Malmis y Regale v. People

FIRST DIVISION

[G.R. No. 248676. November 18, 2021.]

ALFONSO MALMIS y REGALE, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedNovember 18, 2021which reads as follows:

"G.R. No. 248676 (Alfonso Malmis y Regale v. People of the Philippines). — This is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assailing the Decision 2 dated February 28, 2019 and Resolution 3 dated July 9, 2019 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 01892 which partly granted the appeal of petitioner Alfonso Malmis y Regale (Malmis) by acquitting him of the crime of Illegal Sale of Dangerous Drugs, defined and penalized under Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002, but affirmed his conviction for the crime of Illegal Possession of Dangerous Drugs under Section 11, Article II of the same law.

The Antecedents

On January 30, 2015, Malmis was separately charged for Illegal Sale of Dangerous Drugs under Section 5, Article II and Illegal Possession of Dangerous Drugs under Section 11, Article II of R.A. No. 9165. The accusatory portions of the Informations 4 read as follows:

Criminal Case No. 2228:

"That on January 29, 2015 at about 12:00 o'clock noon in Barangay Layawan, Oroquieta City, Philippines and within the jurisdiction of this Honorable Court, the said accused, not being authorized by law, did then and there willfully, unlawfully and feloniously sell and deliver two (2) sachets containing white crystalline granules of Methamphetamine Hydrochloride, locally known as "shabu," a dangerous drug having a total net weight of 0.0428 gram to a poseur buyer, PO1 JANICE C. MILLANAR, in exchange of Five (5) hundred (P500.00) peso bill with Serial No. HZ491537.

CONTRARY TO LAW."

Criminal Case No. 2229:

"That at about 12:00 o'clock noon of January 29, 2015 in Brgy. Layawan, Oroquieta City, Philippines and within the jurisdiction of this Honorable Court, the said accused not being authorized by law, did then and there willfully, unlawfully have in his possession and control six (6) pieces heat-sealed transparent plastic sachets containing white crystalline substance a Methamphetamine Hydrochloride, locally known as "shabu," having a total net weight of 0.1290 [gram].

CONTRARY TO LAW."

Malmis pleaded not guilty to both offenses during his arraignment on November 5, 2015. 5

After confirming that Malmis was selling prohibited drugs through the conduct of a series of surveillance operations, the Intelligence Team of the Oroquieta City Police Station headed by Police Superintendent John Francis P. Encinareal (PS Encinareal), together with Police Officer 2 Loel R. Tac-an (PO2 Tac-an), Senior Police Officer 4 Euretes Dugso, Senior Police Officer 3 Candawan, Police Officer 3 Pilapil (PO3 Pilapil), Police Officer 2 Allan Reil J. Micabalo (PO2 Micabalo) and Police Officer 1 Janice Millanar (PO1 Millanar), conducted a buy-bust operation on January 29, 2015 at Room 103 of Rhapsody Inn located at Barangay Layawan, Oroquieta City, where Malmis had checked in. 6

Per instruction given during the briefing, PO2 Tac-an accompanied PO1 Millanar, the designated poseur buyer, inside the Rhapsody Inn while the rest of the team positioned themselves within its premises. As PO1 Millanar headed towards Room 103, PO2 Tac-an stayed at the front desk which was six meters from Room 103 and where he had a full view of PO1 Millanar as well as the room. When PO1 Millanar reached Room 103, she knocked twice and asked for two pieces of shabu when Malmis opened the door. PO1 Millanar then handed the marked P500.00 bill to Malmis who accepted it and went back inside the room. When Malmis came back, he handed to PO1 Millanar two sachets of shabu which the latter received. PO1 Millanar then opened the zipper of her sling bag, the pre-arranged signal, to prompt her team that the transaction had been consummated. 7

While waiting for the members of her team to arrive and since the door of the room was slightly open, PO1 Millanar saw three other persons inside the room holding improvised lighters and about to sniff a white crystalline substance. 8

