Republic of the Philippines

COURT OF APPEALS
Manila

PANNY ONTAWAR Y PACASUM,

Petitioner,
FOR: CERTIORARI
Re: People of the
Philippines
vs. Panny Ontawar y
Pacasum, Criminal Case
No. 81785, Hon. Aurelio
R. Ralar Jr., Branch 120,
Caloocan City

-versus-

HONORABLE AURELIO R. RALAR,

Respondent.
x-----------------------------------------------------x

PETITION

COMES NOW, petitioner Panny Ontawar y Pacasum, by the

undersigned counsel and unto the Honorable Court of Appeals
most respectfully states:

PREFATORIES

1. This is a petition for certiorari filed under Rule 65 of the

Revised Rules of Court which declares:

PARTIES

2. Petitioner is legal age, single, Filipino with residence address

at Blk. 13, Lot 30 Phase 1, Bagong Silang, Caloocan City. He
is presently detained at the New Bilibid Prison at Muntinlupa
City, where he can also be served with orders, resolutions,
decision and other processes by the Court of Appeals;

3. Respondent Honorable Aurelio R. Ralar (respondent Judge

herein for brevity) is the presiding Judge of Branch 120,
Regional Trial Court, Caloocan City, where he may be serve
orders, resolutions, decision and other processes by the
Court of Appeals;

Page 1 of 23
 STATEMENT OF MATERIAL DATES

4. On August, 3, 2009 Assistant City Prosecutor Darwin G.

Camete of Caloocan City filed an Information of Violation of
Section 5, Article 2 of Republic Act 9165 against the accused
which read as follows:

“..That on or about the 30 th day of July 2009 in

Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-
named accused, without authority of law, did then
and there willfully, unlawfully and feloniously sell
and deliver to PO1 CHRISTOPHER ESTOR, who
posed, as buyer METHYLAMPHETAMINE
HYDROCHLORIDE (Shabu) weighing 0.75 gram,
a dangerous drug, without the corresponding
license or prescription therefore, knowing the
same to be such.

Contrary to Law
Caloocan City, MM.
August 3, 2009.

DARWIN G. CANETE
Asst. City Prosecutor

This is to certify that accused has been charged

in accordance with Sec. 7, Rule 112, of the 2000
Rules on Criminal Procedure; that a Preliminary
Investigation was not conducted because
accused has not executed a waiver; that there is
reasonable ground to believe that a crime has
been committed and that the accused is probably
guilty thereof…”

(Photocopy of the said Information is attached herein as

ANNEX “A” to form an integral part hereof);

5. After notices and hearings, respondent judge rendered a

Decision convicting the petitioner of the crime of Violation of
Section 5, Article 2 of Republic Act 9165, the dispositive
portion of which reads as follows:

Page 2 of 23
 Premises considered, this court finds the accused
Panny Ontawar y. Pacasum GUILTY beyond
reasonable doubt for violation of Section 5, Article
II of Republic Act No. 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002
and imposes upon him the penalty of Life
Imprisonment and a fine of Five Hundred
Thousand Pesos (Php500,000.00).

The drugs subject matter of this case is hereby

confiscated and forfeited in favor of the
government to be dealt with in accordance with
law.

(Photocopy of the said Decision is attached herein as ANNEX

“B” to form an integral part hereof);

6. Petitioner, on September 21, 2012, filed a Motion for

Reconsideration on the said Decision praying for the reversal
of the accused’s conviction.

(Photocopy of the Motion for Reconsideration is attached

herein as ANNEX “C” to form an integral part hereof);

7. On October 11, 2012, Senior Assistant City Prosecutor Nida

C. Tabuldan-Gravino filed her Comment on the said Motion
for Reconsideration;

(Photocopy of the said Comment is attached herein as

ANNEX “D” to form an integral part hereof);

8. On November 5, 2012, respondent judge issued an Order

denying the aforementioned Motion for Reconsideration, the
dispositive portion of which states:

“..Premises considered, the Motion for

Reconsideration filed by accused, though
counsel, is hereby DENIED for lack of merit..”

(Photocopy of the said Motion for Reconsideration is

attached herein as ANNEX “E” to form an integral part
hereof);

9. That on February 1, 2013, the respondent judge issued an

Order saying:

Page 3 of 23
 “…Considering that as per Record of the above-
entitled case, as of 3 January 2013, the Decision
promulgated on 6 September 2012, has attained
finality on 20 November 2012, after the Motion for
Reconsideration filed by counsel for accused has
been denied by this Court per Order dated 05
November 2012; let entry of judgment ISSUE in
this case…”

(Certified true copy of the said Order is attached herein as

ANNEX “F” to form an integral part hereof);

10. That petitioner received the said Order on February 22,

2013;

11. That on March 1, 2013, petitioner filed a motion to

reconsider, among others, on the said Order contained in an
Omnibus Motion with Notice to Appeal praying:

“…WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court to:

a. consider its Order directing the issuance of

an Entry of Judgment in the above-entitled
case.

b. Vacate an Entry of Judgment if ever it was

already issued and;

c. Give Leave of Court so that the accused

can file a Notice of Appeal in the above-
entitled case.

