Navarra y Napay v. People

THIRD DIVISION

[G.R. No. 246796. October 6, 2021.]

AMALIA NAVARRA y NAPAY, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedOctober 6, 2021, which reads as follows: HTcADC

"G.R. No. 246796 (AMALIA NAVARRA y NAPAY, petitioner v. PEOPLE OF THE PHILIPPINES, respondent). — The Court NOTES petitioner's reply to the Office of the Solicitor General's comment on the petition for review on certiorari.

The seizure of a minuscule amount of seized drugs demands stricter compliance with the requirements of Section 21 of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

This Court resolves a Petition for Review on Certiorari1 filed by Amalia Navarra y Napay (Navarra), assailing the Decision 2 and Resolution 3 of the Court of Appeals, which, in turn, affirmed the Decision 4 of the Regional Trial Court convicting Navarra for illegal sale of dangerous drugs, in violation of Republic Act No. 9165.

In an Information, Navarra was charged with illegal sale of dangerous drugs, punished under Section 5 5 of Republic Act No. 9165. The accusatory portion of the Information reads:

That on or about June 13, 2016, in the City of Manila, Philippines, the said accused, not having been authorized by law to possess any dangerous drug, did then and there willfully, unlawfully and knowingly have in her possession and under her custody and control one heat-scaled transparent plastic sachet with marking "ANN" containing (0.0185g) ZERO POINT ZERO EIGHT FIVE GRAM n of white crystalline substance containing Methamphetamine Hydrochloride, commonly known as "Shabu," a dangerous drug.

Contrary to law. 6

Upon arraignment, Navarra pleaded not guilty to the charges. Trial on the merits then ensued. 7

The prosecution presented Police Officer II Domell Fajardo (PO2 Fajardo) and Police Officer II Paolo Samonte (PO2 Samonte), 8 with their testimonies and the stipulations tending to prove the following version of the facts:

At around 5:30 p.m. on June 13, 2016, PO2 Fajardo and PO2 Samonte were in Almeda Street, Tondo, Manila for an anti-criminality operation. While on patrol, they saw Navarra handing a P100.00 bill to a man, who, in turn, gave her a small plastic sachet. The two police officers approached Navarra and the man, both of whom attempted to flee. PO2 Fajardo succeeded in apprehending Navarra, while PO2 Samonte tried but failed to apprehend the man. A plastic sachet, which was suspected of containing shabu, was recovered from Navarra. Thereafter, barangay officials were called for by the police officers, but none came, so they decided to bring Navarra to the police station. 9

At the police station, the seized item was marked, inventoried, and photographed in the presence of Navarra and media representative Danny Garendola (Garendola). Police Officer III Amelson Ortega then prepared Receipt/Inventory of Item/s or Property/ies Seized and Chain of Custody Form, Request for Laboratory Examination, and other pertinent documents. The seized sachet was later tested by Forensic Chemist Police Inspector Jeffrey Reyes, yielding a positive result for shabu, a dangerous drug. 10

Navarra, on the other hand, denied all the allegations against her. She admitted to being in Almeda Street, but asserted that no sachet was seen in her possession. According to her, she was taken to the police station without being informed of the reason and was forced to admit ownership of the sachet. Despite her denial, Navarra was still charged with illegal possession of shabu. 11

In its March 23, 2017 Decision, the Regional Trial Court found Navarra guilty beyond reasonable doubt of illegal sale of dangerous drugs. The dispositive portion of the Decision reads:

WHEREFORE, with the foregoing, the court finds the accused Amalia Navarra [y] Napay GUILTY beyond reasonable doubt of the crime charged. She is hereby SENTENCED to suffer the indeterminate penalty of 12 years and 1 day as minimum penalty, to 15 years as maximum penalty, with credit to the period of her preventive imprisonment. She is also ORDERED to pay a fine of P300,000.00, subject to the prevailing rate of interest per annum from the finality of this decision until its full satisfaction, and subject further to subsidiary imprisonment in the event of insolvency.

