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BONIFACIO DOLERA Y TEJADA, Petitioner, - versus - PEOPLE
OF THE PHILIPPINES, Respondent. |
G.R. No. 180693
Present: QUISUMBING, J., Chairperson, CARPIO MORALES, BRION, DEL
CASTILLO, and ABAD, JJ. Promulgated: September
4, 2009 |
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D E C I S I O N
CARPIO MORALES, J.:
Bonifacio T. Dolera (petitioner) was
charged before the Regional Trial Court of Quezon City with violation of Section
11, Article II of Republic Act No. 9165 (R.A. 9165) or the Comprehensive Dangerous
Drugs Act of 2002 under an Information reading
x x x x
That on or about the 14th day of August, 2003 in Quezon City, Philippines, the said accused not being authorized by law to possess or use any dangerous drug, did then and there, wilfully, unlawfully and knowingly have in [his] possession and control, Zero point twenty (0.20) grams of white crystalline substance containing Methylamphetamine [sic] hydrochloride a dangerous drug.[1]
CONTRARY TO LAW.
From the evidence for the prosecution,
the following version is gathered.
On August 14, 2003, at 3:30 in the
afternoon, PO2 Reynaldo Labon (PO2 Labon), PO1 Arnold Peñalosa (PO1 Peñalosa)
and PO2 Victor Aquino, having received a report of drug trafficking in the
vicinity of Bicol Street in Barangay Payatas, Quezon City, conducted a
surveillance along the area.[2]
While at the target area, PO2 Labon
saw petitioner, at a distance of seven meters, standing near an alley adjoining
Bicol Street, scrutinizing a transparent plastic sachet containing white
crystalline substance. PO2 Labon, who
was in civilian clothes, thus alighted from the vehicle, followed by PO1
Penalosa, and approached petitioner.[3] After introducing himself as a policeman, PO2
Labon asked petitioner what he was holding, but the latter, who appeared “natulala,”[4]
did not reply.
Suspecting that the white crystalline
substance inside the plastic sachet was shabu,
PO2 Labon confiscated the same[5] and
handcuffed petitioner. PO1 Peñalosa then
frisked petitioner and recovered a heat-sealed plastic sachet also containing
white crystalline substance from the right front pocket of petitioner’s pants.
After informing him of his constitutional rights, petitioner was brought to the
police station for further investigation.[6]
At the police station, PO2 Labon and
PO1 Peñalosa marked the plastic sachets with their respective initials “RL” and
“AP”[7]
before turning them over to the case investigator. Later in the day, the two plastic sachets including
their contents were brought to the PNP Crime Laboratory for examination. The Chemistry Report[8] which
recorded the result of the laboratory examination showed that each of the
sachets contained 0.10 grams of shabu,
a dangerous drug.
The parties[9] having
stipulated that forensic analyst Leonard M. Jabonillo examined the substances
and came up with his findings in his Report, his testimony was dispensed with.
Upon the other hand, petitioner,
denying the charge, gave the following version:
He was
standing infront of his house waiting for a ride to the public market when
three men in civilian clothes alighted from a white “FX” and forced him to
board the vehicle. The three brought him
to the police station where he was asked to identify a drug pusher in their
place. When he replied that he did not
know of any, they told him that “tutuluyan
nila ako.” He was then detained and was subjected to inquest proceedings after
four days. [10]
The trial court, by Decision[11]
of July 20, 2005, convicted petitioner and sentenced him “to suffer a jail term
of twelve years and one day as
minimum and thirteen years as
maximum and to pay a fine of P300,000.” The trial court observed:
The court finds it quite improbable that police officers in broad daylight would just stop and take away with them a person who is doing nothing but standing on the street in front of his house.
x x x x
The accused was brought to the police station for investigation and when asked if it is true that he has shabu, the answer of the accused: “Wala naman po” does not inspire the confidence that an innocent person, who is 35 years old and married with a baby, would have said.
Moreover, the defense of the accused becomes more unconvincing in view of the fact that not even his wife with a baby and his auntie who lives in the same house with him came to court despite the lapse of a long time, to vouch for the accused. His neighbors whom the accused said saw him being arrested likewise did not come forward to corroborate his claimed innocence. (Underscoring supplied)
The Court of Appeals, before which
appellant appealed and questioned, among other things, his warrantless arrest, by
Decision[12] of October
30, 2006, affirmed petitioner’s conviction. In brushing aside appellant’s questioning of
his warrantless arrest, the appellate court held that he had waived the same
when he submitted himself to the jurisdiction of the trial court.