Other relief and remedies just and equitable in

the premises are also hereby prayed for.”

(Photocopy of the said Omnibus Motion is attached herein as

ANNEX “G” to form an integral part hereof);

12. That in Order dated 06 June 2013, respondent judge

denied the motion for reconsideration filed by the petitioner
as contained in his Omnibus Motion with Notice of Appeal.

(Certified true copy of the said Order is attached herein as

ANNEX “H” to form an integral part hereof);

Page 4 of 23
13. That petitioner received the Order denying his motion
for reconsideration only on June 20, 2013;

14. Hence, the petitioner has until August 19, 2013 within
which to file the instant petition in accordance with Rule 65 of
the Revised Rules of Court.

STATEMENT OF ULTIMATE FACTS:

15. That petitioner withdraw the appearance of his former

lawyer Atty. Manuel Ubaldo, who assisted him during the trial
of his case;

16. That distraught and frustrated by his conviction of life

imprisonment, petitioner decided to get another lawyer to
represent him in the Court of Appeals;

17. He thus solicited the help of his distant nephew to find

him a new lawyer in the appeal he intended to file with the
Court of Appeals;

18. His nephew then lost no time in finding a new lawyer for
the accused and had in fact solicited the help of some of his
lawyer friends from a law school where he is studying;

19. With a prepared Motion for Reconsideration,

petitioner’s nephew went to the office of another lawyer friend
Atty. Pearlito B. Campanilla, for him to review and check the
said Motion for Reconsideration;

20. Finding the said Motion for Reconsideration to be

meritorious, the said Motion for Reconsideration was filed on
September 21, 2013;

21. The Motion for Reconsideration discussed and argued

how the accused should have been acquitted by the
respondent judge;

22. To quote the pertinent portions of the said Motion for

Reconsideration:

“That the prosecution in this case failed to

establish the first link of the chain of custody (the
seizure and marking of the illegal drug recovered
from the accused by the apprehending officer);

Page 5 of 23
That to be able to create a first link in the chain of
custody, then, what is required is that the marking
of the seized drugs be properly made (People vs.
Zarraga, G.R. No. 162064, March 14, 2006);
consistency with the “chain of custody” rule
requires that the “marking” of the seized items –
to truly ensure that they are the same items that
enter the chain and are eventually that ones
offered in evidence - should be done (1) in the
presence of the apprehended violator (2)
immediately upon confiscation. This step initiates
the process of protecting innocent persons from
dubious and concocted searches, and of
protecting as well the apprehending officers from
harassment suites based on planting of evidence
under Section 29 and on allegations of robbery or
theft (People vs. Sanchez, G.R. No. 175832,
October 15, 2008);

That it is a standard procedure in anti-narcotics

operations to place markings on the confiscated
items immediately after the apprehension of
suspect. Marking the items recovered from the
scene of the buy-bust operation in the police
station is a deviation from this procedure, and
produces doubts as to the origins of the
dangerous drugs (People vs. Laxa, G.R. No.
138501, July 20, 200; People vs. Kimura, G.R.
No. 130805, April 27, 2004).

That in this case, the marking was inside the

police vehicle and not immediately after its
confiscation as testified by the witness PO14
Christopher Estor. (Page 11 of TSN dated 10
June 2010)

THIRD LINK OF THE CHAIN OF CUSTODY

That PO3 Elmer Lipata testified that the

investigator submitted the evidence to the crime
laboratory (TSN, page 31, dated 29 April 2010);

That the testimony of PO3 Elmer Lipata regarding

the turn-over by the investigating officer of the
seized drugs to the forensic chemist cannot have
no probative value for being hearsay; this
testimony cannot establish the third link of the
chain of custody (The turn over by the

Page 6 of 23
investigating officer of the illegal drug to the
forensic chemist for laboratory examination);

That PO1 Christopher Estor testified that he

turned over the subject drugs to the police
investigator (Page 14 of TSN dated 10 June
2010) and that “we” turned over the drug to the
crime laboratory (Page 15 of TSN dated 10 June
2010); The word “we” in the testimony of the
witness indicates that there are more than one
person who turned over the drugs to the crime
laboratory; however, this testimony cannot
likewise establish the third link since it failed to
reveal the name of the other person who brought
the drugs to the crime laboratory and that of
personnel of the crime laboratory who received it;

That when the investigating officer, PO2 Ariosto

Rana, was presented as witness, he failed to
testify that he, PO1 Estor, or a messenger turned
over the subject dangerous drugs to the forensic
chemist;

That neither did the forensic chemist, PCI Albert

S. Arturo, testify from whom he received that
subject drugs. The public prosecutor dispensed
with the testimony of the forensic chemist
because of the stipulations and admissions made
by the parties on September 15, 2009. However,
such stipulation does not reveal who turned over
the subject drugs to the forensic chemist. The
stipulation merely states that “upon receipt of the
evidence, he (chemist) placed the specimen in an
improvised yellow envelope, which he marked
with “D-259-09 7-31-09 ASA”