Meanwhile, upon seeing the signal given by PO1 Millanar, PO2 Tac-an summoned the other team members by waving his hand, and they all rushed towards Room 103 and arrested Malmis. The team informed Malmis of his rights while PO2 Tac-an made a body search of Malmis which yielded the P500.00 marked bill inside his right pocket, and six plastic sachets containing shabu in his left pocket. PO1 Millanar also turned over the two sachets she received from Malmis to PO2 Tac-an. PO2 Micabalo and PO3 Pilapil, on the other hand, arrested the other persons in the room and recovered from them drug paraphernalia. 9

PO2 Tac-an marked the recovered evidence with the initials "MT" and with the corresponding numbers on each of the item, and inventoried them in the presence of the representatives from the barangay, media and the Department of Justice (DOJ). 10

Based on the Inventory Reports, 11 the following items were recovered, seized and confiscated during the buy-bust operation:

Criminal Case No. 2228

1. Two (2) pieces heat-sealed transparent plastic sachets in rectangular size believed to be shabu marked as MT-1, MT-2.

Criminal Case No. 2229

1. One (1) piece Five Hundred Peso bill bearing serial #HZ491537;

2. Six (6) pieces heat-sealed transparent plastic sachets in rectangular sized believed to be shabu marked as MT-3, MT-4, MT-5, MT-6, MT-7, MT-8;

3. Four (4) pieces disposable lighter marked as MT-9, MT-10, MT-11, MT-12, MT-12;

4. Sixty-seven (67) pieces transparent sachets in rectangular sized;

5. Fourteen (14) pieces sliced aluminum foil marked as MT-13, MT-14, MT-15, MT-16, MT-17, MT-18, MT-19, MT-20, MT-21, MT-22, MT-23, MT-24, MT-25, MT-26;

6. One (1) pack rolled aluminum foil marked as MT-27.

After marking and documentation, PO2 Tac-an kept the recovered items in his bag, brought them to the police station, and turned them over to SPO4 Balbutin, the police investigator, who prepared the request for laboratory examination of the said items. After the request was made, the items were immediately brought to the crime laboratory. The examination conducted by Police Superintendent Aileen U. Bernido of the seized items, as reflected in Chemistry Report No. D-31-2015MO, 12 yielded the following results:

FINDINGS:

Qualitative examination conducted on specimen with markings MT-1 through MT-8, MT-18 and MT-19 gave POSITIVE result to the tests for Methamphetamine hydrochloride (Shabu), a dangerous drug while specimen with markings MT-9 through MT-17, MT-20 through MT-26 and MT-27 gave NEGATIVE results to the tests for the presence of any dangerous drugs. x x x

CONCLUSION:

Specimen with markings MT-1 through MT-8, MT-18 and MT-19 contain Methamphetamine hydrochloride (shabu), a dangerous drug. x x x

The defense, as expected, presented a different version of what transpired that fateful day. In the morning of January 29, 2015, Malmis was with his girlfriend, Jhezelle Bechayda (Jhezelle), at Room 103 of Rhapsody Inn. At around 6 o'clock in the morning, he went to Citibread to buy bread, leaving his sleeping girlfriend behind with the door to the room unlocked. On his way to Citibread, Malmis chanced upon his close friend, Ruel Udal (Udal), who asked him if he could borrow his cell phone because he wanted to call his wife. Malmis told Udal to go to his room at Rhapsody Inn since he left his cell phone there. Malmis headed straight to Rhapsody Inn after buying bread and left the door unlocked so Udal could come in. However, he fell asleep while waiting for him. 13

When Udal arrived at the inn, he found Malmis and Jhezelle sleeping on the bed. He also saw Jojo Abais (Abais), Malmis' co-worker, lying on the other bed, busy with his cell phone. Udal stayed and waited for Malmis to wake up. 14

At around 10 o'clock in the morning, Udal saw Abais open the door and let Carmelita Bechayda (Carmelita), Jhezelle's mother, inside the room. Afterwards, someone knocked on the door and Carmelita went to answer it. But before she could open the door, it was kicked open by the police and then seven police officers entered the room. 15

