THIRD DIVISION
[G.R. No. 241790. October 6, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. GABRIEL GALLARDO y CALUZA ALIAS "GABRIEL", accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedOctober 6, 2021, which reads as follows:
"G.R. No. 241790 (People of the Philippines, Plaintiff-Appellee, v. Gabriel Gallardo y Caluza alias "Gabriel,"Accused-Appellant.) — On appeal 1 is the Decision 2 promulgated on 16 July 2018 by the Court of Appeals (CA) in CA-G.R. CR-HC No. 01683-MIN, which affirmed the Joint Judgment 3 dated 24 March 2017 of Branch 20, Regional Trial Court (RTC) of Tacurong City, Sultan Kudarat in Criminal Case Nos. (Crim. Case) 4048-T and 4049-T.
In Crim. Case No. 4048-T, the RTC found accused-appellant Gabriel Gallardo y Caluza (appellant) guilty beyond reasonable doubt of the crime of Violation of Section 5, Article II of Republic Act No. (RA) 9165 4 for illegal sale of dangerous drugs. He was sentenced to suffer the penalty of life imprisonment and to pay a fine of Php500,000.00. On the other hand, in Crim. Case No. 4049-T, appellant was found guilty beyond reasonable doubt of the crime of Violation of Section 11, Article II of RA 9165 for illegal possession of dangerous drugs. For this, he was sentenced to suffer the indeterminate penalty of imprisonment ranging from eight (8) years as minimum to fourteen (14) years, eight (8) months, and one (1) day as maximum, and to pay a fine of Php300,000.00.
Antecedents
Two (2) Informations were filed against appellant. For Crim. Case 4048-T, the Information reads:
That on or about 11:36 in the morning of May 21, 2014 at Purok Pagkakaisa, Barangay San Pablo, Tacurong City, Sultan Kudarat, Philippines and within the jurisdiction of this Honorable Court, the said accused, not being authorized by law, did then and there, willfully, unlawfully, and feloniously sell and deliver to PO1 Marlon S. Antonio one (1) piece small heat-sealed transparent sachet containing zero point one two zero seven (0.1207) gram of Methamphetamine Hydrochloride, a dangerous drug.
CONTRARY TO LAW. 5
For Crim. Case 4049-T, the Information reads:
That on or about 11:36 in the morning of May 21, 2014 at Purok Pagkakaisa, Barangay San Pablo, Tacurong City, Sultan Kudarat, Philippines and within the jurisdiction of this Honorable Court, the said accused, not being authorized by law, did then and there, willfully, unlawfully, and feloniously have in his possession and control and found to have possessed one (1) piece heat-sealed transparent sachet containing zero point zero five eight seven (0.0587) gram of Methamphetamine Hydrochloride, a dangerous drug.
CONTRARY TO LAW. 6
Appellant entered a plea of not guilty during arraignment on 25 June 2014. Trial ensued after the pre-trial conference. 7
The CA summarized the testimonies as follows:
The prosecution presented the following persons as witnesses: (1) PO1 Marlon S. Antonio (PO1 Antonio), the designated poseur-buyer and arresting officer; (2) PSI Lily Grace M. Ladeo (PSI Ladeo), the forensic chemist; and (3) PSI Roel Abejero (PSI Abejero), the team leader. For the defense, appellant Gabriel G. Gallardo was presented as the lone witness.
Version of the Prosecution
At around 10:00 o'clock in the morning of 21 May 2014, the team leader of the Intelligence Section of Tacurong City Police Station, PSI Abejero, received a tip from a Confidential Informant that appellant is allegedly selling illegal drugs at Purok Pagkakaisa, Barangay San Pablo, Tacurong City. Based on that information, PSI Abejero formed a team and conducted a briefing with PO1 Antonio, PO1 Velasco, PO1 Miniano, PO1 Felitro, PO1 Gadiana and other officers, consisting more or less of 15 members, for a buy-bust operation. PO1 Antonio was designated as the poseur-buyer and arresting officer at the same time. PO1 Antonio was handed one piece P500.00 bill marked money which was marked with IDMS. Thereafter, the team, together with the confidential informant, left the police station on board their motorcycles. CAIHTE
When they reached their destination at Purok Pagkakaisa, PO1 Antonio and the confidential informant, who rode together in one motorcycle, alighted from it and approached appellant who was sitting in [the] passenger's seat of a parked tricycle with its driver on the driver's seat. After the confidential informant introduced PO1 Antonio as the buyer of the shabu, PO1 Antonio handed the P500.00 marked money to appellant. In turn, appellant pulled out a sachet containing white crystalline substance from his pocket and handed the same to PO1 Antonio. PO1 Antonio then put the sachet inside his right pocket and swiped his hair twice — the pre-arranged signal confirming that the sale transaction had been consummated. Moments later, the four (4) members of the team closed in on them. When appellant sensed that there were police officers in the area, he asked the driver to rev up the engine of the tricycle but instead of complying, the driver alighted from the tricycle which also prompted the appellant to alight from it but before he can escape, PO1 Antonio introduced himself as a police officer while the other team members assisted in frisking appellant. After PO1 Antonio recited the Miranda warning, he bodily searched appellant from which he confiscated another sachet of white crystalline substance and the P500.00 marked money. He put the said sachet into his left pocket.