That the September 15, 2009 stipulations and

admissions do not also establish the third link of
the chain of custody; Whether the subject drugs
was submitted to the forensic chemist by the
police investigator or a messenger is still a
mystery; without the third link, there is a
reasonable doubt that the very drugs allegedly
confiscated from accused and submitted to the
police investigator was the one turned over to the
forensic chemist;

Page 7 of 23
That with a broken chain of custody, the accused
should be declared innocent of the crime charge.
In several cases, the Supreme Court acquitted
the accused failure to establish every link in the
chain of custody because:

(a) The prosecution failed to present the

police investigator, to whom poseur
buyer turned over the seized drug, and
another police officer, who transmitted
the specimen to the laboratory (People
vs. Dismuke, G.R. No. 108453, July 11,
1994; People vs. Lopez, G.R. No.
172953, April 30, 2008; People vs.
Balagat, G.R. No. 177163, April 24,
2009);

(b) The forensic chemist failed to disclose

the identity of the police officer, who
submitted the specimen for laboratory
examination (People vs. Camba, G.R.
No. 97960, May 10, 1994);

(c) The witness, to whom the poseur-buyer

turned over the seized drug, failed to
testify that as to what he did with the
drug after receiving it; he did not testify
that he gave the drug to investigator,
who did the markings, and informed the
latter that accused sold such particular
drug (People vs. Almeida, G.R.
Nos.181545, October 8, 2008);

INVENTORY AND PHOTOGRAPHY

Under Section 21 of RA No. 9165, “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 item
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.” The evident purpose of
the procedure in Section 21 is the preservation of

Page 8 of 23
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 (People vs. Agulay, G.R. No. 181747,
September 26, 2008).

That non-compliance with the requirements as to

the inventory and photography of confiscated
drug is fatal to the prosecution’s case. In People
vs. Magat, G.R. No. 179939, September 29, 2008
– it is indisputable that the procedures for the
custody and disposition of confiscated dangerous
drugs in Section 21 of RA No. 9165 were not
complied with PO1 Santos admitted that he
marked the two plastic sachets containing white
crystalline substance in the police station. He did
not mark the seized items immediately after he
arrested appellant in the latter’s presence. He
also did not make an inventory and take a
photograph of the confiscated materials in the
presence of appellant. Other than the three
policeman, there were no other people who
participated in the alleged buy-bust operation.
There was no representative from the media and
the Department of Justice, or any elected public
officials who participated in the operation and who
were supposed to sign an inventory of seized
items and be given copies thereof. None of the
statutory safeguards were observed. A review of
jurisprudence, even prior to passage of the RA
No. 9165, shows that this Court did not hesitate
to strike down convictions for failure to follow the
proper procedure for the custody of confiscated
dangerous drugs. Prior to RA No. 9165, the Court
applied the procedure required by Dangerous
Drugs Board Regulation No. 3, Series of 1979
amending Board Regulation No. 7, Series of
1974.

That the failure to comply with Section 21

compromised the identify of the items seized,
which is the corpus delicti of the crime involving
dangerous drug (People vs. Bondad, Jr., G.R. No.
173804, December 10, 2008; Partoza, G.R. No.
182418, May 8, 2009).Seized drug should not be
given evidentiary weight if the procedure in
Section 21 of R.A No. 9165 was not complied
with. It has no probative value in proving the

Page 9 of 23
corpus delicti (Magat, G.R. No. 179939,
September 29, 2008). In People vs. Frondozo,
G.R. No. 177164, June 30, 2009 – Arresting
officers failed to take a photograph and make an
inventory of the confiscated materials in the
presence of accused. Likewise, there was no
mention that any representative from the media,
DOJ or any elected public official had been
present during the inventory or that any of these
persons had been required to sign the copies of
the inventory. Clearly, none of the statutory
safeguards mandated by Rep. Act No. 9165 was
observed. Hence, the failure of the buy-bust team
to comply with the procedure in the custody of the
seized drugs raises doubt as to its origins.
Nevertheless, while the seized drugs may be
admitted in evidence, it does not necessary follow
that the same should be given evidentiary weight
if the procedures provided by Rep. Act No. 9165
were not complied with. The admissibility of the
seized dangerous drugs in evidence should not
be equated with its probative value in proving the
corpus delicti. The admissibility of evidence
depends on its relevance and competence while
the weight of evidence pertains to evidence
already admitted and its tendency to convince
and persuade. Accused was acquitted.

That in People vs. Orteza, G.R. No. 173051, July

31, 2007 – the failure of the agents to comply with
the requirement (under Section 21) raises doubt
whether what was submitted for laboratory
examination and presented in court was actually
recovered from appellant. It negates the
presumption that official duties have been
regularly performed by the police officers.

