G.R. No. 254208 - Concurring and Dissenting Opinion

G.R. No. 254208, August 16, 2022,
♦ Decision, Gesmundo, [CJ]
♦ Separate Opinion, Leonen, [J]
♦ Concurring Opinion, Caguioa, [J]
♦ Concurring Opinion, M. Lopez, [J]
♦ Concuring and Dissenting Opinion, Kho, [J]

EN BANC

[ G.R. No. 254208. August 16, 2022 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MA. DEL PILAR ROSARIO C. CASA A.K.A. "MARFY CALUMPANG," "MADAM," AND "MAH-MAH," ACCUSED-APPELLANT.

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

KHO, JR., J.:

I concur in the result.

I.

Accused-appellant Ma. Del Pilar Rosario C. Casa a.k.a. "Marfy Calumpang," "Madam," and "Mah-Mah" (accused-appellant) must be acquitted for the crimes of Illegal Sale and Illegal Possession of Dangerous Drugs under Sections 5 and 11, Article II of Republic Act No. (RA) 91651, respectively, due to an unjustified deviation from the chain of custody rule in drug cases.

As pointed out by the distinguished ponente, Chief Justice Alexander G. Gesmundo, the fourth link of the chain of custody rule was not established by the prosecution due to the fact that the stipulations on the testimony of the forensic chemist "are bereft of information regarding the condition of the seized item while in PCI Llena's custody and the precautions she undertook to preserve their integrity."2 I also agree with the ponencia that "[a]bsent any testimony on the management, storage, and preservation after the qualitative examination of the illegal drugs allegedly seized, this again adds doubt whether the fourth link was duly complied with."3 Thus, I fully concur in the ponencia's conclusion that "the utter lack of details on the condition and handling of the seized drugs from the period after its examination until the same were brought to the trial court results in a gap in the chain of custody of the seized drugs, thereby casting serious doubt on the identity and integrity of the corpus delicti."4

Thus, accused-appellant's acquittal is in order, pursuant to the principle that every link in the chain of custody is crucial to the preservation of integrity, identity, and evidentiary value of the seized illegal drug, and that failure to demonstrate compliance with even just one of these links is already sufficient to create reasonable doubt that the substance confiscated from the accused is the same substance offered in evidence.5

II.

Notwithstanding the foregoing, I respectfully tender my dissent on the other ground relied upon by the ponencia in acquitting accused-appellant – that the apprehending officer/team failed to justify the conduct of inventory and taking of photographs of the confiscated drugs at the office of the Special Operations Group of the Negros Oriental Police Provincial Office (SOG-NOPPO), instead at the place where accused-appellant was arrested. In this regard, the ponencia posits that under prevailing law, rules, and jurisprudence, the conduct of inventory and taking of photographs of the confiscated drugs should be done, as a general rule, at the place of seizure of the drugs. As an exception, the ponencia states that if the apprehending officer/team is able to provide a justifiable reason for not conducting the inventory and taking of photographs at the place of seizure, then they may perform the same at the nearest police station or at the nearest office of the apprehending team.6

I submit that requiring the apprehending officer/team in warrantless seizures to conduct inventory and taking of photographs of the confiscated drugs at the place of seizure is not what the language of the law says. The language of the law – Section 21 of RA 9165, as amended by Section 1 of RA 106407 – is clear that in warrantless arrests, the apprehending officer/team is mandated to conduct inventory and taking of photographs of the confiscated drugs at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, and not at the place of seizure thereof.

I respectfully dissent because the majority ruling has adverse real-world consequences. Failure of the apprehending officer/team to conduct inventory and taking of photographs of the confiscated drugs at the place of seizure, even if it were done at the nearest police station or at the nearest office of the apprehending officer/team as what Section 21 of RA 9165, as amended, explicitly states and requires, will, as ruled by the majority in this case, result in the acquittal of the accused of the drug charges for failure to comply with the first link of the chain of custody rule.

In this jurisdiction, we adhere to the plain meaning rule or verba legis in determining the intent of the legislature. This plain meaning rule or verba legis derived from the maxim index animi sermo est (speech is the index of intention) rests on the valid presumption that the words employed by the legislature in a statute correctly express its intention or will and preclude the court from construing differently. The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure.8

Thus, when the language of the law clearly says that the inventory and taking of photographs of the confiscated drugs shall be done at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, the Court should not depart from what the law says it should be.

III.

Before proceeding to expound on the reasons for my dissent, I express my gratitude to the ponente for favorably considering my concerns on whether the accused is required to sign the inventory sheet.

In a catena of cases, the signature of an accused in an inventory sheet is inadmissible in evidence if it was obtained without the assistance of counsel, as what usually happens during warrantless seizures, e.g., buy-bust operations. This is because the accused's act of signing the inventory sheet without assistance of a counsel is correctly viewed as a declaration against his interest and a tacit admission of the crime charged - hence, is tantamount to an uncounseled extrajudicial confession which is prohibited by no less than the Constitution.9

In People v. Dizon,10 the Court reiterated:

The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellant's custodial right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted the search of appellant's residence.

Assuming arguendo that appellant did waive her right to counsel, such waiver must be voluntary, knowing and intelligent. To insure that a waiver is voluntary and intelligent, the Constitution, requires that for the right to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. There is no such written waiver in this case, much less was any waiver made in the presence of the counsel since there was no counsel at the time appellant signed the receipt. Clearly, appellant affixed her signature in the inventory receipt without the assistance of counsel which is a violation of her right under the Constitution.11

Further, the language of the law is clear that the accused is not required to sign the inventory sheet. Section 21 (1) of RA 9165, as amended by Section 1 of RA 10640, reads:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof. x x x. (emphasis and underscoring supplied)

As shown above, the first part of the sentence referring to the "accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel" is separated from the second part of the sentence enumerating the insulating witnesses with the word "with" as regards on who are required to sign the "copies of the inventory and be given a copy thereof." Thus, those required to sign the inventory sheet refers only to the second part of the sentence pertaining to the insulating witnesses – an elected public official and a representative of the National Prosecution Service or the media – excluding the persons mentioned in the first part. Thus, the persons mentioned in the first part of the sentence – the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel – are only required to be present during the physical inventory and taking of photographs and would not be required to sign the inventory sheet.

