Republic of the
Supreme Court
THE PEOPLE OF
THE
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G.R. No. 174198
Present: CARPIO, J., Chairperson, BRION, ABAD, and PEREZ, JJ. Promulgated: January 19, 2010 |
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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 decision[1] of
the Court of Appeals[2]
(CA) in CA-G.R. CR-H.C. No. 00505
which affirmed in toto the decision[3]
of the Regional Trial Court (RTC), Branch 259, Parañaque City[4]
in Criminal Case Nos. 02-1236-7 finding Zaida[5]
Kamad y Ambing (accused-appellant) guilty
beyond reasonable doubt of illegal sale of shabu
under Section 5, Article II of Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous
Drugs Act of 2002.
Along with her
boyfriend Leo Ramirez y Acosta (Leo)
who was charged for illegal possession of shabu, the accused-appellant was
charged under an Information[6] that reads:
The above-named accused, not
being lawfully authorized to possess or otherwise use any dangerous drug and
without the corresponding license or prescription, did then and there
willfully, unlawfully and feloniously give away, distribute and sell to a
customer for P300.00 pesos one (1) small heat sealed transparent plastic sachet
containing crystalline substance (shabu)
weighing 0.20 gram, which when examined were found positive for Methamphetamine
Hydrochloride (shabu), a dangerous
drug, in violation of the above-cited law.
CONTRARY TO LAW.
The accused-appellant pleaded not guilty on arraignment. Trial on the merits thereafter ensued.
The prosecution’s version of events is summarized below.
On
After
surveillance of the area, the buy-bust team and their asset proceeded at around
P300.00 worth of shabu and
gave the marked money; the accused-appellant thereafter handed him a plastic
sachet containing a substance suspected to be shabu. SPO2 Sanchez lighted
a cigarette to give the pre-arranged signal for the buy-bust team to approach. SPO2 Sanchez arrested the accused-appellant
and recovered from her the P300.00 marked money. The buy-bust team arrested Leo who was found
in possession of one (1) plastic sachet also suspected to contain shabu.
The
buy-bust team took the accused-appellant and Leo and the recovered plastic
sachets to their office for investigation. The recovered plastic sachets,
marked as “ES-1-161009”
and “ES-2-161002,” were then brought to the PNP Crime Laboratory for
qualitative examination; the tests yielded positive results for methamphetamine hydrochloride.[11]
The defense expectedly presented a different version of events.
The accused-appellant[12]
denied the charge and claimed that she and Leo were framed-up. At around
The
RTC Ruling
After consideration of the evidence, the RTC decreed:
WHEREFORE, PREMISES CONSIDERED, finding
both accused GUILTY beyond
reasonable doubt, this Court hereby sentences Zaida Kamad to life imprisonment
and to pay a fine of P500,000.00 for Violation of Section 5, Art. II, RA
9165 …
x x x x
SO
ORDERED.[13]
The accused-appellant appealed the RTC decision to the CA, attacking the RTC’s reliance on the presumption of regularity that the RTC found to have attended the conduct of the buy-bust operation by the police. She argued that no presumption of regularity could arise considering that the police violated NAPOLCOM rules by using an asset; the rules prohibit the deputation of private persons as PNP civilian agents.[14] The accused-appellant also pointed out the material inconsistencies in the testimony of the prosecution witnesses that cast doubt on their credibility, namely: (a) the uncertainty of SPO2 Sanchez regarding the time the buy-bust team was dispatched to the target area; (b) the confusion of PO3 Maulit on the identity of the team leader of the buy-bust team; (c) the admitted mistake of PO3 Maulit that only the recovered plastic sachet was marked “ES” (standing for the initials of SPO2 Sanchez), while the marked money was marked “MF” (standing for the initials of P/Insp. Mariano F. Fegarido as commanding officer); and (d) the contradictory statements of PO3 Maulit who testified that it was Leo who sold the shabu and that of SPO2 Sanchez who testified that it was the accused-appellant who sold him the shabu.