SPO3 Candawan woke Malmis up and informed him that the police were conducting a raid and that they are going to arrest him because he has a bounty of P30,000.00. He was immediately handcuffed while Jhezelle was roused from sleep. Both of them were then frisked, but the police did not recover any shabu from them. Udal, Abais and Carmelita were also frisked but no illegal substance was found on them as well. However, the second time Abais was frisked, the police recovered six sachets of shabu from him. All of them, with the exception of Abais who was freed, were brought to the police station. 16

In a Joint Decision 17 dated October 27, 2017, the Regional Trial Court (RTC) found Malmis and the other accused guilty as charged. The dispositive portion of the Joint Decision states:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

a. In Criminal Case No. 2231, this Court finds the accused JHEZELLE BECHAYDA y BONGATO guilty beyond reasonable doubt of use of drugs as defined under Section 15, Article II of Republic Act 9165 and is hereby imposed a penalty of a minimum of six (6) months rehabilitation in a government center;

b. In Criminal Case No. 2226, this Court finds the accused RUEL UDAL y DARIOS and JHEZELLE BECHAYDA y BONGATO guilty beyond reasonable doubt of possession of paraphernalia for dangerous drugs defined under Section 12, Article II of R.A. 9165 and are hereby sentenced to suffer an imprisonment of six months and one (1) day to four (4) years and a fine of Ten Thousand (P10,000.00) Pesos;

c. In Criminal Case No. 2227, this Court finds the accused RUEL UDAL y DARIOS guilty beyond reasonable doubt of use of dangerous drugs as defined under Section 15, Article II of Republic Act No. 9165 and is hereby imposed a penalty of a minimum of six months rehabilitation in a government center;

d. In Criminal Case No. 2228, this Court finds the accused ALFONSO MALMIS y REGALE guilty beyond reasonable doubt of selling of prohibited drugs as defined and penalized under Section 5, Article II, Republic Act No. 9165 and sentences him to suffer the penalty of LIFE imprisonment and to pay a fine of Five Hundred Thousand (P500,000.00) Pesos;

e. In Criminal Case No. 2229, this Court finds the accused ALFONSO MALMIS y REGALE guilty beyond reasonable doubt of possession of prohibited drugs as defined under Section 11, Article II, Republic Act No. 9165 and sentences him to suffer the penalty of imprisonment of Twelve (12) years and one (1) day as minimum to Fourteen (14) years and 8 months as maximum and to pay a fine of Three Hundred Thousand (P300,000.00) Pesos;

xxx xxx xxx

SO ORDERED. 18

The RTC ruled that the prosecution was able to prove that a valid buy-bust operation was conducted and that all the elements of illegal sale and illegal possession of shabu had been duly established. 19

Only Malmis appealed to the CA.

In a Decision 20 dated February 28, 2019, the CA acquitted Malmis for the crime of Illegal Sale of Dangerous Drugs, but affirmed his conviction for Illegal Possession of Dangerous Drugs. The fallo of the said decision reads:

WHEREFORE, the appeals are PARTLY GRANTED. The assailed Joint Decision dated October 27, 2017 of the Regional Trial Court (RTC), Tenth (10th) Judicial Region, Branch 12 of Oroquieta City is AFFIRMED with MODIFICATION:

1. In Criminal Case No. 2228 for the crime of Illegal Sale of prohibited Drugs, the appellant, Alfonso Malmis, is ACQUITTED of the crime charged as his guilt had not been established beyond reasonable doubt; and

2. In Criminal Case No. 2229 for the crime of Illegal Possession of Prohibited Drugs, the appellant, Alfonso Malmis, is CONVICTED of the crime charged as his guilt was proven beyond reasonable doubt.

