FIRST DIVISION
[G.R. No. 232296. March 18, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. VICTOR DIAZ y MURLA, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated March 18, 2021which reads as follows:
"G.R. No. 232296 (People of the Philippines, plaintiff-appellee v. Victor Diaz y Murla, accused-appellant). — This is an appeal 1 seeking to reverse and set aside the Decision 2 dated June 28, 2016 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 05669 affirming the Decision 3 of the Regional Trial Court (RTC) of Camiling, Tarlac, Branch 68 finding accused-appellant Victor Diaz y Murla (Diaz) guilty beyond reasonable doubt for violation of Sections 5 and 15, Article II of Republic Act No. (R.A.) 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."
On December 25, 2010, at around 5:40 a.m., a confidential informant arrived at the Camiling Police Station and informed PO1 Abel Corpuz (PO1 Corpuz) that Diaz is engaged in selling illegal drugs in his house at Cacamilingan Sur, Camiling, Tarlac. PO1 Corpuz relayed the information to his Chief of Police, who promptly conducted a briefing and formed a team for the buy-bust operation against Diaz. PO1 Corpuz was designated to act as a poseur-buyer while PO1 Daniel Suelen (PO3 Suelen) was assigned as the team leader and back-up. They agreed that PO3 Suelen will come in and assist in the arrest after PO1 Corpuz raises his right hand, their pre-arranged signal to signify the consummation of the sale of illegal drugs. 4
After the briefing, PO1 Corpuz, PO3 Suelen, and the confidential informant boarded two tricycles and proceeded to Cacamilingan Sur. At around 6:30 a.m., they saw Diaz standing outside his house. PO3 Suelen hid himself behind a pile of hollow blocks about five meters away from the house of Diaz. Meanwhile, PO1 Corpuz and the confidential informant approached Diaz. The confidential informant asked Diaz if he has "prutas," to which the latter responded by asking how much they were going to buy. Then, the confidential informant said that he wanted to purchase P1,000.00 worth of shabu. He handed Diaz the buy-bust money consisting of one P500.00-bill and five pieces P100.00-bills, the serial numbers of which were previously listed on a piece of paper. In turn, Diaz took out from his pocket a small plastic sachet containing white crystalline substance and handed it to PO1 Corpuz. Upon receipt of the small plastic sachet, PO1 Corpuz raised his right hand to signify consummation of the sale of shabu. PO3 Suelen rushed towards PO1 Corpuz and they immediately introduced themselves to Diaz as police officers. Diaz resisted and kicked PO1 Cruz on his right side. To prevent Diaz from escaping, PO1 Corpuz held Diaz' clothes while PO3 Suelen kicked him on the knee. After successfully arresting Diaz, PO1 Corpuz marked the plastic sachet with the initials of Diaz, "VMD." PO1 Corpuz and PO3 Suelen brought Diaz to the police station for investigation and for filing of the case. 5
At the police station, PO1 Corpuz prepared a Request for Laboratory Examination 6 and wrapped the sachet in a small plastic. 7 Thereafter, they brought the small plastic sachet marked "VMD" to PNP Tarlac Provincial Laboratory Office together with Diaz's urine specimen. PO1 Corpuz gave the small plastic sachet to PO3 Suelen, who handed the same to PSI Angelita Angel (PSI Angel). Per Chemistry Report No. D-120-10, 8 the small plastic sachet marked "VMD" tested positive for Methamphetamine Hydrochloride or shabu, a dangerous drug. 9 Chemistry Report No. CDT-131-10 10 states that Diaz's urine sample tested positive for tetrahydrocannabinol (THC) metabolites and negative for the presence of shabu. 11
Diaz interposed the defense of denial and frame-up.
Diaz testified that at about 5:00 to 5:30 a.m. of December 25, 2010, he was on his way to the store to buy bread when something hit him at the back. He turned around but he was kicked, causing him to fall on the ground. Two men grabbed him, knowing him to be selling shabu which Diaz denied. He was hit with the butt of a gun and suffered injuries on the left eye as a result. The two men dragged Diaz to a parked Revo and brought him to Salvador General Hospital where he was treated. Thereafter, the two men brought him to the police station where he learned the names of PO1 Corpuz and PO3 Suelen. A neighbor visited Diaz at the Camiling Police Station and took a photograph 12 of him using his cellphone. The photograph shows Diaz suffering an injury on his left eye. 13 Diaz also submitted a medical certificate 14 from Salvador General Hospital confirming that he was diagnosed on December 25, 2010 with "contusion hematoma lower eyelid left, abrasion both knee (secondary) to mauling incident." 15 Two cases for direct assault were filed against him, but was later acquitted. 16 Charges were filed against Diaz for violation of Sections 5 and 15, Article II of RA No. 9165, as follows:
Criminal Case No. 10-148
That on December 25, 2010, on or about 6:30 A.M. at Brgy. Cacamilingan Sur, in the Municipality of Camiling, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully and feloniously, sell and trade to another one (1) sachet of white crystalline substance containing a total weight of .01 gram known as Methamphetamine Hydrochloride, commonly known as "shabu," a dangerous drug, after confirmatory test, without being authorized by law.