The
CA Ruling
The CA rejected the defense arguments and affirmed in toto the RTC findings. The CA ruled that the prosecution satisfactorily established the accused-appellant’s guilt based on the positive testimony of SPO2 Sanchez on the conduct of the buy-bust operation; his testimony bore badges of truth. Accordingly, the CA found the accused-appellant’s uncorroborated denial undeserving of any weight. The CA brushed aside as a minor inconsistency the uncertainty in the testimony of SPO2 Sanchez on the time the buy-bust operation took place. The CA also brushed aside the violation of the NAPOLCOM rules on the ground that the accused-appellant was arrested in flagrante delicto for illegal sale of shabu committed in the presence of the prosecution witnesses who were police officers. Moreover, the CA held that the use of assets to aid police officers in buy-bust operations has been judicially recognized. The CA found that while the asset brokered the shabu transaction, he had no role in the apprehension of the accused-appellant and in the search and seizure of the shabu from the accused-appellant.
The
Issue
The only issue in this case is whether the accused-appellant is
guilty beyond reasonable doubt of violation of Section 5, Article II of RA 9165 for
the illegal sale of 0.20 gram of shabu.
The Court’s Ruling
We draw attention at the outset to the unique nature of an appeal in a criminal case; the appeal throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned.[15] We find the present appeal meritorious on the basis of such review.
As
a general rule, the
trial court's findings of fact, especially when affirmed by
the CA, are entitled to great weight and will not be disturbed on appeal. This rule, however, admits of exceptions and does
not apply where facts of weight and substance with direct and material bearing on
the final outcome of the case have been overlooked, misapprehended or
misapplied.[16] After due consideration of the records of this
case, the evidence adduced, and the applicable law and jurisprudence, we hold
that a deviation from the general rule is warranted.
In a prosecution for illegal sale of dangerous drugs, the following elements must be
duly established: (1) proof that the transaction or sale took place; and (2) the
presentation in court of the corpus
delicti or the illicit drug as evidence.[17]
Proof of the corpus delicti in a buy-bust situation requires evidence, not only
that the transacted drugs actually exist, but evidence as well that the drugs
seized and examined are the same drugs presented in court. This is a condition sine qua non for
conviction as the drugs are the main subject of the illegal sale constituting
the crime and their existence and identification must be proven for the crime
to exist. As we discuss below, the
special characteristics of prohibited drugs necessitate their strict
identification by the prosecution.[18]
Our examination of the records shows that while the prosecution established through the testimony of SPO2 Sanchez that the sale of the prohibited drug by the accused-appellant took place, we find that both the RTC and the CA failed to consider the following infirmities in the prosecution’s case: (1) the serious lapses in the RA 9165 procedure committed by the buy-bust team in handling the seized shabu; and (2) the failure of the police to comply with the chain of custody rule in handling the seized shabu, resulting in the prosecution’s failure to properly identify the shabu offered in court as the same shabu seized from the accused-appellant on October 16, 2002.
Non-compliance with the prescribed procedure
under Section 21, Article II of RA 9165
In People
v. Garcia,[19] we emphasized the prosecution’s duty to
adduce evidence proving compliance by the buy-bust team with the prescribed
procedure laid down under paragraph 1, Section 21, Article II of RA
9165. This provision reads:
1) The
apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department of Justice (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]
The
Implementing Rules and Regulations of RA 9165 under its Section 21(a) provides
further details on how RA 9165 is to be applied, and provides too for a saving
mechanism in case no strict compliance with the requirements took place.
Section 21(a) states:
(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.]
Strict compliance with the
prescribed procedure is required because of the illegal drug’s unique
characteristic rendering it indistinct, not readily identifiable, and easily open
to tampering, alteration or substitution either by accident or otherwise.[20] Hence,
the rules on the measures to be observed during and after the seizure, during the
custody and transfer of the drugs for examination, and at all times up to their
presentation in court.
In
this case, SPO2 Sanchez testified on the seizure and the handling of the seized
shabu. The records
show that his testimony and the identification he made in court constitute the
totality of the prosecution’s evidence on how the police handled and preserved
the integrity of the seized shabu. Significantly, SPO2 Sanchez merely stated
in his testimony that:
Q: What
else transpired when Zaida gave something to you and you, being the poseur
buyer, gave the money to Zaida?
A: We
brought them to our office.
x x x x
Q: What
did you do with those plastic sachets containing white crystalline substance?
A: We
brought them to the SPD Crime Lab for examination.[21]
Thus, he failed to provide specific details on
how the seized shabu was marked
although the evidence shows that the shabu
was marked as “ES-1-161009” before it was sent to a forensic laboratory. His testimony also failed to state whether the
marking of the shabu was done
immediately after its seizure (as Section 21 of RA 9165 requires) or during the
investigation. His testimony likewise failed to disclose if a physical
inventory and photography of the
seized items had taken place, or if they had, whether these were undertaken in
the presence of the accused or his counsel, or a representative from the media
and the Department of Justice, and of an elective official.