SO ORDERED. 21

In overturning Malmis' conviction for Illegal Sale of Dangerous Drugs, the CA ratiocinated that the commingling of the evidence seized from the sale and those taken from the possession of Malmis necessarily cast doubt to the identity of the two sachets seized during the actual buy-bust operation and the ones presented in court, entitling Malmis to an acquittal. The pertinent portion of Decision states:

Based on the above testimony of PO1 Millanar, it is clear therefore that there was indeed commingling of the evidence seized from the sale and from the possession of the appellant. This commingling of the evidence simply put the case of illegal sale of prohibited drug (shabu) questionable as there is confusion of the exact sachets, including its actual contents, which are the subject matter of the sale. The confusion on the evidence then opened doors to doubts as to the identity of these two sachets of shabu seized during the actual buy-bust and the ones presented in court. Moreover, the belated clarification of PO1 Millanar on the handling of the two sachets of shabu subject of the sale is of no help as her inconsistent testimony on the matter already created reasonable doubt, which entitles the appellant to an acquittal in the case of illegal sale of prohibited drugs or shabu. 22

Despite the commingling of the evidence seized during the buy-bust operation and the ones seized from Malmis' person, the CA still affirmed his conviction for Illegal Possession of Dangerous Drugs. The CA held that the commingling of the eight sachets (two sachets from the sale and six sachets confiscated from his left pocket) did not affect the integrity and evidentiary value of the six sachets subject of the charge for Illegal Possession of Dangerous Drugs given that: (1) all sachets recovered from Malmis tested positive for methamphetamine hydrochloride; (2) all items seized from Malmis were marked in his presence; and (3) all the elements of illegal possession of prohibited drugs were shown to exist. It held:

As to the case of illegal possession of dangerous drugs, police officers were able to confiscate six (6) sachets which contained white crystalline substance inside the left pocket of appellant. Although the other two sachets of white crystalline substance subject of the sale were commingled with the 6 sachets of white crystalline substance confiscated from the appellant, all of it tested positive for methamphetamine hydrochloride or shabu based on the Chemistry Report No. D-31-2015MO. The possession of the appellant of the 6 sachets of shabu was not authorized by law, thus illegal. And having found the sachets of shabu inside the pocket of the appellant, he, therefore, had freely and consciously possessed the said illegal drug. Hence, the accused-appellant is guilty of illegal possession of prohibited drugs as well.

To cast doubt as to the integrity of the evidence, the appellant posited that the police authorities failed to comply with the proper marking of evidence, that the marking was not made in the presence of the appellant, and there was a mix up of the 2 sachets of shabu from sale and the 6 sachets of shabu seized from the pocket of the appellant.

A perusal of the records of the case would show that the marking was done in the presence of the appellant in the same room where he conducted the sale and where he was found to be in possession of the other 6 sachets of shabu. The testimony of Abuton confirmed that marking and inventory took place in the room where the appellant was situated after apprehension. Abuton, being the Brgy. Captain, became one of the witnesses in the inventory. Further, photographs showing the marking and inventory were presented in court. Therefore, it is correct to say that "a photograph speaks a thousand words."

xxx xxx xxx

Furthermore, the mixing up or commingling of the sachets of shabu from the sale and from the possession of the appellant does not automatically result in inadmissibility of the evidence for both charges. It should be remembered that in the elements of illegal possession of prohibited drugs the prosecution only needs to prove that: (1) the appellant is in possession of a prohibited drug; (2) that his possession is not authorized by law; and (3) the appellant freely and consciously possessed the drug. In the case at bar, all the elements were attendant.

Greater importance must be given to the fact that although there was a commingling of the sachets, all of these sachets, proven to contain shabu, a prohibited drug, were recovered from the appellant only. The very same sachets recovered from the appellant were marked and taken into custody by PO2 Tac-an, which were then turned over to the crime laboratory for examination, and were the very same sachets presented in court as evidence. 23

Malmis moved for reconsideration, but the CA denied it in a Resolution 24 dated July 9, 2019.

Hence, the present petition.

Issue

The issue for this Court's resolution is whether the CA erred in affirming the conviction of Malmis for Illegal Possession of Dangerous Drugs, defined and penalized under Section 11, Article II of R.A. No. 9165.

