THIRD DIVISION

June 3, 2019

G.R. No. 234773

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
ALMASER JODAN Y AMLA, Accused-Appellant

D E C I S I O N

PERALTA, J.:

Before us is an appeal filed by appellant Almaser Jodan y Amla assailing the Decision1 dated June 30, 2017 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 08262 which affirmed the Judgment2 dated June 19, 2015 of the Regional Trial Court (RTC) of Quezon City, Branch 78, in Criminal Case No. Q-08-150522, convicting him of violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as amended.

In an Information3 dated January 4, 2008, appellant was charged with violation of Section 5, Article II of R.A. No. 9165, as follows:

That on or about [the] 4th day of October, 2007 in Quezon City, [Philippines,] accused without lawful authority did then and there willfully and unlawfully sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport, or act as broker in the said transaction a dangerous drug, to wit:

Zero point zero three (0.03) [gram] of white crystalline substance containing Methylamphetamine Hydrochloride also known as "SHABU".

CONTRARY TO LAW.4

Appellant, duly assisted by counsel, was arraigned and pleaded not guilty to the charge.5 Pre-trial and trial thereafter ensued.

The prosecution presented, as witnesses: PO3 Leonardo Ramos, Jr., PO1 Alexander Jimenez, PO1 Teresita B. Reyes, and Police Chief Inspector Bernardino Banac, Jr. who established the following facts:

On October 3, 2007, PO1 Reyes was on duty at Camp Karingal, Quezon City, when a confidential informant (CI) arrived and gave information to a certain Police Inspector Palisoc regarding the illegal drug activities of one alias "Almaser" in Barangay Culiat, Quezon City.6 PO1 Reyes and Police Inspector Palisoc advised their Chief about it and a buy-bust team was formed composed of PO1 Reyes who was designated as the poseur-buyer,7 Police Inspector Palisoc, PO3 Ramos, PO2 Joseph Ortiz, PO1 Peggylynne Vargas and PO1 Jimenez.8 PO1 Reyes prepared the buy-bust money where she put her initials "TBR" on the upper right hand portion thereof. PO2 Ortiz prepared the pre-operation report9 and coordinated with the Philippine Drug Enforcement Agency which subsequently issued a certificate of coordination.10 PO3 Ramos heard from their team leader, SPO2 Dante Nagera, that the latter called up the Department of Justice (DOJ) and the media, but no one was available at that time.11

At 6:25 a.m. of the following day, October 4, 2007, PO1 Reyes and the CI went to Mujahaden Street, Salam Mosque Compound, Culiat, Quezon City, on board a tricycle, while the other operatives had gone ahead to the said area.12 Upon reaching the place, PO1 Reyes and the CI alighted in an alley and approached a man named "Almaser" who turned out to be appellant.13 The CI then introduced PO1 Reyes to appellant as a shabu buyer and appellant asked PO1 Reyes, "i-iskor ka ba?" to which she replied, "Oo, pakuha ng dos" which meant ₱200.00 worth.14 Appellant took the ₱200.00 from PO1 Reyes and handed her a plastic sachet containing white crystalline substance.15 PO1 Reyes then executed the pre-arranged signal by touching her right ear.16 At this point, the rest of the buy-bust team approached and introduced themselves as Police officers.17 PO3 Ramos then proceeded to search appellant's pocket and was able to recover the buy-bust money and two more plastic sachets containing white crystalline substance.18 While at the crime scene, PO1 Reyes marked the sachet she bought from appellant with her initials "TBR,"19 and PO3 Ramos marked the two other sachets recovered from appellant's possession, with his initials "LRR-10-04-07 and LRR 10-04-07-1," as well as the buy-bust money.20 An inventory receipt was also prepared at the crime scene where the same was signed by PO3 Ramos and by the other Policemen.21

Thereafter, the team brought appellant and the seized items to their Police station.

The seized items and the inventory receipt were all turned over to the investigator, PO1 Jimenez, who prepared the request for laboratory examination of the items seized from appellant.22 PO2 Ortiz was the one who brought the letter-request and the specimens to the crime laboratory for testing.23 The specimens submitted tested positive for methamphetamine hydrochloride per Chemistry Report No. D-345-07 issued by the Forensic Chemist, Police Chief Inspector Banac.24

Appellant denied the charge and claimed that at 6:00 a.m. of October 4, 2007, he was sleeping with his family in a rented house in Culiat, Quezon City, when someone suddenly kicked the door of their room and four men entered and shouted "mga pulis kami."25 The Police then started rummaging their belongings and when he asked them what the search was all about, one of the Policemen pointed a gun at him and handcuffed him.26 His two children were crying and his wife was in shock.27 He was brought outside and loaded in a private vehicle and taken to the precinct where he was asked his name and other personal information.28 Later, PO1 Jimenez demanded the amount of P30,000.00 from him.29 When he said that he has no relatives in Metro Manila and had no money, the Police uttered, "pano yan tutuluyan ka na namin," and he was brought to the detention cell.30 He was later brought for inquest.31 He only saw the Policemen who arrested him for the first time on that day and had no previous quarrel with them.32

