THE
PEOPLE OF THE
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G.R. No. 171732
Present:
*CARPIO, J., **carpio
MORALES, Acting
Chairperson, BRION, ABAD, JJ. Promulgated:
August 14, 2009
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D E C I S I O N
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BRION, J.: |
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We review the conviction of accused-appellant Edgar Denoman y
Acurda (accused-appellant) for illegal sale of shabu under
Section 5, Article II of Republic Act (RA)
No. 9165 or the Comprehensive Dangerous
Drugs Act of 2002. The Regional
Trial Court (RTC), Branch 72,
The accused-appellant was charged
under two informations for violation of RA No. 9165 before the RTC. The first, docketed as Criminal Case
No. 27283-MN, charged him with illegal possession of dangerous drug under
Section 11, Article II of RA No. 9165.
This Information reads:
That on or about the 30th day of July, 2002 in the City of Malabon, the above-named accused, being a private person and without authority of law, did, then and there, willfully, unlawfully and feloniously have in his possession, custody and control One (1) heat-sealed transparent plastic sachet containing white crystalline substance with net weight 0.04 gram which substance when subjected to chemistry examination gave positive result for Methylaphetamine Hydrochloride otherwise known “shabu”, a dangerous drug.[3]
The second, docketed as
Criminal Case No. 28387-MN, charged him with the crime of illegal sale of shabu
under the following allegations:
That on or about the 17th
day of February 2003 in the City of Malabon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being a private
person and without authority of law, did, then and there, willfully, unlawfully
and feloniously sell and deliver for consideration in the amount of P
100.00 to poseur buyer One (1) heat-sealed transparent plastic sachet
containing white crystalline substance with a net weight of 0.03 gram which
substance when subjected to chemistry examination gave positive result for
Methylamphetamine Hydrochloride otherwise known as “shabu”, a dangerous drug.[4]
The accused-appellant pleaded not
guilty to both charges[5]
which were jointly tried after pre-trial.
THE FACTS
The prosecution showed that on two
separate occasions, the accused-appellant was caught red-handed in the illegal
possession of shabu and of drug
pushing. The prosecution presented two (2) witnesses: P/A Ronald Ticlao (P/A Ticlao) and PO1 Alexander Carlos (PO1 Carlos) who both positively
identified the accused-appellant as the person who handled the shabu (in P/A Ticlao’s case) and sold the shabu (in PO1 Carlos’ case).[6]
P/A
Ticlao,[7]
testifying in Criminal Case No. 27283-MN, related that on July 30, 2002 at 3:15
p.m. in Sulucan,[8] Malabon
City, he and the other operatives of the Drug Enforcement Unit (DEU) of the Malabon Police Station were
engaged in a narcotics operation after receipt of reports of rampant selling of
shabu in the area. In the course of
their operation, P/A Ticlao saw the accused-appellant and one Jomarie Damasco[9]
each holding a plastic sachet which he suspected contained shabu. The operatives then immediately arrested the
accused-appellant and his companion and brought them to the Pagamutang Bayan before proceeding to the
police headquarters. The items seized from the accused-appellant were sent to
laboratory examination, and they tested positive for shabu.[10]
The
prosecution presented the following documentary evidence:
Exhibits
“A” and “A-1” - Blotter of Dispatch and Brought-in;
Exhibits
“B” and “B-1” -
Improvised wrapper and shabu;
Exhibit
“C” - Request for Laboratory Examination;
Exhibit
“D” - Laboratory Report; and
Exhibits “E,” “E-1” to “E-3” - Affidavit of arrest/sworn statement.
In
Criminal Case No. 28387-MN, PO1 Carlos[11] testified
that he was a member of the DEU, Malabon Police Station. He related that upon
being informed on P100.00 bill as buy-bust
money. On arrival at the indicated place, PO1 Carlos and the confidential
informant saw and approached the accused-appellant. After a short talk, the
trio proceeded to a house located in the area where the accused-appellant
presented to him a small plastic sachet which he suspected contained shabu. PO1 Carlos agreed to buy the small plastic
sachet and gave the P100.00 bill to the accused-appellant as payment. Upon
receipt of the plastic sachet containing the suspected shabu, he gave the pre-arranged signal, prompting his back-ups to come
forward and arrest the accused-appellant. After the arrest, they brought the
accused-appellant to the Pagamutang Bayan.
