People v. Gacayan

FIRST DIVISION

[G.R. No. 251750. March 18, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. ANDREW JAY GACAYAN @ "PILO", 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. 251750 (People of the Philippines v. Andrew Jay Gacayan @ "Pilo"). — This is an ordinary appeal 1 filed by accused-appellant Andrew Jay Gacayan (Gacayan) assailing the Decision 2 dated March 27, 2019 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 10454. The CA affirmed the Decision 3 dated November 9, 2017 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66, finding Gacayan guilty beyond reasonable doubt of illegal sale of dangerous drugs in violation of Section 5, Article II of Republic Act No. (R.A.) 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," as amended.

The Information filed with the RTC reads:

That on or about the 11th day of July, 2016, in the Municipality of San Gabriel, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully, feloniously and knowingly sell and deliver two (2) bricks of marijuana wrapped in packaging tape, a dangerous drug, with a total weight of TWO THOUSAND EIGHT HUNDRED THIRTY SEVEN (2,837) grams to Agent Francis L. Lomas-e of the Philippine Drug Enforcement Agency (PDEA) Regional Office No. 1, Carlatan, San Fernando City, La Union, who posed as buyer thereof and used marked money of one (1) piece genuine P500.00 peso bill with serial number DM783793 and boodle money amounting to P9,500.00 without the necessary permit or authority from the proper government authorities.

CONTRARY TO LAW. 4

Gacayan pleaded not guilty to the offense charged. During the pre-trial conference, the prosecution and the defense stipulated only on the identity of the accused. 5

Version of the Prosecution

The prosecution presented five witnesses, namely: Philippine Drug Enforcement Agency (PDEA) agents Francis Lomas-e (Lomas-e) and Job Gironella (Gironella), forensic chemist Mary Ann Siano (Siano), evidence custodian Jeffrey Buena (Buena), and media representative Nestor Ducusin (Ducusin). 6

The PDEA agents testified that on July 11, 2016 at around 11:00 o'clock in the morning, a confidential informant (CI) informed them about the illegal drug trade activities of a certain "Pilo" of San Gabriel, La Union. The CI stated that Pilo is looking for a potential buyer of three kilos of marijuana. 7 Lomas-e checked the veracity of the information by looking into the messages in the cellular phone of the CI. After verification, Lomas-e informed Agent Dexter Asayco (Asayco), the team leader of Regional Operating Special Enforcement Unit, about Pilo. Asayco instructed Lomas-e to continue the transaction with Pilo. Using the cellular phone of the CI, Lomas-e and Pilo came into an agreement for the sale of three kilos of marijuana for the amount of P10,000.00 at 5:00 p.m. of the same day at the mini dam located at Sitio Kilat, Barangay Bumbuneg, San Gabriel, La Union. Thereafter, Asayco conducted a briefing for the buy-bust operation against Pilo where Lomas-e was designated as the poseur-buyer while Gironella was assigned as the arresting officer. Lomas-e was given a one piece genuine P500.00-bill and boodle money amounting to P9,500.00. 8

At around 4:30 p.m., the team proceeded to the target area using an unmarked PDEA vehicle. However, Lomas-e received a call from Pilo directing him to meet instead at Sitio Bessang, Barangay Bumbuneg, San Gabriel, La Union. Pilo advised Lomas-e that he will be using a blue euro motorcycle and will be wearing a bullcap. Upon arrival at Sitio Bessang, Lomas-e and Gironella waited for Pilo at the side of the road while the rest of the buy-bust team positioned themselves strategically. After a few minutes, a male wearing a cap and boarding a blue euro motorcycle arrived. Since the male matched the description given by Pilo, Lomas-e raised his right hand and when Pilo saw this, he made a U-turn and approached Lomas-e and Gironella. Pilo asked for the money, to which Lomas-e complied by showing to him the marked money. For his part, Pilo, without alighting from the motorcycle, took off his red and black backpack, opened it, and showed to Lomas-e two bricks of suspected marijuana covered by a packaging tape. Lomas-e handed the marked money to Pilo and took the bricks of marijuana. After the sale was consummated, Gironella made the pre-arranged signal and the rest of the team approached. 9