In sum, his testimony failed
to show how the integrity and evidentiary value of the item seized had been
preserved; no explanation was ever given by SPO2 Sanchez to justify the non-compliance
by the buy-bust team with the prescribed procedures. In fact, the records
clearly reveal that the prosecution did not even acknowledge the procedural
lapses committed by the buy-bust team in the handling of the seized shabu.
The consequences of the above omissions must necessarily
be grave for the prosecution under the rule that penal laws,
such as RA 9165, are strictly construed against the government and liberally in
favor of the accused.[22] One consequence is to produce doubts on the origins
of the illegal drug presented in court,[23]
thus leading to the prosecution’s failure to establish the corpus delicti.[24] Unless excused by the
saving mechanism, the acquittal of the accused must follow.
The non-compliance with the
chain of custody rule
Separately from Section 21 violations, we also find the prosecution
fatally remiss in establishing an unbroken link in the chain of custody of the seized
shabu; its evidence is simply incomplete
in establishing the necessary links in the handling of the seized prohibited
drug from the time of its seizure until its presentation in court.
In Mallillin v. People,[25]
we explained the chain of custody rule and what constitutes sufficient
compliance with this rule:
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
witnesses' 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][26]
We
applied this ruling in People v. Garcia,[27]
People v. Gum-Oyen,[28]
People v. Denoman[29]
and People v. Coreche[30]
where we recognized the following links that
must be established in the chain of custody in a buy-bust situation: first,
the seizure and marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer; second, the turnover of the illegal
drug seized by the apprehending officer to the investigating officer; third,
the turnover by the investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the turnover and submission
of the marked illegal drug seized from the forensic chemist to the court.
(a) The first link in the chain
of custody
We observe that SPO2 Sanchez’
testimony lacks specifics on how the seized shabu
was handled immediately after the accused-appellant’s arrest. Although the records show that SPO2 Sanchez
testified that he actually seized the shabu
when he arrested the accused-appellant, he never disclosed the identity of
the person/s who had custody and possession of the shabu after its seizure, nor that he retained possession of the shabu
from the place of the arrest until they reached the police station.
SPO2 Sanchez also failed to state the time and
place as well as the identity of the person/s who made the markings on the two
(2) plastic sachets containing the recovered shabu seized from the accused-appellant and Leo on
(b) The second link in the chain
of custody
We also observe that SPO2
Sanchez’ testimony regarding the post-arrest police investigation failed to provide
particulars on whether the shabu was turned
over to the investigator. The records
only identify the name of the investigator as one SPO1 Nuestro before whom SPO2 Sanchez and PO3 Maulit
executed a Joint Affidavit of Arrest dated
(c) The third link in the chain
of custody
The third link in the chain is
represented by two (2) pieces of documentary evidence adduced by the
prosecution consisting of the letter-request dated
These documents reveal that
the recovered plastic sachets of shabu bearing
the markings “ES-1-161002” and “ES-2-161002” were sent to the forensic laboratory
sealed in one (1) small brown envelope bearing unidentified signatures. On the
same day, the PNP Crime Laboratory received this letter-request along with the
submitted specimens. The specimens were then subjected to qualitative
examination which yielded positive for methylamphetamine
hydrochloride.
These pieces of evidence notably
fail to identify the person who personally brought the seized shabu to the PNP Crime Laboratory. They also
fail to clearly identify the person who received the shabu at the forensic laboratory pursuant to the letter-request
dated
(d) The fourth link in the chain
of custody
The fourth link presents a
very strange and unusual twist in the prosecution’s evidence in this case. Although
the forensic chemist was presented in court, we find that his offered testimony
related to a shabu specimen other than that seized in the buy-bust operation
of
FISCAL UY: The testimony of the witness is being offered
to prove . . . that he is the one who cause [sic] the examination of the
physical evidence subject of this case containing with white crystalline
substance placed inside the plastic sachet weighing 0.20 grams and 0.30 grams
with markings of EBC and EBC-1 that I reduced findings after the examination
conducted.
x x x x
Q And with
the cause of the performance of your duties, were you able to receive a letter request relevant to this case
specifically a drug test request, dated October 12, 2002 from PS/Insp.