The seized plastic sachet was sent to a
forensic chemist for laboratory examination which showed positive results for shabu.[12]
The prosecution presented the
following documentary evidence:
Exhibits “F” and “F-1” - Blotter of Dispatch and Brought-in;
Exhibits “G” and “G-1” - Xerox of P 100 bill;
Exhibits “H” and “H-1” - Improvised wrapper and shabu;
Exhibit “I” - Request of Laboratory Examination;
Exhibit “J” - Laboratory Report; and
Exhibits “K”, “K-1” to “K-4” - Affidavit of arrest/sworn statement
and signatures.
In
both cases, the accused-appellant denied the accusations against him.[13]
He claimed that he was a victim of frame-up and extortion. He also claimed that
the police filed the charges against him because he failed to provide the
whereabouts of a person named Rollie.[14]
The prosecution and defense agreed during
the trial to dispense with the testimonies of the defense witnesses – Jomarie
Damasco and Marife Demata – on the stipulation that these witnesses would
simply corroborate the accused-appellant’s testimony.[15] The two sides likewise dispensed with the rebuttal testimony of PO1 Carlos and
sur-rebuttal testimony of the accused-appellant on the stipulation that they
will simply repeat and insist on their respective versions of events.[16]
In a Joint Decision dated P500,000
and to pay the costs.[18]
The accused-appellant appealed to the CA
essentially challenging the RTC’s findings of fact. He argued that: (1) the incredible testimony of PO1 Carlos
should not be believed because of its inconsistencies and contradictions; and
(2) the seized plastic sachet allegedly containing shabu was not properly marked and identified.
The CA fully affirmed the accused-appellant’s
conviction in its decision dated
The
CA found no reason to overturn the RTC findings anchored on PO1 Carlos’ testimony
for being a clear and straightforward narration of the antecedent events that
transpired and that indubitably showed the arrest of the accused-appellant during
a legitimate buy-bust operation.[20] On the basis of PO1 Carlos’ testimony, the CA
also brushed aside the accused-appellant’s attack on the identity and integrity
of the buy-bust money and the seized plastic sachet. [21]
The
CA also rejected the accused-appellant’s defenses of denial and frame-up, and
gave greater credence to PO1 Carlos’ testimony, relying on the presumption of
regularity in the performance of official functions by the police officers who
conducted the buy-bust operation.[22]
THE ISSUE
In the petition now before us, the
accused-appellant raises the core issue of whether sufficient evidence exists to
support his conviction for illegal sale of shabu under RA No. 9165.
In
his Appellant’s Brief,[23]
the accused-appellant questions the lower courts’ reliance on PO1 Carlos’ incredible
story that the accused-appellant sold shabu
to PO1 Carlos, a stranger to him. He also questions the worth of PO1 Carlos’
testimony about the buy-bust sale in light of PO1 Carlos’ failure to explain
how he (PO1 Carlos) could have agreed to a pre-arranged signal with the
confidential informant and the DEU operatives when he never expected that the
illegal transaction would take place inside a house.
Lastly,
the accused-appellant attacks the prosecution evidence for its failure to
establish the proper chain of custody of the shabu allegedly seized from him.
In
its Brief for the Appellee,[24]
the Office of the Solicitor (OSG),
representing the People, contends that the prosecution evidence amply supports
the accused-appellant’s guilt beyond reasonable doubt of drug pushing. The OSG
emphasizes that on the issue of the witness’ credibility, great respect must be
given to the factual findings of the RTC, especially after the defense failed
to adduce evidence of improper motive against the prosecution witness. The OSG further posits that the
accused-appellant’s defense of denial is self-serving and uncorroborated by any
credible evidence from a disinterested witness. His denial should not also prevail
over the positive, convincing and credible testimony of PO1 Carlos.
OUR RULING
We find the appeal meritorious.
