THIRD DIVISION
[G.R. No. 227301. June 10, 2020.]
ABDULLAH ACMAD @ "MAMA", petitioner,vs. PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJune 10, 2020, which reads as follows:
"G.R. No. 227301 — (ABDULLAH ACMAD @ "Mama," petitioner v. PEOPLE OF THE PHILIPPINES, respondent). — This resolves the Petition for Review on Certiorari1 assailing the Decision 2 dated January 25, 2016 and the Resolution 3 dated September 23, 2016 of the Court of Appeals (CA) in CA-G.R. CR No. 36020, which affirmed the Decision 4 dated September 17, 2013 of the Regional Trial Court (RTC) of Dagupan City, Branch 44, in Criminal Case No. 2011-0114-D, finding petitioner Abdullah Acmad @ "Mama" (Acmad) guilty beyond reasonable doubt of violating Section 11, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.
Factual Antecedents
In an Information 5 filed with the RTC of Dagupan City, Acmad was charged with violation of Section 11, Article II, R.A. No. 9165, allegedly committed as follows:
That on or about the 26th day of February, 2011, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ABDULLAH ACMAD @ MAMA, did then and there, willfully, unlawfully and criminally, have in his possession, custody and control [of] Methamphetamine Hydrochloride (Shabu) contained in two (2) heat-sealed plastic sachets, weighing more or less 0.11 grams, without authority to possess the same.
Contrary to Article II, Section 11, RA 9165.
During arraignment, petitioner pleaded "not guilty" to the crime charged. After termination of the pre-trial, trial on the merits ensued. 6
According to the prosecution, on February 26, 2011, at around 1 a.m., PO1 Wilson Ballesteros (PO1 Ballesteros) and PO2 Ernesto Aquino (PO2 Aquino) were conducting a routine patrol at their area of responsibility in Dagupan City. As they approached Fernandez St., they turned off their lights and blinkers because that is where illegal transactions often take place. 7
As they were passing along Fernandez St., they saw Acmad, under a lighted post, handing a plastic sachet containing suspected shabu to an unidentified person. The unidentified person suddenly noticed the presence of the police officers before he could get the sachet from Acmad and just fled immediately. On the other hand, Acmad, who is an amputee, was not able to run and was accosted by PO1 Ballesteros and PO2 Aquino. 8
PO1 Ballesteros requested Acmad to lift the right portion of his short pants and bring out its contents. The police officers then found four (4) plastic sachets containing suspected shabu and three 100-Peso bills in Acmad's possession, and confiscated the same. 9
Thereafter, PO1 Ballesteros and PO2 Aquino brought Acmad to the Police Community Precinct (PCP) 1 at Galvan St. The four sachets were marked at the main office as "WPB1" to "WPB4", and the three 100-Peso bills were marked as "WPB5" to "WPB7". 10
PO1 Ballesteros prepared a confiscation receipt, which he signed together with a representative of the Department of Justice (DOJ) named Robert Ramirez (Ramirez). He likewise prepared a laboratory examination request. Thereafter, he brought Acmad to undergo medical examination. 11
On the following morning, he brought the specimen to the crime laboratory for examination. Of the four sachets, two sachets were found to contain substance positive for methamphetamine hydrochloride or shabu, while the contents of the other two tested negative. 12
On the other hand, the defense offered the testimony of Acmad to establish his innocence. Acmad denied that he was at Fernandez St. on February 26, 2011 at 1 a.m. at dawn, and was seen by PO1 Ballesteros and PO2 Aquino exchanging shabu for money with an unidentified person. According to him, as early as 9:15 p.m. on February 25, 2011, he was already arrested by PO1 Ballesteros and was taken to the Babaliwan Police Station. 13
Acmad testified that he was passing along Novo, Fernandez St., on his way to a computer shop, when the police officers chanced upon him and asked where he was headed. He answered that he was going to a computer shop to play games but the police officers did not believe him and instead insisted that he was going to Fernandez St. to "score." 14
