SECOND DIVISION
|
PEOPLE OF THE Plaintiff-Appellee, - versus - ANGELES, EDGAR
DIZON Y FERRER,
REZIN Y CAROLINO,
and RAFAEL GONZALES Y
CUNANAN, Accused-Appellants. |
G.R. No. 191366 Present:
CARPIO,
J.,Chairperson, NACHURA, PERALTA, ABAD,
and MENDOZA, JJ. Promulgated:
December 13, 2010 |
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D E C I S I O N
MENDOZA, J.:
This
is an appeal from the
The Facts
The Information
indicting the accused reads:
That
on or about the 2nd day of September 2006, in the City of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN
MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without
authority of law, confederating together, acting jointly and helping one
another, did then and there wilfully, unlawfully and criminally, sniff and
possess dangerous drugs (shabu residues) contained in empty plastic sachets and
rolled aluminum foil, during a party, or at a social gathering or meeting, or
in the proximate company of at least two (2) person[s].
Contrary
to Section 13, Article II, R.A. 9165.[3]
Version of the
Prosecution
As culled from
the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1
Azardon), one of the apprehending officers, and Police Inspector Lady Ellen
Maranion (P/Insp. Maranion), the forensic chemical officer, it appears
that on September 2, 2006, at around 12:45 o’clock in the afternoon, PO1
Azardon was on duty at the Police Community Precinct II along Arellano Street,
Dagupan City, when a concerned citizen entered the precinct and reported that a
pot session was going on in the house of accused Rafael Gonzales (Gonzales)
in Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon,
PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special
Weapons and Tactics (SWAT) team hied to Trinidad Subdivision,
As the police
officers entered the gate of the house, they saw accused Orlando Doria (Doria)
coming out of the side door and immediately arrested him. Inside the house, they saw accused Gonzales, Arnold
Martinez (A.
The accused were
arrested and brought to the police precinct.
The items found in the room were seized and turned over to the Pangasinan
Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted
a laboratory examination on the seized items and all 115 plastic sachets, 11 pieces
of rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil
tested positive for methamphetamine hydrochloride. The accused were subjected
to a drug test and, except for Doria, they were found to be positive for methamphetamine
hydrochloride.
Version
of the Defense
The
defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez,
claimed that in the morning of September 2, 2006, the three of them were along
Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain Apper
who bumped the passenger jeep of R. Martinez and who was to give the materials
for the painting of said jeep. As they were going around the subdivision
looking for Apper, they saw Gonzales in front of his house and asked him if he
noticed a person pass by. While they
were talking, Doria arrived. It was then
that five to seven policemen emerged and apprehended them. They were handcuffed
and brought to the police station in Perez,
The Ruling of the RTC
The case against
Doria was dismissed on a demurrer to evidence.
On
WHEREFORE,
premises considered, judgment is hereby rendered finding accused ARNOLD
MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL
GONZALES y Cunanan GUILTY beyond reasonable doubt of the crime of Possession of
Dangerous Drugs During Parties, Social Gatherings or Meetings defined and
penalized under Section 13 in relation to Section 11, Article II of Republic
Act 9165, and each of them is sentenced to suffer the penalty of life
imprisonment and to pay the fine in the amount of P500,000.00, and to pay the
cost of suit.
The
subject items are hereby forfeited in favor of the government and to be
disposed of in accordance with the law.
SO
ORDERED.[4]
The RTC was of
the view that the positive testimony of prosecution witness PO1 Azardon,
without any showing of ill-motive on his part, prevailed over the defenses of
denial and alibi put up by the accused.
The accused were held to have been in constructive possession of the
subject items. A conspiracy was also found present as there was a common
purpose to possess the dangerous drug.
The Ruling of the CA
The CA ruled
that there was sufficient evidence to support the findings of the RTC as to the
constructive possession of the dangerous drugs by the accused. It further held that although the procedure
regarding the custody and disposition of evidence prescribed by Section 21 of
R.A. No. 9165 was not strictly complied with, the integrity and evidentiary
value of the evidence were nonetheless safeguarded. The CA was of the view that the presumption
of regularity in the performance of official duty was not sufficiently
controverted by the accused.
Not in
conformity, the accused now interposes this appeal before this Court praying
for the reversal of the subject decision, presenting the following
Assignment of
Errors
For
accused
1. The lower court erred in finding the
accused-appellants
to be having a pot session at the time of
their arrest;
2. The
lower court erred in not seeing through the antics of the police to plant the
shabu paraphernalia to justify the arrest of the accused-appellants without
warrant;
3. The
lower court erred in not finding that the corpus delicti has not been
sufficiently established;
4. The lower
court erred in not finding the uncorroborated testimony of PO1 Azardon
insufficient to convict the accused-appellants of the crime charged;
5. The
lower court erred in not acquitting the accused-appellants.
For
accused Rafael Gonzales
I
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO OVERTHROW
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.
II
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO ESTABLISH
THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.
After an assiduous assessment of the evidentiary records, the Court finds
that the prosecution failed to prove the guilt of the accused. The principal
reasons are 1] that the evidence against the accused are inadmissible; and 2]
that granting the same to be admissible, the chain of custody has not been duly
established.
