FIRST DIVISION
[G.R. No. 233793. June 23, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. JIMMY P. DACALOS, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated June 23, 2021 which reads as follows:
"G.R. No. 233793 (People of the Philippines, Plaintiff-Appellee, v. Jimmy P. Dacalos, Accused-Appellant.) — This is an appeal, 1 seeking to reverse and set aside the Decision 2 dated 31 January 2017 and Resolution 3 dated 07 June 2017 rendered by the Court of Appeals (CA) in CA-G.R. CR-HC No. 01518-MIN. The CA affirmed the Judgment 4 of the Regional Trial Court (RTC), Branch 32 of Lupon, Davao Oriental, convicting accused-appellant Jimmy P. Dacalos (accused-appellant) of Violations of Sections 5 and 11, Article II of Republic Act No. (RA) 9165. 5
Antecedents
Accused-appellant was charged with Violation of Sections 5 and 11, Article II of RA 9165 in two (2) separate Information, the accusatory portions of which read:
Criminal Case No. 1570-13
That on or about August 27, 2013 in the Municipality of Banaybanay, Davao Oriental, 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, trade[,] and distribute in his possession dried marijuana leaves, a [sic] dangerous drugs, with an estimate weight of 5.85 grams, without proper license or permit from the authorities, to the damage and prejudice of the [S]tate.
CONTRARY TO LAW.
Criminal Case No. 1569-13
That on or about August 27, 2013 in the Municipality of Banaybanay, Davao Oriental, 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 have in his possession and control[,] three (3) packs [of] dried marijuana leaves wrapped in writing paper, a [sic] dangerous drugs, with an estimated weight of 8.32 grams, without proper license or permit from the authorities, to the damage and prejudice of the [S]tate.
CONTRARY TO LAW. 6
On arraignment, accused-appellant pleaded not guilty to both charges. 7 During pre-trial, the defense admitted the following: 1) existence and authenticity of Chemistry Report No. D-026-13, including the findings therein; and 2) the specimen subject of the said report was the same drug which was the subject matter of the case. Accordingly, the parties agreed to dispense the testimony of the forensic chemist, Police Inspector Jade Ryan Pelare Bajade (PI Bajade). Trial on the merits ensued thereafter. 8
Version of the Prosecution
At 4:00 p.m. of 27 August 2013, Police Officer 2 Pete Aquino (PO2 Aquino) and Police Officer 2 Rodel A. Anuciado (PO2 Anuciado), together with a confidential informant (CI), went to a billiards hall at Purok 4, Poblacion, Banaybanay, Davao Oriental, to conduct entrapment operations against a certain Boboy, later identified as accused-appellant, who was allegedly peddling illegal drugs in the area. 9 caITAC
Once there, the CI approached accused-appellant and bought from the latter Php100.00 worth of marijuana. Accused-appellant handed the CI two (2) packs wrapped in Grade 1 writing paper. In return, the CI paid accused-appellant using the marked money provided by the police officers. 10 Thereafter, the CI went back to PO2 Aquino and turned over to the latter the items he bought from accused-appellant. PO2 Aquino unwrapped the items and confirmed the contents thereof to be marijuana leaves. Immediately, the entrapment officers approached accused-appellant, apprehended the latter and frisked him. The incidental search yielded three (3) more packs of marijuana in possession of accused-appellant. 11
Thereupon, the police officers brought accused-appellants and the seized items to the Banaybanay police station where they conducted the marking, inventory and taking of photographs in the presence of accused-appellant, a member of the Department of Justice, a barangay kagawad and other witnesses. 12
The following day, PO2 Aquino brought the seized items to the crime laboratory and were received by PI Bajade for examination. As per Chemistry Report No. D-026-13, 13 all the specimens examined by PI Bajade were positive for the presence of marijuana, a dangerous drug. 14
On 15 October 2013, PI Bajade turned over the items to PO1 Jason Buligan (PO1 Buligan), the evidence custodian of the crime laboratory in Mati City. 15 The seized items were placed in a cellophane bearing the control number and initial of PI Bajade. 16 PO1 Buligan did not remove anything from the cellophane 17 and just kept it inside the evidence room, the access of which was limited to him. 18 Later, he submitted the seized evidence in court. 19
Version of the Defense
In the afternoon of 27 August 2013, accused-appellant was watching a game inside the billiards hall when someone came rushing in from behind. The person, who was wearing civilian clothes, hugged him, pointed a gun at him, and then handcuffed him. 20 He was then boarded to a mobile patrol and transferred to the police station. 21 There, a police officer frisked him and confiscated his wallet, cellphone, handkerchief, lighter and cigarette box. 22 Later, a barangay kagawad and a pastor arrived. 23 The police officers then took pictures of the item placed on top of a table which the police officers told him to be marijuana. 24
Accused-appellant's testimony was corroborated by his two (2) witnesses. 25
Ruling of the RTC
On 22 December 2015, the RTC issued its Judgment, finding accused-appellant guilty as charged. The dispositive portion of its ruling reads:
WHEREFORE, premises considered, the Court finds accused JIMMY DACALOS guilty beyond reasonable doubt:
1. For Violation of Section 11, Article II of [RA] 9165He is hereby sentenced to suffer the indeterminate prison term of twelve (12) years and one (1) day as minimum to fourteen (14) years as maximum plus a fine of Three Hundred Thousand Pesos ([Php]300,000.00).
