[ G.R. No. 241251, December 10, 2019 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SAMMY GLOBA Y COTURA, A.K.A. "JR" AND LOUIE ANADIA Y LUGARPO, ACCUSED-APPELLANTS.
CONCURRING OPINION
CAGUIOA, J.:
I agree with the ponencia that accused-appellants Sammy Globa y Cotura and Louie Anadia y Lugarpo should be acquitted for the prosecution's failure to prove an unbroken chain of custody of the subject shabu, which placed its integrity in doubt.
Principally, in prosecuting violations of Republic Act No. (RA) 9165,1 it is imperative that the identity and source of the seized substances as proof of the corpus delicti be sufficiently established.2 The law and the unambiguous guidelines laid down by the Court have provided exacting safeguards on the preservation of the chain of custody of seized drugs, owing in large part to the ease with which such specimens may be switched, planted, or otherwise contaminated.
The establishment of the integrity of the corpus delicti is ensured by following the procedure provided in Section 21 of RA 9165, to wit:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/ Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours[.]3
Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165 (IRR) further specifies where the physical inventory and photographing of the seized items should be done, thus:
SEC. 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/ Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(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[.]4
Given the nature of a buy-bust operation, the possibility of abuse during its conduct is great,5 and law enforcers have been reminded time and again to precisely observe and comply with the above requirements,6 lest their efforts in the State's campaign against illegal drugs be rendered inconsequential due to no other fault than their own. Several cases decided by the Court have so far shown that this failure often occurs during the seizing of the illegal drugs and the inventory thereof, particularly with respect to the site of the physical inventory and photographing of the same.
Facially, the language of Section 21(a), Article II of the IRR allows for physical inventory and photographing of the seized items to be conducted at the nearest police station or at the nearest office of the apprehending officer or team. However, such procedural concession must not be taken as an unbridled license to not undertake the inventory at the place of arrest, under the guise of practicability. Existing jurisprudence clarifies the phrase "immediately after seizure and confiscation" to contemplate the ideal compliance of conducting the physical inventory and photographing of the drugs immediately after, or at the place of apprehension.7
In People v. Adobar,8 this Court took the opportunity to elucidate the legally contemplated application of the phrase "immediately after seizure and confiscation," to wit:
The phrase "immediately after seizure and confiscation" means that the physical inventory and photographing of the drugs must be at the place of apprehension and/or seizure. If this is not practicable, it may be done as soon as the apprehending team reaches the nearest police station or nearest office.
In all of these cases, the photographing and inventory are required to be done in the presence of any elected public official and a representative from the media and the DOJ who shall be required to sign an inventory and given copies thereof. By the same intent of the law behind the mandate that the initial custody requirements be done "immediately after seizure and confiscation," the aforesaid witnesses must already be physically present at the time of apprehension and seizure - a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its very nature, a planned activity. Simply put, the buy-bust team had enough time and opportunity to bring with them these witnesses.
In other words, while the physical inventory and photographing is allowed to be done "at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure," this does not dispense with the requirement of having the DOJ and media representative and the elected public official to be physically present at the time of and at or near the place of apprehension and seizure so that they can be ready to witness the inventory and photographing of the seized drugs "immediately after seizure and confiscation."