Illegal Arrest, Search and Seizure
Indeed, the accused is
estopped from assailing the legality of his arrest if he fails to raise such
issue before arraignment.[5]
However, this waiver is limited only to the arrest. The
legality of an arrest affects only the jurisdiction of the court over the
person of the accused. A waiver of an illegal warrantless arrest does not carry
with it a waiver of the inadmissibility of evidence seized during the illegal
warrantless arrest.[6]
Although the
admissibility of the evidence was not raised as in issue by the accused, it has
been held that this Court has the power to correct any error, even if unassigned,
if such is necessary in arriving at a just decision,[7]
especially when the transcendental matter of life and liberty is at stake.[8]
While it is true that rules of procedure are intended to promote rather than
frustrate the ends of justice, they nevertheless must not be met at the expense
of substantial justice. Time and again, this Court has reiterated the doctrine
that the rules of procedure are mere tools intended to facilitate the
attainment of justice, rather than frustrate it. Technicalities should never be
used to defeat substantive rights.[9]
Thus, despite the procedural lapses of the accused, this Court shall rule on
the admissibility of the evidence in the case at bench. The
clear infringement of the accused’s right to be protected against unreasonable
searches and seizures cannot be ignored.
The State cannot, in a manner contrary to its
constitutional guarantee, intrude into the persons of its citizens as well as
into their houses, papers and effects.[10] Sec. 2, Art. III, of the 1987 Constitution
provides:
Section 2. - The right of the
people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things
to be seized.
This constitutional
guarantee, however, is not a blanket prohibition against all searches and
seizures without warrant. Arrests and seizures in the following instances are
allowed even in the absence of a warrant — (i) warrantless search incidental to
a lawful arrest;[11]
(ii) search of evidence in "plain view;" (iii) search of a moving
vehicle; (iv) consented warrantless search; (v) customs search; (vi) stop and
frisk; and (vii) exigent and emergency circumstances.[12]
This
case would appear to fall under either a warrantless search incidental to a
lawful arrest or a plain view search, both of which require a lawful arrest in
order to be considered valid exceptions to the constitutional guarantee. Rule
113 of the Revised Rules of Criminal Procedure provides for the circumstances
under which a warrantless arrest is lawful. Thus:
Sec.
5. Arrest without warrant; when lawful. – A peace officer or a private
person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b)
When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
(c)
When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.
In
cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and
shall be proceeded against in accordance with section 7 of Rule 112.
A
review of the facts reveal that the arrest of the accused was illegal and the
subject items were confiscated as an incident thereof. According to the testimony of PO1 Azardon and his Joint Affidavit[13] with PO1 Dela Cruz, they
proceeded to, and entered, the house of accused Gonzales based solely on the
report of a concerned citizen that a pot session was going on in said house, to
wit:
Q: I go back to the
information referred to you by the informant, did he not tell you how many
persons were actually conducting the pot session?
A: Yes, sir.
Q: When you went to
the place of Rafael Gonzales, of course you were not armed with a search
warrant, correct?
A: None, sir.
Q: Before the
information was given to you by your alleged informant, you did not know
personally Rafael Gonzales?
A: I have not met [him]
yet but I heard his name, sir.
Q: When this informant
told you that he was told that there was [an] ongoing pot session in the house
of Rafael Gonzales, was this report to you placed in the police blotter before
you proceeded to the house of Rafael Gonzales?
A: I think it was no
longer recorded, sir.
Q: In other words, you
did not even bother to get the personal data or identity of the person who told
you that he was allegedly informed that there was an ongoing pot session in the
house of Rafael Gonzales?
A: What I know is that
he is a jeepney driver of a downtown jeepney but he does not want to be
identified because he was afraid, sir.
Q: And likewise, he
did not inform you who told him that there was an ongoing pot session in the
house of Rafael Gonzales?
A: No more, sir.
Q: But upon receiving
such report from that jeepney driver you immediately formed a group and went to
the place of Rafael Gonzales?
A: Yes, sir.
x x x
Q: When you were at
the open gate of the premises of Rafael Gonzales, you could not see what is
happening inside the house of Rafael Gonzales?
A: Yes, sir.
Q: You did not also
see the alleged paraphernalia as well as the plastic sachet of shabu on the
table while you were outside the premises of the property of Rafael Gonzales?
x x x
Q: Before they
entered the premises they could not see the paraphernalia?
COURT: Answer.
A: Of course because
they were inside the room, how could we see
them, sir.
Q: But still you
entered the premises, only because a certain person who told you that he was
informed by another person that there was an ongoing pot session going on
inside the house of Rafael Gonzales?
A: Yes, sir.
Q: And that is the
only reason why you barged in inside the house of Rafael Gonzales and you
arrested the persons you saw?
A: Yes, sir.[14]
Paragraph
(c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b),
on the other hand, may be applicable and both require probable cause to be
present in order for a warrantless arrest to be valid. Probable cause has been
held to signify a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man’s belief that the
person accused is guilty of the offense with which he is charged.[15]
Although
this Court has ruled in several dangerous drugs cases[16] that tipped information
is sufficient probable cause to effect a warrantless search,[17] such rulings cannot be
applied in the case at bench because said cases involve either a buy-bust
operation or drugs in transit, basically, circumstances other than the sole tip
of an informer as basis for the arrest. None of these drug cases involve police
officers entering a house without warrant to effect arrest and seizure based solely on an informer’s tip. The case of People v. Bolasa[18]
is informative on this matter.
