PNP Crime
Laboratory for
examination and proper disposition.
h. All pieces of drug evidence shall be turned over by the seizing
officer to the investigator on case who will subsequently turnover
the same to the PNP Crime Laboratory for examination. Receipts
shall be required in every phase of this turn-over. i. The seizing
officer shall accomplish the Chain of Custody Form with the
affixed signatures which shall accompany the evidence turned
over to the investigator-on-case or the Crime Laboratory as the
case may be.

B- Non-Drug Evidence
a. All pieces of non-drug evidence shall be photographed,
inventoried and
properly marked as required under Section 21, RA 9165:
1. Buy-bust money, if applicable.
2. For motor vehicles, a sticker containing pertinent information
(name of suspects, date and time of arrest, arresting unit, and
arresting officers) shall be attached on area where it is most
visible.
3. For firearms, ammunitions, explosives or other deadly
weapons, tags containing the same information shall be
attached.
4. Smaller pieces of evidence shall be placed inside the evidence
bag on which written are the same data.
5. Cell phones, laptops, computers and other electronic gadgets,
tags containing the necessary description shall be attached.
b. After the conduct of an anti-drug operation, the Investigator-on-
Case
shall immediately prepare a detailed report including photographs
of all the seized/
confiscated non-drug evidence. As far as practicable, a lawyer
from the Legal
Service will be present to ensure that testimonies/information
gathered can stand
the scrutiny of law.
c. For seized/ confiscated motor vehicles, a Technical Inspection
Report
(TIR) shall be prepared by the Seizing Officer/Investigator-on-Case
immediately
after the seizure/confiscation. If possible, the suspect/occupant of
the confiscated
evidence shall be present during the conduct of the technical
inspection and should
affix his signature on the report.

C- Chain of Custody
a. The seizing officer must preserve the integrity and evidentiary
value of
the evidence.
13
Manual on Anti-Illegal Drugs Operation and Investigation
b. The number of persons handling the drug evidence from the
time it
was seized/confiscated should be limited to the seizing officer, the
investigator-oncase
or any duly authorized member and PNP Crime Laboratory duly
authorized
personnel. Non-drug evidence shall be turned-over to the
evidence custodian.
c. An acknowledgement receipt shall be issued by the person
receiving
the evidence. Such receipt shall form part of the case folder of the
transmitting
unit.
d. The seizing officer shall accomplish and sign the chain of
custody
form which shall accompany the evidence up to the PNP Crime
Laboratory for
examination

g. In warrantless searches and seizures like buy-bust


operations, the inventory and taking of photographs shall be
made where the evidence or items were confiscated to properly
preserve the integrity and evidentiary value of the evidence. In
case of failure to do so, the conduct of inventory may be made at
the nearest police station or office of the apprehending officer or
team, however, they must execute a written explanation to justify
non-compliance of the prescribed rules on inventory under
Section 21, RA 9165.

h. The Investigator-On-Case in coordination with the seizing


officer shall submit the seized dangerous drugs to the PNP Crime
Laboratory for examination and analysis and the arrested
suspects for Physical/Medical examination and drug testing.