At 11:36 in the morning, the team proceeded to Tacurong City Police Station per PSI Abejero's instruction after his assessment that onlookers started to gather. At the police station, PO1 Antonio presented the seized items to the desk officer for documentation and afterwards proceeded to the investigation section for the necessary marking and taking of the inventory and photographs. PO1 Antonio marked the sachet bought from appellant with BB1 MSA 052114 and the confiscated sachet from the possession of appellant was marked with PMSA 052114. While PO1 Antonio prepared the Inventory of Property Seized and Chain of Custody, the investigator and the media took some photographs of the items seized. The appellant was present during the marking, taking of photographs and inventory, together with a barangay official, Kagawad Edwin Arellano, and a representative from the media, Randy Casama.
PO1 Antonio also prepared a Letter Request, which he brought together with the items he put in a transparent cellophane, to the Regional Crime Laboratory Office 12 in General Santos City for laboratory examination. PSI Ladeo, the Forensic Chemist who conducted the test, revealed that the examination of the specimen yielded positive for methamphetamine hydrochloride or shabu.
Version of the Defense
For his part, appellant puts forward a defense of denial. In his Brief, he narrated his own version of the story, viz.:
In the morning of 21 May 2014, onboard a passenger tricycle driven by Ricky Pedral [(Pedral)], appellant went to the house of his friend, Pearly dela Cruz [(Dela Cruz)] at Purok Pagkakaisa, Barangay San Pablo, Tacurong City for the purpose of collecting the amount of P1,500.00 from her. Instead of being able to collect money from [Dela Cruz], however, appellant was told to leave. Considering that [Dela Cruz] appeared nervous at the time, appellant did not insist on collecting money.
After appellant's visit to the house of [Dela Cruz], he decided to go home on board the same tricycle. Upon reaching the back portion of the Iglesia ni Cristo church on his way home, two (2) motorcycles overtook the tricycle that appellant was riding. Following this, one of the persons riding one of the motorcycles told them to stop and informed them that they were [police officers]. Considering that a gun was already being pointed at appellant, the latter then told [Pedral] to stop the tricycle. This incident occurred at Purok Maligaya, Barangay San Pablo at about 9:40 o'clock in the morning.
As the tricycle had already stopped, one of the [police officers] then instructed appellant to alight the same. Having alighted, appellant and [Pedral] were told to bring out the shabu they were allegedly selling. In response to the allegations made by the policemen, appellant stated that [he] was not selling any shabu. The [police officers], however, did not believe appellant. So, they forcefully frisked the latter and [Pedral]. As appellant was indeed not selling any shabu, no shabu was recovered. DETACa
After frisking, appellant was then instructed to accompany them to the police station. Before going inside the police station, however, appellant was brought by PO3 Gonzales to the intelligence room, appellant was again frisked and was made to take off his clothes. In addition to this, his cellular phone was also seized. According to appellant, the reason he was frisked and was made to take off his clothes was so they could recover the items he was allegedly selling. What they were only able to recover, however, was appellant's cellular phone and the amount of [P]15.00.
After staying for about 25 minutes inside the intelligence room, appellant was brought to the police station by PO3 Gonzales. When he was inside, appellant was then made to wait for about one hour before a person in civilian clothing. PO1 Antonio, arrived. Following this, PO1 Antonio then asked for appellant's name and other personal circumstances. Thereafter, other people arrived, including persons claiming to be a media representative and a barangay official. Afterwards, they then signed a document that was placed on top of the table. This was followed by the taking of photographs. Further, as the photographs were being taken, appellant was shocked when he saw PO1 Antonio bring out a cellular phone, items that appeared to be sachets of shabu, and a P500.00 bill. After the taking of the photographs, appellant was then brought inside the lock up cell within the police station. 8
Ruling of the RTC
On 24 March 2017, the RTC rendered a Joint Judgment which found appellant guilty of violating both Sections 5 and 11, Article II of RA 9165 in Crim. Case Nos. 4048-T and 4049-T.