The principle in Orteza has been re-affirmed in

People vs. Dela Cruz, G.R. No. 18154, October
8, 2008; People vs. Cantalejo, G.R. No. 182790,
April 24, 2009; People vs. Robles, G.R. No.
177220, April 24, 2009; Valdez vs. People, G.R.
No. 170180, November 23, 2007; and People vs.
Sanchez, G.R. No. 175832,October 15, 2008;

That in People vs. Ancheta, G.R. No. 197371,

June 13,2012, the Supreme Court ruled:

Page 10 of 23
 “We reiterate that R.A. 9165 has a
strict mandate for the arresting
officers to comply with the afore-
quoted procedural safeguards. We
further not that, before the saving
clause provided under it can be
invoked, Section 21 (a) of the IRR
requires the prosecution to prove the
twin conditions of (a) existence fo
justifiable grounds and (b)
preservation of the integrity and the
evidentiary value of the seized items,
in the case, the arresting officers
neither presented nor explained
justifiable grounds for their failure to
(1) make a physical inventory of the
seized items; (2) take photographs of
the items; and (3) establish that a
representative each from the media
and the Department of Justice (DOJ),
and any elected public official had
been contacted and were present
during the marking of the items.
These errors were exacerbated by the
fact that the officers had ample time to
comply with these legal requirements,
as they had already monitored and
put accused-appellants on their watch
list. The totality of these
circumstances has led us to conclude
that the apprehending officers
deliberately disregarded the legal
procedure under R.A. 9165. “These
lapses effectively produced serious
doubts on the integrity and identity of
the corpus delicti, especially in the
face of allegations of frame-up.”

That the subject drugs were allegedly confiscated from

the accused on July 30, 2009 at around 4:45 pm. (TSN
page 11 dated 10 June 2010). However, the inventory
of drugs seized/item (Exhibt “1”) shows that the
physical inventory was done on July 31, 2009 at 13:30
hrs (1:30 pm). This is a flagrant disregard of the rule
that the physical inventory must be made immediately
after the seizure of the dangerous drugs;

Page 11 of 23
That furthermore, the inventory report (Exhibit “1”) does
not show that a representative of the DOJ and an
elected public official was present at the time of the
physical inventory of the confiscated drugs; the
witnesses for the prosecution failed to testify that they
exerted effort to see to its that a representative of DOJ
or an elected official would witness the physical
inventory when they have an ample time to do so. For
failure to comply with the mandate of Section 21 of RA
No. 9165, the accused should be acquitted;

INCONSISTENCIES

That an inconsistency in the testimony of the witness

PO3 Elmer Lipata as to the surveillance conducted
against alias Pannie can be seen from the record of the
case. Said witness testified that the surveillance was
conducted because a concerned citizen arrived in their
office and gave them the information about a certain
alias Pannie on July 28, 2009 (Page 5, TSN dated April
29, 2010), but on page 27 of the same TSN, he testified
that they received the information on July 27 of the
same year, and yet again on page 31 thereof, he said
that it was on July 27, until he was reminded by the
defence counsel;
That there appears to be an inconsistency as to the
amount of buy-bust money given to PO3 Elmer Lipata
and PO1 Christopher Estor. PO3 Lipata testified that
the Chief gave them the amount of Php1,000.00 for the
operation (Page 7, TSN dated April 29, 2010). During
his cross examination, PO3 Lipata specifically stated
that there was only Php 1,000.00 that was used when
they commenced the operation (Page 23 and Page 24
TSN dated April 29, 2010). On the other hand, PO1
Christopher Estor testified that the Chief gave them the
amount of Php7,000.00 (Page 4, TSN dated June 10,
2010).

That there is an inconsistency as to the mode of

transportation used for the buy-bust operation. PO3
Elmer Lipata testified that on April 29, 2010, they used
a tricycle to go to the target area (Page 10, TSN dated
April 29, 2010). Meanwhile, PO1 Christopher Estor
testified that they used a galvanized van for the
operation (Page 5, TSN dated June 10, 2010), and that
the same was used when they boarded the accused
after he was caught (Page 11, TSN dated June 10,
2010);

Page 12 of 23
 That there is an inconsistency regarding the persons
who witnessed the initialing made by PO1 Christopher
Estor of the seized drug. PO3 Elmer Lipata testified that
at 4:45 in the afternoon of July 30, 2009, he was with
PO1 Estor and two (2) confidential informants (Page 4,
TSN dated April 29, 2010). PO1 Estor, during his cross-
examination, testified that he and the other members of
the team witnessed the initialing of the seized items
inside their service vehicle while they were on the way
to the police office (Page 18, TSN dated June 10,
2010). However, PO3 Elmer Lipata testified that he only
saw the seized items at the office (page 16, TSN dated
April 29, 2010). There were, however, no testimonies to
support the claim of PO1 Estor that other members of
the team saw the said initialing;

23. That regardless of the said meritorious Motion for

Reconsideration, the public respondent judge denied the
same, in an Order dated November 5, 2012. (See ANNEX
“E”);

24. The aforementioned Oder was sent to the Office of the

petitioner’s new lawyer but was misplaced by his secretary
who placed it on a general folder after failing to recognize the
lawyer who is handling the appeal of the petitioner;

25. On February 1, 2013, the public respondent judge

issued on Order saying:

“…Considering that as per Record of the above-

entitled case, as of 31 January 2013, the
Decision promulgated on 6 September 2012 has
attained finality on 20 November 2012, after the
Motion for Reconsideration filed by counsel for
accused has been denied by this Court per Order
dated 5 November 2012. Let entry of judgment
ISSUE in this case…” (See ANNEX “F”)

26. Considering that the said Order violates the rights of

the petitioner to file Motion for consideration contained in an
Omnibus Motion Notice of Appeal on March 1, 2013. (See
ANNEX “G”);

27. The said motion for reconsideration was just ignored

by the respondent judge in an Order dated June 6, 2013;
(See ANNEX ”H”);

Page 13 of 23
 28. Hence this petition.