SO ORDERED. 12 (Emphasis in the original)

The Regional Trial Court found no ill-motive on the part of PO2 Fajardo to concoct a false story against Navarra. It held that against the positive declaration of PO2 Fajardo, Navarra's defense of alibi could not prevail. The Regional Trial Court ruled that the integrity of the seized sachet was intact and the fact that marking was done at the police station was not fatal to the prosecution's case. Lastly, the Regional Trial Court found as applicable the presumption of regularity in the police officers' performance of their duties. 13

Aggrieved, Navarra filed an appeal with the Court of Appeals.

In its August 29, 2018 Decision the Court of Appeals affirmed Navarra's conviction but deleted the penalty of imprisonment in the event of insolvency. The dispositive portion of the Decision reads:

WHEREFORE, the Decision dated March 23, 2017 of the Regional Trial Court, Branch 28, City of Manila, convicting the accused-appellant AMALIA NAVARRA [y] NAPAY for violation of Section 11, Article II of Republic Act No. 9165 is hereby AFFIRMED with MODIFICATION that the portion of the court a quo's Decision subjecting Navarra to subsidiary imprisonment in the event of insolvency is deleted. The rest of the Decision stands.

SO ORDERED.14 (Emphasis in the original)

Navarra moved for reconsideration, which the Court of Appeals denied in its April 12, 2019 Resolution. 15

On June 17, 2019, Navarra filed a Petition for Review, 16 assailing the Decision and Resolution of the Court of Appeals. She claimed that: (1) the Information is defective because it lacks the requisite authority of the City Prosecutor; (2) the arrest and search were illegal, making the alleged obtained evidence inadmissible; 17 and (3) there were inconsistencies in the testimony of PO2 Fajardo, 18 and the chain of custody was not properly established. 19

The issues for resolution are: First, whether or not the information is defective; Second, whether or not the arrest and search were illegal making the alleged obtained evidence inadmissible; and Third, whether or not petitioner Amalia Navarra y Napay is guilty beyond reasonable doubt of illegal sale of dangerous drugs.

This Court resolves to acquit petitioner.

I

The Information filed against petitioner was signed by Assistant City Prosecutor Jewelyne Jovette B. Valenton-Carreon, and was "approved for the City Prosecutor" by Chief, Inquest Division, Jovencio A. Senado. 20 The accompanying certification of the Assistant City Prosecutor also stated that it was filed with the prior authority of the City Prosecutor.

Petitioner now assails for the very first time the lack of jurisdiction of the trial court due to the alleged infirmity of the Information. She contends that the Information does not bear the signature of the City Prosecutor of Manila; nor do the records bear any proof showing that the city prosecutor gave their imprimatur to the filing of the Information or that they delegated their authority to approve its filing.

Essentially, she questions the correctness of the accompanying certification in the Information that it was filed with the prior approval of the City Prosecutor, which she cannot do at this late stage. This is a factual matter that is not proper to be resolved in a Rule 45 petition.

Furthermore, in Ongkico v. Sugiyama, 21 this Court ruled that the supposed lack of written authority or approval to file the Information is a waivable ground for a motion to quash information. In addition, this Court applied the doctrine of estoppel by laches against the petitioner therein for belatedly raising the issue on appeal, viz.:

The Court holds that the foregoing cases are not applicable. For one, as aptly pointed out by the Office of the Solicitor General, petitioners are barred by estoppel by laches for their unjustified delay in raising the issue of lack of prior written authority or approval to file the Informations. For another, the supposed lack of written authority or approval to file the Informations is a waivable ground for a motion to quash information.

xxx xxx xxx

In Garfin and Maximo, a motion to dismiss and motion to quash, respectively, were filed by the accused on the ground that the Information was filed without prior written authority or approval of the city prosecutor. Meanwhile, in Cudia, a motion to dismiss or withdraw Information was also filed by the city prosecutor himself for lack of territorial jurisdiction over the offense.

In stark contrast to Garfin, Cudia and Maximo, petitioners failed to raise the lack of written authority or approval of the city prosecutor before the MeTC, the RTC, and the CA without any justifiable reason. No motion to dismiss or motion to quash was filed by petitioners. From the filing of the Informations in 2002, petitioners were silent on why they raised the said issue for the first time before the Court in 2015 via a petition for review on certiorari.