On June 19, 2015, the RTC issued its Judgment, the dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds that the prosecution was able to prove the guilt of the accused ALMASER JODAN y AMLA beyond reasonable doubt for having violated the provisions of Section 5, Article II, of Republic Act No. 9165, more known as the Comprehensive Dangerous Drugs Act of 2002 and is hereby sentenced to suffer the penalty of Life Imprisonment, and to pay the fine of Php500,000.00 pesos, Philippine Currency, plus the cost of suit. The accused being a detention prisoner, his period of preventive imprisonment shall be properly credited in his favor in strict conformity with the provisions of existing rules and regulations on the matter.

The dangerous drug submitted as evidence in this case is hereby ordered to be transmitted to the Philippine Drug Enforcement Agency (PDEA) for destruction and /or disposition pursuant to the provisions of our laws, rules and regulations on the matter.

Let the Mittimus and necessary documents be prepared for the immediate transfer of the custody of accused to the Bureau of Corrections, National Bilibid Prisons in Muntinlupa City, pursuant to OCA Circular No. 4-92-A.

SO ORDERED.33

The RTC found that the integrity and evidentiary value of the drugs seized from appellant had been properly preserved, i.e., the arresting officers immediately marked at the site the drugs seized and recovered from appellant; and that the same marked plastic sachets were sent for chemical analysis which yielded a positive result for dangerous drugs. Appellant was positively identified by the prosecution witnesses as the person who sold and possessed the shabu presented in court; and that the delivery of the contraband to the poseur buyer and the receipt by the seller of the marked money successfully consummated the buy-bust transaction between the entrapping officers and appellant. The prosecution complied with the requirement of proving the corpus delicti because there were no substantial gaps in the chain of custody of the seized drugs that could raise doubt on the authenticity of the evidence presented in court. The Police officers were presumed to have performed their duties in a regular manner. The RTC found appellant's denial not substantiated by clear and convincing evidence.

Aggrieved, appellant appealed to the CA. After the filing of the parties' respective briefs, the case was submitted for decision.

On June 30, 2017, the CA issued its assailed Decision which denied appellant's appeal and affirmed the RTC Judgment.

The CA found that the integrity of the drugs seized remained unscathed. PO1 Reyes was in custody of the dangerous drugs from the time she recovered the same up to the Police station where she turned them over to the desk officer; that the assigned investigator prepared the request for laboratory examination; and that PO2 Ortiz personally delivered the specimens to the crime laboratory which when examined yielded a positive result for illegal drugs. There was no showing of any tampering of the specimens seized before their delivery to the Forensic Chemist. As to the non-presentation of the desk officer who received the items from the poseur buyer, it was not necessary that all persons who came in contact with the seized drugs be required to testify as long as the chain of custody of the seized drugs was clearly established not to have been broken and the prosecution properly identified the items seized.

Appellant filed an appeal with us. We required the parties to file their respective supplemental briefs if they so desire. Both parties filed their respective Manifestations stating that they were no longer filing their supplemental briefs since they had already adequately addressed the issues raised in their briefs filed before the CA.

The issue for resolution is whether the RTC and the CA erred in convicting appellant of the crime charged.

Appellant claims that the prosecution failed to comply with the required procedures on the custody and seizure of dangerous drugs as provided under Section 21, paragraph 1, Article II of R.A. No. 9165 and Article II, Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165 (IRR); and that the prosecution failed to establish the unbroken chain of custody of the seized items from the poseur buyer to the investigator until the same were delivered to the Forensic Chemist.

We find merit in this appeal.

In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.34 The existence of the corpus delicti is essential to a judgment of conviction.35 Hence, the identity of the dangerous drug must be clearly established.

In all drug cases, therefore, compliance with the chain of custody rule is crucial in any prosecution that follows such operation.36 Chain of custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory, to safekeeping, and to presentation in court for destruction.37 The rule is imperative, as it is essential that the prohibited drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit; and that the identity of said drug is established with the same unwavering exactitude as that required to make a finding of guilt.38

Section 21 of R.A. No. 9165 provides for the procedural safeguards in the handling of seized drugs by the apprehending officer/team, to wit:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources or 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[.]

Section 21(a), Article II of the IRR provides the details as to where the inventory and photographing of seized items should be done, and added a saving clause in case of non-compliance with the procedure.

