FIRST DIVISION
[G.R. No. 251657. November 11, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JOSAURO APILAN y DAGUHONG ALIAS "JUN-JUN APILAN", accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated November 11, 2021which reads as follows:
"G.R. No. 251657 (People of the Philippines, plaintiff-appellee, v. Josauro Apilan y Daguhong alias "Jun-Jun Apilan," accused-appellant).
This is an appeal from the May 31, 2019 Decision 1 of the Court of Appeals, Cebu City (CA), in CA-G.R. CEB CR-HC No. 02681, which affirmed the September 26, 2017 Decision 2 of the Regional Trial Court of Negros Occidental, Bacolod City, Branch 47 (RTC), in Criminal Case No. 10-33441, finding Josauro Apilan y Daguhong alias "Jun-Jun Apilan" (accused-appellant) guilty beyond reasonable doubt of illegal sale of marijuana.
Antecedents
Accused-appellant was charged with violation of Section 5, Article II of Republic Act (R.A.) No. 9165 under the following information:
That on or about the 24th day of May, 2010, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized by law, to sell, trade, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drugs, did, then and there willfully, unlawfully and feloniously sell, deliver, give away to a police poseur[-]buyer in a buy-bust operation One (1) Staple-sealed yellow plastic bag containing one (1) block of dried Marijuana fruiting tops, a dangerous drug, with a weight of 467.42 grams, in exchange of marked money of Eleven pcs. of Five Hundred Peso Bill (P500.00) bearing Serial Nos. DC986223; DC986224, DC986225; DC986226; DC986227; DC986228; PC119615; PC119616; PC119617; PC119618; PC119619; and Five pcs. ONE HUNDRED Peso Bill (P100.00) bearing Serial Nos. MK274001, MX274200, MX274199; MB268172; and MW711148 or in the total amount of P6,000.00, in violation of the aforementioned law. aTHCSE
Act contrary to law. 3
When arraigned, accused-appellant pleaded not guilty to the charge. At the trial, the following police officers testified for the prosecution: Police Officer II Ian S. Piano 4(PO2 Piano); Police Officer III Ivan D. Inoperio (PO3 Inoperio); Police Chief Inspector Joemarie G. Occeño 5(PCI Occeño), Chief of the City Anti-Illegal Drugs Special Operations Task Group (CAID-SOTG); and forensic chemist Police Senior Inspector Maria Cecilia Gonzalez Tang (PSI Tang). Accused-appellant was the lone witness for the defense.
Version of the Prosecution
On May 24, 2010, the CAID-SOTG of the Philippine National Police (PNP)-Bacolod City, received information that a certain "Jun-Jun Apilan" was engaged in the selling and distribution of marijuana. A briefing for a buy-bust operation was conducted at 2:00 p.m. after the confidential informant (informant) agreed to arrange a deal with accused-appellant. The amount of P6,000.00 was prepared as marked money, which was entered in the police blotter report, and the operation was coordinated with the Philippine Drug Enforcement Agency. Thereafter, the team proceeded to the target area along Galo-Mabini Streets, Bacolod City. 6
PO2 Piano, the designated poseur-buyer, and the informant saw accused-appellant standing by one of the coconut stalls by the road. They approached him, and the latter, upon seeing them, asked the informant what he wanted. The informant told accused-appellant that they would like to buy one-half kilo of marijuana in preparation for the opening of classes. Accused-appellant demanded the payment and PO2 Piano handed him the marked money. 7
After receiving the money, accused-appellant told them to wait. He walked towards an alley leading to the inner areas of Barangay 19. He returned after a few minutes and handed PO2 Piano one block of suspected marijuana leaves with fruiting tops. Upon receipt by PO2 Piano of the item, the informant made the pre-arranged signal by making a missed call to PCI Occeño. The rest of the buy-bust team rushed towards them. PO2 Piano introduced himself as a police officer and thereupon arrested accused-appellant. PO2 Piano immediately searched accused-appellant and was able to recover only one P100.00 bill out of the P6,000.00 marked money he had earlier handed to accused-appellant. 8
Upon being told by accused-appellant that a certain Nilo Garcia (Garcia), who was previously apprehended for selling drugs, was the source of the marijuana and the one who took the marked money paid to accused-appellant (the P100.00 bill was supposedly accused-appellant's commission), the police team did a follow-up operation but failed to catch Garcia. 9 cAaDHT