Defined as the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, laches is negligence or omission to assert a rightwithin a reasonable length of time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.Laches can be imputed against petitioners, because a considerable length of time had elapsed before they raised the said procedural issue, and reasonable diligence should have prompted then to file a motion to dismiss or to quash the Information before the trial court. For the first time after almost 13 years after the filing of the Informations against them, petitioners are now before the Court decrying that the prosecutor who filed the Informations against them had no authority to do so.

It is also not amiss to state that had petitioners questioned the authority of Prosecutor II Hirang before the trial court, the defect in the Informations could have been cured before the arraignment of the accused by a simple motion of the prosecution to amend the Information; the amendment at this stage of the proceedings being a matter of right on the part of the prosecution, or for the court to direct the amendment thereof to show the signature or approval of the city prosecutor in filing the Information. Moreover, Section 4, Rule 117 of the Revised Rules of Criminal Procedure mandates that if the motion to quash is based on the alleged defect of the complaint or Information which can be cured by an amendment, the court shall order that an amendment be made. Either of these two could have been done to address the issue of lack of written authority or approval of the officer who filed the Information. 22 (Citations omitted)

II

Under Article III, Section 2 of the 1987 Constitution, "a search and seizure must be carried out through or on the strength of a judicial warrant." 23 Absent such warrant, the search and seizure becomes "unreasonable," and any evidence obtained by reason thereof is inadmissible for any purpose in any proceeding. 24

An exception to the need for a judicial warrant is Section 13, Rule 126 25 of the Revised Rules of Criminal Procedure, which allows for search incident to a lawful arrest. On the other hand, for there to be a lawful arrest, there should either be a warrant of arrest or a lawful warrantless arrest as provided in Section 5, Rule 113:

Section 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.

Section 5 (a), known as the in flagrante delicto arrest, requires the police officers to have personal knowledge of the commission of an offense. The officer himself witnesses the crime. 26 In People v. Cogaed: 27

[F]or a warrantless arrest of in flagrante delicto to be affected, "two elements must concur: (1) the person to be arrested must execute an overt act indicating that he [or she] has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer."28 (Emphasis supplied, citations omitted)

Here, the Court of Appeals ruled that there was a valid in flagrante delicto arrest, based on the following findings:

PO2 Fajardo witnessed Navarra taking the plastic sachet from a man after the former handed to the latter a [P100.00]-bill. Arousing his suspicion that the sachet contains shabu. PO2 Fajardo together with PO2 Samonte immediately approached them. 29

This Court disagrees.

PO2 Fajardo has no personal knowledge that at the time of the arrest, petitioner has just committed, is actually committing, or is attempting to commit a crime. The act of standing, handing over a P100.00 bill to, and receiving a plastic sachet from her companion cannot be considered criminal acts. PO2 Fajardo's mere suspicion and his being a Special Operation Unit member who conducts anti-criminality patrols are insufficient to conclude that the small plastic sachet contained shabu and not something else.

In Comerciante v. People, 30 two men were seen standing and showing "improper and unpleasant movements" with one of them handing plastic sachets to the other. This Court ruled that the warrantless arrest was not lawful because the arresting officers failed to determine beforehand that a criminal activity was ongoing:

[T]he Court finds it highly implausible that PO3 Calag, even assuming that he has perfect vision, would be able to identify with reasonable accuracy — especially from a distance of around 10 meters, and while aboard a motorcycle cruising at a speed of 30 kilometers per hour — miniscule amounts of white crystalline substance inside two (2) very small plastic sachets held by Comerciante. The Court also notes that no other overt act could be properly attributed to Comerciante as to rouse suspicion in the mind of PO3 Calag that the former had just committed, was committing, or was about to commit a crime. Verily, the acts of standing around with a companion and handing over something to the latter cannot in any way be considered criminal acts. In fact, even if Comerciante and his companion were showing "improper and unpleasant movements" as put by PO3 Calag, the same would not have been sufficient in order to effect a lawful warrantless arrest under Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure. That his reasonable suspicion bolstered by (a) the fact that he had seen his fellow officers arrest persons in possession of shabu; and (b) his trainings and seminars on illegal drugs when he was still assigned in the province are insufficient to create a conclusion that what he purportedly saw in Comerciante was indeed [shabu]. 31 (Emphasis supplied, citations omitted)