f. The seizing officer shall thereafter conduct the actual physical


inventory, place markings and photograph the evidence in the
place of operation in the presence of: 1. The accused or the
person/s from whom such items were confiscated and/or seized or
his/her representative or counsel; 2. A representative from the
media; 3. A representative from the Department of Justice; and 4.
Any elected public official (at least Brgy Kagawad) who shall sign,
and shall be given copies of the inventory.
Frame-up, denial, or alibi, more particularly when based on the
accused’s testimony alone, as here, is an inherently weak form of
defense. As the prosecution aptly observed and as jurisprudence
itself teaches, the defense of denial or frame-up has been viewed
with disfavor for it can easily be concocted and is a common
defense plot in most prosecutions for violations of anti-drug laws.
Bare denial of an accused cannot prevail over the positive
assertions of apprehending police operatives, absent ill motives
on the part of the latter to impute such a serious crime as
possession or selling of prohibited drugs. 34
The foregoing notwithstanding, appellant is still entitled to an
acquittal considering that certain critical circumstances that had
been overlooked below, which, if properly appreciated, engender
moral uncertainty as to his guilt. Nothing less than evidence of
criminal culpability beyond reasonable doubt can overturn the
presumption of innocence. In this regard, the onus of proving the
guilt of the accused lies with the prosecution which must rely on
the strength of its own evidence and not on the weakness of the
defense.
In every prosecution for illegal sale of dangerous drugs under Sec.
5, Art. II of RA 9165, the following elements must concur: (1) the
identities of the buyer and seller, object, and consideration; and
(2) the delivery of the thing sold and the payment for it. 35 As it
were, the dangerous drug itself forms an integral and key part of
the corpus delicti of the offense of possession or sale of prohibited
drugs. Withal, it is essential in the prosecution of drug cases that
the identity of the prohibited drug be established beyond
reasonable doubt. This means that on top of the elements of
possession or illegal sale, the fact that the substance illegally sold
or possessed is, in the first instance, the very substance adduced
in court must likewise be established with the same exacting
degree of certitude as that required sustaining a conviction. The
chain of custody requirement, as stressed in People v.
Cervantes,36 and other cases, performs this function in that it
ensures that unnecessary doubts respecting the identity of the
evidence are minimized if not altogether removed. People v.
Cervantes describes the mechanics of the custodial chain
requirement, thusly:
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 it was delivered to the
next link in the chain.37
xxx
The Court has to be sure stressed the need for the strict
adherence to the custodial chain process and explained the
reason behind the rules on the proper procedure in handling of
specimen illegal drugs. People v. Obmiranis 38readily comes to
mind:
The Court certainly cannot reluctantly close its eyes to the
possibility of substitution, alteration or contamination—whether
intentional or unintentional—of 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. x x x
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 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 of its implementing rules as well as in Section 2
of the Dangerous Drugs Board Regulation No. 1, series of 2002.
(Emphasis supplied.)
In the same case, We stressed why evidence of an unbroken chain
of custody of the seized illegal drugs is necessary:
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. 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, substitution and exchange—whether the
alteration, tampering, contamination, substitution and exchange
be inadvertent or otherwise not. It is by reason of this distinctive
quality that the condition of the exhibit at the time of testing and
trial is critical. Hence, in authenticating narcotic specimens, a
standard more stringent than that applied to 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 contaminated or
tampered with.39
Appellant contends that the police officers failed to follow the
proper procedure laid down in Sec. 21 of RA 9165, in relation to
the chain of custody rule. He argues:
The prosecution failed to supply all the links in the chain of
custody rule. SPO2 Marinda testified that he supposedly turned-
over the confiscated plastic sachets to the investigator SPO1
Pama. However, the latter was never presented to testify on this
matter. The prosecution also failed to testify on what happened to
the subject specimens after these were turned-over to Pama and
who delivered these to the forensic chemist. Thus, there is an
unexplained gap in the chain of custody of the dangerous drug,
from the time the same were supposedly seized by SPO2 Marinda
from accused-appellant, until these were turned-over to the crime
laboratory.
It also appears that the prosecution’s evidence failed to reveal the
identity of the person who had the custody and safekeeping of the
drugs after its examination and pending its presentation in court.
This unexplained link also created doubt as to the integrity of the
evidence. This should have been considered as a serious source
of doubt favorable to the accused-appellant. 40
Appellant’s contention is very much well-taken. The Court
particularly notes that of the individuals who came into direct
contact with or had physical possession of the sachets of shabu
allegedly seized from appellant, only SPO1 Marinda testified for
the specific purpose of identifying the evidence. But his testimony
failed to sufficiently demonstrate an unbroken chain, for he
himself admits that at the police station he transferred the
possession of the specimen to an investigator at the MPD DAID,
one SPO1 Pama to be precise. The following is the extent of SPO1
Marinda’s testimony regarding his knowledge of the whereabouts
of the specimen:

People vs Posing GR No 196973 31, 2013


In cases of illegal sale and illegal possession of dangerous drugs,
the dangerous drug seized from the accused constitutes
the corpus delicti of the offense. Thus, it is of utmost
importance that the integrity and identity of the seized drugs
must be shown to have been duly preserved. "The chain of
custody rule performs this function as it ensures that unnecessary
doubts concerning the identity of the evidence are removed.

As this Court held in People v. Berdadero,[27] the foregoing


provision, as well as the Internal Rules and Regulations
implementing the same, is silent as to the consequences of the
failure on the part of the law enforcers to seek the authority of the
PDEA prior to conducting a buy-bust operation x x x. [T]his silence
cannot be interpreted as a legislative intent to make an arrest
without the participation of PDEA illegal or evidence obtained
pursuant to such an arrest inadmissible. [28]

FAILURE TO COMPLY WITH THE PRE-COORDINATION


REQUIREMENT WITH THE PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA)

Section 9 (a) of the same manual provides for the


Coordination Requirements with PDEA which provides that:
a. PNP units, prior to any anti-drug operations shall, as
far as practicable, coordinate with the Philippine Drug
Enforcement Agency.