A successful prosecution for the sale
of illegal drugs requires more than the perfunctory presentation of evidence establishing
each element of the crime: the identities of the buyer and seller, the transaction
or sale of the illegal drug and the existence of the corpus delicti.[25] In
securing or sustaining a conviction under RA No. 9165, the intrinsic worth of these
pieces of evidence, especially the identity and integrity of the corpus delicti, must definitely be shown
to have been preserved. This requirement
necessarily arises from the illegal drug’s unique characteristic that renders
it indistinct, not readily identifiable, and easily open to tampering,
alteration or substitution either by accident or otherwise.[26] Thus, to remove any doubt or uncertainty on the
identity and integrity of the seized drug, evidence must definitely show that
the illegal drug presented in court is the same illegal drug actually recovered
from the accused-appellant; otherwise, the prosecution for possession or for
drug pushing under RA No. 9165 fails.
Section 21, paragraph 1, Article II
of RA No. 9165 and Section 21(a),
Article II of the Implementing Rules
and Regulations (IRR) of RA
No. 9165 give us the procedures that the apprehending team should observe
in the handling of seized illegal drugs
in order to preserve their identity and integrity as evidence. As
indicated by their mandatory terms, strict compliance with the prescribed
procedure is essential and the prosecution must show compliance in every case.[27] Parenthetically, in People v. De la Cruz,[28] we
justified the need for strict compliance with the prescribed procedures to be
consistent with the principle that penal laws shall be construed strictly
against the government and liberally in favor of the accused.
Section 21, paragraph 1, Article II
of RA No. 9165, states:
1) The apprehending team having initial
custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence
of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof.
[Emphasis supplied]
This
provision is further elaborated in Section 21(a), Article II of the IRR of RA
No. 9165, which reads:
(a) The apprehending office/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, 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.[Emphasis supplied]
In the present case, the records show
that the buy-bust team did not observe even the most basic requirements of the prescribed
procedures. While the markings,
“AOC-BB/17-02-03,” were made in the small plastic sachet allegedly seized from
the accused-appellant, the evidence does not show the identity of the person
who made these markings and the time and place where these markings were made.[29] Notably, PO1 Carlos’ testimony failed to
disclose whether a physical inventory and photograph of the illegal drug had
been done. Further, nothing in the records also indicates whether the physical
inventory and photograph, if done at all, were made in the presence of the
accused-appellant or his representatives or within the presence of any
representative from the media, DOJ or any elected official. Then again, PO1 Carlos’ testimony also failed
to show that any of these people has been required to sign the copies of the
physical inventory, or that any of them was subsequently given a copy of the
physical inventory.
We had occasions to discuss and
expound in several cases on the implications of the failure to comply with
Section 21, paragraph 1, Article II of RA No. 9165.
In People v. Sanchez,[30]
we declared that in a warrantless
seizure (such as in a buy-bust operation) under RA No. 9165, the physical
inventory and photograph of the items can be made by the buy-bust team, if
practicable, at the place of
seizure considering that such interpretation is more in keeping with the law’s
intent of preserving the integrity and evidentiary value of the seized drugs.[31]
People v. Garcia[32] resulted in an acquittal because the buy-bust
team failed to immediately mark the seized items at the place of seizure and
failed to explain the discrepancies
in the markings in the seized items. The underlying reason for the acquittal, of
course, was the doubts raised on whether the seized items are the exact
same items that were taken from the accused-appellant when he was arrested; the
prosecution failed to satisfactorily establish the corpus delicti – a material element of the crime.
Another acquittal was People v. Robles,[33]
where the Court considered the uncertainty of the origins of the seized drug given
the lack of evidence showing compliance with the prescribed procedures on
physical inventory, the photographing of the seized articles, and the observance
of the chain of custody rule.
While the
chain of custody has been a critical issue leading to acquittals in drug cases,
we have nevertheless held that non-compliance with the prescribed procedures does
not necessarily result in the conclusion that the identity of the seized drugs has
been compromised so that an acquittal should follow. The last paragraph of Section 21(a), Article
II of the IRR of RA No. 9165 provides a saving mechanism to ensure that not
every case of non-compliance will irretrievably prejudice the prosecution’s
case. To warrant application of this saving mechanism, however, the prosecution
must recognize and explain the lapse or lapses in the prescribed procedures.[34]
The prosecution must likewise
demonstrate that the integrity and evidentiary value of the evidence seized have
been preserved.[35]
In the
present case, the prosecution miserably failed to adduce evidence establishing
the chain of custody of the seized illegal drugs, and failed as well to
establish compliance with the saving mechanism discussed above.
