FIRST DIVISION
[G.R. No. 219585. February 26, 2020.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. ALONA INSON ABABON, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedFebruary 26, 2020 which reads as follows:
"G.R. No. 219585 — PEOPLE OF THE PHILIPPINES vs. ALONA INSON ABABON
The Case
This appeal assails the Decision 1 dated January 30, 2015 of the Court of Appeals in CA-G.R. CR-HC No. 01535, affirming the conviction of Alona Inson Ababon for violation of Section 5, Article II of Republic Act No. 9165 (RA 9165). 2
The Proceedings Before the Trial Court
The Charge
By Information 3 dated October 8, 2007, appellant Alona Inson Ababon was charged with violation of Section 5, Article II of RA 9165, viz.:
That on or about the 6th day of October 2007 x x x about 6:30 P.M. x x x at Brgy. Bulacao, City of Talisay, Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there sell and dispose one (1) heat-sealed transparent plastic sachet of white crystalline substance containing Methylamphetamine hydrochloride locally known as "SHABU," weighing 0.04 gram, a dangerous drugs, without being authorized by law.
CONTRARY TO LAW.
The case was raffled to the Regional Trial Court (RTC)-Branch 57, Cebu City.
On arraignment, appellant pleaded "not guilty." 4 Trial ensued.
The Prosecution's Evidence
The testimonies of Agents Levi S. Ortiz and Ramil B. Villaluz of the Philippine Drug Enforcement Agency (PDEA) VII-R.R. Landon St., Cebu City, and Police Superintendent (P/Supt.) Muchit Salinas of the Philippine National Police (PNP) Crime Laboratory, Cebu City may be summarized in this wise:
On October 6, 2007, a confidential informant reported to their office that appellant Alona Inson Ababon was selling shabu5 in Bulacao, Talisay City, Cebu. Agent Ortiz briefed the members of PDEA VII and organized a buy-bust operation. 6 Agent Ortiz assigned himself as poseur-buyer while Agent Villaluz as his immediate back-up. 7 The other members of the team included Agent Rayford Yap, Agent Priscillano Gingoyon, and Agent Cansancio. 8 Agent Ortiz prepared the buy-bust money, i.e., one (1) genuine one hundred peso bill marked with his initials "LSO." 9 They agreed on a prearranged signal: Agent Ortiz will put a face towel on his shoulder indicating the sale had been consummated. 10
At 5:15 in the afternoon of October 6, 2007, the buy-bust team and the confidential informant proceeded to Bulacao, Sitio Hawod, Talisay City. 11 There, Agent Ortiz and the confidential informant went ahead together, while the rest of the team positioned themselves to strategic areas to view the transaction. 12 The confidential informant saw appellant, approached her, and introduced Agent Ortiz as a student who would like to buy shabu. 13 Agent Ortiz gave the P100.00 buy-bust money to the confidential informant and the latter handed it to appellant. In turn, appellant took out from her pocket one (1) pack of shabu and handed it over to Agent Ortiz. 14 Agent Ortiz placed the face towel on his shoulder to signal that the sale had been consummated.
Agent Ortiz introduced himself as a PDEA Agent and informed appellant of her constitutional rights. 16
The team returned to their PDEA Office where Agent Ortiz marked 17 the seized plastic pack with "IAI." He also prepared the inventory in the presence of appellant, Barangay Councilor Elsa Iso of R.R. Landon, Barangay Sambag I, and media representative Chito O. Oragon of Cebu Daily News. 18 Meanwhile, Agent Maramba took pictures of the confiscated items. 19
After the marking and inventory, Agent Ortiz prepared a Request for Laboratory Examination. 20 The next day, Agent Ortiz turned over the seized drug to Agent Villaluz. Together they submitted the specimen and request for laboratory examination to the PNP Crime Laboratory for qualitative examination. 21 A certain PO2 Domael received 22 the request and specimen. Per Chemistry Report No. D-985-2007, Forensic Chemist Muchit G. Salinas found that the specimen weighed 0.04 gram and tested positive for methamphetamine hydrochloride, a dangerous drug. 23
The prosecution offered the following evidence: 1) Joint Affidavit of Arrest; 24 2) Authority to Operate; 25 3) Pre-operation Report; 26 4) Booking Sheet and Arrest Report; 27 5) Request for Laboratory Examination; 28 6) Chemistry Report No. D-985-2007; 29 7) Certificate of Inventory; 30 8) Photocopy of the marked money with serial number QH854178; 31 and 9) Photographs during the inventory. 32
The Defense's Version
Appellant averred that on October 6, 2007, she was buying barbeque near her house. 33 While waiting for her barbeque, three (3) individuals suddenly approached her, held her hands, arrested her, 34 and brought her to the PDEA Office. 35
Jessa Daan, appellant's neighbor, corroborated appellant's testimony. 36
The Trial Court's Ruling
By Decision 37 dated August 31, 2012, the trial court found appellant guilty as charged, viz.:
WHEREFORE, premises considered, the Court finds accused Alona Ababon guilty beyond reasonable doubt x x x for violation of Section 5, Article II of RA 9165 and is hereby sentenced to suffer the penalty of life imprisonment and a fine of P500,000.00.
