FIRST DIVISION
[G.R. No. 245254. September 29, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. LARRY GA y LIQUIDO, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated September 29, 2021which reads as follows:
"G.R. No. 245254 (People of the Philippines v. Larry Ga y Liquido). — Larry Ga (Larry) a.k.a. "Dodong" was charged with Illegal Sale of Dangerous Drug before the Regional Trial Court, thus:
That on or about the 23rd day of May 2017 in Quezon City, Philippines, said accused, without lawful authority, did then and there willfully and unlawfully sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport or act as broker in said transaction, a dangerous drug, to wit: One (1) heat-sealed transparent plastic sachet with marking "LC-LG 5-23-17" containing zero point zero nine (0.09) gram of white crystalline substance containing METHAMPHETAMINE HYDROCHLORIDE, a dangerous drug.
CONTRARY TO LAW. 1
Larry pleaded not guilty. Trial then ensued. The prosecution presented PO1 Lhyndle Kate Calimag (PO1 Calimag) who testified that on May 23, 2017 at around 3:00 p.m., a confidential informant came to the police station and informed Police Chief Inspector Ruel Yepes (PCI Yepes) about Larry's illegal drug activities along Kalayaan Avenue, Barangay Central, Quezon City. Acting on the information, PCI Yepes planned a buy-bust operation where PO1 Calimag and PO1 Christian Mark Santiago (PO1 Santiago) were designated as poseur-buyer and immediate back-up, respectively. The team prepared buy-bust money consisting of two (2) P100.00 bills bearing serial numbers Z477192 and CB698192, which PO1 Calimag both initialed with "LKC." About 7:45 p.m., the buy-bust team and the informant proceeded to Barangay Central, Quezon City. Thereat, PO1 Calimag and the informant alighted from the vehicle and walked along No. 88 Kalayaan Avenue to meet Larry.
Thereafter, the informant introduced PO1 Calimag to Larry as the buyer of shabu. Larry asked PO1 Calimag "Magkano kunin mo[,] ganda?" PO1 Calimag replied "Dos lang[,] Tay." Larry then took one small heat-sealed transparent plastic sachet containing white crystalline substance and handed it to PO1 Calimag with his right hand. In exchange, PCI Calimag took the buy-bust money from her left pocket and gave it to Larry. PO1 Calimag scratched her head which served as the pre-arranged signal that the sale has been consummated. PO1 Santiago rushed to the scene and arrested Larry. Meanwhile, rain poured at the place of arrest. The arresting officers called PCI Yepes and informed him that they cannot perform the marking because of the rain. Thus, PCI Yepes advised the officers to bring Larry and the seized evidence to the police station. At the station, the police officers contacted Jonathan Rivera from the QCPD Press Corps to witness the marking and inventory. Also, PO1 Calimag contacted Barangay Central Executive Officer Juan Carlos San Pascual (San Pascual) and requested for the presence of elected barangay official. Yet, San Pascual replied that there is no one available at that time. PCI Yepes contacted the Department of Justice (DOJ) but no one replied. Accordingly, PO1 Calimag marked the seized sachet and conducted physical inventory and photograph together with PO1 Santiago in the presence of Larry and the media representative. PO1 Calimag endorsed the seized item to the duty investigator, PO2 John Jayson V. Abad, who, in turn, submitted the evidence to QCPD Crime Laboratory Office for examination. At the crime laboratory, PCINSP Rhea Fe Dela Cruz-Alviar (PCINSP Alviar) received and examined the specimen which yielded positive result for the presence of methamphetamine hydrochloride. Later, PCINSP Alviar retrieved the specimen from the evidence custodian and presented it to the trial court.
Larry denied the accusation and claimed that on May 23, 2017, he was in his house, together with his wife, at 88 Kalayaan Avenue, Barangay Central, Quezon City. Around 3:00 p.m., Larry was repairing his DVD player when police officers barged into his house and handcuffed him. The officers brought Larry to the police station and instructed him to proceed in a room where he stayed for seven (7) hours. Afterwards, Larry underwent medical examination and was detained.
On September 19, 2017, the RTC found Larry guilty and ruled that the prosecution established all the elements of Illegal Sale of Dangerous Drug, 2 to wit:
WHEREFORE, x x x judgment is hereby rendered finding accused LARRY GAy LIQUIDO guilty beyond reasonable doubt of the offense of violation of Section 5, Article II, of Republic Act No. 9165 x x x, is hereby sentenced to LIFE IMPRISONMENT and to pay a FINE of FIVE HUNDRED THOUSAND PESOS (P500,000.00).
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SO ORDERED.
