FIRST DIVISION
[G.R. No. 238528. March 11, 2019.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HALID BOWAO y GUIAMELON ALIAS "BOBBY," ALMA PASIQUE y BARETTO, RENE ARCOSA y MORALES ALIAS "JIBOY" AND MARK AGUSTIN y DELOS SANTOS ALIAS "MAKOY", accused, HALID BOWAO y GUIAMELON ALIAS "BOBBY" AND ALMA PASIQUE y BARRETO, accused-appellants.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated March 11, 2019which reads as follows:
"G.R. No. 238528 — (People of the Philippines v. Halid Bowao y Guiamelon alias "Bobby," Alma Pasique y Baretto, Rene Arcosa y Morales alias "Jiboy" and Mark Agustin y Delos Santos alias "Makoy," accused; Halid Bowao y Guiamelon alias "Bobby" and Alma Pasique y Barreto, accused-appellants)
This is an appeal by certiorari from the October 27, 2017 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 08856 which affirmed the November 17, 2016 Decision 2 of the Regional Trial Court of Muntinlupa City, Branch 203 (RTC), in Crim. Case No. 09-786 finding accused-appellants Halid G. Bowao alias "Bobby" (Bowao) and Alma B. Pasique (Pasique), and their co-accused Rene M. Arcosa alias "Jiboy" (Arcosa) guilty beyond reasonable doubt of violating Section 5 in relation to Section 26 of Republic Act (R.A.) No. 9165.
Antecedents
On December 14, 2009, the City Prosecutor's Office of Muntinlupa City filed the following information against the appellants and their co-accused Arcosa and Mark D. Agustin alias "Makoy" (Agustin) for illegal sale of methamphetamine hydrochloride or shabu:
That on or about the 6th day of December 2009, in the City of Muntinlupa, Philippines[,] and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, not being authorized by law, did then and there willfully, unlawfully and feloniously sell, trade, deliver and give away to another, Methamphetamine Hydrochloride, a dangerous drug, contained in two (2) heat-sealed transparent sachets with a net weight of 54.29 grams[,] in violation of the afore-cited law.
Contrary to law. 3
During their arraignment, all of the accused pleaded not guilty.
The prosecution presented as witnesses Police Chief Inspector (PCI) Abraham Verde Tecson (Forensic Chemist), SPO2 Dondon Villaralbo (Receiving Officer) and PO3 Aires Abian (Evidence Custodian) from the Southern Police District (SPD) Crime Laboratory; PO2 Rommel Turingan (PO2 Turingan) and PO2 Gerald Marion Lagos (PO2 Lagos) from the Anti-Criminality Special Operations Task Group, Southern Police District, Taguig City. All the accused, except Agustin, testified for the defense. EcTCAD
Version of the Prosecution
PO2 Lagos learned from two different informants about the alleged drug-peddling activities of Pasique and Agustin. He relayed the information to their team leader, PCI Raymund A. Liguden, who reported the matter to their Commanding Officer, PSupt. Edwin DC. Fernandez. The latter ordered the conduct of an anti-illegal drug operation. The team then prepared the Coordination Form and Pre-Operation Report. During the briefing, PO2 Lagos was designated as the poseur-buyer. A police asset or confidential informant contacted Pasique and Agustin thru cellphone and a deal was set for the purchase of fifty (50) grams of shabu worth Two Hundred Fifty Thousand Pesos (P250,000.00). 4
The informant confirmed that the transaction would take place on the same day, December 6, 2009, at the Festival Mall, Alabang, Muntinlupa City. The team arrived at 2:00 p.m. at the parking area in front of National Book Store. While they waited, the informant received a call from Pasique that their "source" would be coming from Manila, so the meeting was moved to 5:00 p.m. and the meeting place would be at Jollibee along Alabang-Zapote Road near South Super Highway. The team proceeded there and at the appointed time, Pasique, Agustin, and Arcosa arrived and met with PO2 Lagos. Agustin told PO2 Lagos that they would just fetch their "source" (Bowao) who was already in the area with the items and samples. Arcosa left and returned after a few minutes with Bowao. 5
