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Republic of the Philippines

Department of Justice
National Prosecution Service
OFFICE OF THE CITY PROSECUTOR
Zamboanga City

PO1 ADJARAEL JAMAL H. MALALI N.P.S. DOCKET NO.

Complainant, IX-06-INQ-18H-01119

-versus- -for-

JANET PAGADUAN y ROMUALDO VIOLATION OF SECTION

a.k.a. “Janet” 5 and 11 of R.A. NO. 9165
Respondent

x--------------------------------------------------x

COUNTER AFFIDAVIT

I, JANET PAGADUAN y ROMUALDO, of legal age, single, Filipino

and resident of Logoy Grande, Talon-Talon, Zamboanga City, after having

sworn in accordance with the law, do hereby state and depose THAT:

1. I was charged by PO1 ADJARAEL JAMAL H. MALALI for violation

of Sec. 5 and 11, Article 2 of RA 9165;

2. I did not sell drugs and I am not the owner nor possessor of the drugs.

I vehemently deny all allegations contained in the Judicial Affidavit of

PO1 ADJARAEL JAMAL H. MALALI and SPO2 MARJORIE E.

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MAURICIO impugning me to have violated Sec. 5 and 11 of R.A. No.

9165.

3. The facts on the judicial affidavits that has made against me were

merely fabricated stories, the truth being that:

a. I live with my mother at Araneta Drive, Talon-Talon, Zamboanga

City;

b. Every night I visit my sister, Jenny Bakil who lives at Logoy Grande,

Talon-Talon, Zamboanga City where I usually eat dinner and go

back to my house at around 10:00 PM in the evening;

c. Last August 23, 2018 at 7:00 PM, I went to the house of my sister

Janet. We ate dinner and at around 10:30 pm, I asked permission

from my sister that I will be going home and to accompany me to

walk up to the main highway;

d. Upon reaching in front of Talon-Talon Health Center, a certain

“Roger,” who works at a bakery few meters away from the health

center called me saying that he has something to say;

e. I told my sister to wait for a moment and I walk towards Roger;

f. Upon reaching in front of him, he said that he has something to tell

me and right before I was able to make a reply, an unknown person

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grab me from my back putting her right arm around my neck and

her other arm wrap around my chest;

g. Thereafter three other unknown persons approached us, which later

I found out to be Policemen assigned at Police Station 10, and

asked me about the whereabouts of a certain “Jerome” while

pointing a gun at me;

h. I told them that I do not know that person and I felt afraid so I tried

to free myself from the hands of the person grabbing me;

i. The person grabbing me, which later I found out to be SPO2

MARJORIE E. MAURICIO, hit me in my right cheek with her fist. I

felt dizzy and was not able to resist as she handcuffed me and bring

me inside a vehicle;

j. I saw and heard my sister crying while asking them why they are

arresting me, they told my sister to just wait after I will be brought to

Central Police Station;

k. They brought me to Tetuan Police Station and thereafter I was told

that I am being arrested for selling shabu. I told them that I am not

selling shabu while letting them see that all of the pocket of my pants

are empty;
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l. After a few minutes, Kagawad Ismael, a kagawad of Barangay

Talon-Talon arrived at the Police Station, the police officers let him

signed a document;

m. I told the police officers to wait for my sister Jenny to arrive at the

police station, they did not heed my request and thereafter they put

me inside a vehicle and they brought me to Labuan Police Station

where they took my finger prints and other information;

4. At about 3:00 AM of August 23, 2018, they brought me to Zamboanga

City Medical Center wherein a doctor examine me. During that time I

felt sick so the doctor prescribe me some medicine but the investigator

did not gave to me my prescription nor my medicine;

5. The arrest made against me was illegal and a violation of Sec. 5, Rule

113 of the Rules of Court because they don’t have warrant of arrest

and I was not engaging in any illegal activities that time. They did not

even inform me of the reason why I was being arrested and I was not

apprised with my Constitutional Rights as required under Section 2 of

R.A. No. 7438;

6. Their act of hitting me in my face, pointing a gun at me and threatening

me that they will kill me was also a violation of my right to equal

protection of laws as guaranteed by the Constitution;

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7. They failed to establish an unbroken chain of custody of the seized

drugs in violation of Section 21, Article II of RA 9165;

8. In People of the Philippines vs. Salim Ismael y Radang, G.R. No.

208093, February 20, 2017, the Supreme Court has held, to wit:

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.

