G.R. No. 233251




THIRD DIVISION [ G.R. No. 233251. March 13, 2019 ] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBEN D. DURAN, ACCUSED-APPELLANT. DECISION PERALTA, J.: Before us is an appeal from the Decision1 dated June 8, 2017 of the Court of Appeals (CA), Cagayan de Oro City, in CA-G.R. CR-HC No. 01523 finding appellant guilty of illegal sale of marijuana, a dangerous drug, in violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. In an Information2 dated December 9, 2013, appellant was charged with violation of Section 5, Art. II of R.A. No. 9165, as follows: That on or about December 6, 2013, in the Municipality of Carmen, Province of Davao del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and knowingly deal, sell and distribute dried marijuana fruiting tops weighing 9.9875 grams to PO2 Bencent T. Manglalan, who acted as poseur[-]buyer.3 Appellant, duly assisted by counsel, was arraigned and pleaded not guilty4 to the charge. Pre-trial and trial thereafter ensued. The prosecution presented the testimonies of PO2 Bencent T. Manglalan* (PO2 Manglalan) and SPO1 Jonathan O. Tabigue (SPO1 Tabigue) which established the following: At 9:30 p.m. of December 6, 2013, PO2 Manglalan and SPO1 Tabigue were on duty at Carmen Police Station, Davao del Norte, when their Chief of Police, Police Senior Inspector (PSI) Reny Valdesco received a report from their confidential informant (CI) that appellant was selling marijuana at Purok 3-A,* Barangay Sto. Nino, Carmen.5 Immediately, PSI Valdesco conducted a briefing for a possible entrapment operation on the appellant. The briefing was attended by Police Inspector (PI) Ruel V. Sinahon, PO2 Manglalan who was designated to act as the poseur buyer, SPO1 Tabigue as the arresting officer, and the CI.6 PO2 Manglalan was given a P200 bill as the buy-bust money which he marked by placing number "10" thereon.7 The Barangay Captain of Purok 3-A was informed of the buy-bust operation.8 At 9:55 p.m., the team left the police station on board the motorcycles. PO2 Manglalan was the driver of the motorcycle with SPO1 Tabigue as his back rider.9 They were following the motorcycle driven by the CI who led them to the target area.10 Upon reaching the area, the team positioned themselves at the comer portion of the barangay road and highway. PO2 Manglalan and the CI waited for appellant, while SPO1 Tabigue positioned himself at the dark portion of the road which was about 20 meters away from them.11 The rest of the buy-bust team were standing at the other side of the road waiting for their call.12 After 5-10 minutes, appellant arrived on board a motorcycle driven by another person and was parked near an electric post which was 20-25 meters away from where PO2 Manglalan and the CI were waiting.13 When appellant alighted from the motorcycle, PO2 Manglalan and the CI approached the former and the CI introduced PO2 Manglalan as "Ku-an," who would like to score as he had already told him earlier.14 Appellant then pulled out from his right pocket the marijuana wrapped in a printed paper and gave it to PO2 Manglalan and told them that he was in a hurry.15 After verifying the content that it was indeed marijuana fruiting tops, PO2 Manglalan gave the P200 marked money to appellant who took and placed it inside his pocket.16 PO2 Manglalan then held appellant's hand and introduced himself as a policeman and informed him of his offense.17 SPO1 Tabigue ran towards them and started frisking the appellant and was able to recover from the latter's pocket the buy-bust money.18 The other team members then arrived.19 Appellant's companion who was still on the motorcycle hurriedly fled.20 PO2 Manglalan and SPO1 Tabigue marked this seized item with "BTM" and "JOB," respectively, at the crime scene and in the presence of the appellant and Barangay Captain Mario Catungal, while PO3 Bernard Gabisan took pictures.21 The team, together with the appellant, proceeded to the police station with SPO1 Tabigue having custody of the seized item.22 The inventory of the seized item was made at the police station.23 SPO1 Tabigue handed the seized item to PO3 Gabisan, the investigator of the case, for documentation and preparation of the request for laboratory examination.24 PO2 Manglalan then delivered the seized item to the crime laboratory at 1:35 a.m. the following day,25 which was received by a certain PO1 Rhuffy D. Federe.26 Chemistry Report No. D-259-201327 was issued by Police Chief Inspector Virginia S. Gucor, Forensic Chemist, which showed that the examination of the seized item weighing 9.9875 grams yielded positive results for marijuana, a dangerous drug. Appellant denied the charge. He claimed that in the early evening of December 6, 2013, he was riding a