Aggrieved, Larry elevated the case to the Court of Appeals (CA) docketed as CA-G.R. CR-HC No. 09835. 3 Larry argued that the prosecution failed to prove the integrity and identity of the confiscated drug because of the police officers' non-compliance with the chain of custody requirement. Larry pointed out that the seized sachet was not immediately marked at the place of arrest, the inventory was not done in the presence of an elected official and a representative from the National Prosecution Service, and the forensic chemist failed to testify on how she handled the specimen following the chemical analysis and prior to its presentation in court. On September 21, 2018, the CA affirmed the RTC's findings, viz.:
Jurisprudence has it that non-compliance with procedures laid down by Section 21 of R.A. 9165 does not render void the seizures and custody of drugs in a buy-bust operation. It bears underscoring that law and its implementing rules in fact are silent on the matter of the marking of the seized items. Consistency with the "chain of custody" rule however requires that the marking should be done (1) in the presence of the apprehended violator and (2) immediately upon confiscation. These requirements were complied with the marking of the seized items in accused-appellant Ga's presence at the police station. It must be noted that the inventory of the seized item was conducted not at the place of arrest because it was raining at that time. It bears emphasis also that marking upon immediate confiscation has been interpreted to include marking at the nearest police station, or the office of the apprehending team. The chain of custody requirement ensures the preservation of the integrity and evidentiary value of the seized items in order to remove unnecessary doubts concerning the identity of the evidence. The prosecution was able to prove an unbroken chain of custody of the illegal drugs from their seizure, marking, photographing, inventory to their submission to the PNP Crime Laboratory for analysis, to the identification of the same during the trial of the case. As long as the chain of custody is unbroken, the guilt of the appellant will not be affected.
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Next, there is no dispute that the seized shabu was marked, inventoried, and photographed in the presence of accused-appellant Ga. However, accused-appellant Ga claims that the absence of representatives from the Department of Justice (DOJ) and an elective government official during the conduct of the inventory and taking of photograph is fatal to the prosecution's cause.
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Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. x x x In the case under consideration, We find that the integrity and the evidentiary value of the shabu involved was safeguarded. The seized shabu was immediately marked for proper identification. Thereafter, the same was forwarded to the Crime Laboratory for examination. CAIHTE
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WHEREFORE, premises considered, the instant appeal is hereby DENIED. The September 19, 2017 Judgment of the Regional Trial Court (RTC), Branch 98 of Quezon City, is hereby AFFIRMED in toto.
SO ORDERED. 4 (Emphases in the original)
Hence, this recourse. The parties opted not to file supplemental briefs considering that all issues have already been exhaustively discussed in their pleadings before the CA. Thus, Larry insists that he is entitled to an acquittal because the prosecution failed to prove the elements of Illegal Possession of Dangerous Drug and the buy-bust team's faithful compliance with the chain of custody.
We acquit.
In Illegal Sale of Dangerous Drug, the contraband itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. 5 Thus, it is essential to ensure that the substance recovered from the accused is the same substance offered in court. 6 The prosecution must satisfactorily establish the movement and custody of the seized drug through the following links: (1) the confiscation and marking of the specimen seized from the accused by the apprehending officer; (2) the turnover of the seized item by the apprehending officer to the investigating officer; (3) the investigating officer's turnover of the specimen to the forensic chemist for examination; and, (4) the submission of the item by the forensic chemist to the court. 7 Here, the records reveal a broken chain of custody.
The starting point in the custodial link is the marking which is the placing by the arresting officer or the poseur-buyer of his/her initials and signature on the items after they have been seized. 8 The Court has held that the marking must be made immediately upon confiscation and in the presence of the apprehended violator, as succeeding handlers of the seized specimens will use such markings as reference. 9 Marking is the first in the chain of custody's interconnected links; hence, the failure of the authorities to immediately mark the seized drugs would cast reasonable doubt on the authenticity of the corpus delicti. 10 The Court emphasized the importance of the immediate marking upon confiscation of the seized items in the preservation of their integrity and evidentiary value, as well as the rationale therefor, thus:
The importance of the prompt marking cannot be denied, because succeeding handlers of dangerous drugs or related items will use the marking as reference. Also, the marking operates to set apart as evidence the dangerous drugs or related items from other material from the moment they are confiscated until they are disposed of at the close of the criminal proceedings, thereby forestalling switching, planting or contamination of evidence. In short, the marking immediately upon confiscation or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value. 11 (Emphases in the original.)
In this case, PO1 Calimag did not mark the sachet immediately after seizure at the place of confiscation. Instead, the marking was deferred to a later time at the police station. 12 The buy-bust team decided to bring the seized item to the police station where the marking was conducted because of the inclement weather. Nonetheless, it was not established that the rain made it impossible for the buy-bust team to mark the item at the scene of the crime. Also, the seized drug has a miniscule weight of 0.09 gram and it will not take a minute to mark it in the presence of the suspect at the place of confiscation. The travel to the police station may likewise compromise the identity and integrity of the confiscated evidence. On this point, the Court reiterates that the procedures on the required marking can easily be complied with considering that a buy-bust operation is, by its nature, a planned activity. The police officers are ordinarily given sufficient time — beginning from the moment they have received the information about the activities of the accused until the time of his arrest — to make the necessary arrangements. 13
Moreover, the absence of the required witnesses during the physical inventory and photograph of the confiscated item puts serious doubt as to the integrity of the first link. 14 Notably, the offense was allegedly committed on May 23, 2017. Hence, the applicable law is Republic Act (RA) No. 9165, as amended by Republic Act (RA) No. 10640, which now mandated that the conduct of physical inventory and photograph of the seized item must be in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, (2) with an elected public official, and (3) a representative of the National Prosecution Service or the media who shall sign the copies of the inventory and be given a copy thereof. The Court had ruled that in case the presence of any or all the insulating witnesses was not obtained, the prosecution must allege and prove not only the reasons for their absence, but also the fact that earnest efforts were made to secure their attendance. A sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse. 15
Admittedly, only a media representative witnessed the inventory and photograph of the evidence. The police officers did not secure the presence of an elected public official. PO1 Calimag explained that the buy-bust team called the barangay but no one was available at that time. Yet, we find this reason as a flimsy excuse which reflects the arresting officers' nonchalant attitude toward their duty to strictly comply with the chain of custody rule. To be sure, there is no indication in PO1 Calimag's testimony that the arresting officers exerted genuine efforts to secure the presence of an elected public official, thus:
Q: Aside from [Jonathan Rivera], am I correct to say that he is the only witness that you have during the inventory?