Similarly, in Sindac v. People, 32 this Court found it highly doubtful that the arresting officer was able to reasonably ascertain that a crime was being committed when he saw a man allegedly hand a plastic sachet to the accused:

Considering that PO3 Peñamora was at a considerable distance away from the alleged criminal transaction (five [5] to ten [10] meters), not to mention the atomity of the object thereof (0.04 gram of white crystalline substance contained in a plastic sachet), the Court finds it highly doubtful that said arresting officer was able to reasonably ascertain that any criminal activity was afoot so as to prompt him to conduct a lawful in flagrante delicto arrest and, thereupon, a warrantless search. These similar circumstances were availing in the cases of Comerciante v. People and People v. Villareal where the Court likewise invalidated the in flagrante delcito arrest and ensuing warrantless search. In this relation, it should also be pointed out that no criminal overt act could be properly attributed to Sindac so as to rouse any reasonable suspicion in the mind of either PO3 Peñamora or PO1 Asis that Sindac had just committed, was committing, or was about to commit a crime. Sindac's actuations of talking to and later on, receiving an unidentified object from Cañon, without more, should not be considered as ongoing criminal activity that would render proper an in flagrante delicto arrest under Section 5 (a), Rule 113 of the Revised Rules of Criminal Procedure. 33 (Emphasis supplied)

Here, there is no criminal overt act to suggest that a criminal offense was being committed when the police officers arrested the petitioner. Hence, their warrantless arrest of petitioner cannot be considered lawful.

With the illegality of petitioner's arrest, the purported plastic sachet of shabu allegedly seized from her is inadmissible for any purpose and in any proceeding. At this point, it must be emphasized that petitioner's failure to question her arrest before she made her plea only affects the jurisdiction of the court over her person 34 and does not bar her from raising the inadmissibility of the illegally seized shabu. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of the evidence obtained during the illegal arrest. 35 Considering the unlawful seizure of the dangerous drug, the same cannot be used as evidence against the petitioner. Without the corpus delicti, the acquittal of petitioner on reasonable doubt is inevitable.

III

Furthermore, the arresting officers unjustifiably failed to comply with the mandatory requirements provided in Section 21 of Republic Act No. 9165. This casts doubt on the core of the offense — the corpus delicti — against the petitioner.

The elements that must be established to convict the petitioner for illegal sale of dangerous drugs under Section 5 of the Comprehensive Dangerous Drugs Act are settled:

In actions involving the illegal sale of dangerous drugs, the following elements must first be 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. 36

Essential to sustain the conviction of petitioner for illegal sale of dangerous drugs is the integrity and identity of the dangerous drug, the corpus delicti for the offense. This Court explained in People v. Saunar: 37

[T]he corpus delicti must be presented as evidence in court. In cases involving dangerous drugs, "the corpus delicti is the dangerous drug itself." Hence, its identity and integrity must likewise be established beyond reasonable doubt. The obligation of the prosecution is to ensure that the illegal drugs offered in court are the very same items seized from the accused. This would entail the presentation of evidence on how the seized drugs were handled and preserved from the moment they were confiscated from the accused until their presentation in court. Non-compliance with this requirement creates doubt regarding the origin of the dangerous drugs. 38 (Citations omitted)

The rules governing the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia are governed by Section 21 of Republic Act No. 9165, as amended by Republic Act No. 10640 in 2014. It reads:

SECTION 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 dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of 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 and custody over said items.

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however. That a final certification shall be issued immediately upon completion of the said examination and certification[.]