9. In Mallillin v. People, G.R. No. 172953, April 30, 2008, the Court

explained the chain of custody rule as follows:

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.
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10. The first link in the chain is the marking of the seized drug. In People

vs. Gonzales, G.R. No. 182417, April 3, 2013, the Court held:

The first stage in the chain of custody rule is the marking

of the dangerous drugs or related items. Marking, which is the
affixing on the dangerous drugs or related items by the
apprehending officer or the poseur-buyer of his initials or
signature or other identifying signs, should be made in the
presence of the apprehended violator immediately upon
arrest. The importance of the prompt marking cannot be denied,
because succeeding handlers of dangerous drugs or related
items will use the marking as reference. Also, the marking
operates to set apart as evidence the dangerous drugs or related
items from other material from the moment they are confiscated
until they are disposed of at the close of the criminal proceedings,
thereby forestalling switching, planting or contamination of
evidence. In short, the marking immediately upon
confiscation or recovery of the dangerous drugs or related
items is indispensable in the preservation of their integrity
and evidentiary value. (Emphasis supplied)

11. In the Judicial Affidavit of PO1 ADJARAEL JAMAL H. MALALI and

SPO2 MARJORIE E. MAURICIO, both of them failed to allege when,

how and where they marked the confiscated sachet of shabu. They

was also no showing that the confiscated drugs were marked in my

presence. They did not even explain why they failed to mark or why

they could not have marked the seized items immediately upon

confiscation and in my presence. Hence, it is very evident that there

was already a break in the very first link of the chain of custody. The
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Court has consistently held that, "failure to mark the drugs immediately

after they were seized from the accused casts doubt on the

prosecution evidence warranting an acquittal on reasonable doubt."

12. On their Judicial Affidavits, Police Officers alleged that the Physical

Inventory was done at Police Station 6 Tetuan as per instruction of their

Officer-in-Charge due to influx of the people considering place of incident

was a residential area with insufficient light. The justification is unacceptable.

The area where the alleged buy-bust operation was conducted was well-

lighted with street lights. Attached herein as Annex ___ are photographs of

the area where the alleged buy-bust operation took place showing how the

streets are well-lighted by the streets lights. Hence, the Police Officers failed

to make a physical inventory and photograph the alleged confiscated and

seized drugs immediately after confiscation and siezure in violation of

Section 21, Article II of RA 9165 which provides to wit;

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:
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(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;

13. The alleged conduct of physical inventory made at Police Station 6

Tetuan is a blatant lie because no such inventory was made in the

Presence of Barangay Kagawad Ismael and the media. The truth being

that when Kagawad Ismael arrived at the police station, he was just given

a document for him to sign. Copy of Certification made by Kagawad

Ismael is hereby attached as Annex ______.

14. It is also noteworthy to point out to this Honorable Office that it boggles

the mind how the Police Officers Plan their alleged buy bust operation.

According to their Judicial Affidavits, on August 22, 2018 at about 10:00pm,

one of their reliable informants[sic] appeared at their police station and

reported that a certain “Janet”, a known pusher in Talon-Talon, was seen

engaging in illegal drugs transaction at the inner portion Logoy Grande,

Talon-Talon, this city. Thereafter a briefing and planning was conducted for

a buy-bust operation presided by their Officer-in-Charge, followed by

coordination with Police Station 6 Tetuan through cellular phone,

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coordination with Philippine Drug Enforcement Agency (PDEA). Then at

about 10:15pm of same date, the group proceeded to the target place. In the

span of fifteen (15) minutes, it really boggles the mind how the Operatives of

Police Station 10 Labuan was able to adequately plan a buy bust operation

against a certain “Janet”, who allegedly was seen engaging illegal drugs

transaction on Logoy Grande, Talon-Talon which is approximately forty (40)

kilometers away from Labuan Police Station without an adequate

surveillance to determine the identity of the suspect and to verify that the

suspect is engaging in illegal drug transactions as to ensure the success of

the buy-buy operation. Section 2-4, Paragraph 2.10 of the PNP Revised

Manual on Anti-illegal Drugs Operations and Investigation provides that as a

general rule, all operations must be preceded by adequate planning and

preparation to ensure the successful prosecution of cases, observance of

the rights of suspects, safety of operating elements and the security and

integrity of seized items/evidence. Furthermore in the case of People vs.

Baclayon, G.R. No. L-110837, March 29, 1994, the Court ruled that while in

the minds of the members of the police raiding team the accused may indeed

be a drug pusher or peddler who must be dealt with without mercy, that

alone, even if it be conceded ex gratia to be true, is not enough justification

for any shortcut in law enforcement. Paraphrasing Mr. Justice Isagani A.

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Cruz in the recent case of Sanchez vs. Demetriou, 23 even if the accused

were the most notorious person in our country today, and alleged to be

committing the most serious offense, she is, nevertheless, entitled to the full

and vigilant protection of the Bill of Rights. It was eloquently proclaimed more

than a hundred years ago in Ex parte Milligan 24 that "the Constitution is a

law for rulers and for people equally in war and peace and covers with the

shield of its protection all classes of men at all times and under all

circumstances."

12. I am voluntarily executing this affidavit to attest to the truthfulness of

the foregoing facts and to support the outright dismissal of the

complaint filed against me.

IN WITNESS WHEREOF, I hereunto affix my signature this 11th day of

August, 2018 at the City of Zamboanga.

MARY JANE A. ESCUTIN

Affiant
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SUBSCRIBED AND SWORN to before me this __ day of August, 2018

at the City of Zamboanga.

CERTIFICATION

This is to certify that I personally examined the affiant and I am fully

satisfied that she voluntarily executed and understood her Counter-Affidavit