Bowao confirmed with Pasique, Agustin, and Arcosa that PO2 Lagos was the buyer. Bowao asked for the payment but PO2 Lagos said he would like to see the sample first. Bowao gave him a small transparent plastic sachet containing a white crystalline substance, which PO2 Lagos examined. Thereafter, Bowao gave PO2 Lagos the 50 grams of shabu and asked for its payment. PO2 Lagos handed him the boodle money wrapped in newspaper and then removed his bull cap, the pre-arranged signal that the transaction was consummated. His backup, PO2 Turingan, rushed towards them. PO2 Lagos introduced himself as a police officer and arrested the accused. He then apprised the accused of their constitutional rights and that they were being arrested for selling illegal drugs. PO2 Lagos marked the sachets with his initials: "GL-1-061209" on the small plastic sachet and "GL-2-061209" on the bigger sachet. A crowd was already gathering outside Jollibee so their leader instructed the team to proceed to their headquarters at SPD Fort Bonifacio, Taguig City, to secure the arrested persons and the pieces of evidence which remained in the possession of PO2 Lagos. Upon reaching their headquarters, PO2 Lagos used a brown envelope to preserve the evidence. 6
The inventory was done at the headquarters because of the commotion starting at the place of arrest. The team leader and the investigator coordinated with the barangay and local officials but no one came to the headquarters. Hence, the team decided to proceed with the inventory in the absence of the said officials; the Receipt/Inventory of Property Seized was signed by PO2 Turingan as witness. SPO2 Salvio R. de Lima, the Investigator on Case, prepared a spot report, while PO2 Lagos took pictures of the accused and the pieces of evidence. Requests for laboratory examination and drug test were also prepared and signed by PSupt. Fernandez then brought by PO2 Lagos to the SPD Crime Laboratory where it was received by SPO1 Villaralbo. Based on the Physical Science Report No. D-578-09S, 7 the lab test conducted by PCI Verde Tecson on the specimens yielded positive for methamphetamine hydrochloride, a dangerous drug. 8
Version of the Defense
Pasique testified that she was a widow with three children. For livelihood, she sold "kakanin" and home-cooked meals in front of their house at Greenheights Subdivision, Putatan, Muntinlupa City. Her husband was an inmate at the New Bilibid Prison (NBP) where he was killed. On December 5, 2009, she was invited by her friend, Michelle, to attend the birthday party of her daughter, a godchild of Pasique's husband. Michelle's husband was also an inmate at the NBP and a friend of her deceased husband. 9
On December 6, 2009, at 5:00 a.m., after Pasique had delivered her customer's order at Alabang Market, she proceeded to Jollibee-Lawton as instructed by Michelle. They would ride a bus to Taguig where Michelle lived. While she waited, at about 9:00 a.m., a man approached and asked if she was Alma, to which she replied in the affirmative. The man introduced himself as Michelle's brother and told Pasique that Michelle was cooking so he was sent to fetch them. She and her daughter boarded the owner-type jeep owned by the man whom she later came to know as Boizer. When they arrived in Taguig, they entered a small house with several rooms and were asked to wait. Then, a door opened and she saw three men, whose heads were covered in plastic, being beaten with a baseball bat by four other men and their mouths being stuffed with something which, if spilled or spit out, would result in more beatings. Of these four men, she was able to identify only Boizer and PO2 Turingan. She and her daughter were shouting and crying because of what they saw. PO2 Turingan then hit her head with a logbook. When she asked him what her violation was, she was told that the men being beaten were her co-accused in drug pushing. She denied the accusation but the men just laughed at her. Thereafter, Boizer and PO2 Turingan asked her to call her relatives to help her settle the case for P500,000.00. When she replied that she did not have that much money, she was told that she should instead reveal the name of a "bigtime" pusher of shabu. Failing to give them any name, she was immediately detained. She identified the two men being beaten as Arcosa and Bowao, her co-accused. She was made to sit beside a table, with the drugs placed on top, then the men took pictures of her and her fingerprints as well. 10 HSAcaE
The following day, she was brought to the Office of the Prosecutor for inquest. She denied knowing all her co-accused whom she met only when they were detained together. She claimed that PO2 Turingan let her daughter go home to ask her relatives to raise the money demanded. But she found out later that her daughter was not actually sent home but was brought to the house of PO2 Turingan to be the partner of his son. 11