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SO ORDERED. 38
The trial court found that all the elements of illegal sale of dangerous drugs were present; the integrity and evidentiary value of the seized item had been duly preserved from the time it was seized until it was presented in court; and appellant's denial cannot prevail over the positive testimonies of the PDEA Agents who identified her as the one who sold the dangerous drug to Agent Ortiz. 39
The Proceedings before the Court of Appeals
On appeal, appellant argued that the trial court erred in finding her guilty of illegal sale of dangerous drug despite the following omissions of the buy-bust team: a) marking was not done at the place of arrest; 40 and b) the seized drug was not properly stored. 41 Appellant also alleged that she could not have sold Agent Ortiz the shabu because they were in a public place. 42
For its part, the Office of the Solicitor General (OSG) through Assistant Solicitor General Sarah Jane T. Fernandez, Senior State Solicitor Henry Gerald P. Ysaac, Jr., and Luz Danielle O. Bolong, countered in the main: 1) all elements of illegal sale of dangerous drug were proven; 43 2) the fact that the sale took place in the presence of bystanders did not negate its occurrence; 44 3) it was more practical to do the marking and inventory at the PDEA office to protect the identity of the agents and the informant; 45 4) the integrity and evidentiary value of the seized item was duly preserved; 46 and 5) the PDEA agents regularly performed their duties in the arrest of appellant and seizure of the dangerous drug 47 and they were not impelled by any ulterior motive to testify against appellant. 48
The Court of Appeals' Ruling
In its assailed Decision 49 dated January 30, 2015, the Court of Appeals affirmed. It found that all the elements of illegal sale of drugs were present 50 and the integrity of the seized drug, preserved. 51
The Present Appeal
Appellant now seeks affirmative relief from the Court and pleads anew for a verdict of acquittal.
In compliance with Resolution52 dated September 23, 2015, the People manifested that in lieu of supplemental brief, it was adopting its brief before the Court of Appeals. 53
Appellant, on the other hand, filed her supplemental brief on February 7, 2017 repleading the arguments she raised before the Court of Appeals. 54
Issue
Did the Court of Appeals err when it affirmed appellant's conviction for violation of Section 5, Article II of RA 9165?
Ruling
In all prosecutions under RA 9165, the corpus delicti is the dangerous drug itself. 55 The integrity and identity of the seized drugs must be shown to have been duly preserved from the moment it was confiscated until presented in court. 56 For this purpose, the Court has adopted the chain of custody rule.
There are four (4) critical links in the chain of custody of dangerous drug: 57first, seizure and marking of the illegal drug recovered from the accused by the apprehending officer; second, turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, turnover and submission of the marked illegal drug seized by the forensic chemist to the court. 58
Here, the prosecution failed to establish an unbroken chain of custody.
First, the marking was not immediately done upon arrest. Both Agent Ortiz and Agent Villaluz did not justifiably explain why it was so, thus:
Agent Ramil Villaluz
Q: x x x Mr. Witness, you testified that you only made the proper marking of evidence in your office, the PDEA office, is that correct?
A: Yes, sir.
Q: Can you tell this Honorable Court where the PDEA office located?
A: RR Landon St., Cebu City.
Q: And you will agree with me Mr. witness, that it is about five kilometers from the place of the incident of the arrest?