(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[.]

R.A. No. 1064039 amended Section 21 of R.A. No. 9165, incorporating the saving clause contained in the IRR and only requiring two (2) witnesses to be present during the conduct of the physical inventory and taking of photograph of the seized items, namely: (a) an elected public official; and (b) a representative of the National Prosecution Service or the media.

In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe conceded that "while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired and prevent planting of evidence, the application of said section resulted in the ineffectiveness of the government's campaign to stop the increasing drug addiction and also, in the conflicting decisions of the courts."40 Senator Poe stressed the necessity for the amendment of Section 21 of R.A. No. 9165 based on the public hearing that the Senate Committee on Public Order and Dangerous Drugs had conducted, which revealed that "compliance with the rule on witnesses during the physical inventory is difficult. For one, media representatives are not always available in all comers of the Philippines, especially in the remote areas. For another, there were instances where elected barangay officials themselves were involved in the punishable acts apprehended and thus, it is difficult to get the most grassroot elected public official to be a witness as required by law."41

In his Co-sponsorship speech, Senator Vicente C. Sotto III said that in view of the substantial number of acquittals in drug-related cases due to the varying interpretations of prosecutors and judges on Section 21 of R.A. No. 9165, there is a need for "certain adjustments so that we can plug the loopholes in our existing law [and] ensure [its] standard implementation."42 Thus, he explained:

Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates. The presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers makes the requirement of Section 21(a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe for the proper inventory and photograph of the seized illegal drugs.

x x x x

Section 21(a) of RA 9165 needs to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of the law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be inventoried and photographed has to include a location where the seized drugs as well as the persons who are required to be present during the inventory and photograph are safe and secure from extreme danger.

It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the place of seizure or at the nearest Police station or office of the apprehending law enforcers. The proposal will provide effective measures to ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.

Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and the evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances wherein there are no media people or representatives from the DOJ available and the absence of these witnesses should not automatically invalidate the drug operation conducted. Even the presence of a public local elected official also is sometimes impossible especially if the elected official is afraid or scared.43

Appellant committed the crime charged in 2007 and under the original provision of Section 21 of R.A. No. 9165 and its IRR, the apprehending team was required to immediately conduct a physical inventory and photograph the drugs after their seizure and confiscation in the presence of: (a) appellant or his counsel or representative; (b) a representative from the media; (c) a representative from the DOJ; and (d) any elected public official, all of whom shall be required to sign copies of the inventory and be given a copy thereof. The presence of the three witnesses was intended as a guarantee against planting of evidence and frame up, as they were "necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity."44

An examination of the records failed to show that photographs of the drugs inventoried were taken and done in the presence of the required witnesses under Section 21 of R.A. No. 9165. PO3 Ramos testified on cross-examination as follows:

Q: Did you strictly comply with the essential prerequisite in mandatory procedures in drug operation under Sec. 21 of RA 9165?

A: "Iyong Inventory Receipt lang po ang inexecute namin that time."

Q: You mean to tell the Honorable Court that what you mean by strict compliance in Sec. 21 [of] RA 9165 is the execution of the Inventory Receipt?

A: Yes, sir.

Q: That's all?

A: That's all, sir.45

In fact, the inventory receipt showed only the signatures of the Police officers.1‚шphi1 As PO3 Ramos admitted, appellant has no signature in the inventory receipt as the Police officers forgot to ask him to sign the same.46

Although the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of R.A. No. 9165 and the IRR does not ipso facto render the seizure and custody over the items as void and invalid, the prosecution must satisfactorily prove that: (a) there is justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved.

Here, while PO3 Ramos testified that before they conducted the buy≠ bust operation, their team leader, SPO2 Nagera, called up the DOJ and the media, but was told that nobody was available that time;47 however, he admitted on cross-examination that he had no personal knowledge about the call allegedly made by their team leader to the media and DOJ representatives as he was only told that nobody was available.48 Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness.49 Section 36, Rule 130 of the Rules of Court provides that a witness can testify only to those facts which he knows of his own personal knowledge, that is, which are derived from his own perception; otherwise, such testimony would be hearsay. We found no plausible explanation or justification on record why the presence of the required witnesses under Section 21 of R.A. No. 9165 was not procured. The justifiable ground for non-compliance must be proven as a fact because the Court cannot presume what these grounds are or that they even exist.50

In People v. Angelita Reyes, et al.,51 we have enumerated instances which may justify the absence of the required witnesses, to wit:

It must be emphasized that the prosecution must be able to prove a justifiable ground in omitting certain requirements provided in Sec. 21 such as, but not limited to the following: 1) media representatives are not available at that time or that the Police operatives had no time to alert the media due to the immediacy of the operation they were about to undertake, especially if it is done in more remote areas; 2) the Police operatives, with the same reason, failed to find an available representative of the National Prosecution Service; 3) the Police officers, due to time constraints brought about by the urgency of the operation to be undertaken and in order to comply with the provisions of Article 12552 of the Revised Penal Code in the timely delivery of prisoners, were not able to comply with all the requisites set forth in Section 21 of R.A. 9165.