In People
v. Bolasa, an anonymous caller tipped off the police that a
man and a woman were repacking prohibited drugs at a certain house. The police
immediately proceeded to the house of the suspects. They walked towards the
house accompanied by their informer. When they reached the house, they peeped
inside through a small window and saw a man and woman repacking marijuana. They
then entered the house, introduced themselves as police officers, confiscated
the drug paraphernalia, and arrested the suspects. This Court ruled:
The manner by which accused-appellants were apprehended does not fall
under any of the above-enumerated categories. Perforce, their arrest is illegal.
First, the arresting officers had no personal knowledge that at the time of
their arrest, accused-appellants had just committed, were committing, or were
about to commit a crime. Second, the arresting officers had no personal
knowledge that a crime was committed nor did they have any reasonable ground to
believe that accused-appellants committed it. Third, accused-appellants were
not prisoners who have escaped from a penal establishment.
Neither can it be
said that the objects were seized in plain view. First, there was no valid
intrusion. As already discussed, accused-appellants were illegally arrested.
Second, the evidence, i.e., the tea bags later on found to
contain marijuana, was not inadvertently discovered. The police officers
intentionally peeped first through the window before they saw and ascertained
the activities of accused-appellants inside the room. In like manner, the
search cannot be categorized as a search of a moving vehicle, a consented
warrantless search, a customs search, or a stop and frisk; it cannot even fall
under exigent and emergency circumstances, for the evidence at hand is bereft
of any such showing.
On the contrary, it
indicates that the apprehending officers should have conducted first a
surveillance considering that the identities and address of the suspected
culprits were already ascertained. After conducting the surveillance and
determining the existence of probable cause for arresting accused-appellants,
they should have secured a search warrant prior to effecting a valid arrest and
seizure. The arrest being illegal ab initio, the accompanying search was
likewise illegal. Every evidence thus obtained during the illegal search cannot
be used against accused-appellants; hence, their acquittal must follow in
faithful obeisance to the fundamental law.[19]
It has been held that
personal knowledge of facts in arrests without warrant must be based upon
probable cause, which means an actual belief or reasonable grounds of
suspicion. The grounds of suspicion are reasonable when the suspicion, that the
person to be arrested is probably guilty of committing an offense, is based on
actual facts, that is, supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be arrested. [20]
As
to paragraph (a) of Section 5 of Rule 113, the arresting officers had no
personal knowledge that at the time of the arrest, accused had just committed,
were committing, or were about to commit a crime, as they had no probable cause
to enter the house of accused Rafael Gonzales in order to arrest them. As to
paragraph (b), the arresting officers had no personal knowledge of facts and
circumstances that would lead them to believe that the accused had just
committed an offense. As admitted in the testimony of PO1 Azardon, the tip
originated from a concerned citizen who himself had no personal knowledge of
the information that was reported to the police:
Q: Mr.
Witness, you claimed that the reason for apprehending all the accused was based
on a tip-off by an informant?
A: Yes, sir.
Q: What exactly [did] that
informant tell you?
A: He told us that
somebody told him that there was an ongoing pot session in the house of one of
the accused Rafael Gonzales, sir.
Q: You mean to say
that it was not the informant himself to whom the information originated but
from somebody else?
A: That was what he
told me, sir.
Q: Because of that you
proceeded to where the alleged pot session was going on? [No Answer]
Q: Did you[r]
informant particularly pinpointed [sic] to where the alleged pot session was
going on?
A: No more because he
did not go with us, sir.
Q: So you merely
relied on what he said that something or a pot session was going on somewhere
in Arellano but you don’t know the exact place where the pot session was going
on?
A: Yes, sir.
Q: And your informant has no personal knowledge
as to the veracity of the alleged pot session because he claimed that he
derived that information from somebody else?
A: This is what he
told us that somebody told him that there was an ongoing pot session, sir.
Q: Despite of [sic] that
information you proceeded to where?
A:
x x x
Q: Mr. Witness, did
your informant named [sic] those included in the alleged pot session?
A: No, sir.
Q: That was, because
your informant don’t [sic] know physically what was really happening there?
A: He was told by
another person that there was an ongoing pot session there, sir.[21]
[Emphasis supplied]
Neither can it be
said that the subject items were seized in plain view. The elements of plainview are: (a) a prior
valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties; (b) the evidence was
inadvertently discovered by the police who have the right to be where they are;
(c) the evidence must be immediately apparent; and, (d) "plain view"
justified mere seizure of evidence without further search.[22]
The evidence was not
inadvertently discovered as the police officers intentionally entered the house
with no prior surveillance or investigation before they discovered the accused
with the subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to
constitute plain view, then more so should the warrantless search in this case
be struck down. Neither can the search
be considered as a search of a moving vehicle, a consented warrantless search,
a customs search, a stop and frisk, or one under exigent and emergency
circumstances.
The apprehending
officers should have first conducted a surveillance considering that the
identity and address of one of the accused were already ascertained. After
conducting the surveillance and determining the existence of probable cause,
then a search warrant should have been secured prior to effecting arrest and
seizure. The arrest being illegal, the ensuing search as a result thereof is
likewise illegal. Evidence
procured on the occasion of an unreasonable search and seizure is deemed
tainted for being the proverbial fruit of a poisonous tree and should be
excluded.[23]
The subject items seized during the illegal arrest are thus inadmissible. The drug, being the very corpus delicti of
the crime of illegal possession of dangerous drugs, its inadmissibility thus
precludes conviction, and calls for the acquittal of the accused.