The police officers brought accused-appellant to the nearest barangay hall which was about 50 meters away from the place of arrest. There, PO2 Piano conducted the physical inventory and marking of the seized item in the presence of accused-appellant, together with PCI Occeño and Punong Barangay Jocelyn Y. Uychiat 10(Punong Barangay) who both signed the Receipt/Inventory of Property Seized. PO1 Rey Villanueva took photographs during the marking and inventory, but these were not formally offered as evidence. 11
Afterwards, the police officers brought accused-appellant and the seized marijuana to the office of the CAID-SOTG. The seized marijuana remained in the possession of PO2 Piano who turned it over to PO3 Inoperio on the morning of May 25, 2010. PO3 Inoperio proceeded to the PNP Regional Office No. 6 and delivered the seized marijuana and the request for laboratory examination which were personally received by PSI Tang. 12
PSI Tang conducted laboratory examinations on the seized item. Results of the laboratory tests confirmed that the specimen weighing 467.42 grams contains marijuana, a dangerous drug, as reflected in her submitted Chemistry Report No. D-093-2010. 13
Version of the Defense
Accused-appellant testified that on May 24, 2010, he was at Purok Bagong Hiway, Barangay 22, Bacolod City. At past 3:00 p.m., he was sitting nearby K Mart as he was one of the barkers there. Four unidentified persons wearing t-shirts and short pants approached him and asked if he was Jun; he replied in the affirmative. Upon their invitation, he went with them to the barangay hall. All the while he thought that these persons whom he had never met before might offer him a job. He was then handcuffed, but was not shown any document. He complained, but these persons ordered him to go upstairs. He was made to sit in front of the Punong Barangay and was introduced to the latter saying, "This is Jun, the one [from whom] we recovered marijuana." He was surprised, but did not say anything. The Punong Barangay told these persons that accused-appellant was a resident and a registered voter of Barangay 22 but was brought to Barangay 19. He saw the marijuana placed on top of the table while photographs were taken by one of the four persons. He admitted that he knows Garcia who is well-known in the area as a seller of live chicken. 14
The RTC Ruling
The RTC found accused-appellant guilty as charged. The dispositive portion of its decision reads:
WHEREFORE, finding accused Josauro Apilan y Daguhong alias "Jun-Jun Apilan" GUILTY beyond reasonable doubt of Violation of Section 5 (Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs), Article II of Republic Act 9165 in Criminal Case 10-33441, judgment is hereby rendered sentencing him to suffer: Life Imprisonment, and to pay a fine of Php500,000.00. He is also to bear the accessory penalties provided by law. Costs against accused.
The subject One (1) block of dried marijuana leaves and fruiting tops wrapped by a newspaper and a packing tape marked "ISP" (Exhibit "1-2-B-1" — 467.42 grams), being a dangerous drug, is hereby ordered confiscated and/or forfeited in favor of the government and to be forthwith delivered or turned over to the Philippine Drug Enforcement Agency (PDEA) provincial office for immediate destruction or disposition in accordance with law.
The prompt commitment of accused Josauro Apilan y Daguhong alias "Jun-Jun Apilan" to the national penitentiary for service of sentence is hereby furthermore ordered.
SO ORDERED. 15
According to the RTC, the prosecution was able to prove by physical and testimonial evidence all the elements of illegal sale of dangerous drugs. The necessary links in the chain of custody of the specimen subject of the sale was duly established — from the moment it was seized from accused-appellant to its delivery to the crime laboratory up to the time it was presented in court as proof of the corpus delicti — thereby proving that the identity and integrity thereof have been properly preserved. HCaDIS
The RTC further found the failure to formally offer in evidence the photographs as not fatal because the taking of the same was duly testified to by PO2 Piano and PCI Occeño who identified them in court. It held that substantial adherence to Sec. 21 of R.A. No. 9165 will suffice as long as the integrity and evidentiary value of the seized item are properly preserved by the apprehending officer/team. Moreover, there was no evidence of any ill motive on the part of the police officers except only to perform their official duty. Accused-appellant's defense of denial and frame-up was not shown by clear and convincing evidence. Hence, the presumption that official duty had been regularly performed was not overcome.