Petitioner argues that the CA erred in ruling that a legitimate buy-bust operation transpired in the morning of January 29, 2015. The inconsistencies in the testimony of PO1 Millanar as to when she turned over the two sachets of shabu subject of the sale to PO2 Tac-an, that is whether it was right after the operatives arrived at Room 103, or after Malmis was arrested and frisked, renders the existence of the buy-bust operation doubtful. It is also highly questionable and contrary to human behavior that he would immediately sell shabu to PO1 Millanar, a stranger, without first verifying if she was a legitimate buyer. The fact that none of the members of the buy-bust team directly witnessed the transaction all the more lends credence to his claim that there was no buy-bust operation and his arrest was invalid. The invalidity of his arrest, thus, renders all evidence recovered inadmissible. 25

Even if the buy-bust operation was indeed legitimate, petitioner insists that he could still not be convicted for Illegal Possession of Dangerous Drugs by reason of the procedural lapses in the seizure and custody of the subject drugs. First, the items seized were not properly marked thereby compromising the identity and integrity of the corpus delicti. Given that the evidence subject of the illegal sale and the ones subject of the illegal possession were not properly segregated, persistent doubt as to the identity of the drugs presented before the RTC lingers as there is confusion as regards the exact sachets subject matter of the illegal sale and those of illegal possession. Second, PO2 Tac-an did not mark the items recovered by placing thereon his signature, as well as the time and place where the evidence was seized. Third, PO1 Tac-an failed to testify that he took all the necessary steps to prevent the tampering of the seized items while they were in transit from the crime scene up to their delivery to the crime laboratory. Fourth, the prosecution failed to stipulate that the forensic chemist received the seized article as marked, properly sealed and intact, and that after examination of the contents, the forensic chemist placed her own marking to ensure the evidence could not be tampered with pending trial. Fifth, the absence of signature of SPO4 Dugso on the Inventory Receipt casts doubt whether an inventory was actually taken by SPO4 Dugso, as testified to by PO2 Tac-an, of the seized items. Sixth, it was not shown that Malmis was furnished with a copy of the inventory report. 26

Respondent, for its part, contends that Malmis was caught in flagrante delicto in possession of shabu in violation of Section 11, Article II of R.A. No. 9165. Thus, the subsequent frisking on the person of Malmis was legal, and the sachets of shabu found on him are admissible in evidence against him. Thus, Malmis was rightfully convicted of violation of Section 11, Article II of R.A. No. 9165 absent any satisfactory explanation on his part why he was in possession of the dangerous drug. 27

Malmis cannot put into question the arresting officers' non-compliance with Section 21 of R.A. No. 9165 inasmuch as the evidence shows that the identity, integrity and evidentiary value of the seized prohibited drugs were properly preserved since the sachets of shabu were duly marked, inventoried and photographed in the presence of Malmis, representatives of the DOJ and media, and a barangay official. Also, as aptly found by the CA, the commingling of the eight sachets of shabu does not cast doubt on the integrity of the evidence considering that the sachets were all recovered from Malmis and all tested positive for shabu. 28

Our Ruling

Section 11, Article II of R.A. 9165 provides:

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.

To secure a conviction for illegal possession of dangerous drugs under Section 11, Article II of R.A. No. 9165, the following elements must be shown to exist: (1) the accused was in possession of an item or object identified to be a prohibited or regulated drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the drug. 29

In order to satisfy the first element of the crime, it is essential that the identity of the prohibited drug be established with moral certainty, 30 since in all prosecutions for violations of R.A. No. 9165, the corpus delicti is the dangerous drugs itself. 31 By identity is meant that the very same substance offered in evidence must exactly be the ones found in the accused's possession. 32 To establish the identity of the dangerous drugs with moral certainty, the prosecution must be able to account for each link of the chain of custody from the moment the drugs are seized up to their presentation in court as evidence of the crime. 33

Generally, there are four links in the chain of custody of the seized illegal drug that must be established: (i) its seizure and marking, if practicable, from the accused, by the apprehending officer; (ii) its turnover by the apprehending officer to the investigating officer; (iii) its turnover by the investigating officer to the forensic chemist for examination; and, (iv) its turnover by the forensic chemist to the court. 34