Upon noticing the team approaching, Lomas-e and Gironella grabbed Pilo, introduced themselves as PDEA agents, and arrested Pilo. Lomas-e conducted a bodily search and recovered the buy-bust money. Markings, photographs, and inventory were subsequently done at the place of arrest witnessed by Barangay Kagawad Rowena Marzo and Ducusin of Bomba Radyo. The buy-bust team proceeded to the PDEA Regional Office where Pilo was identified as Gacayan. Lomas-e brought the confiscated items to Siano, the duty chemist of PDEA Region 1. 10 The Chemistry Report 11 yielded that the specimens were positive of marijuana. 12

Siano testified that she received from Lomas-e a Request for Laboratory Examination and two bricks of marijuana wrapped in a packaging tape with marking "A LLF 7/11/16" and "B LLF 7/11/16." She conducted a laboratory examination of the items, after which she turned them over to Buena, their evidence custodian, on July 12, 2016. She again retrieved the items from Buena on September 29, 2016 for presentation in court. Buena confirmed the testimony of Siano and further narrated that he kept the items in the evidence room with three separate locks. 13

Ducusin stated that on July 11, 2016, he was invited to witness the inventory of items allegedly discovered from a buy-bust operation against Gacayan in Sitio Bessang. Upon arrival, he saw the accused and a euro motorcycle as well as two bricks of marijuana wrapped in a packaging tape laid on a table. At that time, the police were already preparing the Certificate of Inventory. 14

Version of the Defense

The defense presented three witnesses: Gacayan, his cousin Freddie Mendieda (Freddie), and brother Mark Gacayan (Mark). 15

Gacayan denied that he sold marijuana to the PDEA agents. He alleged that the PDEA mistook him for Pilo because he was riding a blue euro motorcycle at that time. He was going to Central School to pick up his cousin Jocelyn. On his way, two males wearing civilian clothes flagged him asking him where the items are. He denied knowledge of the same. Consequently, another person approached and informed the two males that the items are in the waiting shed. Thereafter, they brought Gacayan to the waiting shed where he noticed two items wrapped in masking tape. The PDEA agents started writing in a piece of paper then brought Gacayan to their office. 16

Freddie testified that Gacayan was not carrying a bag on July 11, 2016 when he left the house to pick up Jocelyn. While, Mark stated that at the time that his brother was arrested, the PDEA officers only recovered P250.00 from him. 17

Ruling of the Regional Trial Court

In its Decision 18 dated November 9, 2017, the RTC convicted Gacayan for the crime of violation of Section 5, Article II of R.A. 9165, as amended, sentencing him to suffer the penalty of life imprisonment and to pay a fine in the amount of P500,000.00. 19 It ruled that the prosecution clearly established the two elements of illegal sale of marijuana. The testimonies of Lomas-e and Gironella as well as the dangerous drugs seized from the accused are more than sufficient to prove the crime charged. 20

Conversely, the RTC found Gacayan's defense of denial as flimsy and self-serving as it was not substantiated by clear and convincing evidence. Furthermore, there appears no ulterior motive on the part of the PDEA to falsely charge Gacayan of a serious offense. 21

Gacayan appealed to the CA.

Ruling of the Court of Appeals

In its assailed Decision, 22 the CA affirmed the ruling of the RTC. 23 It held that the non-presentation of the CI's cellphone is not fatal to the prosecution's case. Lomas-e, as poseur-buyer, has personal knowledge of the transaction because he was the one who transacted with Gacayan for the purchase of marijuana. Lomas-e's testimony was corroborated by Gironella. 24 More, the prosecution was able to establish every link in the chain of custody from the moment the dangerous drugs were seized from Gacayan until the time they were offered in court as evidence. 25

Undaunted, Gacayan filed the present appeal. Both Gacayan 26 and the Office of the Solicitor General (OSG), on behalf of the People of the Philippines, 27 filed their respective Manifestation in Lieu of Supplemental Brief, informing the Court that they will no longer file any supplemental brief considering that they had exhaustively discussed their arguments in their Briefs before the CA.

