G.R. No. 221434




SECOND DIVISION February 6, 2019 G.R. No. 221434 PEOPLE OF THE PHILIPPINES, Appellee vs. RESTBEI B. TAMPUS, Appellant D E C I S I O N CARPIO, J.: The Case G.R. No. 221434 is an appeal assailing the Decision1 dated 26 June 2015 of the Court of Appeals (CA) in CA-G.R. CR HC No. 01644. The CA affirmed the Judgment2 dated 30 October 2012 of the Regional Trial Court of Cebu City, Branch 57 (RTC), in Criminal Case No. CBU-90797 convicting Restbei B. Tampus (appellant) of violating Section 5, Article II of Republic Act No. 9165 (RA 9165). The Facts The CA summarized the facts as follows: Accused Restbei Tampus was charged with Violation of Section 5, Article II of R.A. 9165 in an Information dated November 10, 2010 which reads as follows: That on or about the 9t1i day of November 2010, at about 11:00 in the morning, in the City of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, and without authority of law, did then and there sell, deliver or give away to poseur buyer one (1) big heat-sealed transparent plastic pack of white crystalline substance weighing 918.17 grams, locally known as shabu, containing methamphetamine hydrochloride, a dangerous drug. CONTRARY TO LAW. Upon her arrest, accused was detained at the Cebu City Jail. On November 25, 2010, accused was arraigned with the assistance of Atty. Prescilla A. Salvacion and pleaded not guilty to the crime charged. Pretrial was conducted where the parties made certain stipulations of facts and the prosecution pre-marked their Exhibits. Thereafter, trial on the merits ensued. The Evidence for the Plaintiff-Appellee From the testimonies of the prosecution witnesses, namely: PO1 Adriano Bacatan and P/Chief Insp. Romeo Santander, the following were established: Sometime in November 2010, the police got wind of the illegal drug activities of a certain "Ebing". Acting on the said information, P/Chief Insp. Romeo Santander, Chief of the CIB, Cebu City Police Office, held a conference on November 8, 2010 with other police officers, together with the informant, for the conduct of an operation against "Ebing". Based on their information, shabu would be arriving from Manila on November 9, 2010. The informant, who had direct contact with "Ebing", told the police officers that "Ebing" would sell about a kilo of shabu for the amount of ₱5,000,000.00, which amount was negotiated down to ₱3,000,000.00. PO1Bacatan was designated as the poseur-buyer and it was agreed that he, together with the informant would meet with "Ebing" along Gen. Maxilom Ave. near the Sacred Heart School for Boys. At around 9:30 in the morning of November 9, 2010, PO1 Bacatan and the informant met with a woman, later identified as the accused, at the agreed place. After the informant introduced PO1 Bacatan to the woman as the buyer of shabu, the informant left. The woman, who was then bringing a bag, asked PO1 Bacatan if he had the money with him. When he said yes, they agreed to transfer to another place where it was safe. They boarded a taxi cab towards the Traveler's Lodge. Meanwhile, the rest of the buy-bust team and standby force were stationed at the Jollibee branch in front of the Immaculada school. Upon arriving at the Traveler's Lodge, they checked into room A24 where PO1 Bacatan handed the money, which he had placed in a blue bag, to accused who handed him the shabu. He then identified himself as a police officer and placed accused under arrest. Using the pre-arranged signal, he called P/Chief Insp. Romeo Santander to tell him that the buy-bust operation had been consummated. The buy-bust team led by P/Chief Insp. Santander then arrived at the Traveler's Lodge. Several members of the media also arrived. PO1 Bacatan placed markings on the shabu taken from accused, prepared an inventory and had photographs taken, all at the place where accused was arrested. The accused was thereafter brought to the CIB office and the shabu was brought to the Crime Laboratory for examination. The buy-bust money was also brought to the police station where the incident was entered in the police blotter. The laboratory examination of the shabu yielded positive results for methamphetamine hydrochloride. After the witnesses' testimonies, the prosecution formally offered their Exhibits "A" to "N" with sub-markings which were admitted by the trial court per Order of November 16, 2011. On rebuttal, Guan1itos P. Logrono stated that he wrote an article in the Sun-Star Super Balita regarding the incident of accused-appellant's arrest and that all information contained therein was based on the statements