2. For Violation of Section 5, Article II of [RA] 9165.He is hereby sentenced to suffer the penalty of Life Imprisonment plus a fine of ([Php]500,000.00.)
The five packs of marijuana with a total weight of 14,17 n grams subject of these cases are forfeited in favor of the Government and are ordered to be turned-over to the Philippine Drug Enforcement Agency for its appropriate disposition in accordance with the provisions of the Comprehensive Dangerous Drugs Law.
SO ORDERED. 26
The RTC was convinced that the prosecution was able to prove all the elements of the offenses charged, as well as the preservation of the integrity and probative value of the seized items. 27
Ruling of the CA
On appeal, the CA affirmed the ruling of the RTC. The dispositive portion of the CA's assailed Decision reads:
WHEREFORE, the appeal is DENIED. The assailed Judgment dated December 22, 2015 of the Regional Trial Court, Branch 32, Lupon, Davao Oriental is AFFIRMED in toto.
SO ORDERED. 28
Accused-appellant filed a Motion for Reconsideration 29 but the CA denied the same. Accordingly, he is now before Us through the instant recourse.
Issue
The sole issue in this case is whether or not the CA erred in affirming the conviction of accused-appellant for violation of Sections 5 and 11, Article II of RA 9165.
Ruling of the Court
We grant the appeal. ICHDca
It is axiomatic that when it comes to the prosecution of cases involving dangerous drugs, the confiscated drug constitutes the very corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction. It is essential, therefore, that the identity and integrity of the seized drugs be established with moral certainty. 30
Section 21, Article II of RA 9165 and its implementing rules, the law prevailing at the time of arrest, 31 prescribes the standard in preserving the corpus delicti in illegal drugs cases. It lays down the chain of custody rule or the procedure in handling dangerous drugs and instruments or paraphernalia starting from their seizure until they are finally presented as evidence in court. 32 It requires the apprehending team, having initial custody and control of the drugs, to 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.
Further, in order to obviate any unnecessary doubt on the identity of the dangerous drugs, the prosecution has to show an unbroken chain of custody over the same and account for each link in the chain of custody from the moment the drugs are seized up to their presentation in court as evidence of the crime. 33
In the instant case, the illegal drugs allegedly seized from accused-appellant were not immediately marked at the place of arrest after the buy-bust sale. Neither was there an inventory nor taking of photograph conducted at the place of arrest. The Court has repeatedly held that the first link in the chain of custody is breached when the buy-bust team failed to immediately mark the seized drugs, to conduct a physical inventory, and to photograph the same after the arrest of the accused and the seizure of the drugs. 34 It puts into question whether the drug may have been switched, tampered with, altered, or substituted. 35
The police officers likewise committed a breach of the first link as it is apparent from the records that none of the required witnesses accompanied the entrapment team during the buy-bust. The requirement to conduct the inventory and to take photographs "immediately after seizure and confiscation" necessarily means that the required witnesses must also be present during the seizure. 36 Accordingly, the presence of the insulating witnesses must be secured, not only during the inventory but, more importantly, at the time of the warrantless arrest, because their presence at the time of seizure and confiscation would belie any doubt as to the source, identity, and integrity of the seized drug. 37
It is not clear whether all the three (3) witnesses were present during the inventory at the police station. While the Inventory of Property Receipt 38 shows three (3) signatures, it cannot be said for certain if the third signatory, a certain Rico M. Lantuan, was a member of the media. As can be seen from said inventory receipt, the office and designation of this particular witness was left blank. Moreover, none of the prosecution witnesses was asked anything about the insulating witnesses. Hence, no one was able to confirm the presence of all the insulating witnesses during the inventory. To further bolster such uncertainty, the RTC and the CA were both noticeably silent as to the presence of the member of the media. Instead, the trial and appellate courts similarly stated that the inventory was "witnessed by a member of the Department of Justice, a barangay kagawad and other witnesses."