As has been
noted previously by this Court, some lawmen, prosecutors and judges have
glossed over illegal searches and seizures in cases where law enforcers are
able to present the alleged evidence of the crime, regardless of the methods by
which they were obtained. This attitude tramples on constitutionally-guaranteed
rights in the name of law enforcement. It is ironic that such enforcement of
the law fosters the breakdown of our system of justice and the eventual denigration
of society. While this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of society,
we nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law.[24]
Chain of Custody
Even granting that the seized items
are admissible as evidence, the acquittal of the accused would still be in
order for failure of the apprehending officers to comply with the chain of
custody requirement in dangerous drugs cases.
The accused contend that the identity of the seized drug was not
established with moral certainty as the chain of custody appears to be
questionable, the authorities having failed to comply with Sections 21 and 86
of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03,
Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They
argue that there was no prior coordination with the Philippine Drug Enforcement
Agency (PDEA), no inventory of the confiscated items conducted at the
crime scene, no photograph of the items taken, no compliance with the rule
requiring the accused to sign the inventory and to give them copies thereof,
and no showing of how the items were handled from the time of confiscation up
to the time of submission to the crime laboratory for testing. Therefore, the corpus
delicti was not proven, thereby producing reasonable doubt as to their
guilt. Thus, they assert that the
presumption of innocence in their favor was not overcome by the presumption of
regularity in the performance of official duty.
The essential
requisites to establish illegal possession of dangerous drugs are: (i) the
accused was in possession of the dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused freely and
consciously possessed the dangerous drug.[25] Additionally,
this being a case for violation of Section 13 of R.A. No. 9165, an additional
element of the crime is (iv) the possession of the dangerous drug must have
occurred during a party, or at a social gathering or meeting, or in the
proximate company of at least two (2) persons.
The existence of the drug is the very corpus delicti of the crime
of illegal possession of dangerous drugs and, thus, a condition sine qua non
for conviction. In order to establish the existence of the drug, its chain
of custody must be sufficiently established. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed
through the monitoring and tracking of the movements of the seized drugs from
the accused, to the police, to the forensic chemist, and finally to the court.[26] Malillin
v. People was the first in a growing number of cases to explain the
importance of chain of custody in dangerous drugs cases, to wit:
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.[27]
Section 1(b) of DDB Regulation No. 1, Series of 2002,[28]
defines chain of custody as follows:
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 used in court as evidence, and the final disposition;
Paragraph 1, Section 21,
Article II of R.A. No. 9165, provides for safeguards for the protection of the
identity and integrity of dangerous drugs seized, to wit:
SEC.
21.
Custody
and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA
shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial
custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of
the accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department
of Justice (DOJ), and any elected public official who shall be required to sign
the copies of the inventory and be given a copy thereof.
People
v. Habana
thoroughly discusses the proper procedure for the custody of seized or
confiscated items in dangerous drugs cases in order to ensure their identity
and integrity, as follows:
Usually, the
police officer who seizes the suspected substance turns it over to a
supervising officer, who would then send it by courier to the police crime
laboratory for testing. Since it is
unavoidable that possession of the substance changes hand a number of times, it
is imperative for the officer who seized the substance from the suspect to
place his marking on its plastic container and seal the same, preferably with
adhesive tape that cannot be removed without leaving a tear on the plastic
container. At the trial, the officer can
then identify the seized substance and the procedure he observed to preserve
its integrity until it reaches the crime laboratory.
If the
substance is not in a plastic container, the officer should put it in one and
seal the same. In this way the substance
would assuredly reach the laboratory in the same condition it was seized from
the accused. Further, after the
laboratory technician tests and verifies the nature of the substance in the
container, he should put his own mark on the plastic container and seal it
again with a new seal since the police officer’s seal has been broken. At the trial, the technician can then
describe the sealed condition of the plastic container when it was handed to
him and testify on the procedure he took afterwards to preserve its
integrity.
If the
sealing of the seized substance has not been made, the prosecution would have
to present every police officer, messenger, laboratory technician, and storage
personnel, the entire chain of custody, no matter how briefly one’s possession
has been. Each of them has to testify
that the substance, although unsealed, has not been tampered with or
substituted while in his care.[29]
Section
21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further
elaborates, and provides for, the possibility of non-compliance with the
prescribed procedure:
(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
supplied]
Accordingly,
non-compliance with the prescribed procedural requirements will not necessarily
render the seizure and custody of the items void and invalid, provided that (i)
there is a justifiable ground for such non-compliance, and (ii) the integrity
and evidentiary value of the seized items are properly preserved. In this case,
however, no justifiable ground is found availing, and it is apparent that there
was a failure to properly preserve the integrity and evidentiary value of the
seized items to ensure the identity of the corpus delicti from the time
of seizure to the time of presentation in court. A review of the testimonies of
the prosecution witnesses and the documentary records of the case reveals
irreparably broken links in the chain of custody.