Now, the rationale for my dissent.

IV.

First Link of the Chain of Custody Rule

"Section 21 of [RA] 9165 applies whether the drugs were seized either in a buy-bust operation or pursuant to a search warrant. 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 the 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."12

There are four (4) links that should be established in the chain of custody of confiscated drugs, the first of which is the seizure and marking thereof. The first link of the chain of custody is described in Section 1 of RA 10640 amending Section 21 of RA 9165, 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 of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items. (Underscoring supplied)

As shown above, there are two (2) distinct parts that constitute the first link of the chain of custody rule following the arrest of the drug suspect, namely: (a) the seizure and marking of the confiscated drugs from the accused; and (b) the conduct of inventory and taking of photographs of the same.

I shall flesh out the intricacies of these components below.

V.

Seizure and Marking

At the outset, it is readily apparent that the requirement of marking of the confiscated drugs is not found in Section 21 of RA 9165, as amended. It is a creation of jurisprudence. Case law recognizes marking as "the first and most crucial step in the chain of custody rule as it initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence. [Marking takes place] when the apprehending officer or poseur buyer places his or her initials and signature on the item/s seized."13 Further, marking "serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, thus preventing switching, planting, or contamination of evidence."14 As such, the Court "had consistently held that failure of the authorities to immediately mark the seized drugs would cast reasonable doubt on the authenticity of the corpus delicti."15

In People v. Santos,16 the Court elucidated on the conduct of marking as follows:

On the first link, jurisprudence dictates that "'(M)arking is the placing by the apprehending officer of some distinguishing signs with his/her initials and signature on the items seized. It helps ensure that the dangerous drugs seized upon apprehension are the same dangerous drugs subjected to inventory and photography when these activities are undertaken at the police station or at some other practicable venue rather than at the place of arrest. Consistency with the 'chain of custody' rule requires that the 'marking' of the seized items – to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence – should be done (1) in the presence of the apprehended violator and (2) immediately upon confiscation."17 (underscoring supplied)

Taking into consideration the foregoing disquisitions, it is respectfully posited that the requirements for the conduct of marking of the confiscated drugs are as follows: (a) as to time – it should be done immediately after seizure and confiscation; (b) as to place – it should be done at the place of such seizure and confiscation; and (c) as to the witnesses – it should be done in the presence of the apprehended violator.

VI.

Conduct of Inventory and Taking of Photographs

Unlike marking, the second part of the first link in the chain of custody rule – the conduct of inventory and taking of photographs of the confiscated drugs – are explicitly provided under Section 21 of RA 9165, as amended by Section 1 of RA 10640.

However, the amendment by Section 1 of RA 10640 resulted in significant changes in the original text of Section 21 of RA 9165, particularly by specifically stating two (2) places where the apprehending officer/team should conduct the inventory and taking of photographs of the confiscated drugs. It should be noted that prior to the amendment, the original text of Section 21 of RA 9165 did not provide for the places where inventory and taking of photographs should be conducted. It is significant to note that Section 1 of RA 10640 is what applies in this case since the Information alleged that the accused-appellant committed the crimes on July 21, 2015, after the effectivity of the said amendment on August 7, 2014.

Cited in the table below is the comparison of Section 21 of RA 9165 before and after its amendment by Section 1 of RA 10640, to wit:

Section 21 of RA 9165, in the original, effective as of August 3, 200218 Section 1 of RA 10640, amending Section 21 of RA 9165, effective as of August 7, 201419

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. – 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, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; 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. – x x x

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

Section 21 of RA 9165 in the original reads:

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, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

On the other hand, Section 1 of RA 10640, amending Section 21 of RA 9165, which became effective on August 7, 2014, states:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same x x x: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.1aшphi1

As shown above, Section 1 of RA 10640 amending Section 21 of RA 9165 contained two (2) new significant provisos, the first of which addressed the issue on where the apprehending officer/team should conduct of inventory and taking of photographs, which provisos, as mentioned earlier, were not stated in the original text of Section 21 of RA 9165.

The two (2) new provisos are:

a. "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" (the First Proviso); and

b. "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 and custody over said items" (the Second Proviso or what the ponencia calls the "saving clause").

Significantly, the two (2) new provisos cited above were adopted by our Congress from the Implementing Rules and Regulations (IRR) for RA 9165 that became effective on November 27, 2002,20 four months from the effective date of RA 9165. Pursuant to Section 9421 of RA 9165, government agencies exercised their power of subordinate legislation22 and crafted the IRR for RA 9165 in order to implement the broad policies laid down by RA 9165 by "filling-in" the details which the Congress may not have the opportunity or competence to provide23 – the details on where the inventory and taking of photographs should be conducted and the saving clause.

Notably, Section 21 of the IRR for RA 9165, which became effective on November 27, 2002, 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. – 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 person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items:

x x x x (emphasis and underscoring supplied)

As shown above, the two (2) provisos appearing as early as in the IRR of RA 9165 on where to conduct of inventory and taking of photographs of the confiscated drugs and the saving clause got the approval of Congress when it lifted the two (2) provisos in the IRR of RA 9165 and incorporated the same in Section 1 of RA 10640, amending Section 21 of RA 9165. These significant changes in the law brought about by the amendment is an express policy declaration by Congress on where the conduct of inventory and taking of photographs should take place, which we are duty bound to honor and recognize.

It is discerned that the apparent source of confusion as to where should the conduct of inventory and taking of photographs of the confiscated drugs shall be done is due of the phrase appearing in Section 21 of RA 9165 and Section 1 of RA 10640 that inventory and taking of photographs should be done, in relation to the First Proviso thereof, "immediately after seizure and confiscation." As cited by the ponencia, this phrase has given rise to a number of divergent decisions of the Court on this particular issue. However, the ponencia, abandoning Tumabini v. People,24 adopted the view expressed in several cases25 that inventory and the taking of photographs of the confiscated drugs should be done at the place of seizure, and that it is only when there are justifiable reasons that such activities may be performed "at the nearest police station or at the nearest office of the apprehending officer/team."26

I humbly dissent from this view of the ponencia. As will be explained herein, my position, I most respectfully submit, is in accordance with the letter, purpose and intent of the amendment of the law.