of accused-appellant to him. Kevin A. Lagunda, also on rebuttal, declared that he is a news reporter of the Sun-Star Daily and he wrote a news story regarding accused-appellant's arrest on November 9, 2010 which was published in the November 10, 2010 issue of the newspaper. The Evidence for tile Accused-Appellant In her testimony, accused-appellant, who is also known as Ebing, declared that she was arrested at the Pier 4 in Cebu City at around 4:00 in the morning of November 9, 2010. She had just arrived from Ormoc City where she was supposed to work as a house helper but it turned out that the job was for a GRO so she went back to Cebu. When she was.about to board a taxi, two persons approached her and told her not to worry. She was told to board the persons' vehicle and she was brought to a hotel at the back of Mango Square. At the pier, before she was approached by the two (2) persons, she was asked by a woman who was carrying a child for help to carry a trolley bag. She agreed to help the woman so she held the woman's trolley and walked al1ead. When she turned to give back the trolley, the woman and her child were no longer there. That was when the two (2) persons approached her. She was brought inside a room at a hotel at the back of Mango Square with Officer Bacatan at around 4:30 A.M. At around 9:00 A.M., she and Officer Bacatan went to the Traveler's Lodge. While she was at the hotel at the back of Mango Square, she and Officer Bacatan were just waiting for his companions. She was afraid to ask what they were doing there. The officer did not recover anything from her backpack. However, he found a package wrapped in plastic inside the trolley of the woman from the pier. The package was about 7"x10" size and contained a white substance. She was later told that it was shabu. She got frightened and she cried because she does not own the trolley where the shabu was recovered. It was at the Traveler's Lodge where media personnel and other companions of Officer Bacatan arrived. After the testimony of accused-appellant, she rested her case without documentary exhibits offered.3 The Ruling of the RTC In a Judgment dated 30 October 2012, the RTC convicted appellant of violating Section 5, Article II of RA 9165. The RTC gave credence to Officer Bacatan's testimony that established in detail the negotiation for the sale of ₱3,000,000 worth of shabu. Appellant did not substantiate her statement that she came from Ormoc. She failed to present a manifesto from the shipping company to show that she was indeed a passenger. Appellant's bare denial cannot outweigh the positive and direct declarations of officer Bacatan. The RTC further stated that the arresting officers, as strangers to appellant, had no motive to fabricate a grave offense against her. The RTC also stated that the chain of custody was duly established. The RTC declared: As stated earlier, the pack of shabu was sold to officer Bacatan by the accused. The former placed the markings "RTB-11-9-10" on the illegal drug and brought the same to the office and finally delivered it to the PNP Crime Laboratory for examination. It was duly received by officer Rama and turned it [sic] over to P/Supt. Salinas. After her examination of the illegal drug, she submitted the same, the letter request and her Chemistry Report No. D-1063-2010 to officer Bucayan, Evidence Custodian of the laboratory. Finally, the subject shabu was presented in court.4 The dispositive portion of the Judgment reads: WHEREFORE, in view of the foregoing, the Court finds accused RESTBEI BASAK TAMPUS guilty beyond reasonable doubt of Violation of Section 5, Article II of RA 9165 and is hereby sentenced to suffer the penalty of life imprisonment and a fine of three (3) million pesos. The subject one big plastic pack of shabu is forfeited in favor of the government. SO ORDERED.5 The CA's Ruling The CA affirmed the ruling of the RTC. The CA ruled that in cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers because it is presumed that they performed their duties in a regular manner and without ill motive. There was a lack of ill motive on the part of the police officers in the present case. Appellant was caught in flagrante delicto violating Section 5, Article II of the Dangerous Drugs Act pursuant to a buy-bust operation. The CA also found that contrary to appellant's contention, the procedural safeguards enunciated in Section 21 of RA 9165 had been complied with. The sale through a buy-bust operation was duly established by the testimony of Officer Bacatan. Officer Bacatan bought the shabu