According
to the apprehending police officers in their Joint Affidavit, the following
were confiscated from the accused, to wit:
a) Several
pcs of used empty plastic
sachets containing suspected shabu residues.
b) Eight used (8) disposable lighters ( two
(2) pcs colored orange, two (2) pcs colored yellow, one (1) pc colored green
& one (1) pc colored white ).
c) Several
pcs of used rolled
aluminum foil containing suspected shabu residues.
d) Several
pcs of used cut aluminum
foil containing suspected shabu residues.
e) One (1) pc glass
tube containing suspected
shabu residues.[30]
[Emphases supplied]
At
the police station, the case, the accused, and the above-mentioned items were
indorsed to Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1
Urbano) for proper disposition.[31]
A letter-request for laboratory examination was prepared by Police
Superintendent Edgar Orduna Basbag for the following items:
a)
Pieces
of used empty small plastic sachets with
suspected shabu residues marked “DC&A-1.”
b)
Pieces of used rolled and cut aluminum foil with
suspected shabu residues marked “DC&A-2.”
c) Pieces of used cut aluminum foil with suspected
shabu residues marked “DC&A-3.”[32]
[Emphases supplied]
The
letter-request and above-mentioned items were submitted to P/Insp. Maranion by
SPO3 Froilan Esteban (SPO3 Esteban). Final Chemistry Report No. D-042-06L
listed the specimens which were submitted for testing, to wit:
SPECIMENS SUBMITTED:
A – A1 to A115 – One Hundred fifteen
(115) open transparent
plastic sachet with tag each containing suspected shabu residue without
markings.
B – B1 to B11 – Eleven (11) rolled used aluminum foil with tag each
containing suspected shabu residue without markings.
C – C1 to C49 – Forty-nine (49) used aluminum foil with tag each
containing suspected shabu residue without markings.[33]
[Emphases
supplied]
Three days after
the subject items were seized, or on
DCPS AID SOTG
CONFISCATION RECEIPT
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that on or about 12:45 noon
of September 4, 2006, we together with our precinct supervisor,
SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3
Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the
following names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married,
jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs
old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN
MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao
Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married, businessman,
resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49
yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-Bani
this city.
Suspects were duly informed of their
constitutional rights and were brought to Dagupan City Police Station,
Seizing Officer:
(sgd.) (sgd.)
PO1 Bernard B Azardon PO1
Alejandro Dela Cruz
Affiant Affiant
Remarks:
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed[34]
[Emphases
supplied]
The 115 open transparent plastic
sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of
used aluminum foil, all containing shabu residue, as identified in the Final
Chemistry Report, were presented in court and marked as Exhibits “H” and
series, “I” and series, and “J” and series, respectively. Said items were
identified by PO1 Azardon and P/Insp. Maranion at the witness stand.[35]
The CA ruled that the integrity and
evidentiary value of the subject items were properly preserved as there was
sufficient evidence to prove that the items seized from the accused were the
same ones forwarded to the crime laboratory for examination, as shown in the
Confiscation Receipt and the letter-request for laboratory examination.
A
review of the chain of custody indicates, however, that the CA is mistaken.
First, the apprehending team failed to
comply with Section 21 of R.A. No. 9165.
After seizure and confiscation of the subject items, no physical
inventory was conducted in the presence
of the accused, or their representative or counsel, a representative from the
media and the DOJ, and any elected public official. Thus, no inventory was
prepared, signed, and provided to the accused in the manner required by
law. PO1 Azardon, in his testimony,[36]
admitted that no photographs were taken. The only discernable reason proffered
by him for the failure to comply with the prescribed procedure was that the
situation happened so suddenly. Thus:
Q: But
upon receiving such report from that jeepney driver you immediately formed a
group and went to the place of Rafael Gonzales?
A: Yes,
sir.
Q: Such
that you did not even inform the PDEA before you barged in that place of Rafael
Gonzales?
A: It was so suddenly, [sic]
sir.
Q: And
that explains the reason why you were not able to have pictures taken, is that
correct?
A: Yes,
sir.[37]
[Emphasis supplied]
The Court does not find such to be a justifiable
ground to excuse non-compliance. The suddenness of the situation cannot justify
non-compliance with the requirements. The police officers were not prevented
from preparing an inventory and taking photographs. In fact, Section 21(a) of
the IRR of R.A. No. 9165 provides specifically that in case of warrantless
seizures, the inventory and photographs shall be done at the nearest police
station or at the nearest office of the apprehending officer/team. Whatever
effect the suddenness of the situation may have had should have dissipated by
the time they reached the police station, as the suspects had already been
arrested and the items seized. Moreover,
it has been held that in case of warrantless seizures nothing prevents the
apprehending officer from immediately conducting the physical inventory and
photography of the items at their place of seizure, as it is more in keeping
with the law’s intent to preserve their integrity and evidentiary value.[38]
This Court has repeatedly
reversed conviction in drug cases for failure to comply with Section 21 of R.A.
No. 9165, resulting in the failure to properly preserve the integrity and
evidentiary value of the seized items. Some cases are People v. Garcia,[39]
People
v. Dela Cruz,[40]
People v. Dela Cruz,[41]
People
v.
Second, the subject items were not properly marked.
The case of People v. Sanchez is instructive on the requirement of
marking, to wit:
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.
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. x x x 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.[47] [Emphasis
in the original]
Nowhere in the testimony of PO1 Azardon or in his
Joint Affidavit with PO1 Dela Cruz does it appear that the subject items were
at all marked. It was only in the letter-request for laboratory examination
that the subject items were indicated to have been marked with “DC&A-1,” “DC&A-2” and “DC&A-3.” There is no showing, however, as to who made
those markings and when they were made.
Moreover, those purported markings were never mentioned when the subject
items were identified by the prosecution witnesses when they took the stand.