I posited that the phrase "immediately after seizure and confiscation" – which provides for the time when the conduct of inventory and taking of photographs should take place – is specifically qualified by the First Proviso which contains the acceptable places where such activities may be done, i.e., "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." On the other hand, the phrase "whichever is practicable" allows the apprehending officer/team to determine, based on their professional experience and the circumstances of each case, which of the two (2) acceptable places where they will conduct the inventory and taking of photographs of the confiscated drugs.

The purpose and function of a proviso is well settled in our jurisdiction. In Chartered Bank of India, Australia and China v. Imperial27 the Court declared that "[t]he usual and primary office of a proviso is to limit generalities and exclude from the scope of the statute that which otherwise would be within its terms." In the same vein, in Borromeo v. Mariano,28 the Court stated that "[t]he office of a proviso is to limit the application of the law. It is contrary to the nature of a proviso to enlarge the operation of the law." Similarly, in Arenas v. City of San Carlos,29 the Court also stated that "[t]he primary purpose of a proviso is to limit the general language of a statute."

In my considered view and in accordance with settled jurisprudence, the conduct of inventory and taking of photographs of the confiscated drugs must be done by the apprehending officer/team "immediately after seizure and confiscation" at the places limited and restricted by the First Proviso at the instance of the apprehending officer/team, depending on how the seizure was made, particularly:

a. In cases of implementation of search warrants, the conduct of inventory and taking of photographs should only be done at the place where said warrant was served.

b. In cases of warrantless seizures (e.g., buy-bust operations), such activities may be done "at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable."

At this juncture, I am aware that the phrase "whichever is practicable" may be interpreted to mean that "as a general rule, the inventory and taking of photographs must be conducted at the place of seizure. Only when the same is not practicable does the law allow the inventory and photographing to be done as soon as the buy-bust team reaches the nearest police station or the office of the apprehending office/team" – as this is the interpretation propounded by the ponencia as explained above.30

However, I express my disagreement to this general rule-exception dynamic as this does not find support in the language of the law. The language of the law is clear in providing for two (2) acceptable places where the inventory and taking of photographs should be done, whichever is practicable for the apprehending team – at the nearest police station or at the nearest office of the apprehending officer/team. There is no general rule-exception written in the law and there is no legal requirement that it shall be done at the place of seizure, as what the ponencia posits. I respectfully reiterate that the Court should not depart from what the law says it should be.

In this connection, I quote with approval the explanation of Retired Senior Associate Justice Estela M. Perlas-Bernabe (SAJ Perlas-Bernabe) in a case involving the issue of the proper interpretation of the phrase "whichever is practicable," which she circulated prior to her retirement. SAJ Perlas-Bernabe eruditely explained:

As may be gleaned from the provision itself, the phrase "or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures" is separated by a semi-colon from the other clauses. This denotes that the qualifier phrase "whichever is practicable" is only limited to the choices of "nearest police station" or "nearest office of the apprehending officer/team", and as such, does not extend to the alternative place where the conduct of inventory or photography may be conducted, i.e., place of apprehension/seizure. Moreover, nowhere in the provision does it state that the conduct of inventory and inventory of the seized items may be done in these places only if it is impracticable to do so in the place of apprehension/seizure. Verily, the law does not consider the police station and the office of the apprehending officer/team as an exception, i.e., may only be availed of if it is impracticable to conduct the inventory and photography at the place of apprehension/seizure; but rather, they are designed to be permissible placcs where such conduct may be done.31 (Emphases and underscoring supplied)

The above interpretation of the places where the inventory and taking of photographs of the confiscated drugs should be done squares with the policy considerations behind RA 10640's adoption and codification of the aforementioned provisos, particularly as it relates to the requirement that the insulating witnesses must be present during the inventory and the taking of photographs. This now dwell on the intent of Congress and its purpose for amending Section 21 of RA 9165 by Section 1 of RA 10640.

In Senator Vicente C. Sotto III's (Senator Sotto) co-sponsorship speech for Senate Bill No. (SB) 2273 (which eventually became RA 10640), he expressed that: (a) due to the substantial number of acquittals in drugs cases due to the varying interpretations of RA 9165 by different prosecutors and judges, there is a need to introduce "certain adjustments so we can plug the loopholes in our existing law" and "ensure [its] standard implementation"; and (b) the safety apprehending officers but also the insulating witnesses need to be ensured at all times, to wit:

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 photography of the seized illegal drugs.

x x x x

Section 21(a) of RA 9165 need[s] 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 the 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.32 (Emphases supplied)

Further, in People v. Battung,33 the Court noted the sponsorship speech of Senator Grace Poe (Senator Poe) for SB 2273. In said speech, Senator Poe recognized the difficulty in conducting the inventory and photography in the place of apprehension/seizure due to several reasons, such as the unavailability of the insulating witnesses and in instances where barangay officials are involved in the illegal drug transaction, viz.:

In her Sponsorship Speech on Senate Bill No. 2273, which eventually became [RA] 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." 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 and thus, it is difficult to get the most grassroot-elected public official to be a witness as required by law."34 (Emphases supplied)

Making sense of the foregoing ruminations of the framers of RA 10640, SAJ Perlas-Bernabe posited:

As may be gleaned from the foregoing speeches, the legislature has come to realize that the rigid wording of Section 21 of RA 9165 fails to recognize: (a) the threat on the safety of apprehending officers and the insulating witnesses should they conduct the requisite inventory and photography in the place of apprehension/seizure, especially from retaliatory actions coming from drug syndicates, family members, and associates of the drug suspect; and (b) the instances where it would be difficult to bring the insulating witnesses to the place of apprehension/seizure, particularly when the anti-drug operation is conducted in remote areas. In other words, there is clear recognition of the inherent dangers to the police and the witnesses widely attending the conduct of buy-bust operations in cases involving dangerous drugs. As such, the aim of the amendments to the law is to allow, insofar as warrantless arrests/seizures are concerned, the conduct of inventory and photography in places other than the place of such arrest/seizure, particularly, "at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable." x x x As I see it, this is the legislature's way of balancing the interests of: on the one hand, the citizens who need protection against possible abuses in the enforcement of drugs laws, e.g., frame-up, extortion, tampering and planting of evidence; and on the other hand, the safety of law enforcement officers and the insulating witnesses during the conduct of warrantless seizures, the most common variant of which is a buy-bust operation.35 (Emphasis, italics, and underscoring in the original)

VII.