from the appellant, placed markings on it, brought it to the police station, entered the incident of arrest on the police blotter, prepared the letter request for examination, and delivered it to the Crime Laboratory. The CA rejected appellant's contention that the chain of custody was not established because not one of the media representatives or witnesses signed the receipt. The CA ruled that the succession of events, established by the evidence, shows that the shabu taken from appellant was the same one tested, subsequently identified, and testified to in court. Non-compliance with Section 21, especially as to the lack of signatures of media personnel in the present case, is not fatal as long as there is a justifiable ground therefor, and as long as the integrity of the confiscated items is properly preserved by the apprehending officers. Finally, the CA decreed that the prosecution was able to overcome beyond reasonable doubt accused's presumption of innocence. The dispositive portion of the CA's Decision, promulgated on 26 June 2015, reads as follows: WHEREFORE, the appeal is DISMISSED and the October 30, 2012 Judgment rendered by the Regional Trial Court, Branch 57, Cebu City is AFFIRMED. SO ORDERED.6 The Public Attorney's Office (PAO) manifested appellant's intent to appeal in a Notice of Appeal dated 16 July 2015. The Office of the Solicitor General (OSG) filed a Manifestation and Motion (in lieu of Supplemental Brief) on 18 March 20167 which stated that appellee's brief filed before the CA adequately discussed its position on the merits of the case. The Regional Special and Appealed Cases Unit of the PAO, on the other hand, filed a Supplemental Brief on behalf of appellant on 28 April 2016.8 The Issue The PAO questioned in its supplemental brief the Court of Appeals' ruling that the prosecution proffered sufficient evidence to prove that appellant was caught in flagrante delicto of selling illegal drugs pursuant to a buy-bust operation.9 The Court's Ruling We acquit appellant. Contrary to the ruling of the RTC and the CA, the prosecution clearly failed to comply with the requirements of the chain of custody rule under Section 21 of RA 9165, as amended. Section 21 of RA 9165 states: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; x x x x (Emphasis supplied) The implementing rule for Section 21 of RA 9165 states: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (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; x x x x On 15 July 2014, Republic Act No. 10640 amended Section 21 of RA 9165. The pertinent provision states: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance [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 and custody over said items. x x x x (Emphasis supplied) It is clear that the conduct of physical inventory and taking of photograph of the seized items in drugs cases must be in the presence of at least three (3) witnesses, particularly: (1) the accused or the persons from whom such items were confiscated and seized or his/her counsel, (2) an elected public official, and (3) a representative of the National Prosecution Service or the media. The three witnesses, thereafter, should sign copies of the inventory and be given a copy thereof. People v. Sipin10 ruled what constitutes justifiable reasons for the absence of any of the three witnesses: (1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; ( 4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape. People v. Lim11 enumerated this Court's mandatory policy to prove chain of custody under Section 21of RA9165, as amended: 1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of RA 9165, as amended, and it’s IRR. 2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items. 3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause. 4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court. In its brief for accused-appellant filed before the CA, 12 the PAO pointed out the following irregularities, thus: In the course of PO1 Adriano Bacatan's testimony, he unravelled that from the Gen. Maxilom Avenue, he and Restbei Tampus moved to the Traveller's Lodge situated in Carreta near the old White Gold Department Store. The rest of the buy-bust team remained at Jollibee, Gorordo Avenue. At this point when the two moved out from the original place, no transaction of sale took place yet. While at first, the poseur-buyer and the accused may be visible from where the team stood at Jollibee, the two left for a different place quite far removed. The rest of the team were not there to see or hear anything material to