A: I believe, sir.
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Q: And you did not make any inventory in front of the barangay official at Bulacao, Talisay City?
A: Yes, sir.
Q: And you are fully aware that this is part of the requirement of the drug seizure case that it should be photographed and inventoried and at the same time immediately logged or marked the evidence at the crime scene?
A: Our practice at that time was to bring the items to the office for inventory. 59
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Q: There were other persons in the vicinity during that time?
A: Yes, ma'am.
Q: Several persons?
A: Yes, ma'am.
Q: Did they gather at the scene of the incident when your team rushed up to the area?
A: Yes, ma'am.
Q: Were those persons started or did they become violent during that time?
A: We heard some of them saying why we arrested them when we don't have warrant which is the usual question of the persons in the area.
Q: But they did not become physically violent?
A: No, ma'am.
Q: Did they start to bring weapons with them or throw stones?
A: No, ma'am.
Q: So there was no threat to your life during that time?
A: Based on the situation, I believe there was none.
Q: But despite the fact, the marking of evidence was still made in the police station and not in the crime scene?
A: Not in the police station but in the PDEA Regional Office.60
Agent Ortiz
Q: x x x after you arrested Alona Ababon what did you do?
A: We prepared an inventory of the items confiscated in our office ma'am. 61 (Emphasis supplied)
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Q: Did you have the marking paraphernalia with you when you went to the place?
A: Yes, Ma'am.
Q: Are you sure?
A: Yes, Ma'am.
Q: So why is it that you were not able to mark the recovered item?
A: x x x I decided to conduct the inventory at the office in order not to put my men in danger.
Q: How many were you during that time?
A: x x x we were six ma'am.
Q: There were six of you and all of you were armed?
A: Yes, ma'am.
Q: Yet you were not able to do even the marking of one pack of shabu?
A: Yes, ma'am. I decided to mark it at the office.62
The Court has invariably ruled that failure of the authorities to immediately mark the seized drug renders doubtful the identity and integrity of the corpus delicti. 63
In People v. Ismael64 the Court decreed that marking after seizure is the starting point in the custodial link. Thus, it is vital that the seized contraband is immediately marked upon arrest because succeeding handlers of the specimen will use the markings as reference.
People v. Calvelo65 likewise ordains, thus:
The first stage in the chain of custody is the marking of the dangerous drugs or related items. Marking, which is the affixing on the dangerous drugs or related items by the apprehending officer or the poseur-buyer of his initials or signature or other identifying signs, should be made in the presence of the apprehended violator immediately upon arrest. x x x In short, the marking immediately upon confiscation or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value (Emphasis and underscoring supplied).
Here, the marking was not immediately done after appellant's arrest and seizure of the contraband. In fact, the marking of the seized item was only done at the PDEA Regional Office VII, R.R. Landon Street, Cebu City, which was five (5) kilometers away from the situs criminis. Agent Ortiz and Agent Villaluz failed to give a justifiable explanation why the marking was not promptly made in the situs criminis itself. At this stage in the chain, there was already a significant break since there can be no assurance against switching, planting, or contamination. 66
Second, Article II, Section 21 (a) 67 of the IRR requires the inventory to be done at the place of arrest where a warrant is served. Excepted are cases involving warrantless seizures where the inventory may be done at the nearest police station or at the nearest office of the apprehending team from the place of arrest or seizure, whichever is practicable.
Here, the inventory of the seized items was done at the PDEA Regional Office VII, R.R. Landon Street, Cebu City. The prosecution, however, did not provide sufficient proof that the PDEA Regional Office VII, Cebu City was the nearest office from the place where the drugs were seized. Agent Villaluz's explanation that it was their "practice" to bring the seized items to their office hardly justifies a substantial deviation from the rule.
In People v. Dela Victoria, 68 the inventory of the drugs seized from a buy-bust operation was done at the PDEA Office. No proof, however, was adduced showing that the PDEA Office was the nearest office from the place where the drugs were seized. Thus, transporting the seized items all the way to the PDEA Office for inventory casted serious doubts on the integrity of the confiscated drug. The Court considered this a break in the chain of custody and thereafter acquitted appellant of violation of Section 5, Article II, RA 9165.
