THIRD DIVISION
[G.R. No. 240427. April 28, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. MELARDO DEL PILAR y SOSING ALIAS "MELAD", accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated April 28, 2021, which reads as follows:
"G.R. No. 240427 (People of the Philippines v. Melardo Del Pilar y Sosing alias "Melad"). — This is an appeal 1 assailing the Decision 2 dated December 14, 2017 of the Court of Appeals (CA), Cebu City in CA-G.R. CR HC No. 02417. The CA affirmed the Decision 3 dated September 20, 2016 of Branch 15, Regional Trial Court (RTC), Burauen, Leyte in Criminal Case No. BN-14-01-4874 finding Melardo Del Pilar y Sosing (accused-appellant) guilty beyond reasonable doubt of violation of Section 5, 4 Article II of Republic Act No. (RA) 9165, 5 otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as amended.
The Antecedents
Accused-appellant was charged with Illegal Sale of Dangerous Drugs defined and penalized under Section 5, Article II of RA 9165 in an Information which states:
That on or about the 24th day of July 2013, at Burauen, Leyte, Philippines, and within the jurisdiction of this Honorable Court, the accused without being authorized by law to sell or otherwise dispose of any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to Leonardo Abalon, Jr. a poseur-buyer, two (2) heat-sealed transparent plastic sachets containing white crystalline substance, which were found positive to the test for methamphetamine hydrochloride a dangerous drug for and in consideration of P1,000.00.
CONTRARY TO LAW. 6
At the arraignment, accused-appellant pleaded not guilty to the charge against him. 7
Trial on the merits ensued.
The prosecution alleged that on July 24, 2013, at around 4:00 p.m., acting on the information received from a confidential informant, members of the Philippine Drug Enforcement Agency (PDEA) and the local police force of Burauen conducted a buy-bust operation against accused-appellant in his residence at Brgy. San Jose West, Burauen, Leyte. Upon their arrival at the target area, Intelligence Officer 1 (IO1) Leonardo Abalon, Jr., (IO1 Abalon) and the confidential informant entered the gate of accused-appellant's house and called out his name. Accused-appellant came out and uttered, "Kanina pa ako naghuhulat ha iyo, aadi na it kanan mil ("I have been waiting for you, here is the item worth one thousand"). Then, the accused-appellant handed over two plastic sachets containing white crystalline substance. Simultaneously, IO1 Abalon gave the marked money to the accused-appellant. After the transaction was consummated, IO1 Abalon and the confidential informant boarded a motorcycle and drove a distance away from accused-appellant's house. IO1 Abalon then made a call — the pre-arranged signal. Upon receiving the call, the PDEA agents and the local police rushed towards accused-appellant's house. 8
Alarmed with the arrival of the law enforcers, accused-appellant scampered inside his residence and locked himself in. This prompted the operatives to forcibly enter the house and arrest accused-appellant. In no time, IO1 Abalon marked the sachets as "MDP-1" and "MDP-2." 9 The operatives placed the seized items on a table and prepared the Certificate of Inventory. 10 After two hours, the representatives from the media, the Department of Justice (DOJ), and an elective official arrived and signed 11 the Certificate of Inventory. 12 Then, the seized items including the conduct of the inventory were photographed. 13 Subsequently, the seized items were brought to the Philippine National Police Regional Crime Laboratory for examination wherein their contents tested positive for methamphetamine hydrochloride or shabu, a dangerous drug. 14
In defense, accused-appellant denied the charge against him. He averred that at the time of the incident, he was merely resting in his house when the operatives suddenly entered his bedroom and arrested him. After which, the operatives extensively searched his house before the barangay chairman arrived. Accused-appellant denied having sold shabu to the operatives. 15
The RTC Ruling
In the Decision 16 dated September 20, 2016, the RTC found accused-appellant guilty beyond reasonable doubt of violation of Section 5, Article II of RA 9165 and sentenced him to suffer the penalty of life imprisonment and to pay a fine of P1,000,000.00. 17
The CA Ruling
In the assailed Decision, 18 the CA affirmed with modification the RTC ruling. It reduced the penalty of fine to P500,000.00. 19
Hence, the instant appeal.
Accused-appellant asserts that the testimonies of the prosecution witnesses were peppered with inconsistencies making them incredible; 20 that no buy-bust operation took place; that the buy-bust money never left the custody of IO1 Abalon; 21 that the chain of custody was broken from the start as the required witnesses were not present at the onset of the operation, especially during the marking and inventory of the seized items; and that the witnesses arrived an hour after the marking and inventory of the seized items and were merely asked to sign 22 the Certificate of Inventory. 23
On the other hand, the People, through the Office of the Solicitor General (OSG), reiterates that all the elements of Illegal Sale of Dangerous Drugs are present. 24 It argues that the testimonies of the prosecution witnesses are credible and sufficient proof of accused-appellant's guilt. 25
Issue
Whether the CA erred in affirming accused-appellant's conviction.
