People v. Alih y Banin

SECOND DIVISION

[G.R. No. 228943. June 20, 2022.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JUDAIYA ALIH y BANIN, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution datedJune 20, 2022which reads as follows: HTcADC

"G.R. No. 228943 (PEOPLE OF THE PHILIPPINES, plaintiff-appellee v. JUDAIYA ALIH y BANIN, accused-appellant). The witnesses required in Section 21 of Republic Act No. 9165 guarantee the legitimacy of the buy-bust operation and the integrity of the seized illegal drug. When the seizure is pursuant to a planned buy-bust operation, their absence during the seizure, marking, photography, and inventory casts serious doubt on the integrity and identity of the seized drug.

This resolves an appeal under Rule 122 of the Rules of Court, assailing the Court of Appeals Decision 1 which affirmed the Judgment 2 of the Regional Trial Court finding Judaiya Alih y Banin (Alih) guilty beyond reasonable doubt of illegal sale of dangerous drugs, in violation of Article II, Section 5 3 of Republic Act No. 9165, or the Comprehensive Dangerous Drugs Act.

The accusatory portion of the November 11, 2003 Information against Alih states:

That on or about November 10, 2003, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell, deliver, transport, distribute, or give away to another any dangerous drug, did then and there willfully, unlawfully and feloniously, sell and deliver to PO1 Hilda D. Montuno, PNP TGTD, who acted as poseur buyer, one (1) medium size heat-sealed transparent plastic bag containing white crystalline substance, weighing 0.3570 gram, which when subjected to qualitative examination gave positive results to the tests for the presence of METAMPHETAMINE HYDROCHLORIDE (SHABU), knowing the same to be a dangerous drug. 4

Alih pleaded not guilty upon arraignment. Trial on the merits then ensued. 5

According to the prosecution, on November 10, 2003, the Zamboanga City Police Office received a report from an informant that a certain "Judaiya" in Barangay Sta. Barbara was allegedly selling shabu. Based on this report, the Zamboanga City Police Task Force Tumba Droga Team — led by PCINSP Ricardo Garcia — scheduled a buy-bust operation. PO3 Hilda D. Montuno (PO3 Montuno) was designated as the poseur-buyer. 6

The buy-bust team, with the informant, went to Sta. Barbara at around 11:30 a.m. of the same day. The informant led PO3 Montuno to a house which he identified to be Alih's. When a woman — identified as Alih by the informant — opened the door, the informant told her that PO3 Montuno wanted to buy shabu. Alih gave PO3 Montuno a sealed sachet. However, as PO3 Montuno handed the P1,500.00, Alih ran back inside her house, causing PO3 Montuno to call the other members of the buy-bust team to pursue her. Alih was arrested in her kitchen. 7

After the arrest, Alih and three other people inside the house were brought to the police station. There, PO3 Montuno marked the sealed sachet with the initials "HDM" before turning it over to investigator SPO1 Renato Dela Pena (SPO1 Dela Pena), who also marked the sachet with "RD."

SPO1 Dela Pena prepared the laboratory request for the contents of the sachet. Afterwards, PO1 Ramchand, 8 another member of the buy-bust team, brought the sachet to the Crime Laboratory, where a test conducted by Police Chief Inspector Mercedes Delfin Diestro showed that the contents of the sachet were positive for shabu. Meanwhile, Alih was brought to the prosecutor's office for the filing of a criminal complaint against her. 9

Alih's defense was of frame-up and denial. In her version of events, she was at her aunt's house with her cousins when persons in civilian clothing entered and pointed a gun at them. Alih was addressed as "Fatima Adawiya." She and her relatives were arrested and brought to the police station. Alih also denied that she sold shabu to the police officers. 10

In its May 29, 2013 Judgment, the Regional Trial Court found Alih guilty beyond reasonable doubt, the dispositive portion of which reads:

WHEREFORE, all the foregoing premises considered, Judgment is hereby rendered finding the accused herein, JUDAIYA ALIH y BANIN, guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and hereby sentences her to suffer the penalty of Life Imprisonment and to pay the fine of One Million Pesos (P1,000,000.00), and to pay the costs of this suit.

Considering that the accused herein appears to have been preventively detained since she was arrested on November 11, 2003 up to the present time, the said period of incarceration shall be considered in the afore-meted sentence and shall be properly credited in her favor.

Pursuant to [Supreme Court Office of the Court Administrator] Circulars Nos. 4-92-A and 26-2000, let a Commitment Order be issued for the immediate transfer of the herein accused to the Correctional Institute for Women, Mandaluyong City.

The one (1) medium size heat-sealed transparent plastic bag weighing 0.3570 gram of Methamphetamine Hydrocholoride (shabu) subject of the Information hereof is hereby ordered confiscated and forfeited in favor of the government and shall be dispensed or disposed with in the manner as provided for under [Republic Act No.] 9165 and other laws and issuances pertinent and relevant thereto.