At this juncture, I wish to address the ponencia’s inclusion of the Revised Philippine National Police Operational Procedures dated September 2021 (2021 PNP Manual) as additional support for the general rule-exception dynamic that it foists. Pertinent portions of the 2021 PNP Manual as cited by the ponencia read as follows:

2.8 Rules on Anti-Illegal Drugs Operations

x x x x

1) Drug Evidence

x x x x

c) For warrantless seizures like buy-bust operations, the photographing, markings, and physical inventory must be done at the place of apprehension, unless for justifiable reasons, the photographing, markings, and physical inventory may be made at the nearest police station or office of the apprehending officer or team, ensuring that the integrity and evidentiary value of the seized items remain intact and preserved. Such justification or explanation as well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items shall be clearly stated in a sworn affidavit of justification/explanation of the apprehending/seizing officers.36

However, it bears pointing out that prior to the enactment of the 2021 PNP Manual, the PNP used to adhere to the 2013 Revised PNP Operational Procedures (2013 PNP Manual)37 and the 2014 Revised PNP Manual on Anti-Illegal Drugs Operations and Investigations (2014 PNP AIDSOTF Manual).38 Pertinent portions of these issuances read:

2013 PNP Manual 2014 PNP AIDSOTF Manual

37.3. Handling, Custody and Disposition of Evidence

a. In the handling, custody and disposition of evidence, the provision of Section 21, RA 9165 and its IRR shall be strictly observed.

b. 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.

c. 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, 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.

d. Photographs of the pieces of evidence must be taken upon discovery without moving or altering its position in the place where it was situated, kept or hidden, including the process of recording the inventory and the weighing of dangerous drugs, and if possible under existing conditions, with the registered weight of the evidence on the scale focused by the camera, in the presence of the persons required, as provided under Section 21, Art II, RA 9165. x x x x

Section 2-6 Handling, Custody and Disposition of Drug and Non-Drug Evidence

2.33. During handling custody, and disposition of evidence, provisions of Section 21, RA 9165 and its IRR as amended by RA 10640 shall be strictly observed.

2.34. Photographs of pieces of evidence must be taken immediately upon discovery of such, without moving or altering its original position, including the process of recording the inventory and the weighing of illegal drugs in the presence of required witnesses, as stipulated in Section 21, Article II, RA 9165, as amended by RA 10640

x x x x

a.1aшphi1 Drug Evidence

(1) Upon seizure or confiscation of illegal drugs or SPECS, laboratory equipment, apparatus and paraphernalia, the operating Unit's Seizing Officer/Inventory Officer must conduct the physical inventory, markings and photograph the same in the place of operation in the presence of:

(a) The suspect/s or the person/s from whom such items were confiscated and/or seized or his/her representative or counsel;

(b) With an elected Public Official; and

(c) Any representatives from the Department of Justice or Media who shall affix their signatures and who shall be given copies of the inventory.

(2) For seized or recovered drugs covered by Search Warrants, the inventory must be conducted in the place where the Search Warrant was served.

(3) For warrantless seizures like buy-bust operations, inventory and taking of photographs should be done at the nearest Police Station or Office of the apprehending Officer or Team. x x x x

x x x x

As may be gleaned above, both the 2013 PNP Manual and the 2014 PNP AIDSOTF Manual adhere to the view expressed in this dissent that the conduct of inventory and taking of photographs should be conducted at the places that I have discussed, whichever is practicable to the apprehending officer/team, at – the nearest police station or office of the apprehending officer/team.

As I see it, the issuance of the 2021 PNP Manual was a mere reaction of the PNP to the series of case law39 which foists the general rule-exception dynamic as to the proper place where the conduct of inventory and taking of photographs may be done. As one of the agencies primarily tasked to enforce our laws, it would only be natural for the PNP to adopt jurisprudence into its internal procedures pertaining to drugs operations, lest they risk putting their efforts to waste should the courts acquit violators of our anti-drugs laws due to such jurisprudence – which in my humble view and with all due respect, propagates a skewed and unreasonable interpretation of the chain of custody rule as expressed in Section 21 of RA 9165, as amended by Section 1 of RA 10640, that oversteps into impermissible judicial legislation.

At the most, it may be argued the 2021 PNP Manual may be regarded as a guide to the construction of the chain of custody rule pursuant to the contemporaneous interpretation rule. The said rule provides that "the practice and interpretive regulations by officers, administrative agencies, departmental heads, and other officials charged with the duty of administering and enforcing a statute will carry great weight in determining the operation of a statute."40 Otherwise stated, "[i]n the construction of a doubtful and ambiguous law, the contemporaneous construction of those who are called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great weight."41

However, it must be kept in mind that while the contemporaneous interpretation of those tasked to implement the law may be given great weight, it is not necessarily controlling as only the courts may properly interpret the law. In fact, in Adasa v. Abalos,42 the Court held that courts may validly disregard the contemporaneous interpretation of administrative agencies "in instances where the law or rule construed possesses no ambiguity, where the construction is clearly erroneous, where strong reason to the contrary exists, and where the court has previously given the statute a different interpretation," as in this case, viz.:

True indeed is the principle that a contemporaneous interpretation or construction by the officers charged with the enforcement of the rules and regulations it promulgated is entitled to great weight by the court in the latter's construction of such rules and regulations. That does not, however, make such a construction necessarily controlling or binding. For equally settled is the rule that courts may disregard contemporaneous construction in instances where the law or rule construed possesses no ambiguity, where the construction is clearly erroneous, where strong reason to the contrary exists, and where the court has previously given the statute a different interpretation.