Section 21, paragraph 1, Article II of R.A. No. 9165 lays down the procedure for the first link in the chain of custody. 35 The provision requires, inter alia, that the marking, physical inventory, and photography of the seized items be conducted immediately after seizure and confiscation of the same. It further requires that the said inventory and photography be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well as certain required witnesses. The witnesses required under R.A. No. 9165 are the following: a representative from the media, and the Department of Justice, and any elected public official. 36 Section 21, Article II of R.A. No. 9165, however, was amended by R.A. No. 10640 by modifying the number of witnesses required during the conduct of the inventory. 37 Thus, after its amendment which took effect on August 7, 2014, 38 the witnesses required are: (1) an elected public official, and (2) (a) a representative of the National Prosecution Service or (b) the media. 39

It must be underscored that the aforementioned procedure 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. 40

To establish the very first link in the chain of custody, it is essential that the drugs seized be immediately marked. It is because marking after seizure is the starting point in the custodial link since succeeding handlers of the specimens will use the markings as reference. 41 The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, thus preventing switching, planting, or contamination of evidence. 42

Here, there is no question that the drugs seized were indeed marked. The marking was, in fact, witnessed by three insulating witnesses, and not just two, the number of witnesses required at the time of the commission of the crime by virtue of the amendment of Section 21 of R.A. No. 9165 by R.A. No. 10640. Be that as it may, the Court cannot discount the fact that the drugs subject of the charge for illegal sale, and the drugs subject of the charge for illegal possession were mixed up before they were marked. The testimony of PO1 Millanar on cross examination clearly shows that before the eight sachets of shabu were marked, PO2 Tac-an were holding all eight sachets in his left hand. Thus:

ATTY. ARACELI HAPPINESS C. MATIG-A-SUICO ON CROSS EXAMINATION OF WITNESS, PO1 JANICE C. MILLANAR:

xxx xxx xxx

Q: You said that after an arrest [was] effected on Alfonso Masmis, n PO1 Tac-an conducted a body search on him? Right?

A: Yes[,] Ma'am.

Q: And the result of that body search was that he was able to confiscate six (6) sachets of crystalline substance?

A: Yes[,] Ma'am.

Q: Other than that six (6) sachets of crystalline substance there was no items recovered from him? [sic]

A: Yes[,] Ma'am.

Q: Immediately, [sic] after PO1 Tac-an seized the six (6) sachets of crystalline substance from the possession of Alfonso Malmis, you handed to him the two (2) sachets you allegedly bought from him?

A: Yes[,] Ma' am.

Q: At one time PO1 Tac-an was holding all in all eight (8) sachets of crystalline substance?

A: Yes[,] Ma'am.

Q: Which hand of PO1 Tac-an held the eight (8) sachets of shabu?

A: The left hand[,] Ma'am.

Q: Only the left hand held the eight (8) sachets of shabu?

A: Yes[,] Ma'am.

Q: Only after PO1 Tac-an was able to hold the eight (8) sachets of crystalline substance in his left hand then he made markings on the eight (8) sachets?

A: Yes[,] Ma' am.

xxx xxx xxx 43

In a plethora of cases, the Court has recognized that narcotic substances, such as shabu, are not readily identifiable. 44 Being non-unique and amorphous objects, they cannot be distinguished, that is why they present an inherent problem of fungibility or substitutability and contamination which adversely affects their relevance or probative value. This is the reason why non-unique objects have to be made unique by law enforcers upon retrieval or confiscation in order for these articles to be authenticated by a sponsoring witness so that the trial and reviewing courts can determine their relevance or probative value. 45The Court cannot overemphasize that when the law requires drugs seized be marked, it means that the drugs so marked are the very same drugs for which the accused will stand charged.