Arcosa testified that, prior to his detention on December 6, 2009, he was a construction worker. He went to Intramuros to meet his cousin Agustin, his co-accused in this case. As he was set to go home to their province, he would get from Agustin certain items for the latter's mother and siblings. While he and Agustin were talking near Jollibee-Intramuros at around 7:30 a.m., four men in civilian clothes approached and asked them to raise their hands while pointing a gun at them. He recognized PO2 Lagos and PO2 Turingan. They were handcuffed, blindfolded and boarded into a green Honda Civic. Inside the car, he was hit on the head. They were brought to an office at Fort Bonifacio, Taguig City. The men gave them a small plastic which they were told to put inside their mouths, to force them to admit having committed an offense. When he initially refused, his feet were beaten and he was detained in a cell. By 7:00 p.m., a drug test was conducted on them. PO2 Lagos, PO2 Turingan and their companions demanded P200,000.00 in exchange for their freedom. 12
Arcosa further claimed that it was PO2 Lagos and PO2 Turingan who beat him up at Fort Bonifacio. He insisted that he did not know his co-accused Bowao and Pasique. He was made to sign something which he could no longer recall. He admitted that he had told no one about his ordeal in the hands of armed policemen who failed to get any money from him. 13
Bowao testified that at noontime of December 6, 2009, he was walking near a cathedral in Intramuros. He was then working as a security guard but he was not on duty at that time. He, along with his three co-accused whom he had just seen that day, were nabbed for allegedly selling illicit drugs. They were apprehended in front of Jollibee-Intramuros for no apparent reason. Many policemen were there but PO2 Lagos and PO2 Turingan were the ones who arrested and brought them to SPD in Taguig. 14
At the police headquarters, they were questioned as to their supposed involvement in the sale of shabu for which criminal charges were filed against them. They were detained for almost two months. His wife never visited him and he also did not hire a lawyer because he had no money.
Arcosa and Agustin, with leave of court, filed a demurrer to evidence which was denied by the trial court. The petition for bail of all the accused was likewise denied.
In view of the demise of Agustin while in detention and before the presentation of defense evidence, the trial court issued an Order, 15 dated July 23, 2014, dismissing the case against him, pursuant to Article 89 (1) of the Revised Penal Code (RPC).
Ruling of the RTC
The trial court convicted Bowao, Pasique, and Arcosa of illegal sale of shabu based on the positive and categorical testimony of PO2 Lagos. It found the accused to have acted in conspiracy as shown by their concerted and coordinated action in the negotiation, finalization, and consummation of the sale transaction for 50 grams of shabu.
On the chain of custody requirement, the trial court held that there was substantial compliance with the Implementing Rules and Regulations (IRR) of R.A. No. 9165.
The RTC thus decreed:
WHEREFORE, premises considered, the Court finds accused Halid Bowao y Guiamelon alias Bobby, Alma Pasique y Baretto and Rene Arcosa y Morales alias Jiboy GUILTY beyond reasonable doubt of violation of Section 5, in relation to Section 26 of R.A. No. 9165 and hereby sentences them to life imprisonment and a fine of Five Hundred thousand pesos (P500,000.00) each.
The preventive imprisonment undergone by the accused shall be credited in their favor.
The Branch Clerk of Court is directed to turn-over the dangerous drugs subject of this case to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.
SO ORDERED. 16 HESIcT
Ruling of the CA
On appeal, the CA found all the elements of illegal sale of dangerous drugs present in this case. As similarly concluded by the trial court, it declared that there was substantial compliance with the requirements of Section 21 of R.A. No. 9165 on the custody and preservation of the drug evidence. Considering that the integrity of the seized items was maintained, the CA held that the absence of an elected public official, representatives from the media and the Department of Justice (DOJ) during the marking, inventory, and photographing of the seized items, should not be deemed fatal to the prosecution's case.
The CA also found justification for the buy-bust team's decision to proceed to their police station where they conducted the inventory and photographing of the seized items, instead of at the place of arrest. As per the command of their team leader, a crowd was already building up in the area when the police made the arrest. Such deviation is allowed by the implementing rules and recognized by jurisprudence. Accordingly, the CA affirmed the trial court's judgment.
ISSUE
WHETHER OR NOT THE CA ERRED IN AFFIRMING THE CONVICTION OF APPELLANTS FOR ILLEGAL SALE OF SHABU.