If through misapprehension of law or a rule an executive or administrative officer called upon to implement it has erroneously applied or executed it, the error may be corrected when the true construction is ascertained. If a contemporaneous construction is found to be erroneous, the same must be declared null and void.43 (Emphases and underscoring supplied)

As discussed, the 2021 PNP Manual only reacted to the series of case law which foists the general rule-exception dynamic which is now being propounded by the ponencia, which in my humble opinion, does not reflect the unambiguous wording of the law. It must be borne in mind that any conflict with a set operational guidelines of a law enforcement agency and the law should always be resolved in favor of the latter. Since these operational guidelines ought to merely supplement what is written in the law, they should not go beyond, but rather, reflect the letter and spirit of the statute.

VIII.

Witnesses Requirement

In addition to the time and place where the conduct of inventory and taking of the photographs must be made, the law further requires that, as to the witnesses, such activities be conducted in the presence of the accused or the person/s from whom the items were confiscated and/or seized, or his/her representative or counsel, as well as the insulating witnesses enumerated therein, depending on when the seizure of the drugs occurred.

If the seizure occurred prior to the amendment of RA 9165 by RA 10640, the required insulating witnesses are: (1) an elected public official; (2) a Department of Justice (DOJ) representative; and (3) a media representative. On the other hand, if such seizure occurred after the effectivity of the amendment of RA 9165 by RA 10640 on August 7, 2014, the required witnesses were reduced to: (a) an elected public official; and (b) a representative of the National Prosecution Service (NPS) or the media.

Notably, it is also mandated under Section 21 of RA 9165 that those insulating witnesses required to be present during the conduct of inventory and taking of photographs are also "required to sign copies of the inventory and be given a copy thereof."

In this regard, it is worthy to reiterate that Congress, knowing fully well that the presence of the insulating witnesses during the inventory and taking of photographs of the confiscated drugs and the placing of their signatures on the inventory sheet in order "to ensure the establishment of the chain of custody and remove any suspicion of switching, planting, or contamination of evidence"44 are required, it deemed it necessary to amend Section 21 of RA 9165 by Section 1 of RA 10640 to address the vacuum in the law on where to conduct the inventory and taking of photographs of the confiscated drugs and to make it clear that there are now two (2) specific and acceptable places where such activities should be conducted for purposes of avoiding varying interpretations by prosecutors and judges on the proper application of Section 21 of RA 9165, as amended by Section 1 of RA 10640, to preserve the existence of the confiscated drugs and, importantly, to protect the safety of the arresting officers and insulating witnesses.

IX.

We now discuss the Second Proviso.

The Second Proviso in Section 21 of RA 9165 as amended by Section 1 of RA 10640, states:

"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 and custody over said items."

Citing People v. Luna,45 the ponencia mentioned the two (2) requisites before the prosecution can invoke the Second Proviso, or what the ponencia calls the "saving clause," in order not to render void and invalid the seizure and custody of the confiscated drugs, to wit:46

1. The existence of "justifiable grounds" allowing departure from the rule on strict interpretation; and

2. The integrity and the evidentiary value of the seized items are properly preserved by the apprehending team.

For the first requisite, the case law cited by the ponencia states that before the prosecution can invoke the saving clause in order to allow departure from the strict interpretation of the chain of custody rule in illegal drug cases, the apprehending officer/team should recognize the deviations or lapses made in the chain of custody rule and that they are able to justify the same before the trial court.1aшphi1

In this connection, I most respectfully submit that the trial court should consider the justifications offered by the apprehending officer/team and evaluate them in the light of the actual circumstances attendant from the time of seizure of the drugs up to the presentation of the same in court as evidence.

One of the circumstances that the trial court should consider whether the chain of custody rule should be strictly construed against the prosecution is the weight and/or amount of the illegal drugs seized from the accused.

As early as in Mallillin v. People47 (Mallillin) involving "two (2) plastic sachets of methamphetamine hydrochloride [or] 'shabu' with an aggregate weight of 0.0743 gram, and four empty sachets containing 'shabu' residue x x x," the Court explained the rationale why strict compliance of the chain of custody mle is being required in relation to the weight and/or amount of the illegal drug seized, to wit:

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt. Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering—without regard to whether the same is advertent or otherwise not—dictates the level of strictness in the application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. Graham vs. State positively acknowledged this danger. In that case where a substance later analyzed as heroin—was handled by two police officers prior to examination who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession—was excluded from the prosecution evidence, the court pointing out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratory's findings is inadmissible.

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eves to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from other cases—by accident or otherwise—in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.48 (emphases and underscoring supplied)

Pursuant to Mallillin's instructions, the Court has consistently ruled in a catena of cases49 that trial courts should exercise strict or heightened scrutiny when minuscule amounts of illegal drugs are presented into evidence, which I fully agree. This is because in instances when minuscule amounts of illegal drugs are involved, the probability of tampering, alteration, substitution, exchange or switching of the illegal drugs is at its highest – the very evil sought to be prevented by the chain of custody rule. As explained by the Court in People v. Olarte,50 "[n]arcotic substances, for example, are relatively easy to source because they are readily available in small quantities thereby allowing the buyer to obtain them at lower cost or minimal effort. It makes these substances highly susceptible to being used by corrupt law enforcers to plant evidence on the person of a hapless and innocent victim for the purpose of extortion. Such is the reason why narcotic substances should undergo the tedious process of being authenticated in accordance with the chain of custody rule." This provides the rationale of the chain of custody rule.

On the other hand, if the illegal drugs offered as evidence involve large amounts of illegal drugs, the trial court should judiciously determine, based on the evidence of the prosecution and the circumstances of each case, whether there is a high probability of tampering, alteration, substitution, exchange or switching of the same.51

In the event the trial court is fully satisfied that the probability of tampering, alteration, substitution, exchange or switching of the large amount of illegal drugs offered in evidence is highly unlikely, which is a question of fact, I respectfully submit that strict compliance of the four (4) links in the chain of custody rule should be dispense with, as the rationale for its application disappears. In this instance, the justifiable ground referred to in the first requisite of the saving clause will now consist of the large amount of illegal drugs itself, considering that, as proven by the prosecution to the full satisfaction of the trial court, the same could not have been tampered, altered, substituted, exchanged or switched. The continued application of strict compliance of the four (4) links in the chain of custody rule when large amounts of illegal drugs are involved goes against the intent and purpose of RA 9165, as amended.