CONTRARY TO LAW. 17
Criminal Case No. 10-147
That on December 25, 2010, at on or about 6:30 A.M. at Brgy. Cacamilingan Sur, in the Municipality of Camiling, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully and feloniously, use Methamphetamine Hydrochloride, commonly known n as "SHABU," a dangerous drug, who was found positive of the said drug after confirmatory test.
CONTRARY TO LAW. 18
Diaz pleaded not guilty for both charges. 19 Trial on the merits ensued.
Ruling of the Regional Trial Court
On June 26, 2012, the RTC rendered its Decision, 20 the dispositive portion of which reads:
WHEREFORE, premises considered, accused Victor Diaz y Murla is hereby found guilty beyond reasonable doubt for violation of Section 5, Article II of RA No. 9165 (illegal sale of shabu) and Section 15, Article II of the same Act (illegal use of prohibited drug) and hereby sentences him to a penalty of life imprisonment and a Fine of Php500,000.00 in Criminal Case No. 10-148 (illegal sale of shabu) and six (6) months drug rehabilitation in a government drug rehabilitation center in Criminal Case No. 10-147 (illegal use of prohibited drug).
The OIC Branch Clerk of Court of this Court is hereby ordered to forward the subject substance to the PDEA for their proper disposal.
SO ORDERED. 21
In convicting Diaz, the RTC held that the prosecution was able to establish the elements of illegal sale of shabu: (1) that in a buy-bust operation, Diaz was the seller and PO1 Corpuz was the poseur-buyer; and (2) Diaz handed PO1 Corpuz the plastic sachet containing 0.01 gram of shabu after he received the P1,000.00 buy-bust money. The RTC gave credence to the testimonies of PO1 Corpuz and PO3 Suelen in light of the absence of their ill-motives in testifying falsely against the accused. Further, the chain of custody appears not to be broken given that PO1 Corpuz immediately marked the plastic sachet received from Diaz before it was turned over to PO3 Suelen and then to PSI Angel of the PNP Tarlac Provincial Laboratory Office. The RTC ruled that the failure to strictly comply with Section 21 of R.A. 9165 is excused by the fact that Diaz resisted his arrest and became defiant and noisy. Nonetheless, the integrity and evidentiary value of the plastic sachet containing shabu was preserved. Diaz was likewise found guilty of violating Section 15 of R.A. 9165. Chemistry Report No. CDT-131-10, conducted in conformity with the provisions of R.A. 9165, shows positive result for use of illegal drugs. 22
Aggrieved, Diaz appealed to the CA.
Diaz argued that the rampant irregularities committed by the arresting officers render doubtful the validity of the buy-bust operation. First, there was no coordination with the Philippine Drug Enforcement Agency (PDEA). Second, there was no inventory receipt nor photographs presented to the court. Third, PO3 Suelen admitted that there were no witnesses called to attest to the inventory. Fourth, PSI Angel failed to show the manner in which the seized item was transferred and handled in his possession until its turnover to the court. Diaz averred that his claim of frame-up and physical injuries suffered from the arresting officers is supported by the medical certificate and photographs taken after his arrest and during detention. 23
The Office of the Solicitor General (OSG) asserted that all the elements of illegal sale of shabu were present. The OSG stressed that Diaz was caught in a buy-bust operation selling one heat-sealed plastic sachet of shabu to poseur-buyer PO1 Corpuz and a confidential agent. Moreover, the OSG highlighted that the testimonies of PO1 Corpuz, PO3 Suelen, and PSI Angel illustrate how the custodial link between the moment of seizure until the presentation of the evidence in court has remained unbroken and intact despite non-compliance with Section 21 of R.A. 9165. Lastly, failure to coordinate with the PDEA is not fatal to the case because neither Section 86 of R.A. 9165 nor its Implementing Rules and Regulations (IRR) make the participation of PDEA a condition sine qua non for the conduct of a buy-bust operation. 24
Ruling of the Court of Appeals
On June 28, 2016, the CA dismissed the appeal for lack of merit. The CA explained that the testimony of PO1 Corpuz, the poseur-buyer in the buy-bust operation, clearly recounts how the sale transaction took place between Diaz and the confidential agent and PO1 Corpuz. The CA finds no reason to disagree with the RTC in giving credence to the testimonies of PO1 Corpuz and PO3 Suelen. The CA also held that there was substantial compliance with Section 21 of R.A. 9165 and it was shown that the integrity and evidentiary value of the seized item had been preserved. On the contrary, no clear and convincing evidence was presented by Diaz to support his defense of denial and frame-up. 25 The CA disposed the case as follows:
WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court in Camiling, Tarlac, Branch 68 (RTC) in Criminal Case Nos. 10-147 & 148 is AFFIRMED.