In the presence of several deviations surrounding the present case, the integrity and evidentiary value of the seized drug cannot be advanced. aScITE

First, there was an absence of the two required third-party witnesses, an elective official and a media or National Prosecution Service representative, at the time of the arrest and seizure. People v. Tomawis39 is unyielding in clarifying that these third-party witnesses must be present as early as the time of apprehension:

Section 21 plainly requires the apprehending team to conduct a physical inventory of the seized items and the photographing of the same immediately after seizure and confiscation. In addition, the inventory must be done in the presence of the accused, his counsel, or representative, a representative of the DOJ, the media, and an elected public official, who shall be required to sign the copies of the inventory and be given a copy thereof.

The phrase "immediately after seizure and confiscation" means that the physical inventory and photographing of the drugs were intended by the law to be made immediately after, or at the place of apprehension. And only if this is not practicable, the IRR allows that the inventory and photographing could be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the apprehending officer/team. By the same token, however, this also means that the three required witnesses should already be physically present at the time of apprehension — a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity. Simply put, the buy-bust team has enough time and opportunity to bring with them said witnesses.

xxx xxx xxx

The presence of the three witnesses must be secured not only during the inventory but more importantly at the time of the warrantless arrest. It is at this point in which the presence of the three witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug. If the buy-bust operation is legitimately conducted, the presence of the insulating witnesses would also controvert the usual defense of frame-up as the witnesses would be able to testify that the buy-bust operation and inventory of the seized drugs were done in their presence in accordance with Section 21 of [Republic Act No.] 9165.

The practice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so — and "calling them in" to the place of inventory to witness the inventory and photographing of the drugs only after the buy-bust operation has already been finished — does not achieve the purpose of the law in having these witnesses prevent or insulate against the planting of drugs.

To restate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be secured and complied with at the time of the warrantless arrest; such that they are required to be at or near the intended place of the arrest so that they can be ready to witness the inventory and photographing of the seized and confiscated drugs"immediately after seizure and confiscation."40 (Emphasis supplied, citations omitted)

Here, the arresting officers admitted that both mandatory third-party witnesses were not present at the arrest and seizure. Moreover, at the time of the conduct of inventory, the police officers still failed to secure the attendance of an elective official, and only a media representative witnessed the inventory. In an attempt to rationalize the absence of the third-party witnesses, the arresting officers explained that they did intend to conduct the inventory at the crime scene itself, but "since there was no barangay official at that time," they decided to proceed to the police station instead. 41 This excuse deserves no merit.

Second, the precautions directed at preserving the integrity of the seized sachet, if there was any at all, from the time of confiscation until the time of marking of the evidence was unaccounted for. All that was offered was the self-serving yet severely inadequate statement that PO2 Fajardo was in the custody of the seized item until they reached the police station. 42 This exacerbates the complete lack of independent guarantee of the identity and integrity of the seized sachet as early as the point of seizure from petitioner, to the time it was in transit, until they arrive at the police station. The lapses in maintaining the evidentiary value of the seized item become even evident with the manner the Court of Appeals summarized the events:

. . . He recovered from Navarra a plastic sachet of suspected [shabu]. They called the barangay officials, but none of them came so he decided to bring Navarra and the seized evidence to the police station.

Subsequently, the seized item was marked, inventoried, and photographed at the police station in the presence of Navarra and media representative Garendola. 43

Next, marking was accomplished not at the place of the arrest but only at the police station. The police officers might have thought that the lack of a barangay official who heeded their call is an all — encompassing excuse that would justify not only their move to the police station but also their belated marking. This cannot be sanctioned.

In People v. Sanchez, 44 it was clarified that marking is a separate and distinct step from the conduct of the physical inventory and photograph.

In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy-bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law's intent of preserving their integrity and evidentiary value.

What Section 21 of [Republic Act 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. 45 (Citation omitted, emphasis supplied.)

During the belated marking, which was done at the police station and not at the place of arrest, the only third-party witness was media representative Garendola. Clearly, his presence cannot substitute for the presence of the other required third-party witnesses, an elected official. Otherwise, the law would have required only one third-party witness.