Notwithstanding my submission that the required strict observance of the chain of custody rule should be dispensed with if the trial court is satisfied that the probability of tampering, alteration, substitution, exchange or switching of the large amount of illegal drugs offered in evidence is highly unlikely, I respectfully submit that the second requisite of the saving clause – that the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team – must nevertheless still be proven and established by the prosecution beyond reasonable doubt as proof of corpus delicti by credible evidence other than through the strict application of the chain of custody rule to justify the conviction of the accused and the severe penalties to be impose upon the accused under RA 9165, as amended.

X.

In another matter, it is settled that the lone testimony of a poseur buyer in a buy-bust operation may suffice to convict an accused, provided, that such testimony be credible, reliable, clear, and convincing.52 In such case, it is essential only that the witness be able to recount and relate the actual events that transpired which justified the arrest of the accused.

Thus, "it is imperative that the witness declares that there was a negotiation for the purchase of the drug and that the pusher sold and delivered the drug in view of some material consideration which in most cases takes the form of marked peso bills. Once these facts are clearly established through the testimony of a credible witness, the guilt of the accused can be deemed established with moral certainty. However, the assessment of the trial court regarding the credibility of a witness can be set aside if it is shown that certain facts of substance have been overlooked or circumstances of significance which may affect the result of the case have been arbitrarily disregarded."53

In this regard, the Court's pronouncement in People v. Evangelista,54 is instructive:

In buy-bust operations, the testimonies of the police officers who apprehended the accused are usually accorded full faith and credit because of the presumption that they have performed their duties regularly. The presumption is overturned only if there is clear and convincing evidence that they did not properly perform their duty or that they were inspired by improper motive. Nevertheless, the courts are advised to take caution in applying the presumption of regularity. It should not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the individual. In fact it is on this premise that we have laid down the "objective" test in scrutinizing buy-bust operations. In People v. Doria, we ruled:

We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the [poseur buyer] and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.55

Relatedly, in People v. Ordiz56 (Ordiz) cited by the ponencia, the Court ruled that considering the gravity of the penalty for the offense charged, the courts should be careful in reviewing and weighing the probative value of the testimony of an alleged poseur buyer especially if the same is uncorroborated by the testimonies of his teammates in the buy-bust operation, thus:

It is an ancient principle of our penal system that no one shall be found guilty of crime except upon proof beyond reasonable doubt. Thus, in proving the existence of the aforesaid elements of the crime charged, the prosecution has the heavy burden of establishing the same. The prosecution must rely on the strength of its own evidence and not on the weakness of the defense.

In accordance with these principles, the Court has held that, considering the gravity of the penalty for the offense charged, courts should be careful in receiving and weighing the probative value of the testimony of an alleged [poseur buyer] especially when it is not corroborated by any of his teammates in the alleged buy-bust operation. Sheer reliance on the lone testimony of an alleged [poseur buyer] in convicting the accused does not satisfy the quantum of evidence required in criminal cases, that is, proof beyond reasonable doubt.57 (Emphasis and underscoring supplied)

In Ordiz, the prosecution presented three (3) witnesses: SPO1 Ursal, Jr., PO2 Capangpangan, and SPO1 Cerna. However, it was found that the testimony of SPO1 Ursal, Jr. and PO2 Capangpangan were unclear on whether they actually saw the transaction or simply rushed up to arrest the accused therein after the pre-arranged signal was given. It then ruled that the prosecution's case hinged on the uncorroborated testimony of the supposed poseur buyer, whose testimony on the direct testimony was found by the trial court to be unclear and lacking in detail; hence, unreliable and not credible. In view thereof, the Court acquitted the accused therein.

Similarly, in the cases of People v. Escalona58 (Escalona) and People v. Salonga59 (Salonga), the Court acquitted therein accused due to the unreliability of the lone testimonies of the respective poseur buyers. Particularly, in Escalona, the Court pointed out that there is serious doubts on the credibility of the lone testimony of the poseur buyer insofar as his motive in giving such testimony is concerned, in view of the bad blood existing between him and the accused; whereas in Salonga, the Court acquitted the accused therein as major lapses were not explained by the testimony of the prosecution's lone witness, raising doubt as to the preservation of the integrity of the evidence seized from the accused.

From the foregoing cases, it may readily be seen that the testimony of the poseur buyer, standing alone, should be sufficient to convict an accused in drugs cases if it is found to be credible and reliable. Otherwise, an acquittal would ensue.

XI.

For future reference, I would like to take this opportunity to lay down my proposed guidelines on the proper interpretation as to what constitutes compliance with the first link of the chain of custody rule, particularly as to the major components thereof, which are: (a) the marking of the drugs seized from the accused; and (b) the conduct of inventory and taking of photographs of the same, to wit:

1. The marking of the confiscated drugs seized from the accused must be done:

a. When: Immediately after the confiscation of the illegal drugs;

b. Where: At the place of confiscation; and

c. With whom: In the presence of the apprehended offender.

