G.R. No. 223713




Manila SECOND DIVISION [ G.R. No. 223713. January 07, 2019 ] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. RODELINA MALAZO Y DORIA, APPELLANT. D E C I S I O N CARPIO, ACTING C.J.: The Case This is an appeal to reverse the 27 January 2014 Decision1 of the Court of Appeals in CA-G.R. CR-HC No. 05371 which affirmed the 3 November 2011 Joint Decision2 of the Regional Trial Court of Dagupan City, Branch 44 (RTC), in Criminal Case Nos. 2008-0225-D and 2008-0226-D, finding appellant Rodelina Malazo y Doria3 (Malazo) guilty of violating Sections 5 and 11, Article II of Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002.1a⍵⍴h!1 The Charge In an Information dated 29 April 2008, Malazo was charged with illegal sale of the drug Methamphetamine Hydrochloride (shabu). The accusatory portion of the Information reads: That on or about the 28th day of April, 2008, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused RUBELINA MALAZO Y DORIA, did then and there, willfully, unlawfully and criminally, sell and deliver to a customer Shabu contained in one (1) heat-sealed plastic sachet, weighing more or less 0.15 gram, without authority to do so. Contrary to Article II, Section 5, R.A. 9165.4 Another Information was filed on the same date indicting Malazo for illegal possession of shabu. The accusatory portion reads: That on or about the 28th day of April, 2008, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, RUBELINA MALAZO Y DORIA, did then and there, willfully, unlawfully and criminally, have in [her] possession, custody and control Shabu contained in three (3) heat-sealed plastic sachets, weighing more or less 0.190 gram, without authority to possess the same. Contrary to Article II, Section 11, R.A. 9165.5 During her arraignment on 13 May 2009, Malazo pleaded not guilty. A pre-trial was conducted on 7 October 2009. A trial on the merits of the two cases ensued thereafter. The prosecution presented the testimonies of the following witnesses: (1) Police Inspector Joel Cabaddu (P/Insp. Cabaddu), a member of the Philippine National Police (PNP) Dagupan City, who was designated as the duty investigator and poseur-buyer during the buy-bust operation; and (2) Police Officer 2 Angelita Canilang (PO2 Canilang), a member of the PNP Dagupan City Police Station, who prepared the certification for the police blotter entries pertaining to the buy-bust operation. Upon the admission of Malazo's counsel that (1) Police Senior Inspector Myrna C. Malojo (P/SInsp. Malojo) is an expert witness and was the forensic chemist who received and examined the specimen submitted to their office, and who prepared a report indicating that the seized items yielded a positive result for shabu; and (2) Police Officer 3 Christian Carvajal (PO3 Carvajal) submitted the confiscated items to the chemical laboratory for examination, the testimonies of these two witnesses were dispensed with.6 The defense adduced in evidence Malazo's own testimony and that of her mother, Marcelina Doria. Version of the Prosecution On 28 April 2008, P/Insp. Cabaddu received a report from a civilian asset that Malazo and her mother were drug peddlers. A buy-bust team was then formed with P/Insp. Cabaddu as leader and some police officers of the Dagupan City Police Station as other team members. The buy-bust team prepared, recorded, and photocopied five One Hundred Peso bills with serial numbers LD138437, TY181177, NS59446, UG357642, and CJ951433 to be used in the operation. At around 4:00 in the afternoon on the same date, P/Insp. Cabaddu together with the confidential asset arrived in front of Malazo's house in Pantal District, Dagupan City. Thereafter, the confidential asset approached Malazo and told Malazo that P/Insp. Cabaddu wanted to buy some shabu. Malazo immediately brought out one (1) heat-sealed plastic sachet and handed the same to P/Insp. Cabaddu. In exchange, P/Insp. Cabaddu gave Malazo the marked five pieces of One Hundred Peso bills. After the transaction was consummated, P/Insp. Cabaddu dialed the cellphone number of Police Inspector Leo Llamas (P/Insp. Llamas), the head of the Dagupan Police Station, as this was their pre-arranged signal. P/Insp. Cabaddu proceeded to arrest Malazo, but Malazo tried to escape by running towards her house. P/Insp. Cabaddu chased Malazo and upon getting hold of her, P/Insp. Cabaddu searched