The CA Ruling
The CA affirmed accused-appellant's conviction. It cited substantial compliance by the police officers with the required procedure on the custody and control of the confiscated item conducted at the nearest barangay hall as witnessed by the Punong Barangay including accused-appellant himself. It noted that accused-appellant only questioned the chain of custody when he appealed his conviction. Such objection to evidence cannot be raised for the first time on appeal. As to the defense of denial and frame-up, the appellate court held that there was no evidence that the members of the buy-bust team were inspired by any improper motive or were not performing their duty. The CA, thus, concluded that the prosecution was able to overcome the presumption of innocence of accused-appellant.
Both accused-appellant and the Office of the Solicitor General (OSG) informed the Court that they were no longer submitting any supplemental brief considering that their respective positions had been extensively argued in the appeal briefs they filed before the CA. 16
Issue
Whether or not the CA erred in affirming the conviction of accused-appellant for illegal sale of marijuana.
Accused-appellant's Arguments
Accused-appellant insists that no buy-bust operation was conducted as the prosecution failed to present a complete picture of the operation to show that at the time of his arrest he was in the act of selling marijuana. He pointed out that the arresting officers failed to verify the reliability of the information given to their office by their failure to conduct casing and surveillance of the alleged suspect for selling marijuana. 17
Further, accused-appellant also deplores the noncompliance of the buy-bust team with the mandatory procedures under Sec. 21, Art. II of R.A. No. 9165, particularly the taking of photographs, inventory, and presence of the three independent third party representatives as witnesses. Failure to comply with these requirements shall not render void the seizure and custody of the drugs only when: (1) such noncompliance is attended by justifiable grounds; and (2) the integrity and evidentiary value of the seized items are properly preserved by the apprehending team. There must be proof that these two requirements were met before such noncompliance may be said to fall within the scope of the proviso. Since the prosecution failed in this regard, the identity and integrity of the seized item, the corpus delicti, was compromised. 18
Appellee's Arguments
The OSG maintains that the fact of sale was sufficiently proven by PO2 Piano's detailed account of the buy-bust transaction. Moreover, the identity of accused-appellant was likewise adequately proven as he was positively identified in open court by PCI Occeño. Even assuming arguendo that there were inconsistencies in the testimonies of the prosecution witnesses which refer only to minor details and collateral matters, these are of no moment as such did not affect the veracity and weight of their testimonies relating to the principal occurrence and the positive identification of the accused. 19 AHCETa
On accused-appellant's contention that the prosecution failed to strictly comply with the procedure laid down in Sec. 21, the OSG asserted that this will not render the seized item inadmissible in evidence. Substantial compliance is allowed as provided in Sec. 21 (a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165. The fact that the inventory and marking were not done at the place of arrest is inconsequential as the law itself states that the same shall be made at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless arrest and seizures. PO2 Piano's testimony clearly showed that the CAID-SOTG more than substantially complied with the requirements of the law. Further, PO3 Inoperio testified that he had full control and possession of the seized block of marijuana from the time it was turned over to him by PO2 Piano until he delivered and submitted it to the crime laboratory. Indeed, accused-appellant failed to demonstrate the slightest ground that the integrity and evidentiary value of the seized block of marijuana had not been preserved. In addition, no ill motive on the part of the buy-bust team was shown. 20
The Court's Ruling
The appeal is meritorious.
The subject drug transaction having taken place on May 24, 2010, the applicable law to this case is R.A. No. 9165, before its amendment by R.A. No. 10640 21 on August 7, 2014.