Acmad denied being frisked in the manner narrated by the police. According to Acmad, the police officers just patted him at the waist, but it is not true that four heat-sealed plastic sachets were found in his possession [in the right pocket of his shorts], since he had no pockets at that time. He also denied that the police recovered from him P300.00, which was supposedly the proceeds of the illegal drugs, since he only had P50.00, which the police officers took to buy cigarettes. 15
Acmad was then forced to board a vehicle and was first brought to McAdore police station and then to Babaliwan police station. 16 According to him, he never saw the Confiscation Receipt while at the McAdore police station or at the Babaliwan police station. 17
On September 17, 2013, the RTC rendered the assailed Decision, 18 finding Acmad guilty beyond reasonable doubt of violation of Section 11, Article II, R.A. No. 9165. Acmad was sentenced to suffer the penalty of imprisonment for twelve (12) years and one (1) day to twenty (20) years and to pay a fine of Three Hundred Thousand Pesos (P300,000.00), viz.:
WHEREFORE, judgement is hereby rendered finding accused Abdullah Acmad alias "Mama" GUILTY beyond reasonable doubt with Violation of Article II, Sec. 11 of R.A. 9165 otherwise known as the Dangerous Drugs Act of 2002, and is hereby sentenced to suffer imprisonment of Twelve (12) years and One (1) day to Twenty years and a fine in the amount of Three Hundred Thousand (Php300,000.00) Pesos.
With costs against said accused.
In the meantime, the subject seven plastic sachets of shabu are hereby ordered disposed of in accordance with law.
SO ORDERED. 19
The trial court ruled that the prosecution was able to establish that Acmad and an unidentified individual were exchanging money and a sachet containing suspected shabu, and that the police officers were able to recover from him four plastic sachets containing suspected shabu, two of which turned positive for the presence of Methamphetamine Hydrochloride. The RTC rejected Acmad's defense of bare denial and observed that as admitted by. petitioner himself, the police officers had no ulterior motive to impute a crime so serious against him. 20
On appeal, the CA affirmed the Decision of the RTC. It found that all the elements of the offense of illegal. possession of dangerous drugs has been established. 21 It also pointed out that any alleged irregularity in the manner of Acmad's arrest cannot be raised after the arraignment, and that in any case, such irregularity is not a sufficient ground to reverse or set aside an otherwise proper conviction. 22 Lastly, it held that the conduct of physical inventory and taking of photographs at the police station do not constitute a violation of Section 21 of R.A. No. 9165, as they are actually permitted under the said provision in cases of warrantless arrests. 23 The decretal portion of the Decision 24 reads:
WHEREFORE, the APPEAL is DENIED. The Regional Trial Court's Decision dated September 17, 2013 is hereby AFFIRMED in toto.
SO ORDERED.25
In the Resolution 26 dated September 23, 2016, the CA denied Acmad's motion for reconsideration.
Hence, this petition was filed.
Praying for his acquittal, Acmad insists that his arrest was illegal, thereby rendering the items supposedly confiscated from him inadmissible in evidence. 27 He likewise maintains his argument that the arresting officers violated Section 21 of R.A. No. 9165, when they failed to conduct the inventory and taking of photographs in the place of arrest. 28
In brief, for resolution is the issue of whether or not Acmad's guilt for violating Section 11, Article II of R.A. No. 9165 was established beyond reasonable doubt.
We grant the petition, but on a different ground other than those raised by petitioner.
Generally, the function of the Court in petitions for review on certiorari is limited to reviewing errors of law that may have been committed by the lower courts. 29 However, the rule admits of exceptions such as where facts of weight and substance, with direct and material bearing on the final outcome of the case, have been overlooked, misapprehended or misapplied. 30 This Court is not precluded from reviewing the factual findings of the lower courts, or even arriving at a different conclusion, if it is not convinced that the findings are conformable to the evidence of record. 31
In this case, we find that notwithstanding their wholesale acceptance of the prosecution's version of facts, both lower courts brushed. aside crucial facts, borne out by the prosecution evidence itself, which justify a different conclusion.
