People v. Batacao y Bermil

SPECIAL SECOND DIVISION

[G.R. No. 238207. June 21, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. DINDO BATACAO y BERMIL, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated 21 June 2021which reads as follows:

"G.R. No. 238207 (People of the Philippines v. Dindo Batacao y Bermil). — Before the Court is a Motion for Reconsideration of this Court's Resolution 1 dated February 19, 2020. The Court affirmed the Decision dated August 25, 2017 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 08590 finding accused-appellant Dindo Batacao y Bermil (appellant) guilty beyond reasonable doubt for Illegal Sale and Illegal Possession of Dangerous Drugs.

The Facts

Pursuant to a buy-bust operation, appellant was charged with violations of Sections 5 and 11 of Republic Act No. (RA) 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002" under separate Informations, to wit:

Criminal Case No. RTC 2013-0405

That on or about July 15, 2013, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there, willfully, unlawfully, and feloniously sell, dispense, deliver, and/or distribute to poseur-buyer, PO1 Edmar Buendia Perez, one (1) medium-sized transparent plastic sachet containing white crystalline substance, with markings EBP-1 and date[d] 7/15/13 weighting (sic) 0.093 grams, which after laboratory examination gave positive result for the presence of methamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.

Criminal Case No. RTC 2013-0406

That on or about July 15, 2013, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and without prescription or corresponding license, did then and there, willfully, unlawfully and criminally have in his possession, custody and control, four (4) heat-sealed transparent plastic sachets containing white crystallinesubstance (sic), with the following descriptions: two (2) medium-sized transparent plastic sachets with markings EBP-2 7/15/13 weighting (sic) 0.111g, and EBP-3 7/15/13, weighting (sic) 0.094 g AND two (2) small-sized transparent plastic sachets with markkings (sic) EBP-4 7/15/13 weighting (sic) 0.032g and EBP-5 7/15/14 weighting (sic) 0.022g, with a total weight of more or less 0.259 gram of Methamphetamine Hydrochloride or Shabu, which is a dangerous drugs (sic), in violation of the above-cited law.

ACTS CONTRARY TO LAW. 2

On separate arraignments, appellant pleaded not guilty to the offenses charged. Upon motion of appellant, the cases were consolidated.

Version of the Prosecution

Seven witnesses testified for the prosecution: (i) PO1 Edmar B. Perez (PO1 Perez); (ii) the duty investigator, PO3 Geoffrey F. Ruz (PO3 Ruz); members of the buy-bust team; (iii) PO1 Marlon C. Basco; and (iv) PO1 Julius Q. Bayola; (v) the forensic chemist, PSI Jun Fernando Malong (PSI Malong); (vi) the evidence custodian, PO2 Carlo M. Canet; and (vii) the DOJ representative, Rogelio L. Temporal, Jr.

The facts according to the prosecution were summarized by the Regional Trial Court 3 (RTC) as follows:

On July 15, 2013, at about 8:00 o'clock in the morning PSupt. Jesse Perez (PSupt. Perez), Officer-In-Charge of RAID-SOTG, received an information that the accused is dealing in (sic) illegal drugs. Acting thereon, PSupt. Perez instructed PO1 Bayola to conduct surveillance. The latter, accompanied by the informant, proceeded to the accused's residence located at Zone 7, Balatas, Naga City to validate the information. After confirming that the accused, accompanied by a certain "Papay," was indeed selling illegal drugs to some persons who dropped by their place, PSupt. Perez planned to conduct a buy-bust operation. At about 12:30 p.m. of [the] same day, PSupt. Perez conducted a briefing about the operation before a group of police operatives and the informant. PO1 Perez was designated as the poseur-buyer and arresting officer. As such, PSupt. Perez released to PO1 Perez the buy-bust money worth P1,000.00 in denominations of eight (8) 100 peso bills and one (1) 200 peso bill.

After the briefing, particularly at around 1:30 in the afternoon of the same date, the team led by PSupt. Perez jumped off to conduct the buy-bust operation. PO1 Basco, who was also designated as area security, coordinated with the PDEA Regional Office No. 5 for the said operation. When PDEA replied, PO1 Perez gave buy-bust money to the informant and they proceeded to the area on board a motorcycle which they parked near the place of the accused. While walking towards the accused's house, the informant pointed the accused to PO1 Perez. Upon approaching the accused, the informant, together with PO1 Perez, transacted to buy shabu from the accused worth P1,000.00. After the informant gave the buy-bust money to the accused in the presence of PO1 Perez, the accused took out from a coin purse one (1) plastic sachet containing shabu and gave it to the informant. When PO1 Perez saw that the transaction was already consummated, he discreetly called PSupt. Perez about it. As the latter and the other members of the team were rushing towards the place of transaction, PO1 Perez arrested the accused and informed him of the reason for his arrest as well as his constitutional rights. Thereafter, the informant gave to PO1 Perez the shabu that they bought from the accused, and forthwith, the team brought the accused to the Naga City Police Office.