Wilfredo Calderon. Do you have the letter request with you?
A Yes,
sir.
Q The
witness presented to this representation the letter request dated
A Upon
receiving, I read and understand the content of the letter request after which,
I stamped and marked the letter request and then record it on the logbook and
after recording it on the logbook, I performed the test for determination of
the presence of dangerous drug on the specimen.
x x x x
Q Now,
after those tests conducted what was the result of the examination?
A It gives
positive result for Methamphetamine Hydrochloride or otherwise known as shabu, a dangerous drug.
x x x x
Q At this
juncture your Honor, the witness handed with this representation a brown
envelope with markings D-1487-02, and the signature and the date 12 October 02,
now Mr. Witness tell us who placed these markings on this brown envelope?
A I am the
one who personally made the markings, sir.
Q And in
the face of this brown envelope there is a printed name PO1 Edwin Plopinio and
the signature and the date
A I have
no idea.
Q At this
juncture your Honor, this representation proceeded to open the brown envelope.
May I respectfully request that this brown envelope be marked in evidence as
Exhibit B. And inside this brown envelope are three pieces of plastic sachets
inside which are white crystalline substance with markings EPC 12 October 02
and EPC-1 12 October 02. May I respectfully request that these plastic sachets
with white substance inside be marked in evidence as Exhibit B-1 and B-2. And in these plastic sachets with white
crystalline inside is a masking tape with the signature and letters are RAM, do
you know who placed those letters?
A I am the one who placed that markings sir.
Q And what
RAM stands for?
A That
stands for my name Richard Allan Mangalip sir.
Q You
mentioned that you reduced your findings in writing, do you have the official
finding with you?
A Yes,
sir.
Q At this
juncture the witness handed to this representation the physical science report no. D-1487-2 for purposes of identification
respectfully request that this specimen be marked in evidence as Exhibit
C. And in this Exhibit C, there is a
signature above the typewritten name Engineer Richard Allan B. Mangalip, do you
whose signature is this Mr. Witness? [34] [Emphasis
supplied]
A That is
my signature sir.
Q Respectfully
request that the signature appearing in Exhibit C be marked in evidence as
Exhibit C-1. You stated earlier that you
cause the weight of the white crystalline substance in this plastic sachet,
what the weights of this white crystalline substance?
A For the
specimen A, it is .20 grams and the specimen B, it is .30 gram.
Q May I
respectfully request that this weight indicated in this physical science report
now mark in evidence as Exhibit C-2. I
have no further questions to the witness your Honor.
x x x x
Aside from the different
dates of seizure, we note that the shabu identified
and presented in court as evidence through the testimony of the forensic
chemist, showed characteristics distinct from the shabu from the buy-bust sale of
First, there were different
markings made on the plastic sachets of the shabu
recovered on
Second,
there was a different sealed brown envelope used where a printed name and
signature of one “PO1 Edwin Plopino” and the date “
Third,
the examination of the shabu by the
PNP Crime Laboratory was made pursuant to a different letter-request for
examination dated
Fourth, the results of the shabu testified to by the forensic chemist in court was contained in a different forensic laboratory report known as Physical Science Report No. D-1487-2.[38]
We highlight these
characteristics because they are different from the documentary evidence the
prosecution formally offered[39]
consisting of the letter-request dated
From all these, we find it
obvious that some mistake must have been made in the presentation of the
prosecution’s evidence. The prosecution,
however, left the discrepancies fully unexplained. To reiterate, the forensic
chemist testified to a specimen dated
But the defense was not
alone in glossing over the discrepancies between the testimony for the
prosecution and the offered evidence, as both the RTC and CA also failed to
notice the glaring flaws in the prosecution’s evidence. Apparently, because the
parties did not point out these discrepancies while the appellate court did not
closely review the records of the proceedings, the discrepancies were not taken
into account in the decision now under review.
These observations bring us full circle to our
opening statement under the Court’s ruling on the kind and extent of review
that an appellate court undertakes in a criminal case; the appeal opens the
whole case for review, with the appellate court charged with the duty to
cite and appreciate the errors it may find in the appealed judgment, whether
these errors are assigned or unassigned.
This is one such instance where we are duty bound to rectify errors
that, although unnoticed below and unassigned by the parties, are clearly
reflected in the records of the case.