this case for illegal sale of drugs. What truly transpired that very time is only known between PO1 Adriano Bacatan and Restbei Tampus. Even if the prosecution would present all other members of the buy-bust team to attest to the fact that a buy-bust operation took place, it would not serve the purpose of establishing the elements of the crime since they were not there at the very scene. They left the heart of the operation to just one person, PO1 Adriano Bacatan. PO1 Adriano Bacatan also said that he wore maong short pants and sleeveless white sando when he met with Restbei Tampus. But the shirt he wore in the photograph taken during the inventory in the alleged crime scene was different. When confronted for the disparity, he said that he changed it for security reasons. This does not persuade. What kind of security did he mean? If anything, it only confirms that he lied. He could lie even about the procedures taken over the alleged buy-bust. Allegedly, the buy-bust team took photos of the inventory. But when the prosecutor asked PO 1 Adriano Bacatan to identify what or who were on the photos, nothing about his answers would show that the requirements of Section 21, Paragraph 1 of Republic Act 9165 were met which provides: 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. PO1 Adriano Bacatan testified: Q: Now, I'm showing to you photographs, seven (7) photographs attached to the record, please go over these photographs and tell the Court whether these are the same photographs that were taken on the items during the inventory that you conducted? A: Yes, sir. This one is the picture taken during the preparation of the inventory of the evidences. Q: Now, please go over the first photograph, who is being depicted on this first photograph? A: This person wearing white t-shirt, this is me, sir. Q: And what is this on top of the table? A: This plastic pack containing white crystalline substance placed on top of the table is the shabu I bought from the suspect, sir. Q: The second photograph, who is this depicted on this second photograph? A: This woman is our subject, "Bing", and she was arrested for selling shabu, sir. Q: Now, this third photograph, what is being depicted on this third photograph? A: On this picture is the pack of shabu I bought from the accused and the next picture is the colored blue bag where the money was placed and beside the bag is the pack of shabu. Q: Now, on this 8th photograph, what is being shown in this? A: This is the room of the Traveller's Lodge where we checked in and the door was opened, sir. Q: So, all the rest of the photographs were taken inside the room where you and the accused transacted? A: Yes, sir. The question which now confronts us is at which point did the media representatives and Mayor Michael Rama arrive? Their presence during the inventory was not identified in the photos. What PO1 Adriano Bacatan enumerated as the ones appearing were himself, the drugs allegedly seized and the accused. Granting arguendo, even if the other persons required were reflected in the photos, it is not conclusive of their involvement in the actual inventory as they did not sign the inventory receipt. In such a situation how could it be proven that the policemen, especially PO1 Adrian Bacatan, faithfully conducted the operation? It needs emphasis once more that the other members of the team were not there when the alleged transaction occurred. There stood a high occasion for irregularities. PO1 Adriano Bacatan described a highly improbable scenario as follows: Q: I'm curious as to what was the condition of the bag for the accused to believe that inside this bag was ₱3 Million? A: When this bag was shown to the accused, this masking tape attached was not yet placed or attached to this bag, ma' am, this bag containing the boodle money and the genuine money and on top of these wad of papers were four pieces genuine money of ₱1,000.00 bills and when I showed this bag to the accused, I partially opened the bag and showed to her the contents and what can be seen is just the genuine money of Php 1,000.00 bills. During the inventory the contents of this bag were taken out in the presence of the media personnel. Q: So, you want to impress [to] this Honorable Court that the accused did not open the bag or did not even attempt to examine the contents thereof, she just believed you with just slightly opening it and with only the P1,000.00 bills visible to her? A: She opened the bag after she handed the pack of shabu to me and I handed this bag to her and she examined it, ma'am. Q: You mean she