In Criminal Case No. 10-148, accused-appellant Victor Diaz y Murla is found guilty beyond reasonable doubt of the crime of illegal sale of Methamphetamine Hydrochloride, otherwise known as "shabu" in violation of Section 5, Article II of R.A. No. 9165, otherwise known as The Comprehensive Dangerous Drugs Act of 2002 and sentenced to suffer the penalty of life imprisonment without eligibility for parole and a fine of Five Hundred Thousand Pesos (P500,000.00).
In Criminal Case No. 10-147, accused-appellant Victor Diaz y Murla is found guilty beyond reasonable doubt of the crime of use of dangerous drugs in violation of Section 15, Article II of R.A. No. 9165 and sentenced to suffer the penalty of six (6) months rehabilitation in a government center, subject to the provisions of Article VIII of the same Act.
SO ORDERED. 26
Diaz filed an appeal. 27 The parties adopted their respective Appellant's and Appellee's Briefs filed before the CA as their supplemental briefs before the Court. 28
Ruling of the Court
The Court finds the appeal to be impressed with merit.
The criminal liability of Diaz under the charges of illegal sale and use of dangerous drugs defined under Sections 5 and 15 of R.A. 9165 are discussed separately.
I.
In Criminal Case No. 10-148, Diaz was found guilty by the lower courts of illegal sale of dangerous drugs defined and punished under the first paragraph of Section 5, Article II of R.A. 9165.
In prosecuting this charge, 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. 29 R.A. 9165 provides reasonable safeguards to preserve the identity and integrity of narcotic substances and dangerous drugs seized and/or recovered from drug offenders. 30 Section 21, Article II of the IRR of R.A. 9165 clearly outlines the post-seizure procedure in taking custody of seized drugs. Proper procedures to account for each specimen by tracking its handling and storage from point of seizure to presentation of the evidence in court and its final disposal must be observed. Strict compliance with the chain of custody rule is essential in order for the prosecution to establish the guilt of the accused beyond reasonable doubt. Immediately after seizure and confiscation, the apprehending team is required to conduct a physical inventory and to photograph the seized items in the presence of the accused or the person 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 R.A. 9165 by R.A. 10640 approved on July 23, 2014, a representative from the media and the Department of Justice (DOJ), and any elected public official; or (b) if after the amendment of R.A. 9165 by R.A. 10640, which became effective on August 7, 2014, an elected public official and a representative of the National Prosecution Service or the media. 31
The Court, however, clarified that under varied field conditions, strict compliance with the requirements of Section 21, Article II of R.A. 9165 may not always be possible. The IRR of R.A. 9165 — which is now adopted in the text of R.A. 10640 — provide that failure of the apprehending team to strictly comply with the procedure laid out in Section 21 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.
As culled from the records of this case, the Confiscation Receipt 32 was prepared by PO3 Suelen at the police station. 33 The Court agrees with the lower courts in ruling that the failure of the apprehending team to immediately conduct the inventory at the place of arrest is justified because Diaz resisted, and became defiant and noisy. Furthermore, the circumstances of this case excuse the absence of the required witnesses during the inventory. Since the offense subject of this appeal was committed before the amendment introduced by R.A. 10640, the witnesses required are: (1) a representative from the media; (2) a representative from the DOJ; and (3) any elected public official. The records show that none of these required witnesses signed the Confiscation Receipt, 34 with PO3 Suelen explaining that the barangay captain refused to sign. 35 The Court, however, recognizes that the buy-bust operation transpired early in the morning of December 25, 2010, Christmas day, when it is difficult to secure the presence of the three required witnesses. To recapitulate, the buy-bust operation commenced around 5:40 a.m. upon receipt of the confidential information and concluded when Diaz was arrested at 6:30 a.m. Within 40 minutes from the receipt of the confidential information until the arrest, the witnesses cannot be expected to be readily available early morning of Christmas day and upon short notice.