Also, in People v. Vicente Sipin y De Castro,53 thus:

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 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. (Citation omitted.)

The prosecution's unjustified non-compliance with the required procedures under Section 21 of R.A. No. 9165 and the IRR resulted in a substantial gap in the chain of custody of the seized items from appellant; thus, the integrity and evidentiary value of the drugs seized are put in question. Consequently, appellant must be acquitted of the crime charged.

We find that the presumption of regularity in the performance of official functions by the Police officers, as found by the lower courts, cannot stand as the failure to observe the proper procedure negates the operation of the regularity accorded to Police officers. Moreover, to allow the presumption to prevail, notwithstanding clear lapses on the part of the Police, is to negate the safeguards precisely placed by the law to ensure that no abuse is committed.54

WHEREFORE, the appeal is GRANTED. The Decision dated June 30, 2017 of the Court of Appeals in CA-G.R. CR-HC No. 08262 is hereby REVERSED and SET ASIDE. Appellant Almaser Jodan y Amla is accordingly ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. The Director of the Bureau of Corrections is ORDERED to immediately cause the release of appellant from detention, unless he is being held for some other lawful cause, and to inform this Court of his action hereon within five (5) days from receipt of this Decision.

SO ORDERED.

Leonen, A. Reyes, Jr., Hernando, and Inting, JJ., concur.1‚шphi1


Footnotes

1 Rollo, pp. 2-10; penned by Associate Justice Japar B. Dimaampao, and concurred in by Associate Justices Franchito N. Diamante and Zenaida T. Galapate-Laguilles.

2 CA rollo, pp. 46-60; penned by Presiding Judge Fernando T. Sagun, Jr.

3 Records, pp. 1-2.

4 Id. at 1.

5 Id. at 45

6 TSN, June 2, 2009, pp. 15-16.

7 Id. at 6-7.

8 Id. at 16-17.

9 TSN, June 5, 2008, p. 15; TSN, June 2, 2009, p. 17

10 TSN, June 5, 2008, pp. 15-16.

11 Id. at 13.

12 TSN, June 2, 2009, pp. 18-19.

13 Id. at 19-20.

14 Id. at 26.

15 Id. at 27-28.

16 Id. at 28.

17 Id. at 29.

18 Id. at 29-30.

19 TSN, August 4, 2009, p. 4.

20 TSN, June 5, 2008, p. 19.

21 TSN, November 18, 2008, pp. 3-5.

22 Id.; TSN, September 30, 2008, pp. 3-4.

23 TSN, September 30, 2008, p. 5.

24 TSN, March 15, 2010, p. 6.

25 TSN, March 21, 2011, pp. 8-10.

26 Id. at 10-11.

27 Id. at 11.

28 Id. at 13-14.

29 TSN, May 30, 2011, p. 6.

30 Id. at 7-8.

31 Id. at 9.

32 TSN, October 4, 2011, p. 10.

33 CA rollo, p. 60.

34 People v. Morales y Midarasa, 630 Phil. 215, 228 (2010).

35 People v. Jaafar, 803 Phil. 582, 591 (2017).

36 People v. Nila Malana y Sambolledo, G.R. No. 233747, December 5, 2018.

37 Id., citing People v. Guzon, 719 Phil. 441, 451 (2013).

38 Id.

39 Took effect on July 23, 2014.

40 Senate Journal, Session No. 80, 16th Congress, 1st Regular Session, June 4, 2014, p. 348.

41 Id.

42 Id.

43 Id. at 349-350.

44 People v. Sagana, G.R. No. 208471, August 2, 2017, 834 SCRA 225, 247.

45 TSN, September 30, 2008, pp. 11-12.

46 TSN, November 18, 2008, pp. 5-6.

47 TSN, June 5, 2008, p. 13.

48 TSN, September 30, 2008, pp. 17-18.

49 Mira v. Vda. de Erederos, et al., 721 Phil. 772, 790 (2013).

50 People v. De Guzman y Danzil, 630 Phil. 637, 649 (2010).

51 G.R. No. 219953, April 23, 2018.

52 Article 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of[:] twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent[;] and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).

53 G .R. No. 224290, June 11, 2018.

54 People v. Malou Alvarado y Flores, et al., G.R. No. 234048, April 23, 2018, citing People v. Macud, G.R. No. 219175, December 14, 2017.


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