The dispositive portion of the RTC's Decision read:
WHEREFORE, upon all the foregoing considerations, the court renders judgment as follows:
IN CRIMINAL CASE NO. 4048-T(14)
FINDING accused GABRIEL GALLARDO Y CALUZA guilty beyond reasonable doubt [of] the crime of Violation of Section 5, Article II of RA 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of five hundred thousand pesos (P500,000.00).
Let a mittimus order be issued confining him at San Ramon Penal Farm, Zamboanga City.
Meantime, the sachet of shabu, Exhibit "I-2" is ordered forfeited and confiscated in favor of the government and to be disposed of in accordance with law.
IT IS SO ORDERED.
xxx xxx xxx
IN CRIMINAL CASE NO. 4049-T(14)
FINDING accused GABRIEL GALLARDO Y CALUZA guilty beyond reasonable doubt [of] the crime of Violation of Section 11, Article II of RA 9165 and sentencing him to suffer the indeterminate penalty of imprisonment ranging from eight (8) years, as minimum, to fourteen (14) years, eight (8) months and one (1) day, as maximum, and to pay a fine of three hundred thousand pesos (P300,000.00), the quantity of Exhibit "I-1" being 0.1207 gram only.
For being a detention prisoner since [6 June 2014], the entire period of his detention shall be credited in the service of sentence imposed on him provided that he shall abide in writing with the same disciplinary rules imposed upon convicted prisoners, otherwise, with only four-fifths (4/5) thereof only.
Meantime the sachet of shabu, Exhibit "I-1" is ordered forfeited and confiscated in favor of the government and to be disposed of in accordance with law.
IT IS SO ORDERED. 9
The RTC did not find any evidence of improper motive presented against PO1 Antonio when he testified against appellant. Even appellant himself testified that he did not know of any reason why PO1 Antonio would impute a crime against him. The prosecution's evidence shows that PO1 Antonio was able to buy a sachet of shabu from appellant for Php500.00 and recover yet another sachet of shabu after appellant's arrest. Verily, the RTC gave credence to the presumption of regularity in PO1 Antonio's performance of official duty. 10
In a similar manner, the RTC found that the prosecution was not only able to prove the elements of the two (2) crimes imputed against appellant, it was also able to faithfully comply with the requirements of Section 21, Article II of RA 9165. On the other hand, the RTC did not give credence to appellant's defense of denial. 11
Appellant was committed to San Ramon Prison and Penal Farm, Zamboanga City, Zamboanga del Sur on 15 May 2017. 12
Ruling of the CA
In his appellant's brief 13 dated 10 August 2017, appellant assigned two (2) errors committed by the RTC:
[I.] The court a quo gravely erred when it disregarded the inconsistencies between the testimonies of the prosecution witnesses and evidence and declared that a buy-bust operation actually transpired.
[II.] The court a quo gravely erred when it declared that the prosecution had proven the corpusdelicti in the instant case. 14 aDSIHc
The CA found no merit in the appeal. Like the RTC before it, the CA found that the prosecution sufficiently discharged the burden of establishing the elements of illegal sale and possession of dangerous drugs. According to the CA, in the prosecution for illegal sale of dangerous drugs, the identity of PO1 Antonio as the buyer and that of appellant as the seller were both established. The sachet of shabu as the object of the transaction and the Php500.00 bill as payment were also established with certainty. The second element, which is the delivery of the thing sold and the payment therefor, was proven by PO1 Antonio's testimony that he bought from appellant a sachet of shabu with the Php500.00 marked money. The prosecution for illegal possession of dangerous drugs was established after a frisk of appellant yielded another sachet of shabu. The two (2) sachets of shabu obtained from appellant tested positive for the presence of methamphetamine hydrochloride. 15
The CA also found that the prosecution was able to show an unbroken chain of custody over the seized items. PO1 Antonio was the only person in possession of the seized drugs. To the CA, this strengthened the prosecution's stance that the chain of custody was well preserved. The prosecution explained that the required marking, taking of photographs, and taking of inventory had to be done at the police station because of the gathering crowd. There was no question that the mandatory witnesses were present at the time of taking of photographs and inventory. The other discrepancies pointed out by the defense did not significantly affect the credibility of the prosecution's witnesses and the truthfulness of their statements. 16
The dispositive portion of the CA's Decision read:
WHEREFORE, the appeal is DENIED. The Decision [in Crim. Case Nos. 4048-T and 4049-T] of the Regional Trial Court, Branch 20, 12th Judicial Region, Tacurong City dated 24 March 2017 is AFFIRMED in toto.