While the accused was being brought by PSupt. Perez's team to Naga City Police Office, the seized shabu was in the custody of PO1 Perez. At the said police office, the accused was turned over to the duty investigator, PO[3] Ruz, who immediately contacted the mandatory witnesses.

When DOJ representative Rogelio Temporal, Barangay Kagawad Rodel Milano and media Representative Kate Delovieres arrived, PO1 Perez, in their presence, conducted [a] body search on the accused and found from the latter's left front pocket the buy-bust money (Exhibits L-1a, L-2a, L-3a, L-4a, L-5a, L-6a, L-7) and a cellphone. From the accused's other pockets, PO1 Perez found empty transparent plastic sachets, a pair of scissors, monies in different denominations worth P2,070.00. PO1 Perez also found from the accused's coin purse two (2) medium size[d] plastic sachets and two (2) small size[d] plastic sachets, all containing white crystalline substance. As directed by PO3 Ruz, PO1 Perez marked all the small plastic sachets as follows: for the plastic sachet containing shabu seized (Exhibit Q-1) during the buy-bust, which he did not mark at the site to avoid problem from curious onlookers, with "EBP-1, 7-15-13" and initial, while those medium and small plastic sachets containing suspected shabu found inside the accused's coin purse, with "EBP-2, 7-15-13", "EBP-3, 7-15-13", "EBP-4, 7-15-13", "EBP-5, 7-15-13", all with his initials (Exhibits R, S, T, & U, respectively), and reflected them in the Receipt/Inventory of Property Seized (Exhibit D). PO1 Perez then made an inventory (Exhibit D) in the presence of the accused and said mandatory witnesses. PO1 Bayola took pictures during the conduct of the inventory. After which PO1 Perez turned-over the items to PO3 Ruz.

PO3 Ruz acknowledged receipt of the seized items, as shown in the Chain of Custody Form (Exhibit E). Later, PO3 Ruz, together with PO1 Perez on the basis of the Request for Laboratory Examination (Exhibit B) and the Request for the (sic) Drug Test Examination (Exhibit C), brought the seized five (5) plastic sachets containing suspected shabu and the accused to the Camarines Sur Provincial Crime Laboratory Office where (sic) he turned over to Forensic Chemist PSI Malong.

Upon qualitative laboratory examination conducted by PSI Malong on the subject specimens, the latter found the specimens submitted, particularly described as follows:

1. Three (3) medium size[d] heat-sealed transparent plastic sachets each containing white crystalline substance with the following markings and recorded net weights:

A (EBP-1 dated 7-15-13 with initial) = 0.093 gram

B (EBP-2 dated 7-15-13 with initial) = 0.111 gram

C (EBP-3 dated 7-15-13 with initial) = 0.094 gram

2. Two (2) small heat-sealed transparent plastic sachets each containing white crystalline substance with the following markings and recorded net weights:

D (EBP-4 dated 7-15-13 with initial) = 0.032 gram

E (EBP-5 dated 7-15-13 with initial) = 0.022 gram

POSITIVE to the test for the presence of methamphetamine hydrochloride, a dangerous drug, as shown in his Initial and Final Chemistry Report No. D-120-2013, both dated July 15, 2013 (Exhibits H & O, respectively).

PSI Malong found also that the urine sample taken from the accused gave POSITIVE result for the presence of methamphetamine hydrochloride, albeit negative for THC-metabolites, as shown in his Chemistry Report No. DTC-172-2013 dated July 20, 2013 (Exhibit I-4).