motorcycle for hire on his way to the house of Roselyn Catobog in Purok 3 Cebulano, Carmen, to invite her to watch the opening of Christmas lighting in Barangay Ising.28 While on his way, the motorcycle he was riding was flagged down by a woman whom he later learned was a childhood friend of Roselyn and was on the way to Roselyn's house to invite her also to watch the Christmas lighting.29 He later learned the name of the woman as Antonette Yama.30 He, together with Roselyn and Antonette, rode a motorcycle driven by Antonette's cousin on the way to Barangay Ising when Antonette asked the driver to stop at a corner of Barangay Sto. Nino and the national highway.31 When the motorcycle stopped, two men wearing civilian clothes "came to the them, pointed a gun at him and pulled him out of the motorcycle, frisked him and directed him to drop on the ground, took his cellphone and P100.00 cash, and arrested him for allegedly selling marijuana fruiting tops.32 Roselyn Catabog corroborated appellant's testimony.33 She also testified that she had a brief relationship with appellant before he was arrested; that she learned from appellant's cousin that a crime was imputed against appellant; and, that she acceded to the request of appellant's cousin to testify as she pitied appellant who was not selling marijuana at the time of his arrest.34 On February 11, 2016, the Regional Trial Court (RTC), Branch 34, Panabo City rendered its Decision,35 the decretal portion of which reads: WHEREFORE, judgment is hereby rendered finding Roben D. Duran guilty beyond reasonable doubt of violating Section 5 of Republic Act No. 9165. Accordingly, he is sentenced to suffer the penalty of life imprisonment and fine in the amount of Php500,000.00. The one (1) pack of dried marijuana fruiting tops weighing 9.9875 grams is hereby ordered confiscated and forfeited in favor of the government through the PDEA to be disposed of by the latter in accordance with existing laws and regulations. In connection thereto, PDEA Regional Office XI, Davao City is directed to assume custody of the subject drug for its proper disposition and destruction within ten (10) days from notice. SO ORDERED.36 The RTC found that the prosecution failed to establish the adverted sale of the subject marijuana between the poseur-buyer and the appellant, since there was no discussion between them relative to the object and consideration that took place; and, that appellant simply handed the marijuana to PO2 Manglalan after declaring that he was in a hurry. However, appellant can be held liable for the act of dealing and distributing marijuana which was included in the charge since the exchange of marijuana and the money was deemed established. It also found that while there was no cogent reason why the inventory was not done at the crime scene, however, it was shown that the integrity and evidentiary value of the illegal substance was preserved. Appellant filed his Notice of Appeal. After the filing of the parties' respective briefs before the CA, the case was submitted for decision. On June 8, 2017, the CA rendered its assailed Decision denying the appeal, the dispositive portion of which reads: ACCORDINGLY, the appeal is denied. The Decision dated February 11, 2016, of the Regional Trial Court (RTC), Eleventh (11th) Judicial Region, Branch 34, Panabo City, finding the accused-appellant Roben D. Duran in Criminal Case No. CrC 611-2013, guilty beyond reasonable doubt of violating Section 5 of Republic Act No. 9165 is AFFIRMED. SO ORDERED.37 The CA held that the prosecution was able to establish all the elements of the illegal sale of marijuana. Appellant was positively identified by PO2 Manglalan as the same person from whom he purchased the dried marijuana fruiting tops for a consideration of P200.00 during a legitimate buy-bust operation; that the marijuana fruiting tops wrapped in printed paper and marked with "BTM" and "JOB," which was presented in court, was the same specimen brought by PO2 Manglalan during the buy-bust operation. The CA found that the prosecution was able to prove the chain of custody of the confiscated marijuana. PO2 Manglalan and SPO1 Tabigue marked the seized item with "BTM" and "JOB," respectively; SPO1 Tabigue took custody of the seized item and brought it to the police station where he turned it over to PO3 Gabisan, who prepared the request for laboratory examination; that PO2 Manglalan delivered the seized item to the crime laboratory for examination; and, that PCI Gucor examined the confiscated item and prepared Chemistry Report No. D-259-2013 confirming that the specimen tested positive for marijuana. The seized item was presented during trial and was identified by PO2 Manglalan and SPO1 Tabigue. Appellant