SO ORDERED. 17
Issue
Appellant asks this Court to determine whether a buy-bust actually transpired and whether the prosecution had proven the corpusdelicti in the instant case.
Ruling of the Court
The appeal is meritorious.
Even if a buy-bust operation as a form of entrapment has been accepted as a valid means of arresting violators of the Comprehensive Dangerous Drugs Act, the courts maintain the duty to determine whether proper procedures were undertaken in effecting the buy-bust operation. The presumption of regularity in the performance of official duty by law enforcement agents should not prevail over the presumption of innocence and the constitutionally protected rights of the individual. 18
In both the illegal sale and illegal possession of dangerous drugs, the drug itself constitutes the corpusdelicti of the offense. A conviction for illegal sale of dangerous drugs as defined and penalized by Section 5, Article II of RA 9165 demands that the following elements be established: (1) identity of the buyer and the seller, the object of the sale and its consideration; and (2) "the delivery of the thing sold and the payment therefor." 19 The elements of Illegal Possession of Dangerous Drugs under Section 11, Art. II of RA 9165 are: (1) the accused was in possession of an item or object identified as a prohibited drug; (2) "such possession was not authorized by law; and (3) the accused freely and consciously possessed the said drug." 20
The prosecution must, therefore, prove that the dangerous drug seized from the accused is the same substance eventually offered in court. For this purpose, Section 21, Article II of RA 9165 prescribes the standard in preserving the corpusdelicti in illegal drug cases. This makes up the chain of custody rule. 21
Appellant rightfully questions the prosecution's compliance with the procedure outlined in Section 21 (1), Article II of RA 9165:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(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[.]
The prosecution's own narration of events could not hide that there were defects in the chain of custody. ETHIDa
The following links must be established in order to ensure that the identity and integrity of the seized items have not been compromised: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turn over by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. 22
The prosecution failed to establish an unbroken chain of custody.
The seizure of the alleged drugs was done separately from the marking as well as taking of the inventory. PO1 Antonio merely put the items in his pockets after he seized them. He marked the items only after their arrival at the police station two (2) hours after the alleged buy-bust and presentation of the items to the desk officer. To justify the delay, PO1 Antonio testified that there were many people in the area. However, his testimony that there were about fifteen (15) of them in the buy-bust team highlights their failure to secure the buy-bust area and to immediately mark the seized items.
It must be emphasized that marking after seizure is the starting point in the custodial link; thus, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, "planting," or contamination of evidence. 23
The seizure was done without the presence of the mandatory witnesses. These witnesses thus cannot credibly attest that the items seized and marked are the same items presented to them and photographed during the taking and preparation of the inventory. It is at the time of arrest — or at the time of the drugs' "seizure and confiscation" — that the presence of the mandatory witnesses is most needed, as it is their presence at the time of seizure and confiscation that would insulate against the police practice of planting evidence. 24
The taking of the photographs was not done "immediately after seizure and confiscation." Moreover, only a media representative and a barangay official were present at the time of the taking of the photographs. At the time of appellant's arrest, the law required the presence of three (3) witnesses: a representative from the media and the DOJ, and any elected public official.
The prosecution did not provide any justification for their awareness of the lack of mandatory witnesses at the time of seizure. We have previously provided acceptable justifications from deviations from such procedure:
The prosecution never alleged and proved that the presence of the required witnesses was not obtained for any of the following reasons, such as: (1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape. 25
Given that a buy-bust operation is a planned activity, where the buy-bust team has enough time to bring with them the mandatory witnesses, law enforcers should not trifle with the legal requirement to ensure integrity in the chain of custody of seized dangerous drugs and drug paraphernalia. This is especially true when only a minuscule amount of dangerous drugs is alleged to have been taken from the accused. 26
The prosecution also admitted that only PO1 Antonio had custody of the allegedly seized sachets of shabu from the time of the arrest until they were turned over to the forensic chemist. This is a deviation from the standard procedure which shows that the presumption in the performance of regular duties does not apply in the present case. PO1 Antonio's reason for his deviation highlights his lack of trust in his fellow officers' faithful performance of duties:
Q. You said you already participated in many buy bust operations so I assume you are familiar [with] your manual?
A. Yes, sir.
Q. In that manual it is provided that the evidence, drug and non-drugs, seized, particularly the drug/s, is turned over to your investigator on case?