The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut
aluminium foil, and cut aluminium foil, but do not specifically pertain to any
individual item in each group.
Furthermore, it was only in the Chemistry Report[48] that
the precise number of each type of item was indicated and enumerated. The Court notes that in all documents prior
to said report, the subject items were never accurately quantified but only
described as “pieces,”[49]
“several pcs,”[50]
and “shabu paraphernallas.”[51] Strangely, the Chemistry Report indicates
that all the subject items had “no markings,” although each item was reported
to have been marked by P/Insp. Maranion in the course of processing the subject
items during laboratory examination and testing.[52]
Doubt, therefore, arises as to the identity of the subject items. It cannot be determined with moral certainty
that the subject items seized from the accused were the same ones subjected to
the laboratory examination and presented in court.
This Court has acquitted the accused for the failure
and irregularity in the marking of seized items in dangerous drugs cases, such
as Zarraga v. People,[53] People v. Kimura,[54] and People v. Laxa.[55]
Third, the Confiscation
Receipt relied upon by the prosecution and the courts below gives rise to more
uncertainty. Instead of being prepared on the day of the seizure of the items,
it was prepared only three days after.
More important, the receipt did not even indicate exactly what items
were confiscated and their quantity. These are basic information that a
confiscation receipt should provide. The only information contained in the
Confiscation Receipt was the fact of arrest of the accused and the general
description of the subject items as “the sachet of suspected Shabu
paraphernallas were brought to the PNP Crime Laboratory.” The receipt is made
even more dubious by PO1 Azardon’s admission in his testimony[56] that
he did not personally prepare the Confiscation Receipt and he did not know
exactly who did so.
Fourth, according to the
Certification[57]
issued by the Dagupan Police Station, the subject items were indorsed by PO1 Dela Cruz to Duty
Investigator SPO1 Urbano for proper disposition. These were later turned over by SPO3 Esteban
to P/Insp. Maranion. There is, however, no showing of how and when the subject
items were transferred from SPO1 Urbano to SPO3 Esteban.
Fifth, P/Insp. Maranion appears to be
the last person in the chain of custody. No witness testified on how the
subject items were kept after they were tested prior to their presentation in
court. This Court has highlighted similar shortcomings in People
v. Cervantes,[58]
People v. Garcia,[59]
People v. Sanchez,[60]
and Malillin v. People.[61]
More irregularities further darken the cloud as to
the guilt of the accused. Contrary to
PO1 Azardon’s testimony[62] that
they were tipped off by a concerned citizen while at the police station, the
Letter[63] to
the Executive Director of the DDB states that the apprehending officers were
tipped off “while conducting monitoring/surveillance.” Said letter also
indicates, as does the Confiscation Receipt, that the arrest and seizure
occurred on
In sum, numerous lapses and irregularities in the
chain of custody belie the prosecution’s position that the integrity and
evidentiary value of the subject items were properly preserved. The two
documents specifically relied on by the CA, the Confiscation Receipt and the
letter-request for laboratory examination, have been shown to be grossly
insufficient in proving the identity of the corpus delicti. The corpus
delicti in dangerous drugs cases constitutes the drug itself. This means
that proof beyond reasonable doubt of the identity of the prohibited drug is
essential before the accused can be found guilty.[64]
Regarding the lack of prior coordination with the PDEA provided in Section 86
of R.A. No. 9165, in People v. Sta. Maria,[65] this
Court held that said section was silent as to the
consequences of such failure, and said silence could not be interpreted as a
legislative intent to make an arrest without the participation of PDEA illegal,
nor evidence obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the “lead
agency” in the investigation and prosecution of drug-related cases. Therefore,
other law enforcement bodies still possess authority to perform similar
functions as the PDEA as long as illegal drugs cases will eventually be
transferred to the latter.
Let it be
stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect
the admissibility of the evidence but only its weight.[66]
Thus, had the subject items in this case been admissible, their evidentiary
merit and probative value would be insufficient to warrant conviction.
It may be true that where no ill
motive can be attributed to the police officers, the presumption of regularity
in the performance of official duty should prevail. However, such presumption obtains only when
there is no deviation from the regular performance of duty.[67] Where the official act in question is
irregular on its face, the presumption of regularity cannot stand.
In this case, the official acts of
the law enforcers were clearly shown and proven to be irregular. When
challenged by the evidence of a flawed chain of custody, the presumption of
regularity cannot prevail over the presumption of innocence of the accused.[68]
This Court once again takes note of
the growing number of acquittals for dangerous drugs cases due to the failure of law enforcers to observe the proper arrest,
search and seizure procedure under the law.[69]
Some bona fide arrests and seizures in dangerous drugs cases result in
the acquittal of the accused because drug enforcement operatives compromise the
integrity and evidentiary worth of the seized items. It behooves this Court to
remind law enforcement agencies to exert greater effort to apply the rules and
procedures governing the custody, control, and handling of seized drugs.
It is recognized that strict
compliance with the legal prescriptions of R.A. No. 9165 may not always be
possible. Thus, as earlier stated, non-compliance therewith is not necessarily
fatal. However, the lapses in procedure must be recognized, addressed and
explained in terms of their justifiable grounds, and the integrity and
evidentiary value of the evidence seized must be shown to have been preserved.[70]
On
a final note, this Court takes the opportunity to be instructive on Sec. 11[71]
(Possession of Dangerous Drugs) and Sec. 15[72]
(Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are
filed by law enforcers. This Court notes the practice of law enforcers of
filing charges under Sec. 11 in cases where the presence of dangerous drugs as
basis for possession is only and solely in the form of residue, being subsumed
under the last paragraph of Sec. 11.
