G.R. No. 246284




SECOND DIVISION [ G.R. No. 246284, June 16, 2021 ] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MICHAEL ANDANAR Y SIENDO ALIAS "KOKAK" AND MARY JANE GARBO Y MARIPOSQUE, ACCUSED-APPELLANTS. D E C I S I O N LAZARO-JAVIER, J.: The Case This appeal assails the Decision1 dated June 23, 2017 of the Court of Appeals in CA-G.R. CR HC No. 08364 affirming the verdict of conviction against Michael Andanar y Siendo alias "Kokak" (appellant) for two (2) counts of violation of Section 5, Article II of Republic Act No. 9165 (RA 9165), and Mary Jane Garbo y Mariposque (appellant), for Section 6, Article II, RA 9165. The Proceedings Before the Trial Court The Charge On August 2, 2010, appellant Andanar was charged with violation of Section 5, Article II of RA 9165 (illegal sale of dangerous drugs), viz.: CRIM. CASE # 17220 That on or about the 28th day of July, 2010 in the City of Taguig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above narned accused, without being authorized by law to sell or otherwise dispose of any dangerous drug, did, then and there willfully and knowingly sell, deliver, and give away to poseur buyer PO2 Noel O. Antillion, Jr., the amount of zero point zero seven gram of white crystalline granular substance contained in one (1) heat sealed transparent plastic sachet, (NOA-1-280710) for and in consideration of the amount of Php 500.00, which was found positive to the test of Methamphetamine Hydrochloride, or commonly known as "shabu", a dangerous drug, in violation of the above cited law.2 CRIM. CASE# 17221 That on or about the 28th day of July, 2010 in the City of Taguig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, without being authorized by law to sell or otherwise dispose of any dangerous drug, did, then and there willfully, unlawfully and knowingly sell, deliver, and give away to MORIEL GUTIERREZ, alias "PATOK" in the presence of poseur buyer PO2 Noel O. Antillon, Jr., a minute quantity of white crystalline granular substance contained in one (1) heat sealed transparent plastic [sachet], which substance was subsequently placed in a holder/funnel made of aluminum foil; prior to burning/sniffing in another piece of aluminum foil; where particles of the said substance were left in the first-mentioned foil, (NOA-2-280710); for and in consideration of the amount of Php 500.00; which was found positive to the test of Methamphetamine Hydrochloride, or commonly known as "shabu", a dangerous drug, in violation of the above-cited law.3 while appellant Garbo was charged with violation of Section 6, Article II of RA 9165 (illegal maintenance of a den, dive, or resort), viz.: CRIM. CASE # 17222 That on or about the 28th day of July, 2010 in the City of Taguig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, inside a house, which she intentionally maintained as a den, dive, or resort, where dangerous drugs were actually and habitually stored, distributed, sold or used in any form; and where the following paraphernalia for the use of drugs were actually and habitually stored, distributed, sold or [used] in any form; and where the following paraphernalia [for] the. use of drugs were found; one (1) black box; one (1) heat-sealed transparent plastic sachet; one (1) aluminum foil strip; one (1) rolled aluminum foil; one (1) white disposable lighter; and one (1) green disposable lighter; in violation of the above-cited law.4 Meantime, Moriel Gutierrez y Del Castillo (Gutierrez) who was charged with illegal possession of dangerous drugs died. Thus, the case against him got dismissed. On arraignment, appellants pleaded not guilty.5 Joint trial ensued. During the pre-trial, the prosecution and the defense stipulated on the following: 1) appellants were the same persons accused in the Information, 2) the trial court had jurisdiction over the appellants, 3) Police Chief Inspector Abraham Tecson duly executed Physical Science Report No. D-260-10S which found the seized specimen positive for methylamphetamine hydrochloride.6 Prosecution's Version SPO2 Noel Antillon, Jr. (SPO2 Antillon, Jr.), SPO2 Ernesto Sanchez (SPO2 Sanchez), PO3 Vergelio Del Rosario (PO3 Del Rosario), PO2 Elmar Manuel (PO2 Manuel), members of the Station Anti-Illegal Drugs Task Force, Taguig City, and Forensic Chemist P/Chief Inspector Abraham Tecson (P/CI Tecson) testified for the prosecution. Their testimonies may be summarized, in this wise: On July 28, 2010, a confidential informant reported to their office about illegal drug activities on Camachile Street, Western Bicutan, Taguig City. Police Chief Major Porfirio Calagan briefed SPO2 Sanchez, PO1 Balbin,7 PO3 Brion,8 and SPO2 Antillon, Jr. on a buy-bust operation to be launched in the target area. SPO2 Antillon, Jr. was assigned as poseur