A. Yes, sir.
Q. Did you not do that in this particular case, meaning, did you turn over the items to your investigator?
A. The items sir, I did not surrender to the investigator.
Q. Why not when it was so provided in your manual that you have to turn over to the investigator on case?
A. Because the items are in my custody, if I will give to the investigator on case, something untoward might happen to them, sir. 27
The manner of documentation of the alleged seized items is also questionable. The police blotter book recorded the estimated weights of the two (2) sachets as more or less 0.05 gram, for the sachet subject of the buy-bust, and 0.09 gram, for the sachet seized after frisking. However, the actual weights as reported in the Chemistry Report were 0.1207 gram for the sachet subject of the buy-bust and 0.0587 gram for the sachet seized after frisking. The initial absence of the markings of the sachets thus raises the possibility that the sachets could have been interchanged, swapped, or even contaminated. SPO1 Antonio was even adamant that the two (2) sachets can be distinguished by mere ocular inspection, but the weight discrepancy hardly inspires credibility in the prosecution's assertions. This discrepancy serves to highlight the effect of the earlier failure to mark the sachets immediately after seizure. cSEDTC
The lapses of the police officers resulted in broken links in the chain of custody of the evidence. The deviation from the mandated procedures was not adequately explained by the prosecution. We doubt the integrity and evidentiary value of the allegedly seized drugs. Appellant should thus be acquitted for failure of the prosecution to prove his guilt beyond reasonable doubt.
WHEREFORE, premises considered, the appeal is GRANTED. Accordingly, the Decision dated 16 July 2018 of the Court of Appeals in CA-G.R. CR-HC No. 01683-MIN finding accused-appellant Gabriel Gallardo y Caluza guilty beyond reasonable doubt of violating Sections 5 and 11, Article II of RA 9165 is REVERSED and SET ASIDE. Accused-appellant Gabriel Gallardo y Caluza alias "Gabriel" is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt and is ORDEREDIMMEDIATELYRELEASED from detention unless he is being lawfully held for another cause. Let an entry of final judgment be issued immediately.
Let a copy of this Resolution be furnished to the Superintendent of the San Ramon Prison and Penal Farm, Zamboanga City, Zamboanga del Sur for immediate implementation. The said Superintendent is ORDERED to REPORT to this Court within five (5) days from receipt of this Resolution the action taken on this matter.
SO ORDERED." (Dimaampao, J., designated additional member per Special Order 2839.)
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 18-19; See Notice of Appeal, 03 August 2018.
2.Id. at 3-17. Penned by Associate Justice Ruben Reynaldo G. Roxas and concurred in by Associate Justices Edgardo T. Lloren and Walter S. Ong of the Special Twenty-Third (23rd) Division, Court of Appeals, Cagayan de Oro City.
3. CA rollo, pp. 40-76. Penned by Judge Milanio M. Guerrero.
4. 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 23 January 2002.
5.Rollo, pp. 3-4.
6.Id. at 4.
7.Id.
8.Id. at 4-7.
9. CA rollo, pp. 75-76.
10.Id. at 64-75.
11.Id.
12.Rollo, p. 24.
13. CA rollo, pp. 58-78.
14.Id. at 21.
15.Rollo, pp. 11-16.
16.Id.
17.Id. at 17.
18.People v. Ong, 476 Phil. 553 (2004), G.R. No. 137348, 21 June 2004 [Per J. Puno].
19.People v. Dumlao, 584 Phil. 732 (2008), G.R. No. 181599, 20 August 2008 [Per J. Ynares-Santiago].
20.People v. Piñero, G.R. No. 242407, 01 April 2019 [Per J. Perlas-Bernabe].
21.People v. Areola, Jr., G.R. No. 251919 (Notice), 12 May 2021; Citations omitted.
22.People of the Philippines v. De Guzman, 825 Phil. 43 (2018), G.R. 219955, 05 February 2018 [Per J. Del Castillo].
23.People v. Coreche, 612 Phil. 1238 (2009), G.R. No. 182528, 14 August 2009 [Per J. Carpio].
24.People v. Sipin, 833 Phil. 67 (2018), G.R. No. 224290, 11 June 2018 [Per J. Peralta].
25.Id.
26.People v. Holgado, 741 Phil. 78 (2014), G.R. No. 207992, 11 August 2014 [Per J. Leonen].
27. TSN, 23 June 2015, p. 39.