On the merits, the appellate court
held:
The bare denial of accused-appellant that shabu was found in his possession by the police officers deserves scant consideration. Accused-appellant testified that his arrest was witnessed by several persons who know him and who are known to him, however, he did not present anyone of them to corroborate his claim that no shabu was recovered from him when he was arrested by the police officers. It has been ruled time and again that a mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. Moreover, accused-appellant admitted that he does not know the police officers who arrested him as it was the first time that he saw them. In fact, accused-appellant does not impute any improper motive against the police officers who arrested him. The presumption that the police officers performed their duties in a regular manner, therefore, stands. (Emphasis and underscoring supplied)
His motion for reconsideration having
been denied by Resolution[13]
of November 21, 2007, petitioner filed the present petition for review.
Petitioner initially takes issue on
the appellate court’s ruling that he waived any objection to his arrest when he
entered a plea upon arraignment and actively participated in the trial. Underscoring that an appeal in a criminal
case opens the whole case for review, petitioner reiterates his lament that he
was arrested without a warrant, asserting that “there was nothing unusual in [his]
behavior then which w[ould] engender a genuine reason to believe that he was
committing something illegal which would compel the police officers to approach
him.”[14]
Respecting the Chemistry Report, petitioner
contends that it is hearsay, as the forensic analyst who prepared the document
was never presented to identify it and testify thereon.[15]
Moreover, petitioner contends that
the prosecution failed to establish the chain of custody of the seized illegal
drugs to thus cast serious doubt on whether the specimens presented in court
were the ones allegedly confiscated from him.[16]
The Solicitor General, maintaining,
on the other hand, that the arrest of petitioner needed no warrant as it was
done while petitioner was committing illegal possession of shabu, posits: Since PO2
Labon and PO1 Peñalosa were conducting a surveillance based on a report of
rampant drug trafficking in the area, the chance encounter with petitioner who
was holding a plastic sachet with white crystalline contents gave the police
officers reasonable suspicion to accost him and ask about the contents thereof. The police officers’ suspicion was all the
more heightened when petitioner was dumbfounded when asked about the plastic
sachet.[17]
The Solicitor General further posits that
the prosecution did not have to present the forensic analyst in view of
petitioner’s stipulation that the two plastic sachets seized from him were
found to be positive for shabu.
Finally, the Solicitor General
maintains that the seized plastic sachets were properly submitted to the police
crime laboratory for testing, and, at all events, petitioner failed to rebut
the presumption of regularity in the performance by the police officers of
their official duties.
The petition is meritorious.
Prefatorily, the Court finds in order
the appellate court’s observation that
it is too late for petitioner to question the legality of his arrest in view of
his having already entered his plea upon arraignment and participated at the
trial. Having failed to move to quash
the information on that ground before the trial court,[18] and
having submitted himself to the jurisdiction of the trial court, any supposed
defect in his arrest was deemed waived.
For the legality of an arrest affects only the jurisdiction of the court
over his person.[19]
It is with respect to the failure of
the prosecution to prove the chain of custody of the allegedly seized evidence that
the Court departs from the findings of the appellate and lower courts to warrant
a reversal of petitioner’s conviction.
For a prosecution for illegal
possession of a dangerous drug to prosper, it must be shown that (a) the accused
was in possession of an item or an object identified to be a prohibited or
regulated drug; (b) such possession is not authorized by law; and (c) the
accused was freely and consciously aware of being in possession of the drug.[20]
Thus Mallillin v. People[21] emphasized:
Prosecutions for illegal possession of prohibited drugs necessitates [sic] 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. (Italics in the original; emphasis and underscoring supplied)
The standard operating procedure on
the seizure and custody of dangerous drugs is found in Section 21, Article II
of R.A. No. 9165 which provides:
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)
Section 21(a) of Article II of the Implementing Rules and Regulations
of R.A. No. 9165 more specifically mandates that:
(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. (Emphasis and underscoring supplied)
Thus, with respect to the marking of
dangerous drug by the apprehending officer or team in case of warrantless
seizures such as in this case, it must be done at the nearest police
station or at the nearest office of the apprehending officer/team, whichever is
practicable. This is in line with the
“chain of custody” rule. People v. Sanchez[22] elucidates:
. . .
[I]n case of warrantless seizures such
as a buy- bust operation, the physical inventory and photograph shall be
conducted at the nearest police station or office of the apprehending
officer/team, whichever is practicable; however, nothing prevents the
apprehending officer/team from immediately conducting the physical inventory
and photography of the items at the place where they were seized, as it is more
in keeping with the law’s intent of preserving their integrity and evidentiary
value.