buyer while the rest, as back-up members. He was also handed ten (10) pieces of P100.00 bills as buy-bust money.9 After coordinating with the Philippine Drug Enforcement Agency (PDEA), the buy-bust team proceeded to the target area. There, SPO2 Antillon, Jr. and the confidential informant saw Garbo in front of her house. The confidential informant greeted her and introduced SPO2 Antillon, Jr. as someone who wanted to buy shabu. The confidential informant then asked Garbo where Andanar was. She said that Andanar was fetching something and then invited them inside her house to wait. Inside the house, they met Gutierrez, who was also waiting for Andanar.10 After about thirty (30) minutes, Andanar arrived. He asked SPO2 Antillon, Jr. how much shabu he wanted to buy. The latter answered P1,000.00 worth. Since he only had two (2) plastic sachets with him, Andanar agreed to sell P500 worth of shabu to SPO2 Antillon, Jr. while the other, to Gutierrez. SPO2 Antillon, Jr. handed the P500.00 buy-bust money to Andanar while the latter, in turn, gave him a plastic sachet with white crystalline substance. Garbo told SPO2 Antillon, Jr. that he could already use the drug for an additional P20.00. He declined, saying he had his own pipe in the car.11 Since SPO2 Antillon, Jr. was inside Garbo's house, he could not signal the other team members that the sale had been consummated. Thus, he instructed the confidential informant to go outside and signal the team. When the rest of the team arrived, SPO2 Antillon, Jr. arrested Andanar while SPO2 Sanchez arrested Garbo and Gutierrez. SPO2 Antillon, Jr. frisked Andanar and recovered from the latter the buy-bust money. He also frisked Gutierrez and recovered an aluminum foil and a lighter.12 The team brought appellants and Gutierrez to the police station where the marking, inventory, and photographing were done. The team had to leave the situs criminis because a crowd had already gathered around.13 SPO2 Antillon, Jr. handed the seized items to the case investigator PO3 Vergelio Del Rosario (PO3 Del Rosario) who prepared the following documents: affidavit of arrest, inventory report, spot report, booking sheets, and request for laboratory examination.14 SPO2 Antillon, Jr. and PO3 Del Rosario brought the specimen to the crime laboratory where it was received by PO2 Manuel.15 Both the defense and the prosecution stipulated on the qualifications of Forensic Chemist P/CI Tecson and the fact that he received subject specimens which he tested and found positive for methamphetamine hydrochloride, a dangerous drug. They also stipulated that he reduced his findings in Physical Science Report No. D-260-105, stating thus: x x x x One (1) heat-sealed transparent plastic sachet with markings "NOA-1-280710" containing 0.07 gram of white crystalline substance. [O]ne (1) aluminum foil strip with markings "NOA-2-280710" containing white crystalline substance. [O]ne (1) rolled aluminum foil with markings "NOA-3-280710" containing residue. x x x x16 Finally, the parties stipulate that P/CI Tecson had no personal knowledge of the source of the drugs. Defense's Version Garbo testified that on July 28, 2010, she was watching a game near her house on Camachile Street, Western Bicutan, Taguig City when SPO2 Antillon, Jr. suddenly approached her, placed his arm around her, and told her to walk with him quietly towards a vehicle. She was made to board the vehicle and brought to the police station where she saw Andanar and Gutierrez. She admitted that she met Andanar once before, but not Gutierrez.17 On the other hand, Andanar testified that on the day in question, he was at home sleeping. Three (3) men wearing civilian clothes suddenly barged in, introduced themselves as police officers, and asked him to bring out the supposed illegal drugs he was hiding. They also searched his house but they did not find any illegal drugs. He was placed in handcuffs and brought to the police station. There, he saw Garbo and Gutierrez.18 The Ruling of the Regional Trial Court By Decision19 dated May 19, 2016, the trial court found appellants guilty as charged, thus: WHEREFORE, in the premises, the accused MICHAEL ANDANAR is hereby found GUILTY BEYOND REASONABLE DOUBT of selling without any authority 0.07 gram of Methylamphetamine Hydrochloride or "shabu", a dangerous drug in violation of Sec. 5, 1st par., Article II of R.A. 9165 and is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and a FINE of FIVE HUNDRED THOUSAND PESOS (PHP500,000.00) for Criminal Case Nos. 17220-D and 17221-D; and MARY JANE GARBO is hereby found GUILTY BEYOND REASONABLE DOUBT of Violation of Section 6 of Article II of R.A. 9165 and is hereby sentenced to suffer the penalty of TWELVE (12) YEARS AND ONE (1) DAY OF IMPRISONMENT and a