filed a Notice of Appeal with this Court. We required the parties to simultaneously file their respective supplemental briefs if they so desired. Both parties filed their respective Manifestations stating that they are no longer filing their supplemental briefs and were adopting all the issues and arguments filed before the CA to avoid repetition of the same. Appellant argues that the integrity of the drug presented in court is doubtful because of the apparent non-compliance with Section 21 of R.A. No. 9165; the non-presentation of the investigator to testify on how he preserved the evidence transferred to him; and, the non-presentation of the forensic chemist or the receiving police officer at the crime laboratory. We.find1 merit in the 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.38 The existence of corpus delicti is essential to a judgment of conviction.39 Hence, the identity of the dangerous drug must be clearly established. 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 persons/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 To properly guide law enforcement agents as to the proper handling of confiscated drugs, Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 filled in the details as to where the inventory and photographing of seized items had to be done, and added a saving clause in case the procedure is not followed:40 (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.41 R.A. No. 10640,42 which amended Section 21 of R.A. No. 9165, incorporated the saving clause contained in the IRR, and requires only 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) either a representative from 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."43 Senator Poe stressed the necessity for the amendment of Section 21 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 corners 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.44 In his Co-sponsorship speech, Senator Vicente C. Sotto III said that in view of a 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.45 Senator Sotto explained why the said provision should be amended: 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 need 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 of illegal drugs 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 where 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.46 Considering that the crime charged was committed by appellant on December 6, 2013, it is the original provision of Section 21 and its IRR, which is applicable. It is provided that the apprehending team was required to immediately conduct a physical inventory and photograph the drugs after their seizure and confiscation in the presence of no less than three (3) witnesses, namely: (a) a representative from the media, and (b) the DOJ; and (c) any elected public official who shall be required to sign copies of the inventory and be given 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." In this case, it was established by the testimonies of PO2 Manglalan and SPO1 Tabigue that they marked the seized item in the presence of the appellant and Barangay Captain Catungal at the crime scene and that photographs were taken of the same. Their testimonies also showed that the seized item was only inventoried at the police station and the certificate of inventory was signed by Barangay Captain Catungal and that photographs of the same were taken. We note, however, that aside from the signature of the barangay captain appearing on the certificate of inventory, there were names and signatures of alleged media and DOJ representatives appearing on the spaces provided for such, notwithstanding that nowhere in the testimonies of the police officers that they mentioned of any media and DOJ representatives present during the inventory and the photographing of the item seized from appellant. Consequently, the veracity of the certificate of inventory becomes questionable. It bears stressing that while it was shown that the Barangay Captain was present during the marking and inventory of the seized item, the other witnesses required under Section 21(1) of R.A. No. 9165, i.e., representatives from media and the DOJ, were not present. Although the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of R.A. No. 9165 and its 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, the prosecution did not provide any plausible explanation or justification on why the presence of the representatives from media and DOJ was not secured. 