Malazo's pockets, and he found and confiscated three more heat-sealed plastic sachets of shabu. After the arrest, P/Insp. Cabaddu prepared a Confiscation Receipt with a note that states that Malazo and her mother refused to sign the same. P!Insp. Cabaddu marked the confiscated items. The confiscated items, Malazo, her mother, and a barangay kagawad were all photographed. Subsequently, Malazo and her mother were brought to the police station where P/Insp. Cabaddu immediately prepared the affidavit of arrest, the letter to the Dangerous Drugs Board and the letter-request to the crime laboratory upon arrival. P/Insp. Cabaddu personally turned over the confiscated items to PO3 Carvajal and instructed PO3 Carvajal to submit the same to the crime laboratory for examination. P/SInsp. Malojo, the forensic chemist, confirmed that the substance was indeed Methamphetamine Hydrochloride or shabu, a dangerous drug. This was shown in Chemistry Report No. D-027-08L P/SInsp. Malojo prepared. Version of the Defense On 28 April 2008 at around 4:00 in the afternoon, Malazo was with two of her children and her mother in their carinderia, a small store which was part of their kitchen. Malazo saw four men alight from a tricycle. One of them was Lucas Salonga (Salonga), a police officer. Salonga entered Malazo's carinderia and asked her what her name was Malazo retorted, asking Salonga what he wanted from her. Salonga told her to remain seated. Afterwards, the police officers instructed Malazo to get a basin. When Malazo returned with the basin, he saw that her mother was in an argument with the police officers.£A⩊phi£ One of the men placed her mother's wallet inside the basin. The police officers asked: Malazo to come with them to the police station. Malazo refused the invitation as she alleged that she had not done anything wrong. She was thereafter handcuffed and was made to board the police vehicle, together with her mother. They were both brought to the police station. At the police station, the police officers photocopied some pieces of peso bills, crumpled them and thew a piece of paper in the garbage can. According to Malazo, the police officers were only making fun of her and there was no buy-bust operation. Malazo added that the police officers were only retaliating against hr because she had once turned down a previous request of P/Insp. Llamas. She further went on to allege that there was an incident where P/Insp. lamas served her with a fake warrant of arrest just to harass her and force her to divulge the names of big-time drug pushers in their area. Malazo's testimony was corroborated by her mother who likewise narrated that on even date, Police Officer Salonga and other men wearing civilian clothes and Muslim hats alighted from a tricycle in front of their house. The men proceeded to their house and instructed them to stay put while they waited for P/Insp. Llamas. When P/Insp. Llamas arrived, he asked Malazo's mother what was inside her pocket. Malazo's mother answered that it was money that she collected. Malazo's mother was ordered to put all her money inside a basin. Her money amounting to PhP 1,150.00 consisted of the following: two Five Hundred Peso (PhP 500.00) bills; one One Hundred Peso (PhP 100.00) bill; and coins totalling P50.00. The police officers compared the confiscated bills from Malazo's mother with the photocopied bills and confirmed that they matched. Malazo and her mother were then dragged to the police station and when Malazo resisted, stating that nothing was confiscated from her, the police officers pointed a gun at her and her child. At the police station, the police officers crumpled a piece of paper which was the photocopy of the bills and threw it afterwards in the garbage can. As a replacement, the confiscated bills from Malazo's mother were reproduced. Malazo's mother alleged that P/Insp. Llamas was implicating them in the crime merely because they refused to cooperate when P/Insp. Llamas asked them to give the names of the big-time drug pushers in their area. The Ruling of the RTC In its Joint Decision dated 3 November 2011, the RTC found Malazo guilty beyond reasonable doubt of violating Sections 5 and 11 of Article II ofRA 9165. The dispositive portion reads: WHEREFORE, judgement is hereby rendered in: 1. Crim. Case No. 2008-0225[-D] finding accused Rodelina Malazo y Doria