Third, the inventory and photograph of the seized item were only made in the presence of appellant, Barangay Councilor Elsa Iso, and media representative Chito O. Oragon. The prosecution witnesses did not mention that a Department of Justice (DOJ) representative was also present. The prosecution utterly failed to acknowledge this deficiency, let alone, offer any explanation therefor.
The incident here happened in 2007 or before the enactment of RA 10640 in 2014, thus, the applicable law is RA 9165. Section 21 of its Implementing Rules requires that the physical inventory and photograph of the drugs should be done immediately after their seizure and confiscation in the presence of no less than three (3) witnesses, namely: (a) a representative from the media; (b) a representative from the DOJ, and; (c) any elected public official — who shall be required to sign copies of the inventory and given copy thereof. The presence of these three (3) insulating witnesses was intended as a guarantee against planting of evidence or frame up. They were necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity. 69
People v. De la Cruz, 70 decreed that the inexcusable non-compliance with the insulating witness rule effectively invalidated the seizure and custody of the seized drugs, thus, compromising their identity and integrity.
Fourth, Agent Ortiz testified that a day after he seized the plastic pack containing shabu, he turned it over to Agent Villaluz. Both of them went to the PNP Crime Laboratory but it was Agent Villaluz who submitted the specimen and request for laboratory examination. The same was received by a certain PO2 Domael. There is nothing on the records, however, which showed how the seized item was handled or stored prior to its qualitative examination.
In People v. Beran, 71 the arresting officer submitted the sachet to the laboratory only on the next day, without explaining how he preserved his exclusive custody thereof overnight until it was turned over to the crime laboratory for qualitative examination. The Court ruled that the integrity and evidentiary value of the seized item had been fatally compromised, warranting the accused's acquittal.
Further, PO2 Domael did not testify to attest that he personally received the item from Agent Villaluz prior to its examination and how he handled it, if at all. People v. Ubungen72 ordains that every person who had custody of the confiscated drug should show that he or she took the necessary precaution to preserve the integrity of the drug and ensure that no opportunity would be afforded by any other person to contaminate the same. Otherwise, the Court will not be satisfied to rule that the integrity and evidentiary value of the seized drug had been properly preserved.
Fifth, the last link involves the submission of the seized drug by the forensic chemist to the court when presented as evidence. 73 Here, Forensic Chemist Salinas did not testify on how the illegal drug was safeguarded, if at all, after she received the same and following her qualitative examination thereof, and prior to her appearance in court. Indeed, no explanation was given regarding the proper handling and storage of the seized drug in the interim — from the moment the seized item was received for laboratory examination until it was presented in court.
In People v. Gutierrez, 74 the forensic chemist also failed to testify on how the seized items were handled after the qualitative examination thereon yielded positive for methamphetamine hydrochloride. The Court ruled that this necessary detail imputes uncertainty on the integrity of the seized item presented in court as evidence. In People v. Mola, 75 the turnover and submission of the seized item from the forensic chemist to the court was not established. Neither was there any evidence indicating how the sachet of shabu was properly stored and preserved during and after the laboratory examination, let alone, identifying the person/s who had custody of the item before it was presented in court as evidence. In that case, the Court also acquitted the accused of illegal sale of dangerous drug.
The breaches in the chain of custody rule here are fatal flaws which effectively destroyed the integrity and evidentiary value of the corpus delicti. 76
Verily, the prosecution witnesses here failed to describe the precautions taken to ensure that there had been no change in the condition of the items and no opportunity for someone not in the chain to have possession of the same. The prosecution cannot apply the saving mechanism of Section 21 of the IRR of RA 9165 because it miserably failed to prove that the integrity and the evidentiary value of the seized items were preserved in the first place.
Suffice it to state that the presumption of regularity in the performance of official functions 77 cannot substitute for compliance and mend the broken links. Here, the presumption was overturned by compelling evidence of the multiple breaches of the chain of custody rule. A verdict of acquittal is in order.
WHEREFORE, the appeal is GRANTED. The Decision dated January 30, 2015 of the Court of Appeals in CA-G.R. CR-HC No. 01535 is REVERSED and SET ASIDE. Appellant Alona Inson Ababon is ACQUITTED in Criminal Case No. CBU-81376.