In cases involving illegal drugs, the drug itself constitutes the corpus delicti of the offense. The prosecution must therefore establish that the substance illegally possessed by the accused is the same substance presented in court. 22 The chain of evidence is constructed by proper exhibit handling, storage, labeling and recording, and must exist from the time the evidence is found until the time it is offered in evidence. 23
To ensure the integrity of the corpus delicti, Sec. 21 of R.A. No. 9165 establishes the procedure for the custody of narcotics seized during a buy-bust operation, or during the execution of a search warrant. The pertinent portion of the provision states:
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. — x x x
(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[.] (emphasis supplied)
The IRR of R.A. No. 9165 further elucidated on this procedure:
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. — x x x ScHADI
(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[.] (emphasis supplied)
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. It is only when the same is not practicable that the IRR of R.A. No. 9165 allow the inventory and photographing to be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the apprehending officer/team. 24 This also implies that the three required witnesses should already be physically present at the time of apprehension. It has been observed that the buy-bust team could easily comply with the said requirement considering that a buy-bust operation is, by its very nature, a planned activity and, thus, there is normally enough time to summon and bring with them these witnesses. 25
In this case, when asked why he did not immediately mark the marijuana confiscated from accused-appellant at the place of arrest, PO2 Piano explained that they had to pursue Garcia who was allegedly the source of the drug and to whom accused-appellant turned over the marked money as payment. Failing to catch Garcia, the police officers then brought accused-appellant to a barangay hall around 50 meters away where the marking and inventory were conducted by PO2 Piano. Unfortunately, more serious lapses were committed when only the Punong Barangay actually witnessed the marking and inventory, including the taking of photographs that were not formally offered as evidence.
As already stated, this case is governed by R.A. No. 9165 before its amendment by R.A. No. 10640. Under the original provision of Sec. 21, after seizure and confiscation of the drugs, the apprehending team is required to immediately conduct a physical inventory and photograph the same in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel; (2) a representative from the media and (3) from the Department of Justice (DOJ); and (4) any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. Now, the amendatory law requires that the conduct of physical inventory and photograph of the seized items must be in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel; (2) an elected public official; and (3) a representative of the National Prosecution Service or the media who shall sign the copies of the inventory and be given a copy thereof. 26
To stress, under Sec. 21, Art. II of R.A. No. 9165 prior to its amendment, three (3) witnesses are required to be present during the marking, photographing, and inventory of the seized items: a representative from the media, the DOJ, and any elected official, in addition to the accused and/or his counsel/representative. The presence of these third party representatives is intended to guarantee "against planting of evidence and frame-up" and deemed "necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity." 27 Their presence must be complied with from the time of apprehension up to the marking, inventory, and photographing of the seized drugs. While substantial compliance with the mandatory procedure is recognized and allowed in certain situations, the Court has clearly specified the requisites for the exception to apply. aICcHA
Thus, the Court has recognized that strict compliance with Sec. 21 of R.A. No. 9165 may not always be possible, in view of varied field conditions under which police officers carry out anti-drug operations. The failure of the apprehending team to strictly comply with the procedure laid out in said provision does not ipso facto render the seizure and custody over the items void and invalid. However, this is with the caveat that the prosecution still needs to satisfactorily prove that: (a) there is justifiable ground for noncompliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. 28 It has been repeatedly emphasized that the prosecution has the positive duty to explain the reasons behind the procedural lapses. Without any justifiable explanation, which must be proven as a fact, the evidence of the corpus delicti is unreliable, and the acquittal of the accused should follow on the ground that his guilt has not been established by proof beyond reasonable doubt. 29
The absence of third party representatives during drug apprehensions may not be justified by mere statements of unavailability, without actual serious attempts on the part of the police officers to secure the presence of these witnesses. As such, police officers are compelled not only to state the reasons for their noncompliance, but must, in fact, also convince the Court that they exerted earnest efforts to comply with the legally prescribed procedure; and that under the given circumstances, their actions were reasonable. 30
Here, no justifiable explanation was given by PCI Occeño for noncompliance with the three witnesses rule, other than citing the "limited time to contact them." Worse, he even demonstrated lack of proper understanding of the mandatory procedure in Sec. 21 when he stated during cross-examination that the presence of the barangay official is required only during the conduct of inventory, to wit:
Q Was there marking done at the place where the accused was arrested?
A No sir, it was done [at] the barangay hall of Brgy. 19.