In Lopez v. People,[36] we laid down the requirements that must
be followed in handling an illegal drug seized:
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. [Emphasis supplied]
Section 1(b) of Dangerous Drugs Board
Regulation No. 1, Series
of 2002,[37] which
implements RA No. 9165, defines chain of custody in this wise:
b. “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 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;[Emphasis supplied]
While the identities of the seller
and the buyer and the transaction involving the sale of the illegal drug were
duly proven in this case by PO1 Carlos’ testimony, we find the testimony deficient
for its failure to establish the various links in the chain of custody. PO1
Carlos did not state the details material to the handling of the items seized
from the accused-appellant. This glaring deficiency is readily obvious from PO1
Carlos’ short testimony which glossed over the required details. To quote PO1 Carlos:
Q: After you have purchased, what happened next?
A: We arrested them.
x x x
Q: After that?
A: We apprised him of his rights and his violation then we brought him to the Pagamutang Bayan.
Q: What was the result of the laboratory examination?
A: Positive, sir.[38]
Thus, PO1 Carlos failed to testify about the following critical links in the chain of custody –
(a)
The first link
The links in the chain of custody
start with the seizure of the plastic sachet containing the suspected shabu bought in the buy-bust sale. The
short testimony of PO1 Carlos in this regard merely showed that after making
the arrest, the accused-appellant was taken to the Pagamutang Bayan and thereafter to the police station. His
testimony was glaringly silent regarding the handling and disposition of the
seized plastic sachet and its contents after the arrest. He did not also
identify the person who had care of the seized plastic sachet during the ride
to the Pagamutang Bayan, and from
there to the police station.
(b)
The second link
The second link in the chain of custody – the turnover
of the seized plastic sachet containing the shabu
from the buy-bust team to the police investigator – was not supported by
evidence. As we mentioned earlier, while markings were made on the seized
plastic sachet recovered from the accused-appellant, the prosecution failed to
adduce any evidence identifying the person who made the markings and the place
and occasion when these markings were made.[39] Similarly,
the prosecution also failed to present evidence pertaining to the identity of
the person who submitted the seized plastic sachet to the police investigator. Although
the records show that the request for laboratory examination of the seized
plastic sachet was prepared by one Monchito Glory Lusterio as Chief Police
Inspector of the DEU, the evidence does not show that the Chief Police
Inspector was the police investigator who received the marked plastic sachet
from the buy-bust team.[40]
A close examination of the records
likewise shows that the buy-bust sale occurred on
(c)
The third link
Evidence showing the custody of the
seized plastic sachets at the PNP Crime Laboratory stage has not been adduced. Notably, the identity of the person who took
the seized shabu to the crime laboratory
and the identity of the person who received the seized shabu for laboratory examination were not disclosed. The records
show that one Albert S. Arturo, as Chief Forensic Chemist, examined the
specimens submitted in the request dated
(d)
The fourth link
Sections 3[42]
and 6[43]
(paragraph 8) of Dangerous Drugs Board
Regulation No. 2, Series of 2003,[44]
requires laboratory personnel to document the chain of custody each time a
specimen is handled or transferred until its disposal; the board regulation
also requires identification of the individuals in this part of the chain. The records of the case are bereft of details showing
that this board regulation was ever complied with; the records also do not
indicate how the specimen was handled after the laboratory examination and the
identity of the person who had the custody of the shabu before its presentation in court.
The above enumeration and discussion
show the glaring gaps in the chain of custody – from the seizure of the plastic
sachet until the shabu was presented
in court – and the prosecution’s failure to establish the identities of the
persons who handled the seized items.
We are not unmindful of the evidence
on record showing that PO1 Carlos identified the shabu offered in evidence as the very same shabu recovered from the accused-appellant. We cannot accord weight to PO1 Carlos’
identification, however, in light of our above discussions and findings.[45]
To repeat, the lapses in the required procedures do not provide us any reasonable
certainty that the shabu that was offered
in court as evidence is the same shabu that
was allegedly seized from the
accused-appellant. In the absence of
concrete evidence on the illegal drug bought and sold, the body of the crime – the
corpus delicti – has not been
adequately proven.
In light of this conclusion, we see
no need to discuss the strength of the accused-appellant’s defenses and the
veracity of his evidence. Neither do we see any need to pass upon the merits of
the other arguments raised by the accused-appellant, since the prosecution
failed to overcome the accused-appellant’s right to be presumed innocent of the
crime charged.