ISSUE/S

a) WHETHER OR NOT THE RESPONDENT JUDGE

COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION WHEN HE
FORECLOSED THE RIGHT OF THE FOCUS DUE
PROCESS PETITIONER TO APPEAL HIS CONVICTION.

b) WHETHER OR NOT THE RESPONDENT JUDGE

COMMITTED GRAVE ABUSE OF DISCRETION IN
DENYING THE RIGHT OF THE ACCUSED TO APPEAL
HIS CASE DESPITE HIS MERITORIOUS DEFENSE.

C) WHETHER OR NOT THE RESPONDENT JUDGE

ERRED IN CONVICTING THE ACCUSED IN SPITE OF
THE COMPLETE LACK OF EVIDENCE.

ARGUMENT AND DISCUSSION

In the very recent case of De Guzman v. People (G.R. No.

167492, 22 March 2007, 518 SCRA 767), the Supreme Court ruled
that:

A healthy respect for petitioner’s rights should caution

courts against motu proprio dismissals of appeals, especially
in criminal cases where the liberty of the accused is at stake.
The rules allowing motu proprio dismissals of appeals merely
confer a power and do not impose a duty; and the same are
not mandatory but merely directory which thus require a great
deal of circumspection, considering all the attendant
circumstances. Courts are not exactly impotent to enforce
their orders, including those requiring the filing of appellant’s
brief. This is precisely the raison d’etre for the court’s inherent
contempt power. Motu proprio dismissals of appeals are thus
not always called for. Although the right to appeal is a
statutory, not a natural, right, it is an essential part of the
judicial system and courts should proceed with caution so as
not to deprive a party of this prerogative, but instead, afford
every party-litigant the amplest opportunity for the proper and
just disposition of his cause, freed from the constraints of
technicalities.

Page 14 of 23
 Thus, the Honorable Supreme Court, in several cases, “had
set aside technicalities in the Rules in order to give way to justice
and equity”. Courts of justice are therefore mandated to “overlook
the short delay in the filing of pleading if strict compliance with the
Rules would mean sacrificing justice to technicality. The
imminence of a person being deprived unjustly of his liberty due
to a procedural lapse of counsel is a strong and compelling reason
to warrant suspension of the Rules.” (De Guzman case, supra,
citing Alonzo v. Villamor, et al., 16 Phil. 315, 1910)”

In the case of Reyes v. Court of Appeals (G.R. No. L-41680,

October 28, 1977, 80 SCRA 144) the High Court explained further
that “Because the right to appeal in this case is granted by the
statute, it is part of due process of law, denial of which violates the
due process clause of the Constitution”

Conformably to the above rulings, the Supreme Court, in a

long line of cases as enumerated in the case of Catalino Catindig
vs. Court Of Appeals (G.R. No. L-33063; February 28, 1979),
declared that:

Moreover, dismissal of appeals purely on technical

grounds is frowned upon where the policy of the courts is to
encourage hearings of appeals on their merits. The rules of
procedure ought not to be applied in a very rigid, technical
sense; rules of procedure are used only to help secure not
override substantial justice. If a technical and rigid
enforcement of the rules is made, their aim would be defect.
(Gregorio vs. Court of Appeals, 72 SCRA 121; Mc Entee vs.
Manotoc, 3 SCRA 279; Lim Tanhu vs. Ramolete, 66 SCRA
441).

And as We said in Obut v. Court of Appeals, 70 SCRA

547; "What should guide judicial action is the principle that a
party litigant is to be given the fittest opportunity to establish
the merits of his complaint or defense rather than for him to
lose life, liberty, honor or property on technicalities." (See
also Marquez vs. Court of Appeals 77 SCRA 524; Pan
American World Airways, Inc. vs. Espiritu, 69 SCRA 36;
Aznar, et all vs. Court of Appeals, et all 70 SCRA 330;
Gregorio vs. Court of Appeals, et al., 72 SCRA 120; Lopez
vs. Court of Appeals, 75 SCRA 401).

Pursuant to the above rulings and in light of all the “attendant

circumstances” surrounding this case as thoroughly discussed in
the ultimate facts above, the Order of the respondent judge dated
06 June 2013 which denied accused’s Omnibus Motion with Notice

Page 15 of 23
of Appeal, clearly transgressed accused’s right to due process of
law.