After the laboratory examination, PSI Malong turned over the said specimens for safekeeping to their evidence custodian, PO2 Canet (Exhibit P), who, in turn, later brought the same in this Court when called to testify. 4

Version of the Defense

Appellant was the sole witness for the defense, who interposed denial and planting of evidence. The facts, as summarized by the RTC, 5 are as follows:

Testifying on his behalf, accused denied the accusations against him. He claims that on July 15, 2013 at around 3:00 o'clock in the afternoon, he went out of his house to buy snacks. On his way, somebody ordered him to lie face down on the ground and a male person handcuffed him whom he came to know later as PO1 Perez. Seven more men arrived. While lying down, they searched his pocket and found nothing, except his coin purse. He was then ordered to stand up and go to his room. The men followed and searched his room, and just the same, they found nothing. Inside his room, PO1 Perez returned his coin purse. Thereafter, he was brought to Naga City Police Office at Barling. At the said police office, he was made to sit down while waiting for the barangay kagawad and media representative that the policemen called.

Accused insists that the illegal drugs and other items allegedly found on him at the police station do not belong to him. He was surprised that his coin purse already contained plastic sachets with alleged shabu. He asserts that those seized items were planted evidence. He maintains that he is not engaged in illegal drugs and innocent of the offenses charged. 6

Ruling of the RTC

On July 8, 2016, the RTC rendered a Joint Judgment, 7 the dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding accused Dindo Batacao y Bermil as follows:

1) In Criminal Case No. RTC 2013-0405, GUILTY beyond reasonable doubt of violation of Section 5, Article II of Republic Act No. 9165 and he is hereby sentenced to SUFFER a penalty of life imprisonment and to PAY a fine of Five hundred thousand pesos (P500,000.00).

2) In Criminal Case No. RTC 2013-0406, GUILTY beyond reasonable doubt of violation of Section 11, Article II of Republic Act No. 9165 and he is hereby sentenced to SUFFER an indeterminate prison term of twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum, and to PAY a fine of Three hundred thousand pesos (P300,000.00).

The accused, being a detention prisoner, shall be credited in the service of his sentence with the preventive imprisonment which he underwent by reason of these cases in accordance with the conditions set forth in Article 29 of the Revised Penal Code, as amended by Republic Act No. 10592.

The immediate transfer of the accused to the National Bilibid Prison is hereby ordered.

Finally, the subject dangerous drugs are hereby CONFISCATED for turn-over to the Philippine Drug Enforcement Agency for their proper disposal and destruction in accordance with law.

SO ORDERED. 8

In so ruling, the RTC held that the prosecution established by clear and convincing evidence that an illegal sale transpired between appellant, the informant, 9 and PO1 Perez as the poseur-buyer. The court relied on the positive testimony of PO1 Perez who testified as to how the informant purchased shabu from appellant and accounted for the chain of custody.

Further, the court held that: (i) the chain of custody of the seized drugs were accounted for by testimonial and documentary evidence; (ii) the conduct of the inventory and photographing of the seized items at the Naga City Police Station, and not at the place of arrest, was more practical and safe; (iii) PO3 Ruz's failure to mark the seized items once they were turned-over to him by PO1 Perez and the delay in submitting the same to the crime laboratory were not fatal; and (iv) the appellant's unsubstantiated defenses of denial and frame-up must fail in the absence of proof that the police officers had any ill-motive and in view of the presumption of regularity in the performance of duties.

Ruling of the CA

In a Decision 10 dated August 25, 2017, the CA affirmed the Joint Judgment of the lower court. The CA sustained all the findings of the RTC, with the exception that it was actually the informant who acted as the poseur-buyer, and not PO1 Perez. 11

Aside from reiterating the RTC's conclusions, the CA further held: (i) appellant is estopped from assailing the legality of his arrest when he entered his plea and actively participated in trial; (ii) the presentation of the informant is not indispensable because PO1 Perez witnessed the illegal sale; (iii) the failure to give copies of the inventory to the mandatory witnesses was raised for the first time on appeal and further, does not militate against the finding of appellant's guilt; and (iv) all the links in the chain of custody were complied with.

Following appellant's timely notice of appeal, the Court directed the parties to file their respective supplemental briefs. 12

Both parties filed their respective Manifestations that they are adopting their briefs filed before the CA to avoid repetitious arguments. 13

On February 19, 2020, the Court issued a Resolution, 14 dismissing the appeal.

Unperturbed, appellant filed a Motion for Reconsideration, 15 averring that the presentation of the informant was indispensable because in actuality, he was the poseur-buyer and not PO1 Perez who was a mere spectator in the alleged sale of illegal drugs. Moreover, the first link in the chain of custody was broken insofar as the marking, inventory, and taking of photographs were conducted at the police station without justifiable reason. Moreover after PO1 Perez obtained possession of the plastic sachet allegedly purchased from the appellant, he merely kept the same in his pocket for safekeeping, which case law has established undermines the identity and integrity of the seized item. Finally, the apprehending team failed to indicate the weight of the seized items in the Inventory/Confiscation Receipt as required by Section 13 (e) of the 2010 PNP Manual on Anti-Illegal Drugs Operation and Investigation.