As our last point, we are aware that the
RTC’s findings of fact, when affirmed by the CA, are entitled to great weight
and will not be disturbed on appeal. This rule, however, finds application only
where the lower courts did not overlook or misapprehend facts of weight and
substance in their review and appreciation of the presented evidence.[46]
In this case, the exception rather
than the general rule applies given the RTC and CA’s failure to recognize material
facts and fatal omissions on the part of the buy-bust team. Both courts simply relied on the presumption
of regularity in the performance of official duties – a presumption that does
not arise when lapses in procedure are evident from the record,[47]
in this case, the failure to comply with Section 21, paragraph (1) of Article
II of RA No. 9165 and its implementing rules. This same lapse resulted in no
less than the failure to establish the existence of the corpus delicti. In the
absence of this element, no conviction for the illegal sale of shabu under Section 5 of RA No. 9165 can
be sustained.
WHEREFORE,
premises considered, we hereby REVERSE and SET ASIDE the Decision
dated
Let a copy of this Decision be furnished the
Director, Bureau of Corrections,
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE
CONCUR:
|
CONCHITA CARPIO-MORALES Associate Justice Acting Chairperson |
|
|
ANTONIO T. CARPIO Associate
Justice |
MARIANO C. Associate Justice |
ROBERTO A. ABAD
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
CONCHITA
CARPIO-MORALES
Associate Justice
Acting Chairperson
CERTIFICATION
REYNATO
S. PUNO
Chief Justice
* Designated additional Member of the Second
Division per Special Order No. 671 dated
** Designated
Acting Chairperson of the Second Division per Special Order No. 670 dated
[1] Penned by Judge Benjamin M. Aquino, Jr.
[2] Penned by Associate Justice Arturo G. Tayag (now retired), with Associate Justice Jose L. Sabio, Jr. and Associate Justice Jose C. Mendoza, concurring; rollo, pp. 2-15.
[3] Records, p. 1
[4]
[5]
[6] TSN, April 21. 2003, p. 2 and TSN,
[7] Direct Examination, TSN,
[8] Also spelled as Sulukan in the records.
[9] Also referred to as Jomari Damasco in the records.
[10] Records, pp. 4-5.
[11] Direct
Examination, TSN,
[12] Records, pp. 43 and 46.
[13] TSN,
[14] TSN,
[15] Joint
Order dated
[16] Orders
dated
[17]
[18]
[19] Rollo, p. 14.
[20]
[21]
[22]
[23] CA rollo, pp. 70-81.
[24]
[25] People
v. Partoza, G.R. No. 182418,
[26] People
v. Robles, G.R. No. 177220,
[27] People v. Garcia, G.R. No.
173480,
[28] G.R. No. 177222,
[29] Records, p. 44.
[30] G.R. No. 181545,
[31]
[32] G.R. No. 173480,
[33] Supra note 27.
[34] People
v. Sanchez, G.R. No. 175832,
[35]
[36] G.R.
No. 172953,
[37] Guidelines On The Custody And Disposition Of Seized Dangerous Drugs, Controlled Precursors And Essential Chemicals, and Laboratory Equipment pursuant to Section 21, Article II of the IRR of RA No. 9165 in relation to Section 81(b), Article IX of RA No. 9165.
[38] TSN,
[39] Records, p. 44.
[40] Ibid.
[41]
[42] Chain of Custody refers
to procedures to account for each specimen by tracking its handling and storage
from point of collection to final disposal. These procedures require that the
applicant’s identity is confirmed and that a Custody and Control Form is used from
time of collection to receipt by the laboratory. Within the laboratory,
appropriate chain of custody records must account for the samples until
disposal.
[43] 8. Chain of Custody
-- A laboratory shall use documented chain of custody procedures
to maintain control and accountability of
specimens. The date and purpose shall be recorded on an appropriate
Custody and Control Form each time a specimen is handled or transferred and
every individual in the chain shall be identified. Accordingly,
authorized collection staff shall be responsible for each specimen in their
possession and shall sign and complete the Custody and Control Forms.
[44] Implementing Rules and Regulations Governing Accreditation
of Drug Testing Laboratories in the
[45]
TSN,
[46] People v. Robles, supra note 27.
[47] People v. Garcia, supra note 28.