The failure of the apprehending officers to segregate the drugs seized during the entrapment operation and the drugs recovered from Malmis when he was subsequently frisked after he was arrested, without doubt, put the identity, integrity and evidentiary value of these drugs into question. Because all eight sachets of shabu were commingled, courts would have no way of ascertaining which ones are the subject of the illegal sale and the ones subject of illegal possession, as well as their relative weight. It must not be forgotten that in Illegal Possession of Dangerous Drugs cases, weight is an integral part of the corpus delicti's identity. This is readily discernible by the very wording of Section 11, Article II of R.A. No. 9165 which imposes penalties for illegal possession based on the weight of the dangerous drugs seized.

At this juncture, the Court must state that it is aware of its pronouncement that possession of prohibited drugs is absorbed in the sale thereof. In People v. Lacerna, 46 the accused was charged for violation of Section 4 of R.A. No. 6425, 47 as amended, for selling, delivering or giving away to another 18 blocks of marijuana without being authorized by law. 48 In exonerating Lacerna for the offense charged, the Court held that his act of handing per se to another the plastic bag containing marijuana, and manually transferring the said plastic bag from the front seat to the backseat of the taxicab, without consideration and without intent to transfer its ownership, did not come within the purview of "giving away to another," the act penalized under Section 4 of R.A. No. 6245, as amended. 49 However, the Court still convicted Lacerna for illegal possession of prohibited drugs on the ground that illegal possession of prohibited drugs is absorbed in the sale thereof. 50

In People v. Posada, 51 the Court likewise convicted Roger and Emily Posada, the accused, for illegal possession even if they were originally charged for illegal sale of prohibited drugs. Here, Emily sold one sachet of shabu to the poseur-buyer during a buy-bust operation. After she handed the one sachet of shabu to the poseur-buyer, she received 12 additional sachets of shabu from Roger. The accused were then charged for selling 12 sachets of shabu, in violation of Section 5, Article II of R.A. No. 9165. 52 The Court held that the prosecution filed a defective Information when it charged the accused of selling 12 sachets of shabu, when they should have been charged of selling one sachet of shabu and possessing 12 sachets of shabu. Also, the evidence adduced failed to show that the accused indeed sold 12 sachets of shabu. Thus, the Court found to be without basis their conviction for selling 12 sachets of shabu and overturned their conviction for the same. 53 Reiterating Lacerna, both accused, however, were convicted for illegal possession of prohibited drugs despite the fact that they were charged for the sale of illegal drugs, because possession is necessarily included in the sale of illegal drugs. 54

It must be pointed out that in Lacerna and Posada, the accused were originally charged in an Information for illegal sale of prohibited drugs. When their guilt therefor had not been proven, the Court still found them liable for the lesser offense of illegal possession of prohibited drugs on the ground that illegal possession is necessarily subsumed in illegal sale, and the elements of illegal possession of illegal drugs had been shown to exist. However, Lacerna and Posada made it clear that illegal possession of prohibited drugs is considered absorbed in illegal sale thereof, except if the seller is further apprehended for possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. 55

In the present case, Malmis was apprehended for possession of another six sachets of shabu and was separately charged therefor. As such, the pronouncement in Lacerna and Posada finds no application in this case as they involve different factual milieu. Moreover, the conviction of Malmis for illegal possession of prohibited drugs cannot stand in light of the failure of the prosecution to preserve the identity of the corpus delicti as discussed above.

The Court must stress that it is not enough for the prosecution to merely establish that the accused was found to be in possession of crystalline substances which tested positive for shabu to sustain a conviction for violation of Section 11, Article II of R.A. No. 9165, as erroneously held by the CA. The prosecution still bears the burden of proving the integrity of the corpus delicti. The corpus delicti is not proven if the chain of custody is defective, as in this case. 56 Thus, the prosecution's failure to establish the first link in the chain of custody entitles Malmis to an acquittal for violation of Section 11, Article II of R.A. No. 9165.

WHEREFORE, the petition is GRANTED. The Decision dated February 28, 2019 and Resolution dated July 9, 2019 of the Court of Appeals in CA-G.R. CR-HC No. 01892, which affirmed the conviction of petitioner Alfonso Malmis y Regale for Illegal Possession of Prohibited Drugs are REVERSED and SET ASIDE. Petitioner Alfonso Malmis y Regale is ACQUITTED of the charge of violation of Section 11, Article II of Republic Act No. 9165. He is ORDERED released from detention unless he is being lawfully held for some other legal ground. Let an entry of final judgment be issued immediately.