Arguments of the Accused-Appellant

Gacayan alleged first and foremost that the prosecution failed to prove the elements of illegal sale of dangerous drugs. He averred that there is doubt as to whether the buy-bust actually took place because his cellular phone and that of Lomas-e were not presented in court to prove that there was an agreement for the sale of drugs. Hence, the evidence for the buy-bust operation is incomplete. Since no valid buy-bust took place, the ensuing search and seizure of marijuana had no lawful basis, triggering the application of the exclusionary rule. 28

Second, Gacayan argued that Section 21, Article II of R.A. 9165 was not complied with as there was no representative from the National Prosecution Service during the conduct of inventory. There was also inconsistency in the testimony of Lomas-e and Gironella with respect to the marking of the confiscated drugs. While the former claimed that he marked the seized drugs at the place of arrest, the latter stated that they waited for the arrival of the required witnesses before the marking. This casts doubt to the integrity of the chain of custody. Since there was non-compliance with Section 21, the presumption of regularity of performance of official duty of the police officers cannot be applied by the court. 29

Arguments of the Plaintiff-Appellee

The OSG alleged that the guilt of Gacayan was proven beyond reasonable doubt. The delivery of the contraband to Lomas-e and Gacayan's receipt of the marked money consummated the buy-bust transaction. 30 Lomas-e detailed the manner by which the integrity of the items seized from the accused was preserved. The apparent non-compliance with Section 21, Article II of R.A. 9165 with regard to the presence of the required witnesses will not overthrow the substantial compliance by the PDEA agents involved in the operation. 31

Issue

Whether the CA erred in upholding Gacayan's conviction.

Ruling of the Court

The appeal is meritorious. The Court acquits Gacayan for illegal sale of dangerous drugs for failure of the prosecution to prove his guilt beyond reasonable doubt.

At the outset, We discuss and differentiate the kinds of buy-bust money used in anti-narcotics operations, namely: "boodle" money and counterfeit or fake money. Boodle money means bundles of cut-out newspapers in the size of money bills. They are not counterfeit money so they do not appear as though they are genuine bills. Thus, even to ordinary persons who see genuine money on a regular basis, they would appear obvious as newspaper cut-outs and not genuine peso bills. 32 Cut-out newspapers cannot approximate the color scheme of any genuine money bill. Neither could they be stacked neatly like new and crisp money bills. 33 On the other hand, counterfeit money refers to paper cut-outs or prints which resemble or are intended to resemble or pass for genuine money bills. Examples are scanned copies or colored photocopies of genuine money bills. Unlike boodle money, counterfeit money requires close inspection to spot that it is fake.

In this case, the PDEA agents used the term "boodle money," when what they actually brought during the buy-bust are counterfeit or fake money bills, particularly three pieces P500.00 and eight pieces P1,000.00. 34 Mixing of boodle money with fake/scanned money bills renders highly doubtful the story of the police that there was a legitimate buy-bust operation conducted against the accused.

Proceeding to the merits of the case, We rule that for the successful prosecution of violation of Section 5, Article II of R.A. 9165, the State must prove the following elements of the crime: (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. 35 The State bears not only the burden of proving these elements but also proving the corpus delicti of the crime, which is the dangerous drugs itself. Any doubt in the identity and integrity of the corpus delicti warrants the acquittal of the accused. 36 To remove any unnecessary doubts on account of switching, planting, or contamination of the evidence, the prosecution must be able to account for each link in the chain of custody from the moment of the seizure of the dangerous drugs up to their presentation in court. 37

The chain of custody rule is enshrined in Section 21, Article II of R.A. 9165. Since the alleged illegal sale of drugs was committed on July 11, 2016, Section 21 as amended by R.A. 10640 38 applies, to wit:

(1) 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 a physical inventory of the seized items and photograph the same in the presence of the accused or the person 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: 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, finally, That noncompliance of 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 and custody over said items. (Emphasis supplied).