fine of ONE HUNDRED THOUSAND PESOS (PHP100,000.00) in Criminal Case No. 17222-D. x x x x SO ORDERED.20 The trial court gave full credence to the testimonies of the prosecution witnesses who were police officers performing their official functions. The trial court found the chain of custody to have been duly established and, thus, rejected appellants' denial and theory of frame up.21 The Proceedings Before the Court of Appeals On appeal, appellants faulted the trial court for rendering the verdict of conviction allegedly despite 1) the prosecution's failure to prove the elements of illegal sale of drugs and illegal maintenance of a drug den and 2) the alleged procedural omissions during the buy-bust operation: a) the absence of any insulating witnesses during the inventory and photographing of the seized items; b) the fact that the inventory and photographing were done at the police station, not at the place of arrest; and, c) the prosecution's failure to present the testimony of the person who received the confiscated shabu from the crime laboratory.22 For its part, the People, through the Office of the Solicitor General (OSG), countered, in the main: 1) the elements of illegal sale of drugs and illegal maintenance of den were all proven; 2) there was substantial compliance with the chain of custody rule. Besides, the parties stipulated on the testimonies of the prosecution witnesses, thus, the defense had impliedly admitted that there was no break in the chain of custody; 3) the presumption of regularity in the performance of the police officers' official functions prevails over appellants' bare denial and theory of frame up.23 The Ruling of the Court of Appeals In its assailed Decision24 dated June 23, 2017, the Court of Appeals affirmed. The Present Appeal Appellants now seek affirmative relief from the Court and prays anew for their acquittal. For the purpose of this appeal, the OSG25 and appellants26 both manifested that in lieu of supplemental briefs, they were adopting their respective briefs in the Court of Appeals. Core Issue Did the Court of Appeals err in affirming the trial court's verdict of conviction against Andanar for illegal sale of dangerous drugs and Garbo for illegal maintenance of drug den, respectively? Ruling Sale of dangerous drugs Andanar was charged with illegal sale of dangerous drugs allegedly committed on July 28, 2010. The governing law is RA 9165, before its amendment in 2014. Section 21, Article II of RA 9165 reads: 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 Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, implementing the Comprehensive Dangerous Drugs Act of 2002, defines "chain of custody," as follows: "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of the seized item shall include the identity and signature of the person who held temporary custody of seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. In illegal drugs cases, the drug itself constitutes the corpus delicti of the offense. The prosecution is, therefore, tasked to establish that the substance illegally sold by the accused is the same substance eventually presented in court.27 To ensure the integrity of the seized drug item, the prosecution must account for each link in its chain of custody: first, the seizure and marking of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court.28 Here, the prosecution failed to establish an unbroken chain of custody. Consider: One, the venue for making the inventory and photograph was not properly complied with. Section 21(a) of the Implementing Rules and Regulations (IRR) requires that the inventory and photograph be conducted immediately after seizure and confiscation, thus, it must be done at the place of the arrest.29 Here, SPO2 Antillon, Jr. testified that upon appellants' arrest, they were immediately brought to the police station where an inventory and photographing of the seized items were conducted. He explained, however, that a crowd had already gathered at the situs criminis, thus, they had to go back to the police station. In People v. Dumanjug,30 the Court rejected the buy-bust team's argument that that it failed to conduct the marking, inventory, photography of the seized drug immediately at the place of arrest because a crowd of two hundred (200) people have gathered creating a dangerous environment. Indeed, bare invocation of inconvenience does not translate to compliance with the chain of custody rule. Two, the physical inventory and photography were not done in the presence of a Department of Justice (DOJ) representative, a media representative, and a local elected official. People v. Lim31 stressed the importance of the presence of the three (3) insulating witnesses or in the alternative, the prosecution must allege and prove the reasons for their absence and show that earnest efforts were made to secure their attendance. The Court ratiocinated: It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not obtained due to reason/s 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[d] 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. Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos teaches: It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse." Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for noncompliance. These considerations arise from the fact that police officers are ordinarily given sufficient time - beginning from the moment they have received the information about the activities of the accused until the time of his arrest - to prepare for a buy-bust operation and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only to [the] state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable.32 Here, while the prosecution admitted that marking, inventory, and photographing were not made in the presence of a DOJ representative, a media representative, and a local elected official, it made no effort, at all, to explain or justify why these required witnesses were absent nor did it show that earnest efforts were exerted to secure their attendance. Three, what happened to the confiscated drugs after SPO2 Antillon, Jr. and PO3 Del Rosario delivered them to the crime laboratory? The prosecution was conspicuously silent on this point. We note that a certain PO2 Manuel received the specimen from PO3 Del Rosario. There was, however, a break in the chain of custody of the seized drug because PO2 Manuel who handled the specimen was not presented as witness. In People v. Burdeos,33 the prosecution failed to show how the specimen was handled while under the custody of the officer who received it and how the same was subsequently turned over to the forensic chemist who conducted the examination. The Court, thus, declared that such glaring gap in the chain of custody tainted the integrity of the corpus delicti. Four, there was nothing in the records regarding the custody of the seized drug from the time it was turned over to the laboratory up to its presentation in court. In People v. Baltazar,34 the accused was acquitted of illegal sale of dangerous drugs because the records were bereft of any evidence as to how the illegal drugs were brought to court. There was no showing how the alleged seized item was stored after it was examined by the forensic chemist, who handled the specimen after examination, and where the same was kept until it was retrieved and presented in court. Notably, the parties agreed to dispense with the testimony of Forensic Chemist P/CI Tecson and instead stipulated that he was a qualified forensic chemist and that he had no personal knowledge about the source of the drug items but only conducted laboratory examination thereon. People v. Miranda35 citing People v. Cabuhay36 ordained that the stipulation to dispense with the testimony of the forensic chemist should include: (1) that the forensic chemist received the seized article as marked, properly sealed, and intact; (2) that he resealed it after examination of the content; and (3) that he placed his own marking on the same to ensure that it could not be tampered with pending trial.37 Here, the stipulation to dispense with the testimony of the Forensic Chemist P/CI Tecson did not contain the vital pieces of information required, i.e., he received the seized drugs as marked, properly sealed, and intact; he resealed the drug items after examination of the content; and, he placed his own marking on the drug items. Absent any testimony regarding the management, storage, and preservation of the illegal drug allegedly seized herein after its qualitative examination, the fourth link in the chain of custody of the said illegal drug could not be reasonably established.38 In light of the prosecution's failure to establish with moral certainty the identity and the unbroken chain of custody of the dangerous drugs seized from Andanar, a verdict of acquittal here is in order.39 Maintenance of a drug den For Garbo's part, she was charged with illegal maintenance of a drug den under Section 6 of RA 9165. The offense requires the following elements: a) that the place is a den - a place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold, or used in any form; and b) that the accused maintains the said place. It is not enough that dangerous drugs or drug paraphernalias were found in the place. More than a finding that the dangerous drug is being used there, it must also be clearly shown that the accused is the maintainer or operator or the owner of the place where the dangerous drug is used or sold.40 Here, the prosecution