2. The conduct of inventory and taking of photographs of the confiscated drugs (if after the effectivity of RA 10640 on August 7, 2014,60 to include controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment) seized from the accused must be done:

a. When: Immediately after seizure and confiscation;

b. Where: In cases of implementation of search warrants – at the place where the search warrant was served;

Where: In cases of warrantless seizures, such as buy-busts – at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable to them;

c. With whom: 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;

i. The accused is not required to sign the inventory sheet. In the event the accused signed the inventory sheet without the presence and assistance of counsel, his/her signature shall be deemed inadmissible.

ii. However, the absence or inadmissibility of the accused's signature, by and of itself, shall not preclude a judgment of conviction against him/her should there are other acceptable evidence showing that he/she was indeed present during the conduct of the inventory and taking of photographs.

d. With whom: In the presence of the insulating witnesses who shall be required to sign the inventory sheet and be given a copy thereof, as follows:

i. If the seizure occurred during the effectivity of RA 9165, or from August 3, 200261 until August 6, 2014, the presence of three (3) witnesses, namely, an elected public official; a Department of Justice (DOJ) representative; and a media representative;

ii. If the seizure occurred after the enactment of RA 10640 which amended RA 9165, or from August 7, 2014 onwards, the presence of two (2) witnesses, namely, an elected public official; and a National Prosecution Service (NPS) representative or a media representative; and

iii. If the insulating witnesses refused to sign the inventory receipt, then the apprehending officers should indicate "refused to sign" or simply "RTS" on top of their respective names.

3. The Saving Clause – in case of any lapse or deviation from the chain of custody rule:

a. The prosecution must acknowledge the lapse or deviation and present a justification therefor. If the deviation is justified and the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, the justified deviation shall not render void and invalid such seizures and custody over said items.

b. In cases involving large amount or volume of illegal drugs, the trial court should judiciously determine, based on the evidence of the prosecution, whether there is a high probability of tampering, alteration, substitution, exchange or switching of the same. If the trial court determines that the probability of tampering, alteration, substitution, exchange or switching of the drugs offered in evidence is highly unlikely, which is a question of fact, the required strict compliance of the four (4) links in the chain of custody rule should be dispense with. However, the second requisite of the saving clause – that the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team – must still be established by the prosecution as proof of corpus delicti by credible evidence other than through the strict application of the chain of custody rule.

Despite the foregoing dissent, I fully concur in the ponencia's ultimate disposition to acquit accused-appellant due to the unjustified deviation from the fourth link of the chain of custody rule as discussed in the early part of this Opinion,62 as this case involves a minuscule amount of illegal drug, thus requiring the strict application of the chain of custody rule. Verily, this is enough to constrain the Court to conclude that the integrity and evidentiary value of the drugs purportedly seized from accused-appellant has been compromised, thereby warranting her acquittal from the crimes charged.

ACCORDINGLY, I VOTE to acquit accused-appellant of the crimes charged.

Footnotes

1 Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFORE, AND FOR OTHER PURPOSES," approved on June 7, 2002.

2 See ponencia, p. 37.

3 Id.

4 Id. at 39.

5 See People v. Villalon, G.R. No. 249412, March 15, 2021, citing People v. Ubungen, G.R. No. 225497, July 23, 2018.

6 See ponencia, pp. 16-28.

7 OCA Circular No. 77-2015 entitled "APPLICATION OF REPUBLIC ACT NO. 10640" dated April 23, 2015, which provides that RA 10640 "took effect on 23 July 2014." However, it is well to point out that, in People v. Gutierrez (842 Phil. 681 [2018]), the Court noted that RA 10640 was approved on July 15, 2014 and under Section 5 thereof, it shall "take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation." RA 10640 was published on July 23, 2014 in The Philippine Star (Vol. XVIIII, No 359. Philippine Star Metro section, p. 21) and Manila Bulletin (Vol. 499, No. 23, World News section, p. 6). Taking into consideration the following, the proper effectivity date of RA 10640 should be August 7, 2014. Hence, OCA Circular No. 77-2015's statement that RA 10640 "took effect on 23 July 2014" is clearly erroneous, and as such, and must be rectified accordingly.

8 Rural Bank of San Miguel, Inc. v. Monetary Board, 545 Phil. 62 (2007).

9 See People v. Dizon, G.R. No. 223562, September 4, 2019; People v. Endaya, G.R. No. 205741, July 23, 2014; People v. Mariano, G.R. No. 191193, November 14, 2012; People v. Macabalang, 538 Phil. 136, 162 (2006); People v. Del Castillo, 482 Phil. 828 (2004); Gutang v. People, 390 Phil. 805, 813 (2000); People v. Lacbanes, 336 Phil. 933, 942 (1997); People v. Castro, G.R. No. 106583, June 19, 1997; People v. Morico, 316 Phil. 270, 277 (1995); People v. Bandin, G.R. No. 104494, September 10, 1993; People v. Mirantes, G.R. No. 92706, May 21, 1992; People v. Mauyao, G.R. No. 84525, April 6, 1992; People v. De Las Marinas, G.R. No. 87215, April 30, 1991; People v. De Guzman, G.R No. 86172, March 4, 1991. (Underscoring supplied)

10 See G.R. No. 223562, September 4, 2019.

11 Id., citing People v. Del Castillo, 482 Phil. 828, 851 (2004).

12 See Tumabini v. People, G.R. No. 224495, February 19, 2020, citing Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002.

13 People v. Ramirez, 823 Phil. 1215 (2018).

14 Id., citing People v. Nuarin, 764 Phil. 550, 558 (2015).

15 People v. Dahil, 750 Phil. 212, 232 (2015), citing People v. Sabdula, G.R. No. 184758, April 21, 2014.

16 823 Phil. 1162 (2018).

17 Id., citing People v. Somoza, 714 Phil. 368, 387-388 (2013). See also People v. Ramirez, supra, citing People v. Sanchez, 590 Phil. 214, 241 (2008).

18 RA 9165 was published in the Manila Times and the Manila Standard on June 19, 2002. Thus, pursuant to Section 102 of RA 9165 which states that "[t]his Act shall take effect fifteen (15) days upon its publication in at least two (2) national newspapers of general circulation[,]" RA 9165 appears to have become effective on August 3, 2002.

19 OCA Circular No. 77-2015 entitled "APPLICATION OF REPUBLIC ACT NO. 10640" dated April 23, 2015, which provides that RA 10640 "took effect on 23 July 2014." However, it is well to point out that, in People v. Gutierrez (842 Phil. 681 [2018]), the Court noted that RA 10640 was approved on July 15, 2014 and under Section 5 thereof, it shall "take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation." RA 10640 was published on July 23, 2014 in The Philippine Star (Vol. XVIIII, No 359, Philippine Star Metro section, p. 21) and Manila Bulletin (Vol. 499, No. 23, World News section, p. 6). Taking into consideration the following, the proper effectivity date of RA 10640 should be August 7, 2014. Hence. OCA Circular No. 77-2015's statement that RA 10640 "took effect on 23 July 2014" is clearly erroneous, and as such, and must be rectified accordingly.