In its Comment, 16 the Office of the Solicitor General (OSG) maintains that appellant's guilt for the crimes charged has been proven beyond reasonable doubt. The OSG asserts that the presentation of the informant was not necessary considering PO1 Perez accompanied the former during the sale. Finally, the OSG reiterates that there was substantial compliance with the chain of custody which ensured the integrity of the dangerous drug seized from appellant.

The Issue

Whether appellant's guilt for the crime of illegal sale and illegal possession of shabu has been proven beyond reasonable doubt.

The Court's Ruling

The Motion for Reconsideration is partly meritorious.

Every appeal of a criminal conviction opens the entire record to the reviewing court which should itself determine whether or not the findings adverse to the accused should be upheld against him or struck down in his favor. The Court, in the case of People v. Yagao, 17 explained the guiding principles which it adheres to with respect to appeals in criminal cases, to wit:

For purposes of this appeal, two principles should be our guides. The first is that we should still carefully review the evidence adduced at the trial despite both the trial and the appellate courts having already pronounced the accused-appellant guilty. Indeed, nothing prevents or forbids us from such factual review, for we as a reviewing tribunal remain committed to ensuring that his conviction rest on the strength of the Prosecution's evidence, not on the weakness of his defense. We are wholly free to ascertain whether or not the lower courts judiciously and correctly examined the evidence against him before they concluded that the evidence supported their ultimate finding of his guilt. The second is that we may consider in this appeal any fact or circumstance in his favor although he has not assigned or raised it. (Emphasis supplied)

Thus, this Court is not precluded from reviewing the factual findings of the lower courts, or even arriving at a different conclusion, if it is not convinced that the findings are conformable to the evidence of record and to its own impressions of the credibility of the witnesses. 18 The lower courts' factual findings will not bind this Court if facts that could affect the result of the case were overlooked and disregarded. 19

Guided by these principles and after a closer scrutiny of the case, the Court finds it proper to reverse its earlier Resolution dated February 19, 2020 and acquits appellant on the ground of reasonable doubt with regard to his conviction for violation of Section 5 of RA 9165 for non-compliance with the chain of custody. However, appellant's conviction for Section 11 of RA 9165 stands.

For illegal sale of dangerous drugs under Section 5, the following elements must be established: (i) the identity of the buyer and the seller, the object, and the consideration; and (ii) the delivery of the thing sold and the payment therefor. 20 Meanwhile, for illegal possession of a dangerous drug under Section 11, it must be shown that: (i) the accused was in possession of an item or an object identified to be a prohibited or regulated drug; (ii) such possession is not authorized by law; and (iii) the accused was freely and consciously aware of being in possession of the drug. 21 In cases involving dangerous drugs, the State bears not only the burden of establishing these elements, but also of proving the corpus delicti or the body of the crime. In drug cases, the dangerous drug itself is the very corpus delicti of the violation of the law. 22

While a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for apprehending drug peddlers and distributors, law nevertheless also requires strict compliance with procedures laid down by it to ensure that rights are safeguarded. 23

Since the buy-bust operation was conducted prior to the amendment of RA 9165, the apprehending team is mandated immediately after seizure and confiscation to conduct a physical inventory, and to photograph the seized items in the presence of the accused or his representative or counsel, as well as certain required witnesses, namely: (a) a representative from the media; (b) a representative from the DOJ; and (c) any elected public official. 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 Implementing Rules and Regulations (IRR) of RA 9165 allows 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

Appellant should be acquitted of

At the onset, it bears pointing out that even if the informant in this case acted as the poseur-buyer for the illegal sale, the Court agrees with the OSG that his presentation was unnecessary. The Court, in People v. Zheng Bai Hui, 25 enumerated the instances when an informant should be presented in prosecutions involving buy-bust operations:

Except when the appellant vehemently denies selling prohibited drugs and there are material consistencies in the testimonies of the arresting officers, or there are reasons to believe that the arresting officers had motives to testify falsely against the appellant, or that only the informant as the poseur-buyer who actually witnessed the entire transaction, the testimony of the informant may be dispensed with as it will be merely corroborative of the apprehending officers' eyewitness testimonies. There is no need to present the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses.