The reason is simple, it is at the time of arrest or at the time of the drugs' "seizure and confiscation" that the presence of the three (3) witnesses is most needed. It is their presence at that point that would insulate against the police practices of planting evidence. x x x9
In other words, pragmatic convenience does not discharge the apprehending officers from the primary duty to exert every effort to inventory and photograph the confiscated items at the very site where they were seized. In no uncertain terms, this objective is further concretized by the governing internal rules and guidelines of the Philippine National Police (PNP). Under the 1999 Philippine National Police Drug Enforcement Manual (PNPDEM),10 or the precursor of the Anti-Illegal Drugs Operation and Investigation (AIDSOTF-Manual) of 2010 and 2014, the strict procedure in the photographing and inventory of the seized items has been detailed, to wit:
Anti-Drug Operational Procedures
Chapter V. Specific Rules
x x x x
B. Conduct of Operation: (As far as practicable, all operations must be officer led)
1 Buy-Bust Operation - in the conduct of buy-bust operation, the following are the procedures to be observed:
x x x x
k. Take actual inventory of the seized evidence by means of weighing and /or physical counting, as the case may be;
l. Prepare a detailed receipt of the confiscated evidence for issuance to the possessor (suspect) thereof;
m. The seizing officer (normally the poseur-buyer) and the evidence custodian must mark the evidence with their initials and also indicate the date, time and place the evidence was conficated/seized;
n. Take photographs of the evidence while in the process of taking the inventory, especially during weighing, and if possible under existing conditions, the registered weight of the evidence on the scale must be focused by the camera; and
o. Only the evidence custodian shall secure and preserve the evidence in an evidence bag or in appropriate container and thereafter deliver the same to the PNP CLG for laboratory examination.
Furthermore, in the Revised PNP Manual on AIDSOTF-Manual the handling, custody and disposition of the seized illegal drugs are also prescribed:
Section 2-6 Handling, Custody and Disposition of Drug and Non-
Drug Evidence
2.33. During handling, custody and disposition of evidence, provisions of Section 21 , RA 9165 and its IRR as amended by RA 10640 shall be strictly observed.
2.34. Photographs of pieces of evidence must be taken immediately upon discovery of such, without moving or altering its original position, including the process of recording the inventory and the weighing of illegal drugs in the presence of required witnesses, as stipulated in Section 21, Article II, RA 9165, as amended by RA 10640.
xxxx
a. Drug Evidence
-1 Upon seizure or confiscation of illegal drugs or 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) With an elected Public Official; and
(c) Any representatives from the Department of Justice or Media who shall affix their signatures and who shall be given copies of the inventory.
-2 For seized or recovered drugs covered by Search Warrants, the inventory must be conducted in the place where the Search Warrant was served.
-3 For warrantless seizures like buy-bust operations, inventory and taking of photographs should be done at the nearest Police Station or Office of the apprehending Officer or Team.11
These stipulated protocols in the PNPDEM and the AIDSOTF-Manual indicate that when the law provided that the physical inventory and photographing be "immediately after seizure and confiscation," it meant for the inventory and photographing to be done at the very site of seizure, and not elsewhere once removed from the place of arrest.
The seeming contradiction of the third sub-paragraph of 2.34, i.e., that inventory and photographing after warrantless seizures are to be done at the nearest police station, with the general rule on "on-site" inventory and photographing, i.e., "immediately after seizure and confiscation," must be reconciled because it so far departs from the letter and spirit of Section 21 of RA 9165 and Section 21(a), Article II of its IRR in that it prescribes as mandatory a crucial stage in the buy-bust operation. Particularly, it provides that inventory and photographing after warrantless seizures "should" be done at the police station nearest the site of the buy-bust operation, when the aforecited Sections of RA 9165 and its IRR require that the inventory and photographing be done "immediately" after seizure and confiscation (or the buy-bust transaction), subject to the different situational challenges existing during the buy-bust operation which warrant whenever "practicable," conducting the inventory and taking of photographs at the nearest police station or office of the apprehending team. In addition, this provision is also inconsistent with the requirements included in the same enumeration that refers to the handling of "Drug Evidence," specifically the main subhead of 2.34 which requires that evidence must be photographed and inventoried without being moved or altered from their original position, and 2.34(1) which provides that physical inventory, markings and photographing of seized items must be done at the same place of operation.
In other words, Section 21(a), as a general rule and as fleshed out by jurisprudence, primarily requires that the inventory be done at the place of seizure. As an exemption to that general rule, in the event of situational challenges that prevent the photographing and inventory at the place of arrest, and with a satisfactory justification therefor, only then may the same be done at the nearest police station or office of the apprehending officers.