Acmad was charged with illegal possession of shabu. In order to secure the conviction of an accused for the charge of Illegal Possession of Dangerous Drugs, the prosecution must prove the following elements: (a) the accused was in possession of an item or object identified as a prohibited drug; (b) such possession was not authorized by law; and (c) the accused freely and consciously possessed the said drug. 32
As a component of the first element of the crime, case law dictates that it is essential that the identity of the prohibited drug be established with moral certainty, considering that the dangerous drug itself forms an integral part of the corpus delicti of the crime. 33 By "identity," it means the exactitude that the illegal drugs ultimately offered in court are the same substances found and seized from accused's possession. This requirement is demanded by the nature of the dangerous drug itself that is likely to be tampered, altered, contaminated, or substituted. 34 Establishing the identity thereof is done by showing an unbroken chain of custody over the confiscated items and accounting for each link in the chain of custody from the moment of seizure up to their presentation in court as evidence of the crime. 35
Jurisprudence identified four critical links in the chain of custody of the dangerous drugs, to wit: 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. 36
Section 21, paragraph 1, 37 Article II of R.A. No. 9165 lays down the procedure for the first link in the chain of custody. It describes in detail the steps to be taken by the apprehending team having initial custody and control of the drugs. 38 The procedure laid down therein is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects. 39 It states:
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 (D®J), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
This is supplemented by Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165, which reads:
(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.
Although not specifically mentioned by the law or the implementing rules, the first link in the chain of custody necessarily involves the marking of the seized or confiscated drugs for reference of all succeeding handlers and to render the same distinct and identifiable from all other drugs in custody. 40 As a rule, it is required that the marking of the seized contraband be done (1) in the presence of the apprehended violator, and (2) immediately upon confiscation. 41
Here, there is no showing that the marking and the subsequent physical inventory of the confiscated items were performed in the presence of Acmad. The arresting officer PO1 Ballesteros testified:
[PROS. NACHOR]:
Q What happened when he lifted [the] right part of his short?
A I saw the money and the plastics sachets, Ma'am.
Q Where were these money and plastic sachets particularly hidden?
A Right front pocket, Ma'am.
Q So what happened after that?
A We brought him to the Police Community Precinct 1 at Galvan Street, Ma'am.
Q How about the shabu that you were able to see when he lifted his short, how many sachets of shabu were there?
A Four (4) pieces, Ma'am.
Q What did you do with these shabu that you confiscated from him?
A I put markings on it, Ma'am.
Q What were your markings on these shabu?
A WPB.
Q On all?
A Yes, Ma'am.
Q If these shabu will be shown to you, will you be able to identify the same?
A Yes, Ma'am.
Q Showing to you the shabu which were submitted to this Office by the forensic chemist, are these the same shabu that you confiscated from the accused?
A Yes, Ma'am.
Q Can you point to me where are your markings in these sachets of shabu?
COURT INTERPRETER:
Witness pointed to initials WPB1 to WPB4 on the four (4) plastic sachets of shabu.
PROS. NACHOR:
Your Honor, may we have the markings on the sachets of shabu WPB1 to WPB4, respectively, as our Exhibits K-2, L-2, M-2 and N-2, respectively.
PROS. NACHOR:
Q Where did you make your markings, Mr. Witness?
A At the main office, Ma'am.
Q Why did you mark the same at the main office and not at the place of the incident?
A We were in a rush at that time, Ma'am.
xxx xxx xxx
PROS. NACHOR:
Q What happened next when you brought the accused to the police station?
A I prepared a confiscation receipt, Ma'am.
Q If shown [to] you this confiscation receipt, will you be able to identify it?
A Yes, Ma'am.
Q Showing to you the confiscation receipt which is attached to the record of this case, is this the same confiscation receipt that you executed?
A Yes, Ma'am.
Q There is a signature above the name PO1 Wilson Ballesteros, whose signature is that?
A My signature, Ma'am.
Q There is also a name and signature above the name Robert Ramirez, whose signature is that?