Stated otherwise, the honorable respondent judge committed

grave abuse of discretion amounting to lack of jurisdiction when he
denied the right of the accused to appeal despite his meritorious
defense thereby affirming with finality his own decision convicting
the accused.

According to the High Court in the recent case of Julie’s

Franchise Corporation Vs. Hon. Chandler O. Ruiz (G.R. No.
180988, August 28, 2009) the special civil action for certiorari
under Rule 65 is intended to correct errors of jurisdiction or grave
abuse of discretion amounting to lack or excess of jurisdiction. The
writ of certiorari is directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions that acted without or in
excess of its or his jurisdiction or with grave abuse of discretion.

In the aforesaid case, the Supreme Court defined grave

abuse of discretion as “such capricious or whimsical exercise of
judgment which is equivalent to lack of jurisdiction. To justify the
issuance of the writ of certiorari, the abuse of discretion must be
grave, as when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be
so patent and gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined, or to act at all, in
contemplation of law, as to be equivalent to having acted without
jurisdiction.”

In the case at bar, the respondent judge clearly exercised his

judicial authority in a capricious, whimsical, arbitrary and despotic
manner when he foreclosed the right of the accused to appeal his
life sentence as such act is tantamount to the repudiation of
accused’s sacred right to due process of law.

Likewise, the respondent judge’s Order dated 06 June 2013

which denied accused’s Omnibus Motion with Notice of Appeal was
so patent and gross as to amount an outright rejection of the said
judge to grant what is clearly a right granted to the accused. It
must be noted that the right to appeal is “part of due process of
law, denial of which violates the due process clause of the
Constitution”. (Reyes v. Court of Appeals, 80 SCRA 144) The
accused’ right to appeal his life imprisonment “is an essential part
of the judicial system and courts should proceed with caution so as
not to deprive a party of this prerogative, but instead, afford every
party-litigant the amplest opportunity for the proper and just
disposition of his cause, freed from the constraints of
technicalities.” (De Guzman v. People 518 SCRA 767)

Page 16 of 23
 Clearly, the imminence of the accused being deprived
unjustly of his liberty should have taken precedence over any
procedural lapse as the same is “a strong and compelling reason to
warrant suspension of the Rules.” This is what make the actions of
the respondent judge tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction in denying accused’s
right to appeal and affirming with finality his own decision

The respondent judge should have granted accused’s right to

appeal as the same is “commanded by the 'higher interest of
justice dictated by a sense of fairness with which procedural due
process is Identified.' Nothing would be lost and the right to a
hearing on appeal would be accorded full respect if under the
circumstances the motion were granted.” (Gregorio vs. C.A., et al.,
72 SCRA 121)

In view of his actions, accused cannot but wonder on the

motivations of the respondent judge why he was so quick and
hasty in shutting down accused’s right to appeal his conviction.
Was the respondent judge fearful on what the appellate courts
might see in the trial of the case? In his hastiness to affirm his own
decision with finality, was the respondent judge trying to
permanently bury something, say, the utter lack of evidence to
convict the accused?

To reiterate, accused was convicted of the crime of alleged

drug pushing and was given a life sentence, the second highest
form of penalty a Filipino can receive under our justice system.
Doubts exist as to the origin itself of the drugs allegedly confiscated
from the accused. Such doubt goes to the very essence of the
crime, namely the corpus delicti – the actual seized drugs allegedly
sold by the accused in the buy-bust operation. The seized drug
should not be given evidentiary weight if the procedure in Section
21 of R.A No. 9165 was not complied with. It has no probative
value. The existence of dangerous drugs is a condition precedent
for conviction for the illegal sale and possession of dangerous
drugs, it being the very corpus delicti of the crimes.

As categorically ADMITTED by the police directly involved in

the buy-bust operation, the drug allegedly taken from the accused
was made first placed inside the pocket of the poseur-buyer
policeman. Subsequently, the drug was inventoried only after the
lapse of a considerable length of time while the said policeman was
INSIDE the police vehicle and not immediately after its
confiscation. This was the categorical admission of witness PO14
Christopher Estor. (Pages 10 - 11 of TSN dated 10 June 2010).

Page 17 of 23
Said admission was made during the direct testimony of the said
police officer. Thus:

Assistant City Prosecutor Mary June Orquiteza:

Q: When you received it from him what did you
do with it?

PO14 Christopher Estor:

A: I opened it to see what was inside it, ma’am.

Q: Were you able to open it?

A: Yes, ma’am.

Q: What did you see?

A: I saw a small plastic sachet containing white
crystalline substance, ma’am.

Q: When you saw that blue paper containing

white granules, what did you do with it?
A: I threw my cigarette ma’am.

Q: What happened next?

A: I arrested Panny Ontawar and then I
introduced myself as policeman, ma’am.

Q: You still have the plastic sachet with you?

A: Yes, ma’am.

Q: That is the time that you threw your cigarette?

A: Yes, ma’am.

Q: After throwing cigarette, what did you do with

the plastic sachet?
A: I PUT IT MY POCKET, MA’AM.