The Conclusion
Given the flagrant
procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps
in the chain of its custody, a presumption of regularity in the
performance of duties cannot be made in this case. A presumption of regularity in the
performance of official duty is made in the context of an existing rule of law
or statute authorizing the performance of an act or duty or prescribing a procedure
in the performance thereof. The
presumption applies when nothing in the record suggests that the law enforcers
deviated from the standard conduct of official duty required by law; where the
official act is irregular on its face, the presumption cannot arise.[45]
In light of the flagrant lapses we noted, the lower courts were obviously wrong
when they relied on the presumption of regularity in the performance of
official duty.
We
rule, too, that the
discrepancy in the prosecution evidence on the identity of the seized and
examined shabu and that formally
offered in court cannot but lead to serious doubts regarding the origins of the
shabu presented in court. This discrepancy and the gap in the chain of
custody immediately affect proof of the corpus
delicti without which the accused
must be acquitted.
From
the constitutional law point of view, the prosecution’s failure to establish
with moral certainty all the elements of the crime and to identify the accused as the perpetrator
signify that it failed to overturn the
constitutional presumption of innocence that every accused enjoys in a criminal
prosecution. When this happens, as in
this case, the courts need not even consider the case for the defense in
deciding the case; a ruling for acquittal must forthwith issue.
WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the March 28, 2006 decision of the Court of Appeals in CA-G.R.
CR-H.C. No. 00505 affirming the decision of conviction dated October 27, 2004
of the Regional Trial Court, Branch 259, Parañaque City in Criminal Case Nos.
02-1236-7 for illegal sale of shabu under
Section 5, Article II of Republic Act No. 9165.
Accused-appellant ZAIDA KAMAD y
AMBING is hereby declared ACQUITTED and ordered immediately RELEASED
from detention, unless she is confined for any other lawful cause.
The Director of the Bureau of
Corrections is DIRECTED to IMPLEMENT this Decision and to report
to this Court the action taken hereon within five (5) days from receipt.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
|
ANTONIO T. CARPIO Associate Justice Chairperson |
|
|
RENATO C. CORONA Associate
Justice |
ROBERTO A. ABAD Associate Justice |
JOSE P. PEREZ
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.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
REYNATO
S. PUNO
Chief Justice
* Designated
additional Member of the Second Division vice Justice del Castillo who
recused himself from the case due to his prior action in the Court of Appeals,
per Division Raffle dated
[1] Dated
[2] Penned by Associate Justice Magdangal M. de Leon, and concurred in by Presiding Justice Conrado Vasquez, Jr. and Associate Justice Mariano C. del Castillo (now a Member of this Court).
[3] Dated
[4] Penned by Judge Zosimo V. Escano.
[5] Also referred to as “Zenaida” in the records.
[6] Records, p. 1.
[7] Also referred to as “Pasillao” in the records.
[8]
TSN,
[9] Also referred to as “PO1 Mengote” in the records.
[10]
TSN,
[11] Records, p. 5.
[12]
TSN,
[13] CA rollo, p. 19.
[14]
Memorandum Circular 93-009 issued on
[15] People v. Balagat, G.R. No. 177163,
[16] People v. Robles, G.R. No.
177220,
[17]
[18] Mallillin
v. People, G.R. No. 172953,
[19] G.R.
No. 173480,
[20] People v. Robles; supra note 16.
[21]
TSN,
[22] People
v. De la Cruz, G.R. No. 177222,
[23] People v. Garcia; supra note 19; People v. De la Cruz; supra note 22, at 286; People
v. Dela Cruz, G.R. No. 181545,
October 8, 2008, 568 SCRA 273, 284; People v. Santos, Jr., G.R. No.
175593, October 17, 2007, 536 SCRA 489, 504; People v. Nazareno, G.R.
No. 174771, September 11, 2007, 532 SCRA 630, 641; and People v. Orteza,
G.R. No. 173051, July 31, 2007, 528 SCRA 750, 758-759.
[24] People v. Orteza, et al; supra note 23, at 758-759.
[25] Supra note 18, at 632-633.
[26]
[27] Supra note 19.
[28] G.R. No. 182231,
[29] G.R.
No. 171732,
[30] G.R. No. 182528,
[31] Records, pp. 3-4.
[32]
[33]
[34]
TSN,
[35]
[36]
[37]
[38]
[39] TSN,
[40] Supra note 30.
[41] Supra note 31.
[42]
TSN,
[43]
TSN,
[44]
[45] People v. Obmiranis, G.R. No. 181492,