Let a copy of this Resolution be furnished to the Director General of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director General of the Bureau of Corrections is directed to report to this Court within five (5) days from receipt of this resolution the action he has taken. Copies should also be furnished to the Director General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information.

SO ORDERED."(Lopez, M., J., on wellness leave)

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 6-26.

2. Penned by Associate Justice Edgardo T. Lloren with Associate Justices Walter S. Ong and Florencio M. Mamauag, Jr., concurring; id. at 41-56.

3.Id. at 31-32.

4. Records, pp. 2-3 (Criminal Case No. 2228); id. at 2-3 (Criminal Case No. 2229).

5.Id. at 29 (Criminal Case No. 2228); id. at 25 (Criminal Case No. 2229).

6.Rollo, pp. 8, 45, 170.

7.Id. at 8, 46, 170.

8.Id.

9.Id. at 9, 46, 83, 88, 170-171.

10.Id. at 9, 46, 88, 171.

11. Records, p. 7 (Criminal Case No. 2228); id. at 6 (Criminal Case No. 2229).

12. Records, p. 11 (Criminal Case No. 2228).

13.Rollo, pp. 9-10.

14.Id. at 10.

15.Id.

16.Id. at 10-11, 47, 96.

17. Penned by Judge Alma V. Azanza; id. at 79-107.

18.Id. at 106-107.

19.Id. at 104-106.

20.Supra note 2.

21.Id. at 55.

22.Id. at 52-53.

23.Id. at 53-55.

24.Supra note 3.

25.Id. at 16-18.

26.Id. at 18-23.

27.Id. at 178-184.

28.Id. at 184-190.

29.People v. Morales, 630 Phil. 215, 228 (2010). (Citation omitted)

30.People v. Gamboa, G.R. No. 233702, June 20, 2018.

31.People v. Acub, G.R. No. 220456, June 10, 2019.

32. See: People v. Diputado, 813 Phil. 160, 168-169 (2017). (Citation omitted)

33.People v. Cariño, G.R. No. 233336, January 14, 2019.

34.People v. Siu Ming Tat, G.R. No. 246577, July 13, 2020.

35.People v. Asjali, G.R. No. 216430, September 3, 2018.

36.People v. Gutierrez, G.R. No. 236304, November 5, 2018. (Citation omitted)

37.People v. Silayan, G.R. No. 229362, June 19, 2019.

38.People v. De Dios, G.R. No. 243664, January 22, 2020.

39.People v. Gutierrez, G.R. No. 236304, November 5, 2018. (Citation omitted)

40. See People v. Ramos, G.R. No. 236455, February 19, 2020.

41.People v. Nuarin, 764 Phil. 550, 557-558 (2015).

42.People v. Ameril, 799 Phil. 484, 492 (2016).

43. TSN, April 28, 2016, pp. 48-49.

44. See People v. Que, 824 Phil. 882, 902 (2018); People v. Ameril, G.R. No. 222192, March 13, 2019; People v. Merando, G.R. No. 232620, August 5, 2019; People v. Cabellon, 818 Phil. 561, 569 (2017); People v. Dela Cruz, G.R. No. 229053, July 17, 2019.

45.People v. Olarte, G.R. No. 233209, March 11, 2019.

46. 344 Phil. 100 (1997).

47. Dangerous Drugs Act of 1972.

48.Supra note 47 at 107.

49.Id. at 118-119.

50.Id. at 120-121.

51. 684 Phil. 20 (2012).

52.Id. at 25-26.

53.Id. at 39-43.

54.Id. at 43-44.

55.People v. Lacerna, supra note 46 at 120, (Citations omitted); People v. Posada, supra note 51 at 43.

56.Cf. People v. Alvarado, 830 Phil. 785, 798 (2018).

n Note from the Publisher: Copied verbatim from the official document.