Q So, considering that the barangay officials were not present at the time of arrest would you agree with me that you have no personal knowledge as to the recovery of the specimens?
A Yes, sir. It is only stated in the RA 9165 that the barangay officials should only be present during the conduct of the inventory.
Q Again, you have no personal knowledge as to the person from whom the items were recovered?
A Precisely, sir.
Q Practically, the barangay officials are just signing a document without ascertaining the source of a document stipulated therein?
A As what I have said a while ago[,] they observed the conduct of the inventory.
Q I also saw the certificate of inventory which you have identified earlier and I noticed that there was no DOJ and media representative to sign the document?
A Because of the limited time to contact them. 31 (emphases supplied)
The CA, therefore, committed reversible error in hastily declaring that the prosecution was able to overcome the presumption of innocence of the accused-appellant 32 notwithstanding the serious lapses in the mandatory procedure laid down by Sec. 21 of R.A. No. 9165. In any case, the presumption of regularity in the performance of duty cannot overcome the stronger presumption of innocence in favor of the accused. 33 Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right to be presumed innocent. 34
WHEREFORE, premises considered, the appeal is GRANTED. The May 31, 2019 Decision of the Court of Appeals, Cebu City in CA-G.R. CEB CR-HC No. 02681, which affirmed the September 26, 2017 Decision of the Regional Trial Court of Negros Occidental, Bacolod City, Branch 47, in Criminal Case No. 10-33441, finding accused-appellant Josauro Apilan y Daguhong alias "Jun-Jun Apilan" guilty of violating Section 5, Article II of Republic Act No. 9165, is REVERSED and SET ASIDE. Accused-appellant is ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. EHaASD
The Director General of the Bureau of Corrections, Muntinlupa City is ORDERED to IMMEDIATELY RELEASE accused-appellant from detention, unless he is being lawfully held in custody for any other reason, and to INFORM the Court of the action taken hereon within five (5) days from receipt of this Resolution.
Let entry of judgment be issued.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 5-17; penned by Executive Justice Edgardo L. Delos Santos (a retired Member of the Court), with Associate Justices Marilyn B. Lagura-Yap and Dorothy P. Montejo-Gonzaga, concurring.
2. CA rollo, pp. 49-62; penned by Judge Therese Blanche A. Bolunia.
3.Id. at 49.
4. Also referred to as "PO1 Ian Piano" in some parts of the records.
5. Also referred to as "Police Senior Inspector Joemarie Occeño" in some parts of the records.
6. Records, pp. 124-126; TSN, July 13, 2011, pp. 5-8, 13.
7. TSN, July 13, 2011, pp. 15-17.
8.Id. at 18-19.
9.Id. at 19, 22-23; TSN, March 21, 2017, pp. 10-11.
10. Also referred to as "Jocylin Y. Uychiat" in some parts of the records.
11. Records, pp. 127, 151; TSN, July 13, 2011, pp. 21-23.
12.Id. at 130.
13.Id. at 131.
14. TSN, September 14, 2017, pp. 4-6, 13.
15. CA rollo, p. 62.
16.Rollo, pp. 32-33, 37-38.
17. CA rollo, pp. 38-39.
18.Id. at 42-46.
19.Id. at 78-79, 83-84.
20.Id. at 84-90.
21. An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165, Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2002," Section 1.
22.People v. Barte, 806 Phil. 533, 542 (2017).
23.People v. Balibay, 742 Phil. 746, 756 (2014).
24.People v. Narvas, G.R. No. 241254, July 8, 2019, citing Art. II, Sec. 21 (a), IRR of R.A. No. 9165.
25.Id.
26.People v. Buesa, G.R. No. 237850, September 16, 2020.
27.People v. Reyes, 830 Phil. 619, 631 (2018).
28.People v. Briones, G.R. No. 239077, March 20, 2019.
29.Id.
30.People v. Cariño, G.R. No. 233336, January 14, 2019.
31. TSN, March 21, 2017, pp. 26-27.
32.Rollo, p. 16.
33.People v. Claudel, G.R. No. 219852, April 3, 2019.
34.Id.