This circumstance, however, does not justify the absence of photographs during the inventory. PO1 Corpuz' explanation that there was no camera available is unacceptable. As law enforcers who enjoy the presumption of regularity in the performance of their duties, the apprehending officers must know the step-by-step process under R.A. 9165 and expected to properly implement it at any applicable time. The camera must be readily available in order to comply with the law. Besides, PO1 Corpuz and PO3 Suelen had been briefed by their Chief of Police before the buy-bust operation which would reasonably include a run-through of the procedures outlined in the law for the handling of the seized drugs. 36
This Court also notes that only the marking "VMD" was placed on the plastic sachet. 37 Without the details as to the date, time and place where the evidence was found/recovered, 38 there is no way to differentiate the items similarly marked "VMD" seized from different offenders with the same initials. Emphasis should be given to the fact that the shabu allegedly sold by Diaz weighs only 0.01 gram. The miniscule amount involved in this case highlights the need for more exacting compliance with Section 21, 39 except for the justified absence of the required witnesses as already explained above. The likelihood of tampering, loss or mistake with respect to an exhibit is greatest, as in this case, when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. 40
Furthermore, PSI Angel's testimony lacks the following precautionary steps to safeguard the identity and integrity of the specimen: (1) that he received the seized article as marked, properly sealed and intact; (2) that he resealed it after examination of the content; (3) the place where the specimen was kept after the qualitative examination until presentation to the court; and (4) the possibility of other people having access to the specimen.
Aside from the doubt rendered by the failure to comply with the requirements under Section 21 of R.A. 9165, the occurrence of the buy-bust operation is made even more questionable by Diaz' unrebutted imputation of frame-up. His allegation of physical injuries sustained from PO1 Corpuz and PO3 Suelen is supported by the photograph 41 and medical certificate 42 submitted in evidence by the defense showing that Diaz was treated on December 25, 2010 for contusion and abrasion. 43 PO1 Corpuz also admitted that he used force in arresting Diaz by hitting his legs and pinning him down on the ground. 44 However, the medical certificate and the photograph of Diaz showed injuries on his face, consistent with his averment that his face was hit with the butt of the arresting officers' gun. Additionally, Diaz was acquitted of the two counts of direct assault filed against him. 45 He has also filed before the Ombudsman a case against the arresting officers in relation to this alleged mauling. 46
All told, due to the utter failure to comply with the strict requirements of the law on chain of custody and the doubtful occurrence of the buy-bust operation, there is no reasonable certainty that the shabu that was offered in court as evidence is the same shabu that was allegedly seized from the accused. The corpus delicti was not proven with certainty. Hence, the prosecution failed to overcome the constitutional right of the accused to be presumed innocent of the crime charged. The Court has no moral certainty to pronounce the guilt of Diaz for illegal sale of shabu.
On this note, law enforcement agencies should continually be reminded that the ultimate success of the buy-bust operation rests on being able to establish with moral certainty that the illegal drugs seized from the accused during buy-bust operation are the very same items presented to the court. The need to comply with the strict requirements of Section 21 and prove each link in the chain of custody serves a vital purpose: to show that the buy-bust operation is not merely a sham and that the arresting officer/team's handling of the illegal drug seized protects the accused against any possibility of planting, contamination, switching, or loss of the seized drug.
II.
In Criminal Case No. 10-147, Diaz stood charged for illegal use of dangerous drugs, defined and penalized under Section 15, Article II of R.A. No. 9165, which provides:
Section 15. Use of Dangerous Drugs. — A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.
The procedure for laboratory examination or test is outlined in Section 38 of R.A. 9165, which reads:
Section 38. Laboratory Examination or Test on Apprehended/Arrested Offenders. — Subject to Section 15 of this Act, any person apprehended or arrested for violating the provisions of this Act shall be subjected to screening laboratory examination or test within twenty-four (24) hours, if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on account of physical signs or symptoms or other visible or outward manifestation, is under the influence of dangerous drugs. If found to be positive, the results of the screening laboratory examination or test shall be challenged within fifteen (15) days after receipt of the result through a confirmatory test conducted in any accredited analytical laboratory equipment with a gas chromatograph/mass spectrometry equipment or some such modern and accepted method, if confirmed the same shall be prima facie evidence that such person has used dangerous drugs, which is without prejudice for the prosecution for other violations of the provisions of this Act: Provided, That a positive screening laboratory test must be confirmed for it to be valid in a court of law.