Appellants' Arguments
Appellants assail the trial and appellate courts for giving credence to PO2 Lagos' positive identification of all the accused as conspirators in the sale of illegal drugs thus upholding the presumption of regularity in the police officers' performance of their duty. Such presumption falls in the light of the apprehending officers' failure to comply with Sec. 21, Article II of R.A. No. 9165; which clearly provides that it is the duty of the arresting officers who have initial custody and control of the contraband to, after seizure, physically inventory and photograph the same in the presence of the accused or his counsel and of representatives from the DOJ, media, and any elected public official. The implementing rules and regulations of R.A. No. 9165, as clarified by jurisprudence, further underscore that the apprehended violator or his counsel must, in every case, be present, in order to keep the desired level of integrity that the handling process requires.
Appellants point out that while the alleged buy-bust took place at Jollibee-Alabang, the police officers did not proceed to the nearest police station to process the evidence and the suspects. Instead, the inventory and photographing were done at the team's headquarters in Taguig which, as PO2 Lagos admitted, was far from the place of arrest. PO2 Lagos himself said that despite having been in the service for seventeen (17) years, he was not particularly well-versed in the law on the proper procedural rules, and had limited access to such. Representatives from the media and DOJ, and an elected public official were likewise absent. The prosecution failed to provide any justification for the lapses.
Solicitor General's Arguments
The Solicitor General, on behalf of the People, argued that there were justifiable grounds, considering the factual milieu, for the deviation from procedural rules in the custody and preservation of the drug evidence. Moreover, the testimonies of the prosecution witnesses showed an unbroken chain of custody from the time the seized sachets of shabu were marked by PO2 Lagos at the crime scene, after which he kept, inventoried and photographed the same at their headquarters, and personally delivered the drug specimens to the PNP-SPD Crime Laboratory where it was received by SPO1 Villaralbo. The same items were examined by the forensic chemist and presented to the court (as stipulated during the April 15, 2011 hearing).
Any deviation from the established procedure had been adequately explained by the arresting officers. Despite the diligent efforts of the team leader and the investigator to coordinate with barangay and local officials, none of them came for the inventory; hence, the police officers decided to proceed in their absence. More importantly, all the elements of illegal sale of dangerous drugs were proven with moral certainty by the prosecution. PO2 Lagos positively identified appellants as the persons acting in concert to sell him the shabu in exchange for P250,000.00. The confiscated drugs that tested positive for the presence of methamphetamine hydrochloride were the same drugs subsequently presented and identified in court.
THE COURT'S RULING
The appeal is meritorious. caITAC
The elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration, and (2) the delivery of the thing sold and the payment therefor. Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti — the body of the crime whose core is the confiscated illicit drug. 17
In this case, only the poseur-buyer, PO2 Lagos, testified on the conduct of the buy-bust operation which resulted in the arrest of appellants and their co-accused. They earlier closed the deal through a phone call made by the informant to Pasique. At the time and place set by Pasique, PO2 Lagos was able to purchase fifty (50) grams of shabu for P250,000.00, which he gave to Bowao. Appellants denied acting in conspiracy to sell shabu to PO2 Lagos and claimed extortion on the part of the police officers.
Although the uncorroborated testimony of PO2 Lagos is sufficient to establish the fact of sale, there was no showing that the apprehending officers observed proper handling and custody of the seized evidence.
Proof of the corpus delicti is essential in every judgment of conviction. 18 The Court has ruled that, even when the illegal sale of a dangerous drug was proven by the prosecution, the latter is still burdened to prove the integrity of the corpus delicti. Thus, even if there was a sale, the corpus delicti is not proven if the chain of custody was defective. 19
"Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody was made in the course of safekeeping and use in court as evidence, and the final disposition. 20
Sec. 21, Article II of R.A. No. 9165 provides the procedural safeguards that the apprehending team should observe in the handling of seized illegal drugs in order to preserve their identity and integrity as evidence. "As indicated by their mandatory terms, strict compliance with the prescribed procedure is essential and the prosecution must show compliance in every case." 21
Sec. 21 was amended in 2014 by R.A. No. 10640. 22 The buy-bust operation against appellants took place in 2009. Hence, the procedure under Sec. 21 (a), Article II of the IRR of R.A. No. 9165, prior to its amendment, is applicable in this case, viz.:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(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 hereof: 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. (emphases supplied) ICHDca
While the marking of the seized shabu was made immediately after confiscation at the scene of the buy-bust operation, the inventory and photographing were done at the headquarters of the apprehending officers in SPD Fort Bonifacio, Taguig. PO2 Lagos testified that their team leader had ordered the transfer due to the growing crowd at the place of arrest.