Under the amended text, the inventory of the seized drugs must be done in the presence of two witnesses, which are an elected public official and a representative of the National Prosecution Service or the media. Significantly, in People v. Tomawis, 39 We ruled that the required witnesses should be present not only during the inventory but more importantly at the time of the warrantless arrest of the accused 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. 40 Here, the buy-bust operation was not conducted in accordance with law.

First, the Joint Affidavit of Arrest 41 of Lomas-e and Gironella shows that only the buy-bust team was present during the apprehension of Gacayan and during the marking and photographing of the seized drugs. The required witnesses were present only during the inventory. 42 In fact, Ducusin, the media representative, testified that he was invited specifically to witness the inventory at Sitio Bessang, Bumbuneg, San Gabriel, La Union. 43 Thus, there was no effort on the part of the PDEA to secure the presence of the required witnesses during the apprehension of the accused.

Second, when Ducusin arrived at Sitio Bessang, the inventory was already prepared such that he merely affixed his signature after comparing the items listed in the certificate. 44 In People v. Aguilar, 45 We held that there is non-compliance with Section 21, Article II of R.A. 9165 if the Inventory/Receipt of Property was already prepared when the witnesses arrived and they merely signed it after comparing the seized items with the inventory. This undermines the purpose of requiring witnesses which is to prevent switching, planting, or contamination of evidence. 46

The prosecution did not justify much less acknowledge the deviations in the mandatory procedure outlined in the law. The breaches of Section 21 cast doubt on the integrity and evidentiary value of the seized drugs. Accordingly, Gacayan is entitled to an acquittal.

WHEREFORE, the appeal is GRANTED. The Decision dated March 27, 2019 of the Court of Appeals in CA-G.R. CR-HC No. 10454 is hereby REVERSED and SET ASIDE. Accused-appellant Andrew Jay Gacayan @ "Pilo" is ACQUITTED of the crime charged against him, and is ORDERED to be IMMEDIATELY RELEASED, unless he is being lawfully held in custody for any other reason. The Director General of the Bureau of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt hereof.

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. 20-21.

2. Penned by Associate Justice Ramon A. Cruz with the concurrence of Associate Justices Ramon M. Bato, Jr. and Ronaldo Roberto B. Martin; id. at 3-18.

3. Penned by Presiding Judge Victor O. Concepcion; CA rollo, pp. 48-58.

4. Records, p. 1.

5. CA rollo, p. 48.

6.Id.

7. TSN dated January 12, 2017, p. 4.

8.Id. at 4-7.

9.Id. at 10-13.

10.Rollo, p. 5.

11. Records, p. 12.

12.Id.

13.Rollo, p. 6.

14.Id.

15. CA rollo, p. 50.

16.Rollo, p. 7.

17.Id.

18.Supra note 3.

19. CA rollo, p. 58.

20.Id. at 51.

21.Id. at 57.

22.Supra note 2.

23.Rollo, p. 17.

24.Id. at 12.

25.Id. at 16-17.

26.Id. at 30.

27.Id. at 36-37.

28. CA rollo, pp. 38-39.

29.Id. at 41-43.

30.Id. at 83-84.

31.Id. at 88-89.

32.People v. Lacdan, G.R. No. 208472, October 14, 2019.

33.People v. Guillermo, G.R. No. 229515, November 27, 2019.

34. TSN dated January 12, 2017, p. 8.

35.People v. Manabat, G.R. No. 242947, July 17, 2019, citing People v. Opiana, 750 Phil. 140, 147 (2015).

36.People v. Sultan, G.R. No. 225210, August 7, 2019.

37.People v. Lumaya, 827 Phil. 473, 484 (2018).

38. R.A. 10640 or "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.'"

39. 830 Phil. 385 (2018).

40.Id. at 409.

41. Records, pp. 7-8.

42.Id.

43. TSN dated September 29, 2016, p. 17.

44.Id. at 22, 24.

45. G.R. No. 243793, November 27, 2019.

46.Id.