From a perusal of the three (3) photographs 39 on record, it can likewise be fairly inferred that the witnesses were not together to witness the marking and inventory. As can be seen from the first two (2) pictures, a man, presumably the accused-appellant, was wearing a white long-sleeved shirt and flanked by two (2) men. In the other picture, the accused-appellant, who was already wearing a different shirt, was accompanied by a representative from the DOJ and a police officer. It thus appears that there were two (2) inventories conducted at different times, possibly because of the late arrival of the witness from the DOJ. If such was the case, it means that the witness from the DOJ could not have witnessed the marking of the seized items and, thus, was unable to discharge her duty to guard against any possible planting or switching of evidence.
The uncertainties herein must be resolved in favor of accused-appellant. As this Court held in People v. Bartolini, 40 the failure to immediately mark the seized items, taken together with the absence of a representative from the media to witness the inventory, without any justifiable explanation, casts doubt on whether the chain of custody is truly unbroken. Corollarily, the required witnesses must be together at the same time 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." 41 Consequently, even if 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."42 (Emphasis in the original)
Contrary to the postulations of the lower courts and the Office of the Solicitor General (OSG), strict compliance with the chain of custody requirements is, as a rule, mandatory. 43 Any deviation therefrom may be allowed only if the following requisites concur: (1) the existence of "justifiable grounds" allowing departure from the rule on strict compliance; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. 44
Indeed, since the procedure in Section 21, Article II of RA 9165 is a matter of substantive law, it cannot be brushed aside as a simple procedural technicality, or worse, ignored as an impediment to the conviction of illegal drug suspects. 45 The saving mechanism under the IRR of Section 21, RA 9165 applies only when the prosecution recognizes the lapse or lapses, and justify or explain them. 46 In other words, a breach of Section 21, if left unacknowledged and unexplained, shall militate against a finding of guilt beyond reasonable doubt against the accused as the integrity and evidentiary value of the corpus delicti would necessarily have been compromised. 47 TCAScE
Notably, the prosecution did not even make any attempt to illuminate the court as to why it was not practicable to do the marking and inventory at the place of arrest. PO2 Aquino, a witness for the prosecution and part of the buy-bust team, was never asked by the prosecutor on this matter. Hence, he was not able to explain the reason why the buy-bust team outrightly opted to do the marking and inventory at the Banaybanay police station. He was not also able to establish if the Banaybanay was the nearest police station or office of the apprehending team.
In the same vein, the prosecution did not bother to justify the absence of the three (3) witnesses during the actual buy-bust and at the time of the recovery or confiscation of the dangerous drugs from the accused. Also, as adverted to earlier, the witnesses for the prosecution were not able to clarify as to whether all the witnesses were present together during the inventory, whether the representative from the DOJ arrived at a later time, and whether the third signatory in the inventory receipt was actually a member of the media.
Contrary to the CA's take, it is not for accused-appellant to prove that the Banaybanay police station was the nearest and practicable place to conduct the marking and inventory. It is also of no moment that accused-appellant failed to prove ill-motive on the part of the police officers or that he did not file a complaint against the latter for planting of evidence. It is settled that the prosecution has the burden of (1) proving the police officers' compliance with Section 21, RA 9165 and (2) providing a sufficient explanation in case of non-compliance. 48 It is also well-settled that the conviction of an accused must be based on the strength of the prosecution's evidence and not on the weakness or absence of evidence of the defense. 49 Hence, the duty is on the prosecution to justify any lapse in the chain of custody regardless of the failure of the defense to question the same. The prosecution's failure to comply cannot simply be rectified by casually applying the presumption of regularity of the performance of official duty in favor of the arresting officers as this presumption cannot prevail over the presumption of innocence in favor of the accused. 50 Furthermore, the presumption of regularity of performance of official duty stands only when no reason exists in the records by which to doubt the regularity of the performance of official duty, 51 not when there is any hint of irregularity committed by the police officers, 52 such as in this case.
People v. Año53 and a slew of jurisprudence on drug-related cases are explicit that the failure of the prosecution to explain the procedural lapses of the police officers in the handling of the seized evidence constitute unjustified gaps in the chain of custody of the items, which militate against a finding of guilt beyond reasonable doubt, and, ultimately, warrants the acquittal of the accused.
WHEREFORE, premises considered, the instant appeal is GRANTED. The Decision dated 31 January 2017 and Resolution dated 07 June 2017 of the Court of Appeals, Cagayan de Oro City, in CA-G.R. CR-HC No. 01518-MIN, are REVERSED and SET ASIDE. Accused-appellant Jimmy P. Dacalos is hereby ACQUITTED of his offenses for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause.