SO ORDERED. 11

Alih appealed the Judgment with the Court of Appeals, arguing that the prosecution did not prove all the elements of the sale of illegal drugs. She claimed that the bills for the P1,500.00, the consideration in this case, did not have their serial numbers recorded in accordance with the Philippine National Police Manual on Anti-Illegal Drugs Operation and Investigation. These bills were also not properly photographed, reproduced, or recorded, and were not presented in court. Thus, she argued that the consideration for the sale was not present. 12 Moreover, she alleged that the sale was not consummated because PO3 Montuno admitted during trial that Alih did not take the money. 13

Alih also claimed that the chain of custody over the seized shabu was not maintained, as its marking was done at the police station, and not at the place of her arrest. 14 She also pointed out that the identity of the police officer who brought the seized shabu to the Crime Laboratory was unproved, because PO1 Ramchand's testimony was dispensed with for no justifiable reason. 15

On September 13, 2016, the Court of Appeals affirmed the Regional Trial Court's Judgment. The dispositive portion of the Court of Appeals' Decision reads:

WHEREFORE, premises considered, the Judgment dated 29 May 2013 rendered by the Regional Trial Court, Branch 12 of Zamboanga City in Crim. Case No. 5148 (20208) convicting accused-appellant guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002 is hereby AFFIRMED.

SO ORDERED. 16

First, the Court of Appeals found that the prosecution was able to prove all the elements of the crime charged — the identities of both buyer and seller, the object, the consideration, as well as the delivery of the illegal drugs sold and the payment. Second, it held that the police officers substantially complied with the chain of custody requirements in drug cases.

The Court of Appeals also held that the failure to mark or present in evidence the money used in a buy-bust operation was immaterial to a judgment of conviction as marked money is only corroborative, and only validates other evidence presented by the prosecution.

Further, it found that the chain of custody over the seized shabu was established by the police officers. It did not give credence to Alih's claim that the evidentiary value of the shabu was affected by the police marking the sachet at the police station and not at the place where she was arrested. To the Court of Appeals, if it is shown that the identity and integrity of the seized drugs were preserved, then the failure to strictly comply with Section 21 of Republic Act No. 9165 will not automatically result in an acquittal. The Court of Appeals also found that there was no proof that the police had ill will or motive to fabricate the drug charge against Alih.

Alih filed a Notice of Appeal which was given due course and the case records were elevated to this Court. The parties were then directed to file their respective supplemental briefs.

The Office of the Solicitor General, on behalf of the plaintiff-appellee People of the Philippines, manifested that it would no longer file a supplemental brief. Accused-appellant made a similar manifestation through counsel.

The sole issue to be resolved in this case is whether or not accused-appellant Alih is guilty beyond reasonable doubt of violating Article II, Section 5 of the Comprehensive Dangerous Drugs Act.

To convict an accused of the offense of illegal sale of dangerous drugs, the following elements must be proved: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and payment. 17

Contrary to Alih's claims, the presentation of the marked money is not indispensable to proving the elements of the offense, especially the consideration and payment.

Failing to mark the buy-bust money or present it in evidence will not necessarily disprove the sale. 18 In People v. Concepcion: 19

Appellants' argument that the poseur-buyer was not able to strike a deal or a sale because one of the elements of the crime charged was wanting — payment by the poseur-buyer for the thing sold or receipt of the marked money by the seller of the dangerous drugs — is erroneous. As above-mentioned, the transaction between the poseur-buyer and appellants was already consummated. There is no rule of law which requires that in buy-bust operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher.

It must be emphasized that appellants were charged with selling, trading, delivering, giving away, dispatching in transit and transporting dangerous drugs under Section 5, Article II of Republic Act No. 9165. The charge was not limited to selling. Said section punishes not only the sale but also the mere act of delivery of prohibited drugs after the offer to buy by the entrapping officer has been accepted by the seller. In the distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of distributing the prohibited drugs to others is in itself a punishable offense. In the case at bar, the shabu was delivered to the poseur-buyer after appellants agreed on the price of the contraband. 20 (Citations omitted)

As pointed out by the Court of Appeals:

The presence of actual monetary consideration is not indispensable of the existence of the offense. Hence, the fact that no money was actually delivered by the pretend buyer to the pusher did not prevent the offense from being committed. 21

However, Alih is correct that the chain of custody over the seized drug in this case was ill-established.

Section 21 of Republic Act No. 9165 states the rules governing the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia:

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[.]

The prosecution must be able to establish the chain of custody of the drug from seizure to turnover for chemical analysis. In People v. Castillo: 22

There are four (4) links in the chain of custody of the confiscated item that need to be established:

[F]irst, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. 23 (Citation omitted)

This court has overturned convictions where the prosecution fails to prove that the seized drugs were marked immediately after arrest:

In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti.