None of the above circumstances obtains in this case. There are no material inconsistencies in the testimony of the buy-bust team. Neither was it shown that they had any ill-motive to testify against the appellant. Finally, the illegal transaction was not solely witnessed by the informant. This is because one of the prosecution witnesses, PO1 Perez, was right beside the informant when the sale with appellant transpired. 26 In fact, it was PO1 Perez who gave the signal to the rest of the buy-bust team that the sale had been consummated. Under these circumstances, the informant's testimony would merely be corroborative and cumulative and thus, could be dispensed with.

This notwithstanding, the Court finds that the evidence presented by the prosecution failed to establish an unbroken chain of custody of the seized drugs to sustain appellant's conviction for Section 5 of RA 9165. Indeed, non-compliance with the strict directives of Section 21 of RA 9165 is not necessarily fatal to the prosecution's case. These lapses, however, must be recognized and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved. 27 In this case, the Court finds glaring errors committed by the members of the buy-bust team with respect to the first link in the chain of custody which are sufficient to engender reasonable doubt as to his guilt. A buy-bust operation's peculiar characteristics of having the benefit of planning, preparation, and foresight impels this Court to adopt an exacting approach in scrutinizing compliance with statutory law and jurisprudential safeguards. 28

First, the police officers who took part in the buy-bust operation failed to mark the confiscated plastic sachet immediately after its confiscation from appellant. Following appellant's arrest, the buy-bust team transferred to the Naga City Police Station. Only then was the marking, inventory, and photographing done.

Marking is a separate and distinct step from the conduct of inventory and photographing. While there is a distinction for the venue of the physical inventory and photography of the seized items depending on whether the seizure was made by virtue of a search warrant or through a warrantless seizure such as a buy-bust operation, marking must nonetheless be done immediately upon confiscation. As explained in the case of People v. Asaytuno, Jr.: 29

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 RA 9165 and its implementing rules 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. (Emphases and underscoring supplied)

Thus, with respect to the plastic sachet subject of the buy-bust operation, it should have been immediately marked at the place of seizure. After all, marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband is immediately marked because succeeding handlers of the specimens will use the markings as reference. 30 It is meant to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, planting, or contamination of evidence. 31 Thus, the failure to immediately mark seized drug engenders an initial, fatal gap in chain of custody. 32

Second, the delay in marking, inventory and taking of photographs at the place of seizure was not justifiable. In Asaytuno, Jr., 33 the Court further held that the mere assembling of people does not equate to danger that compromises the activities of law enforcers. It does not mean that the arrest site is no longer a viable place for completing necessary procedures, thus:

The drugs allegedly obtained from accused-appellants should have been immediately marked at the moment of arrest and seizure. This is despite the police officers' claim that they needed to transfer because people had begun to gather. The buy-bust operation was a pre-planned activity. The police officers are rightly presumed to be aware that they were conducting an operation in a public place, and that their actions would rouse people's curiosity. They should have been prepared for and not have been rattled by the foreseeable contingencies. Even granting that there was a valid need to transfer, their failure to mark before departure, along with unclear precautionary measures taken while en route to the barangay hall, means that there was an intervening period during which the sachets remained unaccounted. (Emphasis supplied)

To recall, PO1 Perez was accompanied by no less than seven (7) police operatives who admittedly, could adequately secure the area. On cross-examination, PO1 Perez testified:

Q. How far is that place to the nearest police precinct where you bring (sic) the accused? 1 kilometer, 2 kilometers or 10 kilometers?

A. From Balatas to Barlin.

We'll just make it of record that Barangay Balatas towards Barlin may be more than 1 kilometer, your Honor.

Q. Despite the distance of the place and this is simply 3:00 p.m., you opted to have the inventory happened (sic) at Barlin Police Station. Is that correct?

A. Yes, sir.

Q. Is that always the situation that whenever you were a poseur-buyer, an inventory is not being conducted at the place of the buy-bust operation instead you always conduct the inventory at the police station. Is that correct?

A. Yes, sir.

Q. There was no situation where you conduct inventory at the very place when (sic) the operation happened?

A. Wala po, sir.

Q. And no reason at all that you could tell the Honorable Court any justification that you could tell us the reason why inventory be made to the police station instead to the place where the incident happened?