Let a copy of this Resolution be furnished to the Superintendent of the Davao Prison and Penal Farm, Sto. Tomas, Davao del Norte, for immediate implementation. The Superintendent of the said prison facility is DIRECTED to report to this court, within five (5) days from receipt of this Resolution, the action he has taken.
Let an entry of judgment be issued immediately.
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. 27-28; see Notice of Appeal dated 06 July 2017.
2.Id. at 3-26; penned by Associate Justice Rafael Antonio M. Santos and concurred in by Associate Justices Edgardo T. Lloren and Ruben Reynaldo G. Roxas of the Twenty-Third (23rd ) Division, Court of Appeals, Cagayan de Oro.
3. CA rollo, pp. 139-143.
4.Id. at 35-48; penned by Presiding Judge Emilio G. Dayanghirang III.
5. Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES," approved on 07 June 2002.
6.Records, p. 2.
7.Id. at 19; see Certificate of Arraignment.
8.Rollo, p. 9; records, pp. 21-22; see Pre-Trial Order, 01 October 2013.
9.Id. at 5.
10.Id. at 5-6.
11.Id. at 6.
12. CA rollo, p. 40.
13.Records, p. 7.
14.Rollo, pp. 6-7.
15. TSN, 06 November 2013, p. 5
16.Id. at 6-7.
17.Id. at 7.
18.Id. at 6.
19.Records, p. 24; see Receipt, 06 November 2013.
20.Rollo, p. 8.
21. TSN, 11 March 2015, p. 7.
22.Id.
23.Id.
24.Rollo, pp. 8-9.
25.Id. at 8.
26. CA rollo, p. 48.
27.Id. at 40.
28.Id. at 25.
29.Id. at 110-117.
30.See People v. Retada, G.R. No. 239331, 10 July 2019 [Per J. Caguioa].
31. RA 9165 was later amended by RA 10640, otherwise known as "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 15 July 2014. In People v. Gutierrez, G.R. No. 236304, 05 November 2018, RA 10640, the Court noted that the amendatory law, which was approved on 15 July 2014, stated that it shall "take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation." A copy of the law was then published on 23 July 2014 in the respective issues of "The Philippine Star" (Vol. XXVIII, No. 359, Philippine Star Metro section, p. 21) and the "Manila Bulletin" (Vol. 499, No. 23; World News section, p. 6). Hence, RA 10640 became effective on 07 August 2014.
32.See People v. Velasco, G.R. No. 225953 (Notice), 10 February 2021.
33.See People v. Patacsil, 839 Phil. 320, 330 (2018), G.R. No. 234052, 06 August 2018 [Per J. Perlas-Bernabe], citing People v. Manansala, 826 Phil. 578, 586 (2018), G.R. No. 229092, 21 February 2018 [Per J. Perlas-Bernabe].
34.See People v. Marcelo, G.R. No. 228893, 26 November 2018 [Per J. Gesmundo].
35.See People v. Cupcupin, G.R. No. 236454 (Notice), 05 December 2019.
36.Supra at note 34.
37.See People v. Tomawis, 830 Phil. 385, 409 (2018), G.R. No. 228890, 18 April 2018 [Per J. Caguioa].
38.Records, p. 11.
39.Id. at 12.
40. 791 Phil. 626, 635 (2016), G.R. No. 215192, 27 July 2016 [Per J. Carpio].
41.See People v. Dumanjug, G.R. No. 235468, 01 July 2019 [Per J. Caguioa].
42.See People v. Adobar, G.R. No. 222559, 06 June 2018 [Per J. Caguioa].
43.See Ingalls v. People, UDK-15800 (Notice), 12 October 2020.
44.See Dizon v. People, G.R. No. 239399, 25 March 2019 [Per J. Caguioa].
45.Supra at note 32.
46.See People v. Reyes, 797 Phil. 671, 690 (2016), G.R. No. 199271, 19 October 2016 [Per J. Bersamin].
47.See People v. Rasos, Jr., G.R. No. 243639, 18 September 2019 [Per J. Caguioa].
48.See People v. Retada, G.R. No. 239331, 10 July 2019 [Per J. Caguioa].
49.Supra at note 40 at 644, citing People v. Suan, 627 Phil. 174, 192-193 (2010), G.R. No. 184546, 22 February 2010 [Per J. Del Castillo].
50.Supra at note 41.
51.See People v. Mendoza, 736 Phil. 749, 770 (2014), G.R. No. 192432, 23 June 2014 [Per J. Bersamin].
52.See People v. Catalan, 699 Phil. 603, 621 (2012), G.R. No. 189330, 28 November 2012 [Per J. Bersamin].
53. 828 Phil. 439, 448 (2018), G.R. No. 230070, 14 March 2018 [Per J. Perlas-Bernabe].
n Note from the Publisher: Copied verbatim from the official document.