What
Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify
is the matter of “marking” of the seized items in warrantless seizures to
ensure that the evidence seized upon apprehension is the same evidence
subjected to inventory and photography when these activities are undertaken at
the police station 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 (2) immediately upon confiscation. This step 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
under Section 29 and on allegations of robbery or theft. (Emphasis and underscoring supplied)
For
greater specificity, “marking” means the placing by the apprehending officer or
the poseur-buyer of his/her initials
and signature on the item/s seized. If
the physical inventory and photograph are made at the nearest police station or
office as allowed by the rules, the inventory and photography of the seized
items must be made in accordance with
Sec. 2 of Board Resolution No. 1, Series of 2002, but in every case, the
apprehended violator or counsel must be present. Again, this is in
keeping with the desired level of integrity that the handling process requires. Thereafter, the seized items shall be
placed in an envelope or an evidence bag unless the type and quantity of the
seized items require a different type of handling and/or container. The evidence bag or container shall
accordingly be signed by the handling officer and turned over to the next
officer in the chain of custody. (Italics
in the original; emphasis and underscoring supplied)
Ranged against these evidentiary
norms, the prosecution’s terse treatment of its exacting duty to prove beyond
reasonable doubt the guilt of accused-petitioner founders. Consider PO1 Peñalosa’s following testimony:
FIS. ARAULA:
You said you turned over the confiscated item to the investigator?
WITNESS:
Yes sir.
FIS. ARAULA:
Before you turned over the item what did you do with that item?
WITNESS:
We marked it sir.
FIS. ARAULA:
What markings was placed on the items before it was given to the Police Investigator?
WITNESS:
Our initial sir.
FIS. ARAULA:
What is your initial?
WITNESS:
AP sir.
FIS. ARAULA:
What about the items, what markings?
WITNESS:
RL Reynaldo Labon sir.
x x x x
FIS. ARAULA:
After you turned over the specimen to
the investigator, what happened to the specimen?
WITNESS:
It was turned over to
the PNP Crime Laboratory sir.
x x x x (Emphasis and underscoring supplied) [23]
From the
foregoing testimony of prosecution witness PO2 Penalosa which was essentially
echoed by prosecution witness PO2 Labon, there is no showing how the flow of the
custody of the drugs went from the time of the arrest of petitioner and alleged
confiscation of the sachets up to the turnover thereof at the police station to
the investigator according to PO2 Penalosa, to the desk officer according to PO2 Labon.
Neither is
there a showing that the items were inventoried or photographed and marked in
the presence of petitioner in accordance with statutory requirements. In fact, where in the police station and at
what stage of the investigation was the supposed marking of evidence done were
not even indicated.
And there is no indication whether
the investigator and the desk officer were one and the
same person, and what steps were undertaken to insure the integrity of the
evidence.
Notably, the record shows that it was
PO1 Peñalosa who delivered the items to the crime laboratory.[24] How they were turned over to him by the
investigator or desk officer, the prosecution failed to give even a simple indication
thereof.
There is thus a reasonable likelihood of substitution
along the chain in that the two plastic sachets that tested positive for shabu were different from the items allegedly seized from petitioner. The Court has long considered such possibility of substitution as fatal
for the prosecution.[25]
Worse, the two marked plastic sachets were not even presented, hence,
not identified in open court by the police officers-witnesses and there is no
explanation extant in the record of what happened to them after their
laboratory examination.
Segueing to the Solicitor General’s
assertion that appellant already admitted that the two plastic sachets were
seized from him and that the contents thereof were tested positive for shabu as contained in the trial court’s
Order of September 13, 2004 reading:
It is hereby stipulated by the parties that the items allegedly confiscated from the accused were submitted to the crime lab for examination and the findings were put into writing and the same were marked by the prosecution as EXHIBIT B-Request for laboratory examination; EXHIBIT C –Chemistry Report No. D-765-2003; C-1 Findings; EXHIBIT D – Certification; EXHIBIT E – Specimen A; E-1 marking lmj; E-2 marking RL; EXHIBIT F – Specimen B; F-1 marking lmj; F-2 marking AP and EXHIBIT G – Brown envelope.
In view of this stipulation, the testimony of Engr. Leonard Jabonillo is hereby dispensed with.
x x x x (Italics, emphasis and underscoring supplied),
the same fails to impress.
The above-quoted stipulation of facts
is self-explanatory. What was stipulated
was that, among other things, “the items allegedly confiscated” were
submitted for laboratory examination.
The Chemistry Report only confirmed
the contents of two plastic sachets. Whether
they were the same packets allegedly confiscated from petitioner, the prosecution
failed to establish as there was yet again an unexplained break in the chain.