Section 9 (c) however, provides for the exception:

c. The word “As far as practicable” as being used in


Section 86, IRR, RA 9165, means that prior coordination
with the PDEA may be done, practiced or accomplished
and which is feasible and possible to be performed.
However, it admits exceptions. The following
instances, among others are deemed not practicable for
prior coordination, to wit:

1. In remote places where coordination is


not possible;

2. When coordination will compromise the


lives of police operatives, informant and
witnesses, involved in anti-drug operation;

3. When coordination will prejudice the


apprehension of drug suspects and
confiscation of dangerous drugs and
CPECs; 7 Manual on Anti-Illegal Drugs
Operation and Investigation

4. When prior coordination will compromise


the entire police operation.

(Note: In the above instances, post coordination shall


be made in lieu of prior coordination).

Nowhere, in the exceptions above-cited will justify the


PNP to dispense with the prior coordination requirement as
specified in its manual.
First, Jollibee Drive Thru is located at Osmena
Extension. This location is not considered a remote place. It is
situated on a strategic place over the down town of Tagum City.
Second, that the accused is not considered a high
profile drug seller and therefore it cannot be gainsaid that it will
compromise the lives of the police operatives, informant as well
as the witnesses, involved in anti-drug operation.
Third, that the incident of buy-bust operation was pre-
planned bolstered by the testimony of PO3 Omana that a prior
meeting with civilian informant was made on August 17, 2018, a
day prior to August 18, 2013, therefore, there is sufficient time to
coordinate with the PDEA. It cannot be concluded, however, that
in doing the coordination with just that span of time, will prejudice
the apprehension of drug suspects and confiscation of dangerous
drugs and compromise the entire police operation.

In the light of the foregoing, it can be deduced therefrom


that the entrapment operation falls short of the Pre-Coordination
requirement required by the rules. The Coordination Form that the
prosecution had submitted is not the Pre-Coordination