Nonetheless, the prosecution failed to establish an unbroken chain of custody because of the absence of third party witnesses. No elected public official and a representative from the media and the DOJ were present during the buy-bust operation when the dangerous drug was confiscated from the accused and also during the inventory and photographing of the said drugs at the SPD headquarters. In fact, only PO2 Lagos and PO2 Turingan signed the Receipt/Inventory of Property Seized.
The Court reiterated the importance of this requirement in People v. Ga-a: 23
In all of these cases, the photographing and inventory are required to be done in the presence of any elected public official and a representative from the media and the DOJ who shall be required to sign an inventory and given copies thereof. By the same intent of the law behind the mandate that the initial custody requirements be done "immediately after seizure and confiscation," 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 considering that the buy-bust operation is, by its very nature, a planned activity. Simply put, the buy-bust team had enough time and opportunity to bring with them these witnesses.
In other words, while the physical inventory and photographing is allowed to be done "at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure," this does not dispense with the requirement of having the DOJ and media representative and the elected public official to be physically present at the time of and at or near the place of apprehension and seizure so that they can be ready to witness the inventory and photographing of the seized drugs "immediately after seizure and confiscation."
The reason is simple, it is at the time of arrest or at the time of the drugs' "seizure and confiscation" that the presence of the three (3) witnesses is most needed. It is their presence at that point that would insulate against the police practice of planting evidence. In People v. Mendoza, the Court ruled:
x x x Without the insulating presence of the representative from the media or the [DOJ], or any elected public official during the seizure and marking of the sachets of shabu, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the sachets of shabu that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. x x x 24 (boldface and italics in the original)
The failure of the apprehending team to strictly comply with the procedure laid out in Sec. 21 of R.A. No. 9165 and its IRR does not automatically invalidate the seizure and custody of the dangerous drug, provided that the prosecution satisfactorily proves that: (a) there is justifiable ground for noncompliance; and(b) the integrity and evidentiary value of the seized items are properly preserved. 25 The prosecution must explain the reasons behind the procedural lapses committed by the apprehending officers.
In this case, both the RTC and the CA held that there was substantial compliance with the rules; hence, the absence of the third party witnesses should not be deemed a fatal flaw.
We disagree.
In the recent case of People v. Angeles, 26 the Court stressed that sufficient justification for the deviation from the rules must be proven before substantial compliance is permitted. Thus:
. . . substantial compliance with the procedure is not a panacea which ipso facto excuses the lapses committed by police officers in the conduct of anti-drug operations. In People v. Año, the Court reminded that before the saving clause under R.A. No. 9165, as amended, becomes operative, the prosecution must identify the lapses in procedure and provide a justifiable ground for its non-observance, to wit: TCAScE
In other words, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of R.A. No. 9165 and its IRR does not ipso facto render the seizure and custody over the items as void and invalid, provided that the prosecution satisfactorily proves that: (a) there is justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. In People v. Almorfe, the Court explained that for the above-saving clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that the integrity and evidentiary value of the seized evidence had nonetheless been preserved. Also, in People v. De Guzman, it was emphasized that the justifiable ground for noncompliance must be proven as fact, because the Court cannot presume what these grounds are or that they even exist.
xxx xxx xxx
In this light, prosecutors are strongly reminded that they have the positive duty to prove compliance with the procedure set forth in Section 21 of R.A. No. 9165, as amended. As such, they must have the initiative to not only acknowledge but also justify any perceived deviations from the said procedure during the proceedings before the trial court.
In short, before substantial compliance with the procedure is permitted, not only must the integrity and evidentiary value of the drugs seized be preserved, there must be a justifiable ground for its noncompliance in the first place. The prosecution has a two-fold duty of identifying any lapse in procedure and proving the existence of a sufficient reason why it was not strictly followed.