handed first the item before examining the payment? A: No, ma'am, there was really an exchange. She showed to me the pack of shabu and handed it to me and at the same time, I slightly opened this bag and showed to her the contents. So, there was a simultaneous exchange of the shabu and the bag. There is nothing trivial about the amount involved in the transaction alleged to have taken place. It is a staggering ₱3 Million. It is beyond imagination that the accused should deal with the situation inadvertently. But this is the scenario as PO1 Adriano Bacatan described. According to PO1 Adriano Bacatan, he merely half-opened the bag where only four marked genuine money were placed along with the voluminous wads of paper. After that the accused handed the bag where the shabu was. It was merely that, despite the multi-million transaction. It would have been excusable that the accused would be lax in dealing with PO1 Adriano Bacatan had they had transactions as such many times before.1âшphi1 But that was their first encounter. It would not take a genius to understand that where a large sum of money is at stake, all precautions possible would be undertalcen. xx xx The prosecution attempted to reinforce its case by presenting certain people from the media who narrated about the arrest incident of the accused. But their statements could not agree. One reporter mentioned of a certain Lara who ordered the accused to sell the drugs and yet the other reporter mentioned of a Chinese man. It was a highly irregular conduct for the policemen to allow the media to meddle into the operation to such an extent as eliciting incriminating interview with the accused. Technically speaking, Restbei Tampus was already a suspect for a particular offense under police scrutiny. Such a highly sensationalized exposure to the media could very well affect the outcome of a case which was yet to come. They deprived the accused of the dignity she deserves. What the law requires is an inventory signed by a media representative. But it could not escape notice that despite the presence of a number of media men, not one of them signed the inventory receipt. 13 (Emphasis supplied) It is grave error to trivialize the necessity of the number and identity of the witnesses enumerated in the law. The present case is a clear-cut example of the police officers' cavalier attitude towards adherence to procedure and protection of the rights of the accused. This is contrary to what is expected from our servants and protectors. Not only was there nonobservance of the three-witness rule, there was also no justification offered for its non-observance. WHEREFORE, we GRANT the appeal. The 26 June 2015 Decision of the Court of Appeals in CA-G.R. CR HC No. 01644, which affirmed the 30 October 2012 Judgment of the Regional Trial Court of Cebu City, Branch 57 in Criminal Case No. CBU-90797 finding appellant Restbei B. Tampus of violating Section 5, Article II of Republic Act No. 9165 is REVERSED and SET ASIDE. Accordingly, appellant Restbei B. Tampus is ACQUITTED on reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from detention, unless she is being lawfully held for another cause. Let a copy of this Decision be furnished the Superintendent of the Correctional Institution for Women in Mandaluyong City for immediate implementation. The said Superintendent is ORDERED to REPORT to this Court within five (5) days from receipt of this Decision the action she has taken. SO ORDERED. Perlas-Bernabe, Caguioa, and Hernando,** JJ., concur. J. Reyes, Jr.,* J., on official leave. Footnotes On official leave. * Designated additional member per Special Order No. 2630 dated 18 December 2018. 1 Rollo, pp. 4-14. Penned by Associate Justice Jhosep Y. Lopez, with Associate Justices Pamela Ann Abella Maxino and Germano Francisco D. Legaspi concurring. 2 CA rollo, pp. 25-30. Penned by Presiding Judge Enriqueta Loquillano-Belarmino. 3 Rollo, pp. 5-9. Emphasis in the original. 4 CA rollo, p. 29. 5 Id. at 29-30. 6 Rollo, p. 14. 7 Id. at 25-26. Submitted under the name Solicitor General Florin T. Hilbay, and signed by Assistant Solicitor General Rex Bernardo L. Pascual, and Associate Solicitor Jerros S. Dolino. 8 Id. at 30-35. Submitted under the name of Public Attorney V Maria G-Ree R. Calinawan, Public Attorney II Sylvia A. Aguipo-Luna, Public Attorney II Lyndon D. Falcon, and signed by Public Attorney I Mandy R. Majarocon. 9 Id. at 30. 10 G.R. No. 224290, 11 June2018. 11 G.R. No. 23 I 989, 4 September 2018. 12 CA rollo, pp. 18-23. 13 Id. at 22. The Lawphil Project - Arellano Law Foundation