THE PEOPLE OF THE PHILIPPINES,


Plaintiff-Appellee,
– versus –
ZAIDA KAMAD y AMBING,
Accused-Appellant

(a) The first link in the chain of custody


We observe from the testimony of SPO1 Benares that SPO2
Sanchez’ testimony lacks specifics on how the seized shabu was
handled immediately after the accused-appellant’s arrest.
Although the records show that SPO2 Sanchez testified that he
actually seized the shabu when he arrested the accused-
appellant, he never disclosed the identity of the person/s who had
custody and possession of the shabu after its seizure, nor that he
retained possession of the shabu from the place of the arrest until
they reached the police station.
SPO2 Sanchez also failed to state the time and place as well as
the identity of the person/s who made the markings on the two
(2) plastic sachets containing the recovered shabu seized from
the accused-appellant and Leo on October 16, 2002.
(b) The second link in the chain of custody
We also observe that SPO2 Sanchez’ testimony regarding the
post-arrest police investigation failed to provide particulars on
whether the shabu was turned over to the investigator. The
records only identify the name of the investigator as one SPO1
Nuestro before whom SPO2 Sanchez and PO3 Maulit executed a
Joint Affidavit of Arrest dated October 17, 2002.[31] Thus, a big
gap exists on who had custody and possession of
the shabushabu was stored, preserved, labeled and recorded from
the time of its seizure up to its receipt by the forensic
laboratory. prior to, during and immediately after the police
investigation, and how the
(c) The third link in the chain of custody
The third link in the chain is represented by two (2) pieces of
documentary evidence adduced by the prosecution consisting of
the letter-request dated October 17, 2002[32] of Police
Superintendent Mariano F. Fegarido as Chief of the Southern
Police District Drug Enforcement Group and the Physical Science
Report No. D-1502-02 prepared by Engr. Richard Allan B. Mangalip
as the forensic chemist.[33]
These documents reveal that the recovered plastic sachets
of shabu bearing the markings “ES-1-161002” and “ES-2-161002”
were sent to the forensic laboratory sealed in one (1) small brown
envelope bearing unidentified signatures. On the same day, the
PNP Crime Laboratory received this letter-request along with the
submitted specimens. The specimens were then subjected to
qualitative examination which yielded positive
for methylamphetamine hydrochloride.
These pieces of evidence notably fail to identify the person who
personally brought the seized shabu to the PNP Crime Laboratory.
They also fail to clearly identify the person who received
the shabu at the forensic laboratory pursuant to the letter-request
dated October 17, 2002, and who exercised custody and
possession of the shabu after it was examined and before it was
presented in court. Neither was there any evidence adduced
showing how the seized shabu was handled, stored and
safeguarded pending its presentation in court.
(d) The fourth link in the chain of custody
The fourth link presents a very strange and unusual twist in the
prosecution’s evidence in this case. Although the forensic chemist
was presented in court, we find that his offered testimony related
to a shabu specimen other than that seized in the buy-bust
operation of October 16, 2002. Specifically, his testimony
pertained to shabu seized by the police on October 12, 2002. This
is borne by the following exchanges:
FISCAL UY: The testimony of the witness is being offered to
prove . . . that he is the one who cause [sic] the
examination of the physical evidence subject of this case
containing with white crystalline substance placed inside
the plastic sachet weighing 0.20 grams and 0.30 grams
with markings of EBC and EBC-1 that I reduced findings
after the examination conducted.
xxxx
Q And with the cause of the performance of your duties, were
you able to receive a letter request relevant to this case
specifically a drug test request, dated October 12,
2002 from PS/Insp. Wilfredo Calderon. Do you have the letter
request with you?
A Yes, sir.
Q The witness presented to this representation the letter
request dated October 12, 2002 for purposes of identification,
respectfully request that it be marked in evidence as Exhibit A. In
this Exhibit A Mr. Officer, were you able to receive the evidence
submitted specifically a small brown stapled wire envelope
with signature containing with white crystalline substance
inside and with markings EBC- 12/10/02 and EBC-1
12/10/02. After you received this specimen what action did you
take or do?
A Upon receiving, I read and understand the content of the
letter request after which, I stamped and marked the letter
request and then record it on the logbook and after recording it on
the logbook, I performed the test for determination of the
presence of dangerous drug on the specimen.
xxxx
Q Now, after those tests conducted what was the result of the
examination?
A It gives positive result for Methamphetamine Hydrochloride
or otherwise known as shabu, a dangerous drug.
xxxx
Q At this juncture your Honor, the witness handed with this
representation a brown envelope with markings D-1487-02, and
the signature and the date 12 October 02, now Mr. Witness tell us
who placed these markings on this brown envelope?
A I am the one who personally made the markings, sir.
Q And in the face of this brown envelope there is a printed
name PO1 Edwin Plopinio and the signature and the date 12
October 2002. Do you know who placed who placed those
markings?
A I have no idea.
Q At this juncture your Honor, this representation proceeded
to open the brown envelope. May I respectfully request that this
brown envelope be marked in evidence as Exhibit B. And inside
this brown envelope are three pieces of plastic sachets inside
which are white crystalline substance with markings EPC 12
October 02 and EPC-1 12 October 02. May I respectfully request
that these plastic sachets with white substance inside be marked
in evidence as Exhibit B-1 and B-2. And in these plastic sachets
with white crystalline inside is a masking tape with the signature
and letters are RAM, do you know who placed those letters?
A I am the one who placed that markings sir.
Q And what RAM stands for?
A That stands for my name Richard Allan Mangalip sir.
Q You mentioned that you reduced your findings in writing, do
you have the official finding with you?
A Yes, sir.
Q At this juncture the witness handed to this representation
the physical science report no. D-1487-2 for purposes of