A review of PO2 Saez's testimony shows that the prosecution failed to prove any justifiable ground to deviate from the prescribed procedure, to wit:
xxx xxx xxx
While it is true that the prosecution was able to proactively identify the deviation from the prescribed procedure, i.e., lack of representatives from the media and the DOJ, and a barangay official, no sufficient justifiable reason was established. Police must prove that they exerted efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable. 27 (emphases supplied)
When he testified in court, PO2 Lagos mentioned only the coordination with barangay and local officials through the SPD Tactical Operations Center (TOC). He said nothing about earnest efforts to contact a representative from the media and the DOJ, nor the reason/s for the unavailability of the barangay/local official with whom the TOC coordinated. Thus:
CROSS-EXAMINATION CONDUCTED BY ATTY. DE ASIS:
Q: And when you conducted an inventory in your office, there is no witness and also participated by media and from the DOJ, isn't it?
A: Yes, sir.
Q: And there is no barangay officials witnessed the inventory in your place?
A: Yes, sir.
xxx xxx xxx
Q: And in your Receipt of Inventory, there is no signature appearing in the documents that they signed, isn't it?
A: Yes, sir.
Q: It is only you, PO2 Gerald Marion Lagos and Rommel Turingan?
A: Yes, sir.
Q: Signed the inventory report?
A: Yes, sir.
xxx xxx xxx
RE-DIRECT EXAMINATION CONDUCTED BY FISCAL ROMAQUIN:
Q: Still in connection with that inventory. Can you now explain to the Honorable Court, how come there was no media representative, there was no representative from the DOJ or barangay at the time when you prepared that inventory?
A: Yes, sir, as far as I know sir, my team leader and my investigator who made coordination with the barangay and local official and we informed them that we are from the Southern Police District and we are waiting from them to proceed at our headquarters.
Q: And what happened, did they arrive or not? cTDaEH
A: From the headquarters, sir, we wait but there is no representative from them came to our headquarters and so we decide to fill up and sign the inventory, sir.
xxx xxx xxx
RE-CROSS EXAMINATION CONDUCTED BY ATTY. MOLDEZ:
xxx xxx xxx
Q: Now, Mr. Witness, you said that when the Public Prosecutor asked you that, whether there was coordination, you said yes and they failed to appear, am I correct?
A: Yes, ma'am.
Q: Now, which is which Mr. Witness, could you please clarify, was there any coordination to the local officials in the barangay or not because your statement are really not so clear as to this matter?
A: Could I answer it and explain or just a yes or no ma'am.
Atty. Moldez:
Explain.
WITNESS:
A: The coordination was made at our District Headquarters at the TOC first. Then, the Tactical Operation Center (TOC) is the one who coordinate with the local of the Muntinlupa Police Station, Makati, Pasay. But from the barangay, I do not know who coordinate maybe the local province of Muntinlupa coordinate with the barangay because they have also radio but my function only is to coordinate from Southern Police District Tactical Operation Center up to that, from Tactical Operation Center is the one who coordinate with the local, ma'am.
xxx xxx xxx
Q: Now, Mr. Witness, you said that you were 17 years in service and yet, you do not know the existence of the manual for the conduct of buy bust operation. Just to clarify, is it a law or a manual?
A: I cannot answer that ma'am because I am not particular in such law and I cannot answer that. Because I have only limited access regarding the procedure, the manual only giving us instruction on how we made the operation because they brief us and they gave us some trainings in regards to conduct anti-drug operation.
Q: How may seminars were you able to attend for the conduct of drug operation, approximately how much, can you tell the Honorable Court?
A: I cannot recall the exact number but I attend several seminars in drug operation regarding the conduct of the operation. 28 (emphases supplied)
The Court has consistently stressed that "[C]ompliance with the guidelines on the preservation of the chain of custody of the dangerous drugs subject of a prosecution for the illegal sale of dangerous drugs must be clearly and convincingly established by the State. Any lapse in the chain of custody must be affirmatively explained by the prosecution; otherwise, the chain of custody will be held to be broken and insufficient to support a conviction of the accused. The presumption of regularity of the performance of official duty in favor of the arresting officers cannot prevail over the presumption of innocence in favor of the accused." 29 cSaATC
The rules on handling, custody, and preservation of evidence provided in Sec. 21, Article II of R.A. No. 9165 is a matter of substantive law and cannot be brushed aside as a simple procedural technicality. 30 Substantive law requires strict observance of these procedural safeguards. 31 The failure of the apprehending officers to comply with the mandatory requirements under Sec. 21 of R.A. No. 9165 and its IRR "casts doubt on the integrity of the shabu supposedly seized from accused-appellant[s]. This creates reasonable doubt in the conviction of accused-appellant[s] for violation of Article II, Section 5 of Republic Act No. 9165." 32
For failure of the prosecution to establish beyond reasonable doubt the unbroken chain of custody of the drugs seized from appellant, and to prove as a fact any justifiable reason for noncompliance with Sec. 21 of R.A. No. 9165 and its IRR, herein appellants must be acquitted of the crime charged. 33
Additionally, appellants' co-accused in this case, Arcosa, must also be acquitted. While he had appealed the RTC judgment before the CA, his counsel failed to file a notice of appeal after the CA rendered the assailed decision.