A. Kasi nalaman namin doon sir yong lugar medyo may problema at naglabasan nayong mga tao nakigulo.

Q. But how many police officers were there at the time of the operation, there were so many of you. Is that correct?

A. Seven (7) police officers, sir.

Q. You were fully armed because you were to conduct an operation. Is that correct?

A. Hindi ko po alam kung may dala yung iba, sir.

Q. But with seven (7) police officers (sic) could secure the place and that is the intention why they were there so they could secure the place and no intervention could affect your operation. Is that correct?

A. Yes, sir.

Q. And when the buy-bust operation was completed, you are sure that the place was secured because of the presence of your other companions who were all police officers. Is that correct?

A. Yes, sir.34 (Emphases and underscoring supplied)

The Court is not unmindful of the dangers of the job; in fact, it has held that the immediate physical inventory and photograph of the confiscated items at the place of arrest may be excused in instances when the safety and security of the apprehending officers and the witnesses required by law or of the items seized are threatened by immediate or extreme danger such as retaliatory action of those who have the resources and capability to mount a counter-assault. 35 In this case, however, there is hardly any assertion or proof that extraordinary circumstances would threaten the safety and security of the apprehending officers and/or the witnesses required by law or of the items seized are present. At most, the persons present were onlookers whom PO1 Perez described as "mga taong gustong makialam" 36 and not dangerous elements. There being no immediate risk to the apprehending officers, the Court finds that the failure to conduct the marking, inventory and taking of photographs immediately at the place of seizure not justifiable.

Third, the mandatory witnesses were only called upon the return of the buy-bust team at the Barlin Police Station after the operation. 37 In People v. Deliña, 38 the Court is emphatic that the presence of the mandatory witnesses must be secured not only during the inventory but more importantly, at the time of the warrantless arrest as in the case of buy-bust operations, to wit:

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.39 (Emphasis supplied)

This Court had the occasion to rule that it must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not obtained due to the reason/s such as: 40

(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.

Verily, none of the above mentioned circumstances was attendant in the case. In fact, the records are silent as to any attempts made by the police operatives to secure the presence of the mandatory witnesses during the buy-bust operation. This lapse is further aggravated by the fact that a prior surveillance of the appellant was conducted on the morning of the buy-bust operation. 41 Thus, there was ample opportunity to secure the presence of these witnesses at the buy-bust operation itself yet no efforts were made by the members of the team. Considering that a buy-bust operation is, by its very nature, a planned activity; the aforesaid witnesses must already be physically present at the time of apprehension and seizure — a requirement that can easily be complied with by the buy-bust team. 42

Finally, after the purported sale between appellant and the informant was consummated, the latter gave the seized plastic sachet to PO1 Perez. In turn, PO1 Perez kept the same in his pocket. 43 In People v. Cruz, 44 the Court ruled that keeping seized narcotics in a police officer's pockets is fraught with dangers:

Even without referring to the strict requirements of Section 21, common sense dictates that a single police officer's act of bodily-keeping the item(s) which is at the crux of offenses penalized under the Comprehensive Dangerous Drugs Act of 2002, is fraught with dangers. One need not engage in a meticulous counter-checking with the requirements of Section 21 to view with distrust the items coming out of PO1 Bobon's pockets. That the Regional Trial Court and the Court of Appeals both failed to see through this and fell — hook, line, and sinker — for PO1 Bobon's avowals is mind-boggling. (Emphasis supplied)

Needless to state, keeping seized narcotics in the pocket of a seizing officer is a dubious way of ensuring its integrity. Worse, there was an absence of testimony by PO1 Perez with regard to any precautions he undertook to secure the seized plastic sachet from contamination, substitution, or alteration. Such circumstance cannot be overlooked by the Court, especially since the seized plastic sachet was not even marked at the place of seizure.

In People v. Guanzon, 45 the Court has ruled that the inherent weakness of the first link in the chain of custody caused the subsequent links to fail. Thus, it held:

The first link in the chain of custody was undoubtedly inherently weak which caused the other links to miserably fail. The first link, it is emphasized, primarily deals on the preservation of the identity and integrity of the confiscated items, the burden of which lies with the prosecution. The marking has a twin purpose, viz.: first, to give the succeeding handlers of the specimen a reference, and second, to separate the marked evidence from the corpus of all other similar or related evidence from the moment of seizure until their disposition at the end of criminal proceedings, thereby obviating switching, "planting," or contamination of evidence. Absent therefore the certainty that the items that were marked, subjected to laboratory examination, and presented as evidence in court were exactly those that were allegedly seized from Arposeple, there would be no need to proceed to evaluate the succeeding links or to determine the existence of the other elements of the charges against the appellants. Clearly, the cases for the prosecution had been irreversibly lost as a result of the weak first link irretrievably breaking away from the main chain. (Emphasis supplied)