Q: You said you arrested Panny Ontawar, after

arresting him, what did you do to him?
A: I informed him of his constitutional rights and
the violation he committed, ma’am.

Q: After telling him that, what happened?

A: We boarded him in our service vehicle,
ma’am.

Q: You said you put the plastic sachet in your

pocket?
A: YES, MA’AM.

Page 18 of 23
 Q: After you placed Panny Ontawar under arrest,
what did you do with the plastic sachet which
you placed in your pocket, if any?
A: I placed my initials on it – CRE 7-3-009,
ma’am.
(TSN pages 10 and 11, emphasis ours.)

According to the Supreme Court, “JUDICIAL ADMISSIONS

made by parties in the pleadings, or in the course of the trial or
other proceedings in the same case are conclusive and so does
not require further evidence to prove them. These admissions
CANNOT be contradicted unless previously shown to have been
made through palpable mistake or that no such admission was
made.” (Damasco v. NLRC, 400 Phil. 568, 586 (2000), citing
Philippine American General Insurance Inc. v. Sweet Lines, Inc.,
G.R. No. 87434, August 5, 1992, 212 SCRA 194).

From the foregoing testimony, it is very clear that the drug

allegedly bought by the police from the accused was first placed by
the poseur-buyer policeman inside his pocket. (I put it my pocket,
ma’am.) Thereafter, said policeman informed the accused of his
Miranda rights. (I informed him of his constitutional rights and the
violation he committed, ma’am.) After this, the accused with the
help of other policemen were place inside the police vehicle. (We
boarded him in our service vehicle, ma’am.)

Likewise, the alleged photography of the seized drug was

only made at the “DAID” office in Caloocan City as testified to by
police officer Estor. Said photograph was allegedly taken “in the
presence of Ka Maeng, a CAMANAVA press.” (TSN, page 14) The
aforesaid media person was not even properly identified or
presented in court.

Clearly, a significant amount of time elapsed from the time

the seized drug was placed by the policeman inside his pocket up
to the time the said drug was inventoried, in complete violation of
the procedure stated under the law. Likewise, the photographs of
the drug were not taken immediately after the seizure of the drug.
Added to this is the fact that the alleged witness of the photography
was not even properly named in court.

Under Section 21 of RA No. 9165, “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 item 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

Page 19 of 23
official who shall be required to sign the copies of the inventory and
be given a copy thereof.” The evident purpose of the procedure in
Section 21 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 (People
vs. Agulay, G.R. No. 181747, September 26, 2008).

Such NON-COMPLIANCE with the requirements as to the

inventory and photography of the confiscated drug is FATAL to the
prosecution’s case.

As laid down by the Supreme Court in the recent case of

People vs. Magat, (G.R. No. 179939, September 29, 2008), a case
which has the same factual antecedents as in the instant case:

In all prosecutions for violation of R.A. No. 9165, the

following elements must be proven beyond reasonable doubt:
(1) proof that the transaction took place; and (2) presentation
in court of the corpus delicti or the illicit drug as evidence.
The existence of dangerous drugs is a condition sine qua non
for conviction for the illegal sale and possession of
dangerous drugs, it being the very corpus delicti of the
crimes. (People v. Almeida, 463 Phil. 637, 648 (2003), citing
People v. Mendiola, 235 SCRA 116 (1994). See also People
v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51, 61,
citing People v. Mendiola, supra; People v. Macuto, 176
SCRA 762 (1989); People v. Vocente, 188 SCRA 100 (1990);
and People v. Mariano, 191 SCRA 136 (1990).

In the case at bar, it is indisputable that the procedures

for the custody and disposition of confiscated dangerous
drugs in Section 21 of R.A. No. 9165[24] were not complied
with. PO1 Santos admitted that he marked the two plastic
sachets containing white crystalline substance in the police
station. He did not mark the seized items immediately after
he arrested appellant in the latter’s presence. He also did not
make an inventory and take a photograph of the confiscated
materials in the presence of appellant. Other than the three
policemen, there were no other people who participated in
the alleged buy-bust operation. 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 the statutory safeguards were
observed.

A review of jurisprudence, even prior to the passage of

the R.A. No. 9165, shows that this Court did not hesitate to

Page 20 of 23
strike down convictions for failure to follow the proper
procedure for the custody of confiscated dangerous drugs.
Prior to R.A. No. 9165, the Court applied the procedure
required by Dangerous Drugs Board Regulation No. 3, Series
of 1979 amending Board Regulation No. 7, Series of 1974.

In People v. Laxa, (414 Phil. 156) the policemen

composing the buy-bust team failed to mark the confiscated
marijuana immediately after the alleged apprehension of the
appellant. One policeman even admitted that he marked the
seized items only after seeing them for the first time in the
police headquarters. The Court held that the deviation from
the standard procedure in anti-narcotics operations produces
doubts as to the origins of the marijuana and concluded that
the prosecution failed to establish the identity of the corpus
delicti.