Our Ruling
The appeal is meritorious.
In cases of Illegal Sale of Dangerous Drugs under RA 9165, 26 it is essential that the identity of the dangerous drug be established with moral certainty, considering that the dangerous drug itself forms an integral part of the corpus delicti of the crime. 27 In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt. 28 Thus, 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 its presentation in court as evidence of the crime. 29
In People v. Sipin, 30 the Court reiterated the links that must be established in the chain of custody in a buy-bust operation, to wit: (1) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officers; (2) the turn-over of the illegal drug seized to the investigating officer; (3) the turn-over by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and (4) the turn-over and submission of the illegal drug from the forensic chemist to the court. 31
To ensure the establishment of the chain of custody, Section 21 (1), Article II of RA 9165 specifies that:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
On August 7, 2014, RA 10640 32 became effective amending RA 9165 as follows:
The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: x x x. (Emphasis supplied)
Moreover, RA 10640 directs that the inventory and photographing be done in the presence of the accused from whom the items were seized, or his representative or counsel, as well as certain required witnesses, namely: (a) if prior to the amendment of RA 9165 by RA 10640, a representative from the media and the DOJ, and any elected public official; 33 or (b) if after the amendment of RA 9165 by RA 10640, an elected public official and a representative of the National Prosecution Service (NPS) or the media. 34
In the instant case, the act was allegedly committed on July 24, 2013; thus, the three (3) witnesses required under RA 9165 must be present during the inventory and photographing of the seized items. It has already been settled that the procedure enshrined in Section 21, Article II of RA 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects. 35
Here, the buy-bust team also committed several procedural lapses in the conduct of the seizure, initial custody, marking, inventory, and handling of the seized items. The lapses created reasonable doubt as to the identity and integrity of the drugs; thus, the guilt of accused-appellant is doubtful. The required witnesses arrived at the scene of the inventory two hours after the actual marking and inventory of the seized items. The witnesses were called at the scene of the inventory to merely sign 36 the certificate of inventory. 37
Further, the prosecution failed to prove the insulating mechanism preserving the evidentiary value of the seized items from confiscation up to its presentation in the trial court for identification.
Section 21 of RA 9165 clearly requires the apprehending team to conduct a physical inventory of the seized items immediately after seizure and confiscation and that the inventory must be done in the presence not only of the accused or his representative or counsel, but also a representative of the DOJ, the media, and an elected public official, who shall be required to sign the copies of the inventory and be given a copy thereof.
In People v. Tomawis, 38 the Court emphasized:
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. And only if this is not practicable, the IRR allows that the inventory and photographing could be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the apprehending officer/team. By the same token, however, this also means that the three required witnesses should already be physically present at the time of apprehension — a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity. Simply put, the buy-bust team has enough time and opportunity to bring with them said witnesses. 39
xxx xxx xxx.
More importantly, there was no compliance with the three-witness rule. There were no witnesses from the DOJ or the media. Only two witnesses who were elected barangay officials were present. It thus becomes evident that the buy-bust team did not prepare or bring with them any of the required witnesses at or near the place of the buy-bust operation and the witnesses were a mere afterthought. Based on the testimonies of barangay councilors Burce and Gaffud, they were not present during the seizure of the drugs. They were only called to go to the barangay hall of Pinyahan, Quezon City — after the arrest and seizure that had been done in Starmall, Alabang — to "witness" the inventory made by the PDEA at the barangay hall. 40 (Emphasis supplied)
In the instant case, it was admitted by IO1 Abalon that the markings of the exhibits were done without the presence of the representatives from the DOJ and media, and an elected public official. 41 The required witnesses arrived only at around 6:00 or 7:00 p.m., or more than two hours from the time of confiscation and markings of the seized items. 42 The testimony of Serapio Tingzon (Tingzon), the representative of the DOJ, shows that he was merely summoned in his house in Baras, Palo, Leyte at around 6:00 p.m., to go to the place where accused-appellant was arrested. 43 Tingzon stated that when he arrived at the scene, the seized items were already sorted and placed on the table. 44 He was merely asked to sign the Certificate of Inventory 45 without being informed from whom the items were recovered. 46
Evidently, the required witnesses were not present at the time of the markings and actual inventory of the seized items. The DOJ representative disclosed that he was merely asked to sign the certificate of inventory after the seized items were already sorted and placed on the table. This is not what is contemplated under Section 21, Article II of RA 9165. What the operatives have done is clearly in contravention with the spirit and rationale behind the witness requirement rule. The rationale behind the presence of the witnesses is to insulate the whole operation and prevent any planting or contamination of evidence recovered from the accused.