A: Yes, ma'am.
Q: So, there is no DOJ representative or elected official during the inventory?
A: Yes, ma'am.
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Q: You said in your affidavit that you personally called Barangay Ex-O Juan Carlo San Pascual x x x?
A: Yes, ma'am.
Q: And you also said in your affidavit that the barangay ex-o adverted there was no available barangay official at that time?
A: Yes, ma'am.
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Q: Am I also correct to say that your team did not state in your affidavit that anyone of you even tried to call any elected barangay official?
A: Yes, ma'am. 16
Similarly, the parties stipulated that PCINSP Alviar retrieved the specimen from the evidence custodian and presented it to the trial court. However, the evidence custodian was not named by PCINSP Alviar and presented as a witness to testify on how he or she safeguarded the specimen from the time it was handed to him or her until it was eventually presented in court as evidence. Taken together, the operatives failed to provide any justification showing that the integrity of the evidence had all along been preserved. The police officers did not describe the precautions taken to ensure that there had been no change in the condition of the seized item and no opportunity for someone not in the chain to have possession of the same.
Lastly, it must be stressed that while the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent. The presumption of regularity is disputable and cannot be regarded as binding truth. 17 Indeed, when the performance of duty is tainted with irregularities, such presumption is effectively destroyed. 18 We reiterate that the provisions of Section 21 of RA No. 9165 embody the constitutional aim to prevent the imprisonment of an innocent man. The Court cannot tolerate the lax approach of law enforcers in handling the very corpus delicti of the crime. Hence, the accused-appellant must be acquitted of the charge against him given the prosecution's failure to prove an unbroken chain of custody.
FOR THESE REASONS, the petition is GRANTED. The Court of Appeals' Decision dated September 21, 2018 in CA-G.R. CR-HC No. 09835 is REVERSED. Larry Ga y Liquido is ACQUITTED and is ORDERED IMMEDIATELY RELEASED from detention, unless he is being lawfully held for another cause. Let entry of judgment be issued immediately.
Let a copy of this Resolution be furnished to the Director General of the Bureau of Corrections, Muntinlupa City for immediate implementation. The Director General is directed to report to this Court the action taken within five days from receipt of this Resolution. DETACa
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. Records, p. 1.
2. Records, pp. 69-78.
3.Rollo, pp. 3-18. Penned by Associate Justice Stephen C. Cruz, with the concurrence of Associate Justice Zenaida T. Galapate-Laguilles and Maria Filomena D. Singh.
4.Id.
5.People v. Quijano, G.R. No. 247558, February 19, 2020; People v. De Guzman, 825 Phil. 43, 54 (2018); People v. Que, 824 Phil. 882, 893 (2018); People v. Ismael, 806 Phil. 21, 29 (2017); People v. Morales, 630 Phil. 215, 225 (2010).
6.People v. Ismael, 806 Phil., supra note 5; People v. Ordinario, G.R. No. 251436, March 1, 2021; and People v. Catipan, G.R. No. 252691, June 14, 2021.
7.People v. Bugtong, 826 Phil. 628, 638-639 (2018); and People v. Ferma, Jr., G.R. No. 249259, January 13, 2021.
8.People v. Paz, G.R. No. 233466, August 7, 2019.
9.People v. Sabdula, 733 Phil. 85, 95 (2014); People v. Lumaya, 827 Phil. 473, 489-490 (2018); People v. Ismael, 806 Phil. 21, 31 (2017).
10.People v. Dahil, 750 Phil. 212, 226 (2014).
11.People v. Lumaya, 827 Phil., supra note 9.
12.People v. Siapno, G.R. No. 218395 (Notice), November 3, 2020.
13.People v. Manabat, G.R. No. 242947, July 17, 2019.
14.People v. Crisostomo, G.R. No. 252488, May 12, 2021; and People v. Escaran, G.R. No. 212170, June 19, 2019.
15.People v. Lim, G.R. No. 231989, September 4, 2018.
16. TSN dated August 1, 2017, pp. 18-19.
17.People v. Cañete, 433 Phil. 781, 794 (2002); and Lopez v. People, 576 Phil. 576, 593 (2008).
18.People v. Dela Cruz, 589 Phil. 259, 272 (2008).