Although not incorrect, it would be more in keeping with the intent of
the law to file charges under Sec. 15 instead in order to rehabilitate first time
offenders of drug use, provided that there is a positive confirmatory test
result as required under Sec. 15. The minimum penalty under the last paragraph
of Sec. 11 for the possession of residue is imprisonment of twelve years and
one day, while the penalty under Sec. 15 for first time offenders of drug use
is a minimum of six months rehabilitation in a government center. To file
charges under Sec. 11 on the basis of residue alone would frustrate the
objective of the law to rehabilitate drug users and provide them with an
opportunity to recover for a second chance at life.
In
the case at bench, the presence of dangerous drugs was only in the form of
residue on the drug paraphernalia, and the accused were found positive for use
of dangerous drugs. Granting that the
arrest was legal, the evidence obtained admissible, and the chain of custody
intact, the law enforcers should have filed charges under Sec. 15, R.A. No.
9165 or for use of dangerous drugs and, if there was no residue at all, they
should have been charged under Sec. 14[73]
(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14
provides that the maximum penalty under Sec. 12[74]
(Possession of Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall
possess any equipment, instrument, apparatus and other paraphernalia for
dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four
years and a fine of P50,000.00. In fact, under the same section, the
possession of such equipment, apparatus or other paraphernalia is prima facie evidence that the possessor
has used a dangerous drug and shall be presumed to have violated Sec. 15.
In
order to effectively fulfill the intent of the law to rehabilitate drug users,
this Court thus calls on law enforcers and prosecutors in dangerous drugs cases
to exercise proper discretion in filing charges when the presence of dangerous
drugs is only and solely in the form of residue and the confirmatory test
required under Sec. 15 is positive for use of dangerous drugs. In such cases,
to afford the accused a chance to be rehabilitated, the filing of charges for
or involving possession of dangerous drugs should only be done when another
separate quantity of dangerous drugs, other than mere residue, is found in the
possession of the accused as provided for in Sec. 15.
WHEREFORE, the
Let a copy of this decision be furnished the
Director of the Bureau of Corrections,
The Regional Trial Court, Branch 41,
SO ORDERED.
JOSE CATRAL
Associate Justice
WE
CONCUR:
ANTONIO T. CARPIO
Associate
Justice
Chairperson
ANTONIO
EDUARDO B. NACHURA DIOSDADO M. PERALTA
Associate Justice Associate Justice
ROBERTO A. ABAD
Associate
Justice
A T T E S
T A T I O N
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.
ANTONIO T. CARPIO
Associate
Justice
Chairperson
C E R T I F I C A T I O N
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.
RENATO C. CORONA
Chief Justice
[1] Rollo, pp.
2-14. Penned by Associate Justice Sixto C. Marella, Jr. with Associate Justice
Magdangal M. De Leon and Associate Justice Japar B. Dimaampao, concurring.
[2] Records, pp. 140-145.
Penned by Judge Emma M. Torio.
[3]
[4]
[5] People v.
[6] People v. Racho, G.R. No. 186529,
[7] C.F. Sharp & Co., Inc. v. Northwest Airlines, Inc., 431 Phil
11, 22 (2002).
[8] People v. Bodoso, 446 Phil. 838, 849-850 (2003).
[9] San Luis v. Rojas, G.R. No. 159127,
[10] People v. Siton, G.R. No. 169364,
[11] Rules of Court, Rule
126, Sec. 13.
[12] People v. Bolasa, 378 Phil. 1073, 1078-1079 (1999).
[13] Exhibit “E,” folder
of exhibits, p. 11.
[14] TSN,
[15] People v. Ayangao, 471 Phil. 379, 388 (2004).
[16]
[17]
[18] Supra note 13.
[19] Supra note 13.
[20] People v. Doria, 361 Phil. 595, 632 (1999).
[21] TSN,
[22] Supra note 13.
[23] People v.
[24]
People v. Racho, G.R. No. 186529,
August 3, 2010; citing People v. Nuevas,
G.R. No. 170233, February 22, 2007, 516 SCRA 463, 484-485.
[25] People v. Gutierrez,
G.R. No. 177777,
[26] People v. Garcia, G.R. No. 173480,
[27] G.R. No. 172953,
[28] Guidelines on the Custody and Disposition of
Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and
Laboratory Equipment.
[29] G.R. No. 188900,
[30]
Exhibit “E,” folder of exhibits, p. 11.
[31]
Exhibit “G,” folder of exhibits, p. 13.
[32]
Exhibit “A,” folder of exhibits, p. 6.
[33] Exhibit “D,” folder
of exhibits, p. 10.
[34] Exhibit “F,” folder
of exhibits, p. 12.
[35] TSN,
[36] TSN,
[37] TSN,
[38] People v. Sanchez,
G.R. No. 175832,
[39] Supra note 27.
[40] G.R. No. 177222,
[41] G.R. No.
181545,
[42] G.R. No.
175593,
[43] G.R. No. 174771,
[44] G.R. No. 173051,
[45] G.R.
No. 162064,
[46] 471 Phil. 895 (2004).