Lastly, but an equally important point: attention should be drawn to how minuscule the amount of the seized drug is — 0.0185 gram. "While the minuscule amount of narcotics seized is by itself not a ground for acquittal," 46 this very same fact exacts strict compliance with the requirements of Section 21. When an exhibit is this small and of a fungible physical characteristic quite identical to substances common to people's daily lives, the probability that such exhibit would be lost or tampered with is greatest. 47 Here, the seized drug even amounted to less than the seized drug in People v. Holgado48 at 0.05 gram, which was described as a "quantity is so minuscule it amounts to only about 2.5% of the weight of a five-centavo coin (1.9 grams) or a one-centavo coin (2.0 grams)."

Granted that convictions may still be sustained even in the presence of deviations from the requirements of Section 21, "the prosecution bears the burden of first acknowledging procedural lapses and specifically plead justifiable grounds for these lapses. It must also plead specific safety measures taken in view of the deviations made from the chain of custody requirements." 49 In this case, the prosecution tendered no sufficient reason to validate their departure from the mandate of the law. Besides, it is already settled that the absence of at least one of the mandatory third-party witnesses must be specifically alleged, and earnest efforts were undertaken to secure their attendance clearly demonstrated. 50 This Court explained in People v. Ramos: 51

It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However. a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of [Republic Act No.] 9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse." Verily, mere statements of unavailability. absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for non-compliance. These considerations arise from the fact that police officers are ordinarily given sufficient time — beginning from the moment they have received the information about the activities of the accused until the time of his arrest — to prepare for a buy-bust operation and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of [Republic Act No.] 9165. As such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable. 52 (Citations omitted)

In People v. Kamad, 53 this Court elucidated what gives rise to the presumption of regularity in the performance of official duty:

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. 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. 54 (Citations omitted)

At the time of arrest, the police officers were satisfied to reason out that no barangay official answered their call. This went on until the time of conduct of inventory, where only a media representative was present. With these procedural deviations committed by the police officers in taking custody of the seized drug, the presumption of regularity in the performance of official duties finds no application.

In view of the flagrant lapses in the chain of custody and the unjustified departures of the police officers from the procedures mandated by Section 21 of Republic Act No. 9165, this Court views that reasonable doubt surrounds the identity of the drugs seized from the petitioner warranting her acquittal.

To end, this Court reiterates these words in Holgado:

It is lamentable that while our dockets are clogged with prosecutions under Republic Act No. 9165 involving small-time drug users and retailers, we are seriously short of prosecutions involving the proverbial "big fish." We are swamped with cases involving small fry who have been arrested for miniscule amounts. While they are certainly a bane to our society, small retailers are but low-lying fruits in an exceedingly vast network of drug cartels. Both law enforcers and prosecutors should realize that the more effective and efficient strategy is to focus resources more on the source and true leadership of these nefarious organizations. Otherwise, all these executive and judicial resources expended to attempt to convict an accused for 0.05 gram of shabu under doubtful custodial arrangements will hardly make a dent in the overall picture. It might in fact be distracting our law enforcers from their more challenging task: to uproot the causes of this drug menace. We stand ready to assess cases involving greater amounts of drugs and the leadership of these cartels. 55

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR No. 39754 is REVERSED and SET ASIDE. Petitioner Amalia Navarra y Napay is ACQUITTED of illegal sale of dangerous drugs for failure of the prosecution to prove her guilt beyond reasonable doubt. Petitioner is ordered RELEASED from confinement unless she is being held for some other legal grounds.

Let a copy of this Resolution be furnished to the Superintendent of the Correctional Institution for Women for immediate implementation. The Superintendent is directed to report to this Court within five days from receipt of this Resolution the action she has taken. Copies shall also be furnished the Police General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information. HEITAD

Let entry of final judgment be issued immediately.

SO ORDERED."

By authority of the Court:

MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court

By:

(SGD.) RUMAR D. PASIONDeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 11- 43.

2.Id. at 47-49. The August 29, 2018 Decision in CA-G.R. CR No. 39754 was penned by Associate Justice Zenaida T. Galapate-Laguilles and concurred in by Associate Justices Stephen C. Cruz and Geraldine C. Fiel-Macaraig of the Special Sixteenth Division of the Court of Appeals, Manila.