Further, during prosecution, mere invocation of an inconvenience that rendered the inventory impracticable at the site of seizure does not translate to substantial compliance with Section 21(a), especially if such invocation is not sufficiently explained in the records of the case and supported by evidence.
If the rule were otherwise, the very purpose for which such requirement was provided may very well be met only in theory, but defeated in practice.
The danger of slackened compliance with this requirement is illustrated in the scenarios on the ground that demonstrate how a perfunctory observance of this requirement opens up the buy-bust operation to the dangerous proclivities12 including planted evidence to incarceration of an innocent for life.
For instance, this practicability clause pertaining to site of inventory has given rise to the propensity of some apprehending officers to choose to conduct photographing and inventory of the seized items at the nearest police station, on the basis of inconveniences, including the seemingly ubiquitous "existence of a commotion."13 This has also often made way for the practice of "calling in"14 the insulating witnesses after the fact of seizure, which has likewise exposed the validity of the seizure and confiscation to question.
The law is likewise categorical that in case of non-compliance, only upon recognition of a lapse in this respect, and a concomitant acceptable justification therefor, may the validity of the subject seizure be maintained. In the case of People v. Barte,15 the Court had expounded on this duty to explain non-compliance:
When there is failure to comply with the requirements for proving the chain of custody in the confiscation of contraband in a drug buy-bust operation, the State has the obligation to credibly explain such noncompliance; otherwise, the proof of the corpus delicti is doubtful, and the accused should be acquitted for failure to establish his guilt beyond reasonable doubt.16
The belated arrival of the insulating witnesses was not justified in this case, let alone recognized, by the apprehending officers, and even on this count alone, without going into the lack of a Department of Justice representative as a witness, the accused already merited acquittal.
For failure to discharge this duty to justify, the saving clause of the Chain of Custody is decidedly out of the question.
With this non-compliance, distrust has been cast on the identity and integrity of the corpus delicti, leading to the absence of an essential element in the crime charged, which, in turn, must inevitably result in reasonable doubt as to the guilt of herein accused.
Based on these premises, I vote to GRANT the instant appeal and REVERSE and SET ASIDE the Decision of the Court of Appeals dated March 15, 2018 finding accused-appellants Sammy Globa y Cotura and Louie Anadia y Lugarpo guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. 9165.
Footnotes
1 Comprehensive Dangerous Drugs Act of 2002.
2 People v. Rojas, G.R. No. 222563, July 23, 2018.
3 Underscoring supplied.
4 Emphasis and underscoring supplied.
5 People v. Santos. Jr., 562 Phil. 458, 471 (2007).
6 People v. Luna, G.R. No. 219164, March 21, 2018, 860 SCRA 1, 36.
7 People v. Sampa, G.R. No. 242160, July 8, 2019; citation omitted.
8 G.R. No. 222559, June 6, 2018, 865 SCRA 220.
9 Id. at 251-252; emphasis and underscoring in the original, citations omitted.
10 PNPM-D-O-3-1-99[NG].
11 Emphasis supplied .
12 See People v. Dela Cruz, 666 Phil. 593 (2011); Valdez v. People, 563 Phil. 934 (2007); Arcilla v. Court of Appeals, 463 Phil. 914 (2003 ); and People v. Pagaura, 334 Phil. 683 (1997).
13 People v. Sampa, supra note 7.
14 See People v. Ordiz, G.R. No. 206767, September 11, 2019; People v. Narvas, G.R. No. 241254, July 8, 2019; People v. Dagdag, G.R. No. 225503, June 26, 2019; People v. Nieves, G.R. No. 239787, June 19, 2019; People v. Malana, G.R. No. 233747, December 5, 2018; People v. Rivera, G.R. No. 225786, November 14, 2018; People v. Musor, G.R. No. 231843, November 7, 2018; and People v. Tomawis, G.R. No. 228890, April 18, 2018, 862 SCRA 131.
15 806 Phil. 533 (2017).
16 Id. at 536.
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