20 See https://pdea.gov.ph/images/Laws/IRROFRA9165.pdf (last accessed July 18, 2022)

21 Section 94 of RA 9165 reads:

SECTION 94. Implementing Rules and Regulations. — The present Board in consultation with the DOH, DILG, DOJ, DepEd, DSWD, DOLE, PNP, NBI, PAGCOR and the PCSO and all other concerned government agencies shall promulgate within sixty (60) days the Implementing Rules and Regulations that shall be necessary to implement the provisions of this Act.

22 "The power of subordinate legislation ailows administrative bodies to implement the broad policies laid down in a statute by 'filling in' the details. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law." (Sigre v. Court of Appeals, 435 Phil. 711 [2002], citing The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas Employment Admistration, 313 Phil. 592 [1995].)

23 See The Conference of Maritime Manning Agencies, Inc. v. POEA, 313 Phil. 592 (1995), citing Eastern Shipping Lines, Inc. v. POEA, 248 Phil. 762 (1988).

24 G.R. No. 234495, February 19, 2020.

25 See People v. Taglucop, G.R. No. 243577, March 15, 2022; People v. Salenga, G.R. No. 239903, September 11, 2019; People v. Tubera, G.R. No. 216941, June 10, 2019; People v. Musor, G.R. No. 231843, November 7, 2018; People v. Lim, G.R. No. 231989, September 4, 2018.

26 See ponencia, pp. 16-28.

27 48 Phil. 931 (1921).

28 41 Phil. 322 (1921).

29 172 Phil. 306 (1978).

30 See ponencia, p. 32. See also ponencia, pp. 16-20.

31 SAJ Perlas-Bernabe's Reflections in Nisperos v. People (G.R. No. 250927), pp. 7-8; citations omitted.

32 See id., citing Senate Journal, Session No. 80, 16th Congress, 1st Regular Session, June 4, 2014, p. 349-350.

33 833 Phil. 959 (2018).

34 Id.

35 SAJ Perlas-Bernabe's Reflections in Nisperos v. People (G.R. No. 250927), p. 10.

36 See ponencia, pp. 19-20. See also Philippine National Police Manual PNPM-DO-D-0-2-12-21, pp. 65-66.

37 Philippine National Police Handbook PNPM-DO-DS-3-2-12.

38 Philippine National Police Manual PNPM-D-0-2-14 (DO).

39 See People v. Taglucop, G.R. No. 243577, March 15, 2022; People v. Salenga, G.R. No. 239903, September 11, 2019; People v. Tubera, G.R. No. 216941, June 10, 2019; People v. Musor, G.R. No. 231843, November 7, 2018; People v. Lim, G.R. No. 231989, September 4, 2018.

40 2 Sutherland, Statutory Construction, p. 516.

41 Edwards Lessee v. Darby, 25 U.S. 206, 210 (1827).

42 545 Phil. 168 (2007).

43 Id.

44 Saban v. People, G.R. No. 253812, June 28, 2021, citations omitted.

45 828 Phil. 671 (2018).

46 See ponencia, pp. 28-29.

47 576 Phil. 576 (2008).

48 Id.

49 See People v. Ortega, G.R. No. 240224, February 23, 2022; People v. Pagaspas, G.R. No. 252029, November 15, 2021; People v. Veloo, G.R. No. 252154, March 24, 2021; Palencia v. People, G.R. No. 219560, July 1, 2020; Pimentel v. People, G.R. No. 239772, January 29, 2020; People v. Asaytuno, Jr., G.R. No. 245972, December 2, 2019; People v. Alon-Alon, G.R. No. 237803, November 27, 2019; People v. Zapanta, G.R. No. 230227, November 6, 2019; People v. Que, G.R. No. 212994, January 31, 2018; People v. Holgado, G.R. No. 207992, August 11, 2014.

50 G.R. No. 233209, March 11, 2019.

51 See People v. Magayon, G.R. No. 238873, September 16, 2020.

52 See People v. Alvarado, 312 Phil. 552 (1995). See also People v. Salonga, 617 Phil. 997 (2009); People v. Evangelista, 560 Phil. 510 (2007); People v. Macasa, 299 Phil 440 (1994); People v. Abelita, 285 Phil 1001 (1992).

53 People v. Alvarado, id.

54 560 Phil 510 (2007).

55 Id., citing People v. Doria, 361 Phil. 595, 621 (1999).

56 See G.R. No. 206767, September 11, 2019, 919 SCRA 149, 163.

57 Id.

58 298 Phil. 88 (1993).

59 617 Phil. 997 (2009).

60 OCA Circular No. 77-2015 entitled "APPLICATION OF REPUBLIC ACT NO. 10640" dated April 23, 2015, which provides that RA 10640 "took effect on 23 July 2014." However, it is well to point out that, in People v. Gutierrez (842 Phil, 681 [2018]), the Court noted that RA 10640 was approved on July 15, 2014 and under Section 5 thereof, it shall "take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation." RA 10640 was published on July 23, 2014 in The Philippine Star (Vol. XVIIII, No 359, Philippine Star Metro section, p. 21) and Manila Bulletin (Vol. 499, No. 23, World News section, p. 6). Taking into consideration the following, the proper effectivity date of RA 10640 should be August 7, 2014. Hence, OCA Circular No. 77-2015's statement that RA 10640 "took effect on 23 July 2014" is clearly erroneous, and as such, and must be rectified accordingly.

61 RA 9165 was published in the Manila Times and the Manila Standard on June 19, 2022. Thus, pursuant to Section 102 of RA 9165 which states that "[t]his Act shall take effect fifteen (15) days upon its publication in at least two (2) national newspapers of general circulation[,]" RA 9165 appears to have become effective on August 3, 2002.

62 See p. 1 of this Opinion.

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