For having been apprehended for illegal sale of shabu, a drug related crime, Diaz's urine sample was subjected to a drug test. Per Chemistry Report No. CDT-131-10, 47 screening and confirmatory tests conducted on his urine sample gave "POSITIVE result for the presence of Tetrahydrocannabinol (THC) metabolites and NEGATIVE result for the presence of Methamphetamine, both dangerous drugs." 48 The same Chemistry report also contains a remark stating that "this examination result was based on the condition of the subject at the time of examination. Specimen that is NEGATIVE to the screening test is no longer subjected to confirmatory test." 49
Diaz was, however, improperly charged 50 for use of Methamphetamine Hydrochloride or "shabu," which he tested negative. Diaz was found positive only for THC metabolites. 51 Per examiner's remarks quoted above, no confirmatory test was done for the use of shabu since the screening test yielded negative result. R.A. 9165 requires two distinct drug tests: a screening test and a confirmatory test. 52 Therefore, accused cannot be convicted of illegal use of shabu and should be acquitted.
WHEREFORE, the instant appeal is GRANTED. The Decision dated June 28, 2016 of the Court of Appeals in CA-G.R. CR-HC No. 05669 is REVERSED and SET ASIDE. The accused Victor Diaz y Murla is hereby ACQUITTED:
(1) in Criminal Case No. 10-148 for violation of Section 5, Article II of Republic Act No. 9165; and
(2) in Criminal Case No. 10-147 for violation of Section 15, Article II of Republic Act No. 9165.
Accused-appellant Victor Diaz y Murla is ORDERED to be IMMEDIATELY RELEASED from custody, unless he is being held for another lawful cause.
Let a copy of this Resolution be furnished to the Director General of the Bureau of Corrections, Muntinlupa City for immediate implementation, who is then also DIRECTED to report to this Court the action he has taken within five (5) days from receipt of this Resolution.
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, p. 19.
2. Penned by Associate Justice Myra V. Garcia-Fernandez with the concurrence of Associate Justices Priscilla J. Baltazar-Padilla (former Member of this Court) and Socorro B. Inting; id. at 2-17.
3. Penned by Presiding Judge Jose S. Vallo; CA rollo, pp. 45-54.
4. TSN dated April 7, 2011, pp. 3-6.
5.Id. at 7-12; TSN dated November 8, 2011, pp. 3-7.
6. Records (Crim. Case No. 10-148), pp. 38-39.
7. TSN dated April 7, 2011, p. 10.
8. Records (Crim. Case No. 10-147), p. 4.
9.Id.
10.Id. at 5.
11.Id.
12.Id. at 72.
13.Id.
14.Id. at 71.
15.Id.
16. TSN dated March 8, 2012, p. 9.
17. Records (Crim. Case No. 10-148), p. 1.
18. Records (Crim. Case No. 10-147), p. 1.
19.Id. at 15; records (Crim. Case No. 10-148), p. 16.
20.Supra note 3.
21. CA rollo, pp. 53-54.
22.Id. at 48-53.
23.Id. at 32-42.
24.Id. at 65-93.
25.Rollo, pp. 8-16.
26.Id. at 16-17.
27.Id. at 19.
28.Id. at 28-30 and 60-63.
29.People v. Malabanan, G.R. No. 241950, April 10, 2019, citing People v. Suan, 627 Phil. 174, 188 (2010).
30.Cariño v. People, 600 Phil. 433, 448 (2009).
31.Dimaala v. People, G.R. No. 242315, July 3, 2019.
32. Records (Crim. Case No. 10-147), p. 56.
33. TSN dated April 7, 2011, p. 15.
34. Records (Crim. Case No. 10-147), p. 56.
35. TSN dated January 10, 2012, p. 16.
36.People v. Miranda, 788 Phil. 657, 669 (2016).
37. TSN dated April 7, 2011, p. 10.
38. The Philippine National Police Manual PNPM-D-0-2-14 (DO) states: "2.35 The Seizing Officer must mark the evidence with his initials indicating therein the date, time and place where the evidence was found/recovered or seized."
39.People v. Holgado, 741 Phil. 78, 99 (2014).
40.Id., citing Mallillin v. People, 576 Phil. 576, 588 (2008).
41. Records (Crim. Case No. 10-147), p. 72.
42.Id. at 71.
43.Id.
44. TSN dated November 8, 2011, pp. 10-12.
45. TSN dated March 8, 2012, p. 9.
46. TSN dated March 8, 2012, pp. 11-12.
47. Records (Crim. Case No. 10-147), p. 4.
48.Id.
49.Id.
50.Id. at 1.
51.Id. at 4.
52.People v. Peter Lopez y Canlas, G.R. No. 247974, July 13, 2020.
n Note from the Publisher: Written as "own" in the official document.