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.47 In People v. Angelita Reyes, et al.,48 this Court enumerated certain instances where the absence of the required witnesses may be justified, thus: x x x It must be emphasized that the prosecution must 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 12549 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. We reiterated the above-mentioned ruling in People v. Vicente Sipin y De Castro,50 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 elected public official within the period required under Article 125 of the Revised Penal Could 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. The unjustified non-compliance by the police officers of the required procedures under Section 21 of R.A. No. 9165 and its IRR resulted in a substantial gap in the chain of custody of the seized item from appellant which put the integrity and evidentiary value of the seized item in question. Resultantly, the appellant must be acquitted of the crime charged. WHEREFORE, the appeal is GRANTED. The Decision dated June 8, 2017 of the Court of Appeals in CA-G.R. CR-H.C. No. 01523 is hereby REVERSED and SET ASIDE. Appellant Roben D. Duran is, accordingly, ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. The Penal Superintendent of the Davao Prison and Penal Farm 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 his action hereon within five (5) days from receipt of this Decision. SO ORDERED. Leonen, A. Reyes, Jr., Hernando, and Carandang,* JJ., concur.1a⍵⍴h!1 April 22, 2019 NOTICE OF JUDGMENT Sirs / Mesdames: Please take notice that on March 13, 2019 a Decision, copy attached hereto, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on April 22, 2019 at 2:05 p.m. Very truly yours, WILFREDO V. LAPITAN Division Clerk of Court By: (SGD) MISAEL DOMINGO C. BATTUNG III Deputy Division Clerk of Court ORDER OF RELEASE TO: The Director General BUREAU OF CORRECTIONS 1770 Muntinlupa City Thru: CSupt. Rufino A. Martin Officer-in-Charge DAVAO PRISON & PENAL FARM B.E. Dujali, 8105 Davao del Norte GREETINGS: WHEREAS, the Supreme Court on March 13, 2019 promulgated a Decision in the above-entitled case, the dispositive portion of which reads: "WHEREFORE, the appeal is GRANTED. The Decision dated June 8, 2017 of the Court of Appeals in CA-G.R. CR-H.C. No. 01523 is hereby REVERSED and SET ASIDE. Appellant Roben D. Duran is, accordingly, ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. The Penal Superintendent of the Davao Prison and Penal Farm 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 his action hereon within five (5) days from receipt of this Decision. SO ORDERED." NOW, THEREFORE, You are hereby ordered to immediately release ROBEN D. DURAN unless there are other lawful causes for which he should be further detained, and to return this Order with the certificate of your proceedings within five (5) days from notice hereof. GIVEN by the Honorable DIOSDADO M. PERALTA, Chairperson of the Third Division of the Supreme Court of the Philippines, this 13th day of March 2019. Very truly yours, WILFREDO V. LAPITAN Division Clerk of Court By: (SGD) MISAEL DOMINGO C. BATTUNG III Deputy Division Clerk of Court Footnotes * Designated Additional Member per Special Order No. 2624 dated November 28, 2018. 1 Penned by Associate Justice Edgardo T. Lloren, concurred in by Associate Justices Ronaldo B. Martin and Louis P. Acosta; rollo, pp. 3-13. 2 Records, p. 1. 3 Id. 4 Id. at 17. * Also referred to as "Maglalan" in some part of the rollo and records. Also referred to as "Tabique" in some parts of the rollo and records. * Also referred to as "Purok 3C" in some parts of the rollo and records. 5 TSN, November 13, 2014, p. 3. 6 Id. at 4-5. 7 Id. at 5-6. 8 TSN, January 26, 2015, pp. 20-21. 9 Id. at 7-8. 10 Id. at 7. 11 TSN, November 13, 2014, pp. 10-11. 12 Id. at 10. 13 Id. at 10-11. 14 Id. at 12. 15 Id. 16 Id. at 12-13. 17 Id. at 13. 18 Id. at 14. 19 Id. 20 Id. 21 Id. at 14-16. 22 Id. at 18. 23 Id. at 17. 24 Id. at 18-19. 25 Id. at 19. 26 Id. at 20. 27 Records, p. 24. 28 TSN, June 24, 2015, pp. 5-7. 29 Id. at 6-7. 30 Id. at 9. 31 Id. at 19. 32 Id. at 19-21. 33 TSN, August 19, 2015, pp. 5-14. 34 Id. at 14-15. 35 CA rollo, pp. 39-52; Per Presiding Judge Dax Gonzaga Xenos. 36 Id. at 52. 37 Rollo,p. 13. 38 People v. Battung, G.R. No. 230717, June 20, 2018, citing People v. Morales, 630 Phil. 215, 228 (2010). 39 Id., citing People v. Jaafar, G.R. No. 219829, January 18, 2017, 815 SCRA 19, 28. 40 Id., citing People v. Ramirez, GR. No. 225690, January 17, 2018. 41 Emphasis supplied. 42 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.' 43 People v. Battung, supra note 38, citing Senate Journal, Session No. 80, 16th Congress, 1st Regular; Session, June 4, 2014, p. 348. 44 Id. 45 Id. 46 Id. 47 People v. De Guzman, 630 Phil. 637, 649 (2010). 48 G.R. No. 219953, April 23, 2018. 49 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). 50 G.R. No. 224290, June 11, 2018. The Lawphil Project - Arellano Law Foundation