identification respectfully request that this specimen be marked in
evidence as Exhibit C. And in this Exhibit C, there is a signature
above the typewritten name Engineer Richard Allan B. Mangalip,
do you whose signature is this Mr. Witness? [34] [Emphasis
supplied]
A That is my signature sir.
Q Respectfully request that the signature appearing in Exhibit
C be marked in evidence as Exhibit C-1. You stated earlier that
you cause the weight of the white crystalline substance in this
plastic sachet, what the weights of this white crystalline
substance?
A For the specimen A, it is .20 grams and the specimen B, it is
.30 gram.
Q May I respectfully request that this weight indicated in this
physical science report now mark in evidence as Exhibit C-2. I
have no further questions to the witness your Honor.
xxxx
Aside from the different dates of seizure, we note that
the shabu identified and presented in court as evidence through
the testimony of the forensic chemist, showed characteristics
distinct from the shabu from the buy-bust sale of October 16,
2002:
First, there were different markings made on the plastic sachets
of the shabu recovered on October 12, 2002. As testified to, one
plastic sachet of shabu was marked, “EBC 12 October 02,” while
the other plastic sachet of shabu was marked, “EBC-1 12 October
02”;[35]
Second, there was a different sealed brown envelope used where
a printed name and signature of one “PO1 Edwin Plopino” and the
date “12 October 2002” were written; [36]
Third, the examination of the shabu by the PNP Crime Laboratory
was made pursuant to a different letter-request for examination
dated October 12, 2002 written by one P/Insp. Wilfredo Calderon;
[37] and
Fourth, the results of the shabu testified to by the forensic
chemist in court was contained in a different forensic laboratory
report known as Physical Science Report No. D-1487-2.[38]
We highlight these characteristics because they are different from
the documentary evidence the prosecution formally offered[39]
consisting of the letter-request dated October 17, 2002[40] and
the Physical Science Report No. D-1502-02.[41] The testimonies
of SPO2 Sanchez and PO3 Maulit as well as the submitted
documentary evidence referred to the plastic sachets
of shabu through their markings of “ES-1-161002” and “ES-2-
161002.”[42]
From all these, we find it obvious that some mistake must have
been made in the presentation of the prosecution’s evidence. The
prosecution, however, left the discrepancies fully unexplained. To
reiterate, the forensic chemist testified to a specimen dated
October 12, 2002, or one secured way before the buy-bust of
October 16, 2002, but marked as evidence documents relating to
the specimen of October 16, 2002. Strangely, even the defense
disregarded the discrepancies. In his comment on the offer of
evidence, the defense simply stated, among others, by way of
stipulation, that “the forensic chemical officer only conducted a
qualitative examination of the specimen he examined and not the
quantitative examination.”[43] Coming immediately after the
offer of evidence that mentioned the plastic sachets containing
white crystalline substances with markings “ES-1 16/10/02” and
“ES-2 16/10/02,” and the Physical Science Report No. D-1502-02,
[44] the defense was clearly sleeping on its feet when it reacted
to the prosecution’s offer of evidence.
But the defense was not alone in glossing over the discrepancies
between the testimony for the prosecution and the offered
evidence, as both the RTC and CA also failed to notice the glaring
flaws in the prosecution’s evidence. Apparently, because the
parties did not point out these discrepancies while the appellate
court did not closely review the records of the proceedings, the
discrepancies were not taken into account in the decision now
under review.
These observations bring us full circle to our opening statement
under the Court’s ruling on the kind and extent of review that an
appellate court undertakes in a criminal case; the appeal opens
the whole case for review, with the appellate court charged with
the duty to cite and appreciate the errors it may find in the
appealed judgment, whether these errors are assigned or
unassigned. This is one such instance where we are duty bound
to rectify errors that, although unnoticed below and unassigned
by the parties, are clearly reflected in the records of the case.
The Conclusion
Given the flagrant procedural lapses the police committed in
handling the seized shabu and the obvious evidentiary gaps in the
chain of its custody, a presumption of regularity in the
performance of duties cannot be made in this case. A
presumption of regularity in the performance of official duty is
made 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 applies
when nothing in the record suggests that the law enforcers
deviated from the standard conduct of official duty required by
law; where the official act is irregular on its face, the presumption
cannot arise.[45] In light of the flagrant lapses we noted, the
lower courts were obviously wrong when they relied on the
presumption of regularity in the performance of official duty.
We rule, too, that the discrepancy in the prosecution evidence on
the identity of the seized and examined shabu and that formally
offered in court cannot but lead to serious doubts regarding the
origins of the shabu presented in court. This discrepancy and the
gap in the chain of custody immediately affect proof of the corpus
delicti without which the accused must be acquitted.
From the constitutional law point of view, the prosecution’s failure
to establish with moral certainty all the elements of the crime and
to identify the accused as the perpetrator signify that it failed to
overturn the constitutional presumption of innocence that every
accused enjoys in a criminal prosecution. When this happens, as
in this case, the courts need not even consider the case for the
defense in deciding the case; a ruling for acquittal must forthwith
issue.
WHEREFORE, premises considered, we
hereby REVERSE and SET ASIDE the March 28, 2006 decision of
the Court of Appeals in CA-G.R. CR-H.C. No. 00505 affirming the
decision of conviction dated October 27, 2004 of the Regional Trial
Court, Branch 259, Parañaque City in Criminal Case Nos. 02-1236-
7 for illegal sale of shabu under Section 5, Article II of Republic Act
No. 9165. Accused-appellant ZAIDA KAMAD y AMBING is hereby
declared ACQUITTED and ordered immediately RELEASED from
detention, unless she 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.