3.Id. at 61-63. The April 12, 2019 Resolution in in CA-G.R. CR No. 39754 was penned by Associate Justice Zenaida T. Galapate-Laguilles and concurred in by Associate Justices Stephen C. Cruz and Geraldine C. Fiel-Macaraig of the Former Special Sixteenth Division of the Court of Appeals, Manila.

4.Id. at 93-100. The March 23, 2017 Decision in Criminal Case No. 16-326039 was penned by Presiding Judge Jean Marie A. Bacorro-Villena of the Regional Trial Court of Manila, Branch 28.

5. Republic Act No. 9165 (2002), Sec. 5 states:

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — 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 sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

xxx xxx xxx

6.Id. at 47-48.

7.Id. at 48.

8.Id.

9.Id. at 49.

10.Id.

11.Id. at 50.

12.Id. at 100.

13.Id. at 55-56.

14.Id. at 59.

15.Id. at 61-63.

16.Id. at 11-43.

17.Id. at 24-27.

18.Id. at 23-24.

19.Id. at 29.

20.Id. at 21.

21. G.R. No. 217787, September 18, 2019 <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65515> [Per J. Peralta, Third Division].

22.Id.

23.People v. Manago, 793 Phil. 505, 514 (2016) [Per J. Perlas-Bernabe, First Division].

24. Sec. 3 (2), Article III, 1987 Constitution.

25. Rules of Court, Rule 126, Sec. 13 provides:

SECTION 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

26.Comerciante v. People, 764 Phil. 627, 635 (2015) [Per J. Perlas-Bernabe, First Division].

27. 740 Phil. 212 (2014) [Per J. Leonen, Third Division].

28.Id. at 238.

29.Rollo, p. 54.

30. 764 Phil. 627 (2015) [Per J. Perlas-Bernabe, First Division].

31.Id. at 638-639.

32. 794 Phil. 421 (2016) [Per J. Perlas-Bernabe, First Division].

33.Id. at 433.

34.Dominguez v. People, G.R. No. 235898, March 13, 2019 <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65275> [Per J. Caguioa, Second Division].

35.Antiquera v. People, 723 Phil. 425 (2013) [Per J. Abad, Third Division]; People v. Racho, 640 Phil. 669 [Per J. Nachura, Second Division].

36.People v. Morales, 630 Phil. 215, 228 [Per J. Del Castillo, Second Division], citing People v. Darisan, et al., 597 Phil. 479, 485 (2009) [Per J. Corona, First Division] and People v. Partoza, 605 Phil. 883, 890 (2009) [Per J. Tinga, Second Division].

37.People v. Saunar, 816 Phil. 482 (2017) [Per J. Leonen, Second Division].

38.Id. at 491.

39. 830 Phil. 385 (2018) [Per J. Caguioa, Second Division].

40.Id. at 404-409.

41.Rollo, p. 113.

42.Id.

43.Id. at 49.

44. 590 Phil. 214 (2008) [Per J. Brion, Second Division].

45.Id. at 240-241.

46.People v. Holgado, 741 Phil. 78, 99 (2014) [Per J. Leonen, Third Division].

47.Mallillin v. People, 576 Phil. 576 (2008) [Per J. Tinga, Second Division].

48.People v. Holgado, 741 Phil. 78, 99 (2014) [Per J. Leonen, Third Division].

49.People v. Castillo, G.R. No. 238339, August 7, 2019 <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65610> [Per J. Leonen, Third Division], citing People v. Sanchez, 590 Phil. 214, 234 (2008) [Per J. Brion, Second Division].

50.Id.

51. 826 Phil. 981 (2018) [Per J. Perlas-Bernabe, Second Division].

52.Id. at 996-997.

53. 624 Phil. 289 (2010) [Per J. Brion, Second Division].

54.Id. at 311.

55. 741 Phil. 78, 100 (2014) [Per J. Leonen, Third Division].

n Note from the Publisher: Copied verbatim from the official document. Discrepancy between in words and in figures.