Section 11 (a), Rule 122 of the Revised Rules of Criminal Procedure, as amended, provides:
Section 11. Effect of appeal by any of several accused. —
(a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. (Emphasis supplied)
Accordingly, a favorable judgment — as in this case — shall benefit the co-accused who did not appeal or those who appealed from their judgments of conviction but, for one reason or another, the conviction became final and executory. 34 The acquittal of appellants Pasique and Bowao from the crime charged is likewise applicable to Arcosa. 35
WHEREFORE, the appeal is GRANTED. The October 27, 2017 Decision of the Court of Appeals in CA-G.R. CR-HC No. 08856 is hereby REVERSED and SET ASIDE. Accused Halid Bowao y Guiamelon alias "Bobby," Alma Pasique y Baretto, and Rene Arcosa y Morales alias "Jiboy" are ACQUITTED of the crime charged.
The Director of the Bureau of Corrections, and the Superintendents of New Bilibid Prison-Muntinlupa City and the Correctional Institution for Women-Mandaluyong City, 36 are ordered to cause their immediate release, unless they are being lawfully held for any other reason.
SO ORDERED."
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1. CA rollo, pp. 160-175; penned by Associate Justice Socorro B. Inting, with Associate Justices Marlene Gonzales-Sison and Pedro B. Corales, concurring.
2. Records, pp. 352-372; penned by Judge Myra B. Quiambao.
3.Id. at 1.
4.Id. at 354.
5.Id. at 354-355.
6.Id. at 355.
7.Id. at 8.
8.Id. at 356.
9.Id. at 356-357.
10.Id. at 357-358.
11.Id. at 358.
12.Id.
13. TSN, June 30, 2015, pp. 173-174 and 177.
14. Records, pp. 358-359.
15.Id. at 273.
16.Id. at 371-372.
17. Sec. 5, Article II of R.A. No. 9165; People v. Sanchez, 590 Phil. 214, 235 (2008), citing People v. Del Mundo, 539 Phil. 609, 617 (2006).
18.People v. Alagarme, 754 Phil. 449, 459-460 (2015), citing Malillin v. People, 576 Phil. 576, 586 (2008).
19.People v. Alvarado, G.R. No. 234048, April 23, 2018, citing People v. Saragena, G.R. No. 210677, August 23, 2017.
20. Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 (Guidelines on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment).
21.People v. Balles, G.R. No. 226143, November 21, 2018, citing People v. Denoman, 612 Phil. 1165, 1175 (2009).
22. Entitled "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," approved on July 15, 2014.
23. G.R. No. 222559, June 6, 2018.
24.Id.; citations omitted.
25.Anyayahan v. People, G.R. No. 229787, June 20, 2018, citing People v. Goco, 797 Phil. 433, 443 (2016).
26. G.R. No. 218947, June 20, 2018.
27.Id.; citations omitted.
28. TSN, April 10, 2012, pp. 4-5, 23, 28 and 29-30.
29.People v. Reyes, 797 Phil. 671, 673 (2016).
30.People v. Ga-a, supra note 23, citing People v. Umipang, 686 Phil. 1024, 1038 (2012).
31.Id.
32.People v. Jaafar, 803 Phil. 582, 595 (2017).
33.People v. Sipin, G.R. No. 224290, June 11, 2018.
34.People v. Libre, G.R. No. 235980, August 20, 2018, citing Benabaye v. People, 755 Phil. 144, 157 (2015).
35.SeeId., citing People v. Lumaya, G.R. No. 231983, March 7, 2018.
36. Rollo, pp. 28, 35 and 38.