Similarly, in People v. Kimura,(G.R. No. 130805, 27

April 2004, 428 SCRA 51, 69-70.) the Narcom operatives
failed to place markings on the alleged seized marijuana on
the night the accused were arrested and to observe the
procedure in the seizure and custody of the drug as
embodied in the aforementioned Dangerous Drugs Board
Regulation No. 3, Series of 1979. Consequently, we held
that the prosecution failed to establish the identity of the
corpus delicti.

In Zaragga v. People(G.R. No. 162064, 14 March 2006,

484 SCRA 639.) involving a violation of R.A. No. 6425, the
police failed to place markings on the alleged seized shabu
immediately after the accused were apprehended. The buy-
bust team also failed to prepare an inventory of the seized
drugs which accused had to sign, as required by the same
Dangerous Drugs Board Regulation No. 3, Series of 1979.
The Court held that the prosecution failed to establish the
identity of the prohibited drug which constitutes the corpus
delicti.

In all the foregoing cited cases, the Court acquitted the

appellants due to the failure of law enforcers to observe the
procedures prescribed in Dangerous Drugs Board Regulation
No. 3, Series of 1979, amending Board Regulation No. 7,
Series of 1974, which are similar to the procedures under
Section 21 of R.A. No. 9165. Marking of the seized drugs
alone by the law enforcers is not enough to comply with the
clear and unequivocal procedures prescribed in Section 21 of
R.A. No. 9165.

Page 21 of 23
 In the present case, although PO1 Santos had written
his initials on the two plastic sachets submitted to the PNP
Crime Laboratory Office for examination, it was not
indubitably shown by the prosecution that PO1 Santos
immediately marked the seized drugs in the presence of
appellant after their alleged confiscation. There is doubt as to
whether the substances seized from appellant were the same
ones subjected to laboratory examination and presented in
court.

A unique characteristic of narcotic substances is that

they are not readily identifiable as in fact they have to be
subjected to scientific analysis to determine their composition
and nature. Congress deemed it wise to incorporate the
jurisprudential safeguards in the present law in an
unequivocal language to prevent any tampering, alteration or
substitution, by accident or otherwise. The Court, in
upholding the right of the accused to be presumed innocent,
can do no less than apply the present law which prescribes a
more stringent standard in handling evidence than that
applied to criminal cases involving objects which are readily
identifiable.

R.A. No. 9165 had placed upon the law enforcers the
duty to establish the chain of custody of the seized drugs to
ensure the integrity of the corpus delicti. Thru proper exhibit
handling, storage, labeling and recording, the identity of the
seized drugs is insulated from doubt from their confiscation
up to their presentation in court.

Recently, in People v. Santos, Jr., (G.R. No. 175593,

17 October 2007, 536 SCRA 489, 504-505.) which involved
violation of Sections 5 and 11, Article II of R.A. No. 9165, the
Court agreed with the Office of the Solicitor General’s
observation that the identity of the corpus delicti has not been
sufficiently established since the confiscated plastic sachets
of shabu have been marked/initialed at the scene of the
crime, according to proper procedure. Citing People v. Lim,
(G.R. No. 141699, 7 August 2002, 386 SCRA 581, 597-598,
citing Dangerous Drugs Board Regulation No. 3, Series of
1979, as amended by Board Regulation No. 2, S. 1990.)
which specified that any apprehending team having initial
control of illegal 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. The failure of the agents to comply with

Page 22 of 23
 such requirement raises doubt whether what was submitted
for laboratory examination and presented in court is the same
drug and/or paraphernalia as that actually recovered from the
accused.

While the seized drugs may be admitted in evidence, it

does not necessarily follow that the same should be given
evidentiary weight if the procedure in Section 21 of R.A. No.
9165 was not complied with. The Court stressed that the
admissibility of the seized dangerous drugs in evidence
should not be equated with its probative value in proving the
corpus delicti. The admissibility of evidence depends on its
relevance and competence while the weight of evidence
pertains to evidence already admitted and its tendency to
convince and persuade. (People v. Turco, 392 Phil. 498, 516
(2000). See also Ayala Land, Inc. v. ASB Realty Corporation
and E. M. Ramos and Sons, Inc., G.R. No. 153667, 11
August 2005, 466 SCRA 521, citing Permanent Savings and
Loan Bank v. Velarde, G.R. No. 140608, 23 September 2004,
439 SCRA 1; PNOC Shipping & Transport Corp. v. CA, 358
Phil. 38 (2000); De la Torre v. CA, 355 Phil. 628 (1998).

The presumption of regularity in the performance of

official duty relied upon by the courts a quo cannot by itself
overcome the presumption of innocence nor constitute proof
of guilt beyond reasonable doubt. (People v. Sevilla, 394 Phil.
125, 158 (2000), citing People v. Pagaura, 267 SCRA 17
(1997), and People v. De los Santos, 314 SCRA 303 (1999).
Although the evidence for the defense is weak, the
prosecution must rely on the weight of its own evidence and
cannot draw strength from the weakness of the defense.
(People v. Samson, 421 Phil. 104, 122 (2001).

All told, the corpus delecti in this case is not legally

extant.

All told, it is clear that the conviction of the accused has

absolutely no basis in evidence.

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