A The DOJ personnel, Ma'am.
PROS. NACHOR:
Your Honor, may we maintain the markings of the Confiscation Receipt as our Exhibit G. May we have the name and signature of our witness as our Exhibit G-1.
PROS. NACHOR:
Q So what did you do after marking the confiscation receipt?
A Abdullah Acmad had undergone medical examination, Ma'am.
Q So what did you do next after that?
A On the following morning, I brought the specimen at the crime laboratory, Ma'am.
xxx xxx xxx 42
The testimony of PO1 Ballesteros leaves much to be desired. As may be gleaned above, he never mentioned that the sachets were marked and physically inventoried in the presence of the accused. Parenthetically, his own testimony that they brought the Acmad to the "Police Community Precinct 1 at Galvan Street" after the arrest, on one hand, and that he marked the confiscated items at the "main office," on the other hand, creates the impression that the holding of Acmad and the marking of the specimen took place in different locations, thereby casting serious doubt that the marking was done in the presence of the accused.
Moreover, the police officers were unable to comply with the Three-Witness Rule ordained in the original text of Section 21 (1) of R.A. No. 9165. The rule requires the insulating presence of a representative from the media and the DOJ, and any elected public official to witness the post-operation procedures, for the purpose of removing any suspicion of switching, planting, or contamination of evidence. 43
Turning back to the aforecited testimony of PO1 Ballesteros, only a representative from the DOJ in the person of Ramirez was present during the physical inventory of the confiscated items. No elected official and representative from the media were present to witness the same. Notably, both the trial court and the appellate court left out this materially decisive flaw in summarizing the testimony of PO1 Ballesteros.
We are mindful that under varied field conditions, strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible. 44 This is precisely the reason for providing a saving clause in the last paragraph of Section 21 (a), Article II of the IRR of R.A. No. 9165, which states that "failure to strictly comply with the said directive is not necessarily fatal to the prosecution's case." This saving clause, however, applies only whenever the prosecution satisfactorily proves that: (a) there is justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. 45 In this connection, the prosecution has a two-fold duty of identifying any lapse in procedure and proving the existence of a sufficient reason why it was not strictly followed. 46
Subsumed in the requirement for a justifiable ground for non-compliance with the witness rule is the requirement of showing that genuine and sufficient effort was made to secure their presence. It has been held that mere statements of unavailability, absent actual serious attempts to contact the required witnesses, are unacceptable as justified grounds for non-compliance. 47
In the above-quoted testimony of PO1 Ballesteros, 48 he barely recognized that the attendance of a DOJ personnel alone during the inventory constituted a flaw in their post-operation procedure. Neither did the arresting officer provide any hint of explanation for their failure to secure the attendance of an elected official and a representative from the media, much less, give any indication of an attempt on their part to contact the missing witnesses. Thus, the lower courts misapplied the saving clause under Section 21 (a), Article II of the IRR of R.A. No. 9165, in complete disregard of the operative phrase "justifiable grounds" as essential requirement to excuse non-compliance therewith. Accordingly, the breach committed by the police officers of Section 21 of R.A. No. 9165 — left unacknowledged and unexplained by the State — is fatal to the prosecution's cause.
Considering the presence of unjustified gaps at the initial stage of the chain of custody, uncertainty — on whether the identity and integrity of the items confiscated from Acmad had been preserved — had loomed early in this case. Thus, the attainment of moral conviction that all subsequent handlers of the confiscated drug dealt with the same specimen retrieved from the accused was perforce illusory. 49 Suffice it to state, the prosecution failed to prove the corpus delicti beyond reasonable doubt, which resultantly warrants the acquittal of Acmad.