GUILTY beyond reasonable doubt with Violation of Art. [II], Sec. 5 of RA 9165 otherwise known as the Dangerous Drugs Act of 2002 and is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine in the amount of Five Hundred Thousand (PhP 500,000.00) Pesos; and, 2. Crim. Case No. 2008-0226[-D] finding accused Rodelina Malazo y Doria GUILTY beyond reasonable doubt with Violation of Art. [II], Sec. 11 of RA 9165 otherwise known as the Dangerous Drugs Act of 2002 and is hereby sentenced to suffer imprisonment ranging from twelve (12) years and one (1) [day] to twenty (20) years and a fine of Three Hundred Thousand Pesos (PhP 300,000.00). The subject four (4) plastic sachets of shabu are hereby ordered disposed of in accordance with law. SO ORDERED.7 The RTC held that the prosecution, through the testimony of P/Insp. Cabaddu, was able to establish positively the events that took place on 28 April 2008. Furthermore, the qualitative examination conducted by P/SInsp. Malojo on the contents of the subject bur heat-sealed plastic sachets "gave POSITIVE results to the tests for the presence of Methamphetamine Hydrochloride, a dangerous drug."8 Between P/Insp. Cabaddu's positive testimony and Malazo's bare denial, the RTC found the former more credible. As for Malazo's mother, Marcelina Doria, she admitted during her testimony that she was acquitted in the first case in the sale and delivery of dangerous drugs. In the second case, regarding the possession of dangerous drugs, the case was dismissed by the Office of the Prosecutor. The Ruling of the Court of Appeals In its Decision dated 27 January 2014, the Court of Appeals held that the elements of sale and delivery of dangerous drugs under Section 5, Article II of RA 9165, and possession of dangerous drugs under Section 11, Article II of the same law were duly established by the evidence offered and submitted by the prosecution. Furthermore, the Court of Appeals held that the procedural rule laid down in Section 21 of RA 9165 is not an iron-clad rule and that nonobservance of the said rule does not automatically translate into an acquittal. The Court of Appeals held: An astute perusal of the records of the instant case would affirm that there was substantial compliance with the law and the integrity of the drug seized from accused-appellant was preserved. Contrary to accused appellant's claim, there was no broken chain in the custody of the seized item, found to be shabu, from the time when P/Insp. Cabaddu seized the shabu up to the time when it was turned over to the Forensic Chemist of the PNP Crime Laboratory Office for laboratory examination.9 The dispositive portion of the Court of Appeals' Decision reads: WHEREFORE, in view of the foregoing premises, judgement is hereby rendered by us DENYING the appeal filed in this case. The Joint Decision dated November 3, 2011 rendered by Branch 44 of the Regional Trial Court in Dagupan City in Criminal Case Nos. 2008-0225-D and 2008-0226-D is hereby AFFIRMED. SO ORDERED.10 The Issue Whether or not Malazo is guilty of violating Sections 5 and 11, Article II of RA 9165. The Ruling of this Court The appeal is meritorious. The prosecution failed to prove the guilt of Malazo beyond reasonable doubt. Malazo alleged that the Court of Appeals "failed to take into account the glaring lapses which the prosecution witnesses committed from the time the alleged illegal drugs were seized from [Malazo] up to the time the same were presented in court, thereby resulting in a broken chain of custody."11 The recent case of People v. Lim12 discussed the importance of the chain of custody rule which adheres to the principle that "real evidence must be authenticated prior to its admission into evidence."13 This is in accordance with Section 21(1), Article II of RA 9165, as amended by Section 1 of Republic Act No. 10640.14 However, the original provision of Section 21(1) still applies to this case because the alleged crime was committed in 2008 prior to the amendment of the law in 2014. Section 21(1) thus reads: Section 21. x x x. (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; (Emphasis supplied) Section 21(a) of the Implementing Rules and Regulations (IRR) of RA 9165 reads: Section 21. x x x. (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 personls 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 evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; The original provision of Section 21(1) enumerates the four persons who need to be present during the physical inventory and taking of photograph of the drugs after the apprehending team seizes and confiscates the same. These are: (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel; (2) a representative from the media; (3) a representative from the DOJ; and (4) any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The presence of these persons will guarantee "against planting of evidence and frame up." They are "necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity."15 In the present case, P/Insp. Cabaddu testified that the seized illegal drugs were physically inventoried and photographed in the presence of Malazo and an elected public official at the place of arrest. However, there were no representatives from the media and the DOJ, and the elected public official failed to sign the copies of the inventory, in this case the confiscation receipt, and was not given copies thereof, as required by Section 21 of RA 9165 and its IRR. The absence of these requirements is glaring from the testimony of P/Insp. Cabaddu when he was questioned in court by Public Prosecutor Julie Namoro: Q: After you have arrested the two (2) accused Rodelina Malazo and Marcelina Doria, what did you do next? A: I prepared the confiscation receipt. x x x x Q: After you have prepared the confiscation receipt, what else did you do, if there was any? A: We brought the suspect [to] the Dagupan City Police Station to conduct another investigation and prepare the filing of these cases. x x x x Q: And, with the items which you said that you were in possession [of], what did you do with those items? A: After preparing all the documents, [I gave the case folder] to PO2 Carvajal to bring the items to the crime laboratory. Q: Before giving [them] to PO2 Carvajal what did you do with the items recovered from the accused and the one [which is] the subject matter of the filing, if there was any? A: I [took a picture of] the items, ma'am. x x x x Q: You also mention[ed] the pictures, whose pictures [are you] referring to? A: The pictures of the suspect, witness Kagawad and the items seized. x x x x Q: You said that after you have prepared the documents, you turned over the items subject matter of these cases to PO2 Carvajal, why did you turn over the same to PO2 Carvajal? A: I assigned him to bring the items to the crime laboratory for laboratory examination, Your Honor.16 According to Section 21(a) of the IRR, non-compliance with the procedure shall not render void and invalid the seizure and custody of the drugs only when: (1) such non-compliance was under justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. After a perusal of the records of this case, we find that the apprehending team not only failed to secure the attendance of persons from the media and the DOJ, and to secure the signature of the elected public official on the copies of the inventory, the prosecution also failed to state the justification for non-compliance and the explanation that the integrity and evidentiary value of the seized items were properly preserved by the apprehending team. Although P/Insp. Cabbadu and the rest of the apprehending team were not directly questioned about the initial control and custody of the seized drugs, we can infer from the testimony above that the apprehending team failed to follow the requirements under Section 21(1) of RA 9165 and Section 21(a) of the IRR. On this ground, we have no recourse but to reverse the Court of Appeals since the seizure and custody of the drugs were void and invalid. As a final reminder, we laid down guidelines in People v. Lim17 that must be followed in order that the provisions of Section 21 of RA 9165, as amended, be well-enforced and duly proven in courts: 1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21(1) of R.A. No. 9165, as amended, and its 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. It must be noted that the above-mentioned guidelines are prospective in nature. This was explained in the Court's Resolution, dated 13 November 2018, in People v. Lim. The Court stated: x x x. Thus, in order to weed out early on from the courts' already congested docket any orchestrated or poorly built up drug-related cases, the following should henceforth be