[47] Supra note 38.
[48] Exhibit “C,” folder
of exhibits, p. 9; Exhibit “D,” folder of exhibits, p. 10.
[49] Exhibit “A,” folder
of exhibits, p. 6.
[50] Exhibit “E,” folder
of exhibits, p. 11; Exhibit “G,” folder of exhibits, p. 13.
[51] Exhibit “B,” folder
of exhibits, p. 7; Exhibit “F,” folder of exhibits, p. 12.
[52] TSN,
[53] Supra note 46.
[54] Supra note 47.
[55] 414 Phil. 156 (2001).
[56] TSN,
[57] Exhibit “G,” folder
of exhibits, p. 13.
[58] G.R. No. 181494,
[59] Supra note 27.
[60] Supra note 39.
[61] Supra note 28.
[62] TSN,
[63] Exhibit “B,” folder
of exhibits, p. 7.
[64] People v. Cacao, G.R.
No. 180870,
[65] G.R. No. 171019,
[66] People v. Del
Monte, G.R. No. 179940,
[67] People v. Obmiranis, G.R. No. 181492,
[68] People v. Peralta, G.R.
No. 173477,
[69] People v. Cervantes, G.R.
No. 181494, March 17, 2009, 581 SCRA 762, 784-785, citing People v. Garcia, G.R. No. 173480, February 25, 2009, 580 SCRA 259,
277-278.
[70]
[71]
Section
11. Possession
of Dangerous Drugs. - The penalty of life imprisonment to death and a
fine ranging from Five hundred thousand pesos (P500,000.00) to Ten
million pesos (P10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall possess any dangerous drug in the following
quantities, regardless of the degree of purity thereof:
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine
hydrochloride;
(5) 50 grams or more of methamphetamine
hydrochloride or "shabu";
(6) 10 grams or more of marijuana resin or marijuana
resin oil;
(7) 500 grams or more of marijuana; and
(8) 10
grams or more of other dangerous drugs such as, but not limited to,
methylenedioxymethamphetamine (MDA) or "ecstasy",
paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid
diethylamine (LSD), gamma hydroxyamphetamine (GHB), and those similarly
designed or newly introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond therapeutic
requirements, as determined and promulgated by the Board in accordance to
Section 93, Article XI of this Act.
Otherwise, if the quantity involved is less than
the foregoing quantities, the penalties shall be graduated as follows:
(1) Life
imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00)
to Five hundred thousand pesos (P500,000.00), if the quantity of
methamphetamine hydrochloride or "shabu" is ten (10) grams or more
but less than fifty (50) grams;
(2)
Imprisonment of twenty (20) years and one (1) day to life imprisonment and a
fine ranging from Four hundred thousand pesos (P400,000.00) to Five
hundred thousand pesos (P500,000.00), if the quantities of dangerous
drugs are five (5) grams or more but less than ten (10) grams of opium,
morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or
marijuana resin oil, methamphetamine hydrochloride or "shabu", or
other dangerous drugs such as, but not limited to, MDMA or "ecstasy",
PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the quantity
possessed is far beyond therapeutic requirements; or three hundred (300) grams
or more but less than five hundred (500) grams of marijuana; and
(3)
Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000.00) to Four
hundred thousand pesos (P400,000.00), if the quantities of dangerous
drugs are less than five (5) grams of opium, morphine, heroin, cocaine or
cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine
hydrochloride or "shabu", or other dangerous drugs such as, but not
limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those
similarly designed or newly introduced drugs and their derivatives, without
having any therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300) grams of marijuana.
[72]
Section
15. Use of
Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for
use of any dangerous drug, after a confirmatory test, shall be imposed a
penalty of a minimum of six (6) months rehabilitation in a government center
for the first offense, subject to the provisions of Article VIII of this Act.
If apprehended using any dangerous drug for the second time, he/she shall
suffer the penalty of imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00)
to Two hundred thousand pesos (P200,000.00): Provided, That this
Section shall not be applicable where the person tested is also found to have
in his/her possession such quantity of any dangerous drug provided for under
Section 11 of this Act, in which case the provisions stated therein shall
apply.
[73]
Section
14. Possession
of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings. - The maximum penalty
provided for in Section 12 of this Act shall be imposed upon any person, who
shall possess or have under his/her control any equipment, instrument,
apparatus and other paraphernalia fit or intended for smoking, consuming,
administering, injecting, ingesting, or introducing any dangerous drug into the
body, during parties, social gatherings or meetings, or in the proximate
company of at least two (2) persons.
[74]
Section
12. Possession
of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs. - The
penalty of imprisonment ranging from six (6) months and one (1) day to four (4)
years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty
thousand pesos (P50,000.00) shall be imposed upon any person, who,
unless authorized by law, shall possess or have under his/her control any equipment,
instrument, apparatus and other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or introducing any dangerous
drug into the body: Provided, That in the case of medical practitioners
and various professionals who are required to carry such equipment, instrument,
apparatus and other paraphernalia in the practice of their profession, the
Board shall prescribe the necessary implementing guidelines thereof.
The possession of such equipment, instrument,
apparatus and other paraphernalia fit or intended for any of the purposes
enumerated in the preceding paragraph shall be prima facie evidence that
the possessor has smoked, consumed, administered to himself/herself, injected,
ingested or used a dangerous drug and shall be presumed to have violated
Section 15 of this Act.