failed to establish beyond reasonable doubt that Garbo is maintaining a drug den. Consider: First, a drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence may be proved not only by direct evidence but may also be established by proof of facts and circumstances, including evidence of the general reputation of the house, or its general reputation among police officers.41 People v. Galicia42 ordained that the prosecution must establish that the alleged drug den is a place where dangerous drugs are regularly sold to and/or used by customers of the maintainer of the den. The word "regular" means doing the same thing in uniform intervals, or something that is a common occurrence. Here, PO2 Antillon, Jr. testified that Garbo invited him inside her house where the sale of illegal drugs between him and Andanar took place.1aшphi1 Thereafter, Garbo offered PO2 Antillon, Jr. that he could already use the drug he just bought for an additional fee of P20.00. If at all, this only proves an isolated illegal drug transaction involving SPO2 Antillon, Jr., Andanar, and Garbo. There was nothing on record, however, showing that Garbo's house was frequently used as a drug den. Neither did the prosecution prove that Garbo's house had a general reputation as such. Surely, the prosecution had only presented a singular occurrence of the so-called illegal drug activity in Garbo's house. The same does not satisfy the requirement in Galicia. Garbo, therefore, cannot be considered a maintainer of drug den. Besides, the supposed corpus delicti was not even established in view of the clear violation of the chain of custody rule, compromising its integrity. Second, SPO2 Antillon, Jr. testified that while inside Garbo's house, he saw Gutierrez using shabu, thus, making Garbo's house a drug den. We disagree. At the moment .SPO2 Antillon, Jr. saw Gutierrez allegedly sniffing something, he only assumed it was shabu. More, nothing in the records show that Gutierrez underwent a laboratory examination and was found positive for drug use. Thus, the Court will not convict an accused, sans any supporting evidence. Mere assumptions or conjectures cannot substitute the required quantum of evidence in criminal prosecution.43 In any case, a single isolated occasion where one sees another person sniffing shabu inside a residence, even if true, does not automatically convert that residence into a den. The element of regularity is conspicuously absent. WHEREFORE, the appeal is GRANTED. The assailed Decision dated June 23, 2017 of the Court of Appeals in CA-G.R. CR HC No. 08364 is REVERSED. Appellant Michael Andanar y Siendo is ACQUITTED in Criminal Case Nos. 17220 and 17221. The Director of the Bureau of Conections, Muntinlupa City is ordered to a) immediately release Michael Andanar y Siendo from custody unless he is being held for some other lawful cause; and b) submit his report on the action taken within five (5) days from notice. Appellant Mary Jane Garbo y Mariposque is ACQUITTED in Criminal Case No. 17222. The Director of the Bureau of Corrections, Muntinlupa City is ordered to a) immediately release Mary Jane Garbo y Mariposque from custody unless she is being held for some other lawful cause; and b) submit his report on the action taken within five (5) days from notice. Let an entry of judgment be issued immediately. SO ORDERED. Perlas-Bernabe, Senior Associate Justice, (Chairperson), M. Lopez, Rosario, and J. Lopez,* JJ., concur. Footnotes * Designated additional member per Special Order No. 2822 dated 7 April 2021. 1 Penned by Associate Justice Fernanda Lampas Peralta, concurred in by Associate Justice Jane Aurora C. Lantion and Associate Justice Victoria Isabel A. Paredes, CA rollo, pp. 115-138. 2 Id. at 50. 3 Id. at 50-51. 4 Id. at 51. 5 Id. 6 Id. at 52. 7 Records do not indicate the first name of the police officer. 8 Records do not ind1cate the first name of the police officer. 9 CA rollo, p. 52. 10 Id. at 52. 11 Id. at 52-53. 12 Id. at 53. 13 Id. 14 Id. at 134. 15 Id. at 54. 16 Id. at 90-91. 17 Id. at 54-55. 18 Id. at 55. 19 Id. at 50-57. 20 Id. at 57. 21 Id. at 55-56. 22 Id. at 35-46. 23 Id. at 91-104. 24 Id. at 115-138. 25 Rollo, pp. 50-52. 26 Id. at 45-47. 27 People v. Dela Torre, G.R. No. 225789, July 29, 2019. 28 Id. 29 Id. 30 G.R. No. 235468, July 1, 2019. 31 879 Phil. 31, 61-63 (2018). 32 People v. Manansala, G.R. No. 229509, July 3, 2019. 33 G.R. No. 218434. July 17, 2019. 34 G.R. No. 229037, July 29, 2019. 35 G.R. No. 218126, July 10, 2019. 36 836 Phil. 903 (2018). 37 People v. Miranda, supra note 35. 38 Id. 39 People v. Villojan, Jr., G.R. No. 239635, July 22, 2019. 40 People v. Cariño, G.R. No. 234155, March 25, 2019. 41 Id. 42 826 Phil. 119 (2018). 43 Id. at 135. The Lawphil Project - Arellano Law Foundation