enforced as a mandatory policy: x x x x Synonymous to "henceforth" are "from now on," "from this point forward," "henceforward," "afterward," "later," "subsequently," "hereupon" or "thereupon." Without doubt, the mandatory policy in Lim is applicable only to drug cases under R.A. No. 9165, as amended by R.A. No. 10640, filed in court after the promulgation of Lim on September 4, 2018. x x x. Such policy does not apply to cases filed before the promulgation of Lim where the accused has already been arraigned and is undergoing continuous trial, because the justifiable reasons for noncompliance with Section 21, R.A. No. 9165, as amended by R.A. No. 10640, can still be established during trial. Non-compliance with the policy in Lim is not a ground for acquittal based on reasonable doubt or violation of the chain of custody rule, which can only be decreed after trial, or pursuant to a demurrer to evidence under Section 23, Rule 119 of the Rules of Court.18 (Emphasis supplied) Recent jurisprudence has expounded on the policy by consistently ruling that the prosecution must at least adduce a justifiable reason for non observance of the rules or show a genuine and sufficient effort to secure the required witnesses, in accordance with the rules on evidence. The rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized item. We reiterate that a stricter adherence to this rule is required especially when the quantity of the illegal drugs is miniscule since it is highly susceptible to planting, tampering, and alteration.19 The apprehending team may, but is not limited to, use any of the following reasons for failing to obtain the required witnesses, as held in People v. Sipin:20 The prosecution never alleged and proved that the presence of the required witnesses was not obtained for any of the following reasons, such as: (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[s] 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. There being no justifiable reason for the non-compliance with Section 21, RA 9165, we find it necessary to acquit Malazo for failure of the prosecution to prove Malazo's guilt beyond reasonable doubt. WHEREFORE, the Decision dated 27 January 2014 of the Court of Appeals in CA-G.R. CR-HC No. 05371, affirming the 3 November 2011 Joint Decision of the Regional Trial Court, Dagupan City, Branch 44 in Criminal Case Nos. 2008-0225-D and 2008-0226-D finding appellant Rodelina Malazo y Doria guilty of violating Sections 5 and 11, Article II of Republic Act No. 9165, is REVERSED and SET ASIDE. Appellant Malazo is ACQUITTED for failure of the prosecution to prove her guilt beyond reasonable doubt. She is ordered IMMEDIATELY RELEASED from detention, unless she is confined for any other lawful case. Let a copy of this Decision be furnished the Superintendent of the Correctional Institution for Women in Mandaluyong City, for immediate implementation. Said Superintendent is ordered to report to this Court within five (5) working days from receipt of this Decision the action she has taken. SO ORDERED. Perlas-Bernabe, Caguioa, J. Reyes, Jr., and Hernando,* JJ., concur. Footnotes * Designated additional member per Special Order No. 2630 dated 18 December 2018. 1 Rollo, pp. 2-17. Penned by Associate Justice Isaias P. Dicdican, with Associate Justices Michael P. Elbinias and Victoria Isabel A. Paredes concurring. 2 CA rollo , pp. 8-16. Penned by Judge Genoveva Coching-Maramba. 3 Also referred to in the Records as "Rubel ina Malazo y Doria." 4 Records (Crim. Case No. 2008-0225-D), p. 1. 5 Records (Crim. Case No. 2008-0226-D), p. 1. 6 Rollo, p. 4. 7 CA rollo, p. 16. 8 Id. at 15. 9 Rollo, p. 14. 10 Id. at 16. 11 CA rollo, p. 64. 12 G.R. No. 231989, 4 September 2018. 13 People v. Lim, id., citing United States v. Rawlins, 606 F.3d 73 (2010). 14 An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165, Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2002." 15 People v. Señeres, G.R. No. 231008, 5 November 2018, citing People v. Sagana, G.R. No. 208471, 2 August 2017, 834 SCRA 225. 16 TSN, 24 August 2010, pp. 7-8, 11-12. 17 Supra note 12. 18 Id. 19 People v. Señeres, G.R. No. 21008, 5 November 2018, citing People v. Saragena, G.R. No. 210677, 23 August 2017, 837 SCRA 529 and People v. Abelarde, G.R. No. 215713, 22 January 2018. 20 G.R. No. 224290, 11 June 2018. The Lawphil Project - Arellano Law Foundation