In Tomawis, the Court explained:
The presence of the witnesses from the DOJ, media, and from public elective office is necessary to protect against the possibility of planting, contamination, or loss of the seized drug. Using the language of the Court in People v. Mendoza, without the insulating presence of the representative from the media or the DOJ and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA 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 subject sachet that was evidence of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused.
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. 47
Thus, the absence of the required witnesses at the time of marking is fatal to the prosecution's case as it violated Section 21, Article II of RA 9165. There is no doubt that the chain of custody was already broken at the outset of the operation. Undeniably, it is already futile to prove the other links in the chain of custody.
WHEREFORE, the appeal is GRANTED. The Decision dated December 14, 2017 of the Court of Appeals, Cebu City in CA-G.R. CR HC No. 02417 is REVERSED and SET ASIDE. Accused-appellant Melardo Del Pilar y Sosing alias "Melad" is hereby ACQUITTED of violation of Section 5, Article II of RA 9165.
The Superintendent of the Leyte Regional Prison, Abuyog, Leyte, is ORDERED to: (a) cause the immediate release of Melardo Del Pilar y Sosing alias "Melad" unless he is being held in custody for any other lawful reason; and (b) inform the Court of the action taken within five (5) days from receipt of this Resolution.
Let entry of judgment be issued.
SO ORDERED."
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 18-20.
2.Id. at 4-17; penned by Associate Justice Pamela Ann Abella Maxino with Associate Justices Geraldine C. Fiel-Macaraig and Louis P. Acosta, concurring.
3. Records, pp. 213-224; penned by Judge Tarcelo A. Sabarre, Jr.
4. Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.
xxx xxx xxx
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 June 7, 2002.
6. Records, p. 1.
7.Id. at 3.
8.Rollo, pp. 5-7.
9.Id. at 7.
10. Records, p. 26.
11.Id. at 7.
12.Id. at 26.
13.Rollo, p. 7.
14.Id. at 8.
15.Id.
16. Records, pp. 213-224.
17.Id. at 224.
18.Rollo, pp. 4-17.
19.Id. at 17.
20. CA rollo, p. 27.
21.Id. at 22-23.
22.Id. at 24-26.
23. Records, p. 26.
24. CA rollo, p. 42.
25.Id. at 43-45.
26. The elements of Illegal Sale of Dangerous Drugs under Section 5, Article II of RA 9165 are: (a) the identity of the buyer and the seller, the object, and the consideration; and (b) the delivery of the thing sold and the payment. (See People v. Santos, G.R. No. 243627, November 27, 2019 citing People v. Crispo, 828 Phil. 416 (2018); People v. Sanchez, 827 Phil. 457; People v. Magsano, 826 Phil. 947 (2018); People v. Manansala, 826 Phil. 578 (2018); People v. Miranda, 824 Phil. 1042 (2018); and People v. Mamangon, 824 Phil. 728 (2018).
27.See People v. Santos, supra.
28.People v. Malabanan, G.R. No. 241950, April 10, 2019 citing People v. Suan, 627 Phil. 174 (2010).
29.People v. Gamboa, G.R. No. 233702, June 20, 2018 citing People v. Viterbo, 739 Phil. 593 (2014).
30. 833 Phil. 67 (2018).
31.People v. Sipin, supra at 81.
32. "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.
33. Section 21 (1) and (2), Article II of RA 9165 and its implementing Rules and Regulations.
34. Section 21, Article II of RA 9165, as amended by RA 10640. See People v. Alconde, G.R. No. 238117, February 4, 2019.
35.Gamboa v. People, 799 Phil. 584, 597 (2016), citing People v. Umipang, 686 Phil. 1024 (2012).
36. TSN, March 18, 2015, pp. 8-9; TSN, February 5, 2015, p. 10.
37. Records, p. 26.
38. 830 Phil. 385 (2018).
39.People v. Tomawis, supra at 405.
40.People v. Tomawis, supra note 38 at 406.
41. TSN, February 5, 2015, pp. 9-10.
42. TSN, March 18, 2015, pp. 8-9, TSN, February 5, 2015, p. 10.
43. TSN, March 18, 2015, p. 9.
44.Id. at 12.
45. Records, p. 26.
46. TSN, March 18, 2015, pp. 12-14.
47.People v. Tomawis, supra note 38 at 408-409.