In fine, the Court finds that the police officers' unjustified non-compliance with the requirements for the marking and inventory of the seized drugs is fatal to the prosecution's case for the charge of illegal sale of dangerous drugs against appellant. Their ostensibly approximate compliance is not enough, and therefore, tantamount to a failure to establish the corpus delicti. 46 Thus, this raises reasonable doubt in appellant's favor with respect to the identity of the plastic sachet presented during trial as the same one obtained from him at the buy-bust operation.

Appellant's conviction for violation of

While the Court finds it proper to acquit appellant of illegal sale of dangerous drugs, the Court nonetheless sustains his conviction for illegal possession considering that the buy-bust team strictly complied with the chain of custody with regard to the four (4) plastic sachets seized from him.

There are four (4) links which must be established in the chain of custody of the confiscated item: (1) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; (2) the turnover of the illegal drug seized by the apprehending officer to the investigating officer; (3) the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and (4) the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. 47

As to the first and second link, PO1 Perez testified that a body search of appellant was only conducted at the Naga City Police Office in the presence of the mandatory witnesses. DOJ representative Temporal, Jr. categorically corroborated PO1 Perez that in the course of the body search of appellant at the said office, the latter found in his possession a coin purse which yielded four (4) pieces of plastic sachets containing a white crystalline substance, later confirmed as shabu. The same were immediately marked, inventoried, and photographed in the presence of appellant, DOJ representative Temporal, Jr., media representative Delovieres, barangay kagawad Milano, and the investigator, PO3 Ruz. PO3 Ruz testified that after compliance with the documentary procedure, the seized evidence were turned-over to him, as evidenced by the following documents: the Turn-over of Confiscated/Seized Evidence and the Chain of Custody Form. 48

As to the third link, PO3 Ruz narrated that after preparing the request for laboratory examination and drug testing, he brought the seized plastic sachets to the crime laboratory. PO3 Ruz turned-over the seized items to forensic chemist PSI Malong. 49 Finally, as to the fourth link, PSI Malong testified that the seized plastic sachets gave positive results for the presence of shabu, he sealed the same and placed his markings. Thereafter, he turned over the same to PO2 Canet, the evidence custodian. In court, PO2 Canet attested that after receiving the subject drugs from PSI Malong, he secured them in their evidence room for presentation in court only on the day he testified. 50 Thus, under these circumstances, the court is convinced that the identity and integrity of the dangerous drugs seized from appellant's possession at the Naga City Police Office was duly preserved.

Despite appellant's assertions, the court finds that there was in fact, a valid buy-bust operation conducted by the police. While appellant alleged that the four (4) plastic sachets found in his possession were merely planted, there is nothing on record which supports this conclusion. The defense of denial, frame-up or extortion, like alibi, has been invariably viewed by the courts with disfavor for it can easily be concocted and is a common and standard defense ploy in most cases involving violation of RA 9165. To be believed, appellant's defense of denial and frame-up, i.e., planting of evidence, must be proven with strong and convincing evidence. 51 Without proof of any intent on the part of the police officers to falsely impute to appellant the commission of a crime, the presumption of regularity in the performance of official duty and the principle that the findings of the trial court on the credibility of witnesses are entitled to great respect, should prevail over bare denials and self-serving claims. 52 Had the seized plastic sachets been planted on appellant as he claimed, the Court finds it highly unusual that appellant did not express his opposition in the presence of the mandatory witnesses at the police station. 53

In fine, the State's steadfastness in eliminating the drug menace must be equally matched by its determination to uphold the law. 54 Compliance with Section 21 of RA 9165 being integral to every conviction, this Court is at liberty to review the records of the case to satisfy itself that the required proof has been adduced by the prosecution whether the appellant has raised, before the trial or appellate court, any issue of non-compliance. If deviations are observed and no justifiable reasons are provided, the conviction must be overturned, and the innocence of the accused affirmed. 55 Since the prosecution failed to prove the corpus delicti of the offense of sale of illegal drugs due to the multiple unexplained breaches of procedure committed by the buy-bust team in the seizure, custody, and handling of the seized plastic sachet, appellant should be acquitted of Section 5 of RA 9165.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is PARTIALLY GRANTED. The Court's Resolution dated February 19, 2020 which affirms the August 25, 2017 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 08590 in Criminal Case No. RTC 2013-0406 for violation of Section 11, Article II of Republic Act No. 9165 is AFFIRMED. For failure to prove the guilt of accused-appellant Dindo Batacao y Bermil beyond reasonable doubt for violation of Section 5, Article II of Republic Act No. 9165, the disposition in the aforesaid Resolution pertaining to Criminal Case No. RTC 2013-0405 is REVERSED and SET ASIDE, and he is ACQUITTED of the said charge.