The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. 24 (Citations omitted)

Here, not only did the prosecution admit that the marking of the seized shabu was not done at the place of arrest, 25 there was also no showing that the seized drug was photographed and inventoried. All PO3 Montuno testified to was that, after the seized sachet was marked, it was turned over to the police investigator who then showed it during the filing of the complaint. 26 The police officers did not even explain the reasons behind the procedural lapses, which could have justified an exception from the requirement in Section 21 (1). 27

An equally glaring omission is the absence of the three witnesses required by Section 21. There was no showing whatsoever that even one — let alone all three — of the required witnesses were present at the marking, photographing, or even the inventory of the seized drug. This omission is all the starker because the seizure was pursuant to a planned buy-bust operation, which is not a spontaneous impulse deprived of adequate opportunities to secure the attendance of witnesses. These witnesses could have guaranteed the legitimacy of the buy-bust operation and the integrity of the seized illegal drug:

In People v. Tomawis, this Court emphasized that in planned buy-bust operations, because the seized items must be physically inventoried and photographed immediately upon seizure, the third-party witnesses must be present as early as during the actual transaction. Their insulating presence serves the two-fold purpose of guaranteeing the legitimacy of the buy-bust operation and the integrity of the seized illicit drug:

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 RA 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." 28 (Citations omitted)

As the chain of custody requirements under Section 21 of Republic Act No. 9165 were not adequately met in this case, then there is serious doubt as to the corpus delicti of the offense charged, or the integrity and identity of the dangerous drug. 29

The heightened scrutiny is warranted in this case, which involves a minuscule amount — 0.357 gram — of shabu, which could be readily planted and tampered with. As this Court explained in People v. Holgado: 30

Trial courts should meticulously consider the factual intricacies of cases involving violations of Republic Act No. 9165. All details that factor into an ostensibly uncomplicated and barefaced narrative must be scrupulously considered. Courts must employ heightened scrutiny, consistent with the requirement of proof beyond reasonable doubt, in evaluating cases involving minuscule amounts of drugs. These can be readily planted and tampered. Also, doubt normally follows in cases where an accused has been discharged from other simultaneous offenses due to mishandling of evidence. Had the Regional Trial Court and the Court of Appeals been so judicious in this case, a speedier resolution would have been handed to Holgado and Misarez whose guilt beyond reasonable doubt was not established.

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. 31

WHEREFORE, the Court of Appeals' September 13, 2016 Decision in CA-G.R. CR-HC No. 01270-MIN is REVERSED and SET ASIDE. Accused-appellant Judaiya Alih y Banin is ACQUITTED of illegal sale of dangerous drugs. Accused-appellant is ordered RELEASED from confinement unless she is being held for some other legal ground.

Let a copy of this Resolution be furnished to the Superintendent of the Correctional Institution for Women-Mindanao 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 to the Chief of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information.

Let entry of judgment be issued immediately.

SO ORDERED."

By authority of the Court:

TERESITA AQUINO TUAZONDivision Clerk of Court

By:

(SGD.) MA. CONSOLACION GAMINDE-CRUZADADeputy Division Clerk of Court

Footnotes

1. Rollo, pp. 3-13. The September 13, 2016 Decision in CA-G.R. CR-HC No. 01270-MIN was penned by Associate Justice Oscar V. Badelles, and concurred in by Associate Justices Romulo V. Borja and Ronaldo B. Martin of the Twenty-First Division of the Court of Appeals, Cagayan de Oro City.

2. CA rollo, pp. 36-41. The May 29, 2013 Judgment in Criminal Case No. 5148 (20208) was penned by Judge Gregorio V. Dela Peña III of the Regional Trial Court of Zamboanga City, Branch 12.

3. The relevant portion of Article II, Section 5 of Republic Act No. 9165 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. . . .

4. Rollo, pp. 3-4.

5. Id. at 4.

6. Id.

7. Id. at 4-5.

8. The complete name of PO1 Ramchand was not mentioned in both the RTC and CA Decisions.

9. Rollo, p. 5.

10. Id.

11. CA rollo, p. 42.

12. Id. at 28.

13. Id. at 28-29.

14. Id. at 30-31.

15. Id. at 33.

16. Rollo, p. 13.

17. People v. Año, 828 Phil. 439 (2018) [Per J. Perlas-Bernabe, Second Division].

18. People v. Cueno, 359 Phil. 151 (1998) (Per J. Vitug, Third Division].

19. 578 Phil. 957 (2008) [Per J. Chico-Nazario, Third Division].

20. Id. at 976-977.

21. Rollo, p. 8.

22. G.R. No. 238339, August 7, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65610> [Per J. Leonen, Third Division].

23. Id.

24. People v. Orteza, 555 Phil. 700, 708 (2007) [Per J. Tinga, Second Division].

25. Rollo, p. 10.

26. Id.

27. People v. Gadiana, 644 Phil. 686 (2010) [Per J. Carpio-Morales, Third Division].

28. Pimentel v. People, G.R. No. 239772, January 29, 2020, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66465> [Per J. Leonen, Third Division].

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

30. 741 Phil. 78 (2014) [Per J. Leonen, Third Division].

31. Id. at 100.