By way of final note, it may not be amiss to state that since compliance with the procedure laid down in Section 21 of R.A. No. 9165 is determinative of the integrity and evidentiary value of the corpus delicti and ultimately, the fate of the liberty of the accused, the fact that any issue regarding the same was not raised, or even threshed out in the courts below, would not preclude the appellate court, including this Court, from fully examining the records of the case if only to ascertain whether the procedure had been completely complied with, and if not, whether justifiable reasons exist to excuse any deviation. If no such reasons exist, then it is the appellate court's bounden duty to acquit the accused, and perforce, overturn a conviction. 50
WHEREFORE, premises considered, the petition is GRANTED. The Decision dated January 25, 2016 and Resolution dated September 23, 2016 of the Court of Appeals are hereby REVERSED and SET ASIDE for failure of the prosecution to prove beyond reasonable doubt the guilt of petitioner Abdullah Acmad @ "Mama," who is accordingly ACQUITTED of the crime charged against him and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause.
The Director of the Bureau of Corrections is ORDERED to implement this Resolution and to inform this Court of the date of the actual release from confinement of petitioner Abdullah Acmad @ "Mama" within five (5) days from receipt hereof.
SO ORDERED."
Very truly yours,
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 11-21.
2.Id. at 74-82; penned by Associate Justice Francisco P. Acosta, and concurred in by Associate Justices Noel G. Tijam (now a retired member of this Court) and Eduardo B. Peralta, Jr.
3.Id. at 90-91.
4.Id. at 36-41; penned by Presiding Judge Genoveva Coching-Maramba.
5.Id. at 74-75.
6.Id. at 75.
7.Id. at 128-129.
8.Id. at 129-130.
9.Id. at 130-132.
10.Id. at 131-132.
11.Id. at 133.
12.Id. at 133 and 138.
13.Id. at 148.
14.Id. at 148-149.
15.Id. at 149.
16.Id.
17.Id. at 150.
18.Id. at 36-41.
19.Id. at 40-41.
20.Id. at 39-40.
21.Id. at 78.
22.Id. at 78-79.
23.Id. at 79-81.
24.Id. at 74-82.
25.Id. at 81. Emphasis in the original.
26.Id. at 90-91.
27.Id. at 16.
28.Id. at 17-18.
29.Ramos v. People, G.R. No. 227336, February 26, 2018, 856 SCRA 459, 471.
30.People v. Paz, G.R. No. 233466, August 7, 2019.
31.Lapi v. People, G.R. No. 210731, February 13, 2019.
32.People v. Gamboa, G.R. No. 233702, June 20, 2018, 867 SCRA 548, 563.
33. Id.
34. People v. Alvarado, G.R. No. 234048, April 23, 2018, 862 SCRA 521, 536.
35. People v. Dela Victoria, G.R. No. 233325, April 16, 2018, 861 SCRA 305, 314-315.
36. People v. Belmonte, G.R. No. 224588, July 4, 2018, 871 SCRA 17, 34-35.
37. Said provision has been amended by R.A. No. 10640, which was approved on July 15, 2014. But since the alleged offense in this case was committed prior to the amendment, the original law and its corresponding implementing rules and regulations shall be applied, being more favorable to the petitioner.
38. People v. Asjali, G.R. No. 216430, September 3, 2018, 878 SCRA 514, 526-527.
39. People v. Jugo, G.R. No. 231792, January 29, 2018, 853 SCRA 321, 336.
40. People v. Asjali, supra note 38 at 527-528.
41. People v. Paz, supra note 30.
42. Rollo, pp. 130-133. TSN dated June 25, 2012, pp. 5-8.
43. People v. Barrion, G.R. No. 240541, January 21, 2019.
44. People v. Paz, G.R. No. 229512, January 31, 2018, 854 SCRA 23, 36.
45. Ramos v. People, G.R. No. 233572, July 30, 2018, 874 SCRA 595, 610.
46. People v. Angeles, G.R. No. 218947, June 20, 2018, 867 SCRA 281, 292.
47. Ramos v. People, supra.
48. People v. Paz, supra note 37 at 39-40.
49. People v. Patricio, G.R. No. 202129, July 23, 2018, 872 SCRA 406, 424.
50.People v.Magsano, G.R. No. 231050, February 28, 2018, 857 SCRA 142, 160.