Let a copy of this Resolution be furnished the Chief Superintendent of the New Bilibid Prison for immediate implementation. The said Superintendent is ORDERED to report to this Court within five (5) days from receipt of this Resolution the action he has taken.

Let entry of judgment be issued immediately.

SO ORDERED."

By authority of the Court:

(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 51-52.

2.Id. at 2-3.

3. The same narration of facts were adopted in the Assailed Decision.

4.Rollo, pp. 3-6. The narration of facts was adopted verbatim by the CA from the RTC.

5. The same narration of facts were adopted in the assailed Decision.

6.Rollo, p. 6.

7. Penned by Judge Pablo Cabillan Formaran III.

8.Rollo, pp. 6-7.

9. In the records of the case, the informant was likewise referred to as the police asset.

10. Penned by Associate Justice Ma. Luisa C. Quijano-Padilla, with Associate Justices Mariflor P. Punzalan Castillo and Rodil V. Zalamenda, concurring; rollo, pp. 1-16. The dispositive portion of the CA Decision reads:

WHEREFORE, premises considered, the appeal is DENIED. The assailed Joint Judgment dated July 8, 2016 issued by the Regional Trial Court, Branch 62, Naga City, in Criminal Case Nos. RTC 2013-0405 and RTC 2013-0406, is hereby AFFIRMED.

SO ORDERED.

11.Id. at 9.

12. Resolution dated June 6, 2018; id. at 23-24.

13.Id. at 25-28; 30-33.

14.Id. at 51-52.

15.Id. at 53-65.

16.Id. at 75-85.

17. G.R. No. 2 16725, February 18, 2019.

18.Lapi v. People, G.R. No. 210731, February 13, 2019.

19.Id.

20.People v. Hilario, 823 Phil. 580 (2018).

21.People v. Lumaya, 827 Phil. 473 (2018).

22.People v. Manabat, G.R. No. 242947, July 17, 2019.

23.People v. Doria, G.R. No. 227854, October 9, 2019.

24.Id.

25. 393 Phil. 68 (2000), citing People v. Doria, 301 SCRA 688 (1999).

26. See CA Decision, p. 8.

27.People v. Dela Victoria, 829 Phil. 675 (2018).

28.People v. Lopez, G.R. No. 247974, July 13, 2020.

29. G.R. No. 245972, December 2, 2019, citing People v. Sanchez, 590 Phil. 214 (2008).

30.People v. Honasan, G.R. No. 240922, August 7, 2019.

31.People v. Deliña, G.R. No. 243578, June 30, 2020.

32.People v. Coreche, 612 Phil. 1238 (2009).

33.Supra note 29.

34. TSN, March 9, 2014, pp. 18-19.

35.People v. Deliña, G.R. No. 243578, June 30, 2020.

36. TSN, November 11, 2014, p. 26.

37. TSN, September 9, 2014, p. 5; TSN, November 11, 2014, p. 27.

38. G.R. No. 243578, June 30, 2020.

39.Id., citing People v. Tomawis, 830 Phil. 385 (2018).

40.People v. Vertudes, G.R. No. 220725, October 16, 2019.

41. TSN, February 27, 2014, p. 5; TSN, March 9, 2014, p. 10.

42.People v. Lozano, G.R. No. 227700, August 28, 2019.

43. TSN, February 27, 2014, p. 10.

44. 744 Phil. 816 (2014).

45. G.R. No. 233653, September 5, 2018, citing People v. Arposeple, 821 Phil. 340 (2017).

46.Villasana v. People, G.R. No. 209078, September 4, 2019.

47.People v. Kamad, 624 Phil. 289 (2010).

48.Rollo, pp. 14-15.

49.Id. at 15.

50.Id.

51.People v. Lung Wai Tang, G.R. No. 238517, November 27, 2019.

52.Id.

53. TSN, March 9, 2016, p. 21.

54.People v. Doria, supra note 23.

55.Id.