That the prosecution offered in evidence the request
for laboratory examination, the chemistry report and the certification from the
forensic analyst[26]
has no bearing on the question of whether the specimens submitted for chemical
analysis were the same allegedly seized
from petitioner. All that these exhibits proved were the existence and authenticity of the request for laboratory examination and the
results of said examination, but not the required chain of custody from
the time of seizure of the evidence until its presentation in court.
While there is no need to present all persons who came into contact
with the seized drugs to testify in court,[27] the prosecution still has
to convincingly establish that the chain of custody remained unbroken throughout,
and the seized items specifically identified.
This the prosecution failed to discharge.
The appellate court’s reliance on the
presumption of regularity in the performance of official functions would not
suffice to uphold petitioner’s conviction.
Once challenged by evidence, such as in this case, the presumption of
regularity cannot be regarded as binding truth and cannot prevail over the
presumption of innocence of petitioner-accused.[28]
Although petitioner’s defense is denial which, standing alone, is inherently weak, the Court
has repeatedly stressed that the conviction of an accused must rest on the
strength of the prosecution’s evidence and not on the weakness of his defense.
The prosecution
having failed to overturn the constitutional presumption of innocence in favor
of petitioner, his acquittal is in order.
A final word. The Court notes the trial court’s seemingly haphazard
consideration of the circumstances of the case as mirrored in its
decision. Its three-paragraph ratio decidendi only discussed the
defense evidence and even rendered judgment on the basis of conjectures and
suppositions. Noticeably, the decision
never alluded to the prosecution evidence, nor even tackled in passing the
basis of the penalties it imposed.
Exhorted to be extra vigilant in
trying drug-related cases, courts should give more than lip service to the
mandate of administering justice by undertaking a serious and comprehensive consideration
of the pros and cons of the evidence offered by both the prosecution and
defense in determining the merits of a case.[29]
WHEREFORE, for failure of the prosecution to
prove his guilt beyond reasonable doubt, petitioner, BONIFACIO T. DOLERA, is ACQUITTED
of the crime of illegal possession of dangerous drugs.
Let a copy of this Decision be
furnished the Director of the Bureau of Corrections, Muntinlupa City who is ORDERED to cause the immediate release
of petitioner, unless he is being lawfully held for another cause, and to
inform this Court of action taken within ten days from notice.
No pronouncement as to costs.
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate
Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate
Justice
Chairperson
|
ARTURO D. BRION 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.
LEONARDO A. QUISUMBING
Associate
Justice
Chairperson
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify 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.
REYNATO
S. PUNO
Chief Justice
[1] Records, p. 1.
[2] Transcript of Stenographic Notes, March 17, 2004, pp. 4-5.
[3] Id. at 6, 14.
[4] Id. at 16.
[5] Id. at 7.
[6] TSN, October 27, 2003, pp. 5-6.
[7] Id. at 7-8.
[8] Records, p. 8; Exhibit “C.”
[9] Id. at 44.
[10] TSN, November 25, 2004, pp. 3-7.
[11] Records, pp. 65-67; Penned by Judge Jaime Salazar Jr.
[12] Rollo,
pp. 67-73; Penned by Associate Justice
[13] Id. at 85-86.
[14] Id. at 15-20.
[15] Id. at 22-23.
[16] Id. at 24-27.
[17] Id. at 96-102.
[18] People v. Timon, 346 Phil. 572, 593 (1997).
[19] People v. Nazareno, 329 Phil. 16, 22 (1996).
[20] People v. Tiu Won Chua, 453 Phil. 177, 186 (2003).
[21] G.R. No. 172953, April 30, 2008, 553 SCRA 619 (2008).
[22] G.R. No. 175832, October 15, 2008, 569 SCRA 194.
[23] TSN, October 27, 2003, pp.7-8.
[24] Records, p. 6; At the lower left portion of Exhibit “B” is a stamped acknowledgement which reads:
CONTROL NO. 1892
T/D
RECEIVED: 2000H
RECORDED BY: PO2 Plan
DELIVERED BY: PO1 Peñalosa
[25] Vide: Valdez v. People, 170180, November 23, 2007, 538 SCRA 611; People v. Ong, 476 Phil. 553 (2004); People v. Kimura, 471 Phil. 895 (2004); People v. Pedronan, 452 Phil. 226 (2003) and People v. Casimiro, 432 Phil. 966. (2002).
[26] Exhibits “B,” “C” and “D,” records 6,8, and 10.
[27] Vide:
People v. Agulay, G.R. No.181747,
[28] People v. Tan, 432 Phil. 171, 197 (2002).
[29] People v. Sevilla, 394 Phil. 125, 159 (2000).