The Court DIRECTS the Superintendent of the Correctional Institution for Women, Mandaluyong City to cause the immediate release from custody of Alona Inson Ababon unless she is being held for some other lawful cause; and inform the Court of the action taken within five (5) days from notice.
Let an entry of final judgment be issued immediately.
SO ORDERED." Reyes, J., Jr., J., on official leave.
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1. Penned by Associate Justice Gabriel T. Ingles and concurred in by Associate Justices Pamela Ann Abella Maxino and Renato C. Francisco, rollo, pp. 4-21.
2. Comprehensive Dangerous Drugs Act of 2002.
3. Record, p. 1.
4.Id. at 23.
5. TSN, February 26, 2010, p. 5.
6.Id. at 7.
7.Id.
8.Id. at 10.
9.Rollo, p. 6.
10. TSN, September 2, 2011, p. 17.
11. TSN, February 26, 2010, p. 10.
12.Rollo, p. 6.
13. TSN, February 26, 2010, p. 12.
14.Id. at 13.
15.Id. at 16.
16.Id. at 20.
17.TSN, February 25, 2010, p. 22.
18.Id. at 24-25.
19.Rollo, p. 7.
20.TSN, February 13, 2009, p. 17.
21.Id. at 18-19.
22.Record, p. 9.
23.Id. at 8.
24.Id. at 4.
25.Id. at 5.
26.Id. at 6.
27.Id. at 12.
28.Id. at 9.
29.Id. at 8.
30.Id. at 10.
31.Id. at 7.
32.Id. at 13-14.
33.TSN, February 3, 2012, p. 4.
34.Id. at 5-6.
35.Id. at 7.
36.TSN, March 9, 2012, p. 5.
37.Penned by Judge Enriqueta Loquillano-Belarmino, CA rollo, pp. 37-44.
38.Id. at 44.
39.Id. at 41-42.
40.Id. at 29.
41.Id. at 30.
42.Id. at 24.
43.Id. at 70, 72.
44.Id. at 73.
45.Id. at 78.
46.Id. at 80.
47.Id. at 74.
48.Id. at 75.
49.Rollo, pp. 4-21.
50.Id. at 12.
51.Id. at 20.
52.Id. at 27-28.
53.Id. at 30-32.
54.Id. at 49-68.
55.See People v. Jaafar, 803 Phil. 582, 591 (2017).
56.See Fajardo v. People, 691 Phil. 752, 758-759 (2012), citing People v. Gutierrez, 614 Phil. 285, 293 (2009).
57.As defined in Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002:
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b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition[.] x x x
58.See People v. Villar, 799 Phil. 378, 389 (2016).
59.TSN, July 17, 2009, p. 10.
60.TSN, July 17, 2009, pp. 16-17.
61.TSN, February 26, 2010, p. 21.
62.TSN, September 2, 2011, pp. 22-23.
63.See People v. De Leon, G.R. No. 214472, November 28, 2018.
64.See 806 Phil. 21, 31 (2017).
65.See G.R. No. 223526, December 6, 2017, 848 SCRA 225, 247.
66.See supra note 64, citing People v. Umipang, 686 Phil. 1024, 1050 (2012).
67.Section 21 of RA 9165 prescribes the standard in preserving the corpus delicti in illegal drug cases, viz.:
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 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;
(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 within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the 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 on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (Emphasis supplied)
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The Implementing Rules and Regulations of RA No. 9165 likewise ordains:
Section 21. (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.
68.See G.R. No. 233325, April 16, 2018, 861 SCRA 305, 314-315.
69.See People v. Cabrellos, G.R. No. 229826, July 30, 2018 citing People v. Sagana, 815 Phil. 356, 373 (2017).
70.See 591 Phil. 259, 271 (2008).
71.See G.R. No. 218947, June 20, 2018.
72.See G.R. No. 225497, July 23, 2018.
73.See People v. Dahil, et al., 750 Phil. 212, 237 (2015).
74.See 614 Phil. 285, 295 (2009).
75.See G.R. No. 226481, April 18, 2018, 862 SCRA 112, 126.
76.See People v. Miranda, G.R. No. 229671, January 31, 2018, 854 SCRA 42, 61.
77.Section 3 (m), Rule 131, Rules of Court.