FIRST DIVISION
[G.R. No. 222961. June 30, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. MARLON LIM y ATILANO and MARIVIC SUMINIG y PASCUA, accused-appellants.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJune 30, 2021which reads as follows:
"G.R. No. 222961 (People of the Philippines, Plaintiff-Appellee, v. Marlon Lim y Atilano and Marivic Suminig y Pascua,Accused-Appellants). — This is an appeal seeking to reverse and set aside the Decision 1 dated 07 October 2015 of the Court of Appeals, Cagayan de Oro Station (CA) in CA-G.R. CR-HC No. 01232-MIN. The CA modified the Judgment 2 dated 14 November 2013 of Branch 25, Regional Trial Court (RTC) of Misamis Oriental sitting as Special Drugs Court, in Criminal Case Nos. 2010-025 and 2010-026. HTcADC
Antecedents
Appellants Marlon Lim y Atilano (Marlon) and Marivic Suminig y Pascua (Marivic/Babet) (collectively, appellants) were indicted for violation of Sections 5 3 and 11, 4 Article II of Republic Act No. (RA) 9165 5 in two (2) separate Informations, the accusatory portions of which state —
Criminal Case No. 2010-025
That on or about November 27, 2009, at more or less 4:30 o'clock [in the afternoon] at Barangay 35, Limketkai Drive, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, and mutually helping one another, without being authorized by law, and without corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in his possession, custody and control, one heat-sealed transparent plastic sachet containing 0.03 grams n of Methamphetamine Hydrochloride, accused knowing fully well the same to be a dangerous drug.
Contrary to and in violation of Section 11, Article II of R.A. 9165. 6
Criminal Case No. 2010-026
That on or about November 27, 2009, at more or less 4:30 o'clock [in the afternoon], at Barangay 35, Limketkai Drive, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, and mutually helping one another, without being authorized by law to sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, did then and there willfully, unlawfully, criminally and knowingly sell and/or offer for sale, and give away to a poseur-buyer/decoy one (1) heat-sealed transparent plastic sachet containing white crystalline substance, a dangerous drug weighing 0.01 gram, accused knowing the same to be a dangerous drug, in consideration of two (2) pcs. One Hundred Pesos bills with Serial Numbers ZR956905 and VM580162, which was used for the buy-bust operation.
Contrary to and in violation of Section 5, Article II of R.A. 9165. 7
Upon arraignment, appellants entered a plea of "not guilty" to the charges. 8 After the joint pre-trial was terminated, joint trial on the merits ensued. 9
Version of the Prosecution
In the morning of 27 November 2009, a confidential informant (CI) informed the Philippine Drug Enforcement Agency (PDEA) operatives of appellants' alleged involvement in illegal drug activities at Barangay 35, Limketkai Drive, Cagayan de Oro City. As a result, a buy-bust team was organized to entrap appellants. IO1 Rubietania Gacus (IO1 Gacus) was designated as poseur-buyer, while SI2 Rodolfo Dela Cerna (SI2 Dela Cerna) was tasked as the team leader, with IO1 Remedios Patenio (IO1 Patenio) as the back-up or arresting officer. 10
At 4:00 o' clock p.m. of the same day, the entire team and the CI proceeded to the target area. Outside appellants' house, IO1 Gacus and the CI found Marivic/Babet. The CI introduced IO1 Gacus as the buyer. Marivic/Babet then requested them to go inside the house. After Marivic/Babet asked for money, IO1 Gacus handed over the marked money. Marivic/Babet then gave it to Marlon who, in turn, took out from the right front pocket of his short pants a transparent plastic sachet containing white crystalline substance. He handed it to Marivic/Babet who then passed it to IO1 Gacus. After determining the item to be shabu, IO1 Gacus executed the pre-arranged signal. 11
When the other members of the team arrived, IO1 Gacus and the CI went to their service vehicle to ensure their safety. IO1 Patenio consequently apprehended appellants and informed the latter of their rights. She was able to recover from Marlon the marked money and one (1) sachet of suspected shabu. She also searched Marivic/Babet but found nothing on her. 12
The buy-bust team left the area, as it was a hostile place and the crowd watching the incident was already increasing, and proceeded to the PDEA office. Thereat, IO1 Patenio handed to IO1 Gacus the items she seized from Marlon. IO1 Gacus then marked the seized items including the plastic sachet sold to her by appellants. She also made an inventory and photographs were taken of the items and the appellants. Present during the inventory and markings was media representative Richard de La Cruz. 13
Thereafter, IO1 Gacus and IO1 Patenio took the seized items to the crime laboratory. 14 Chemistry Report No. D-240-2009 dated 28 November 2009 showed that all the specimens were positive for methamphetamine hydrochloride. 15
Version of the Defense
On 27 November 2009, Marlon was sleeping when he was awakened by a loud sound. Five to six armed men rushed into his room and pinned him down, asking him about the drugs and money. When he did not tell them, he was slapped on the face. The room was searched but nothing was found. He was bodily searched but nothing was found on him. Marlon saw Marivic/Babet already handcuffed. 16
When appellants were brought to the PDEA Office, Marlon was asked if he was involved in the killing of a certain PDEA agent and a certain policeman named Taurac. Appellants requested for a lawyer but it fell on deaf ears. Then, they were blindfolded. When the blindfolds were removed, drug paraphernalia, two (2) 100-peso bills, plastic cellophanes or sachets were laid on the table in front of them. They were forced to point to the items in front of them while a PDEA agent took a picture of them. Between 8:00 to 9:00 o'clock p.m., they were brought to the PNP Crime Laboratory and to the Office of the Prosecutor the following day. 17
Ruling of the RTC
On 14 November 2013, the RTC rendered its Judgment, 18 the dispositive portion of which reads:
WHEREFORE, premises considered, this Court hereby finds that:
1. In Criminal Case No. 2010-025, accused MARLON LIM y ATILANO is hereby found GUILTY of the crime charged and is hereby sentenced to suffer the penalty of imprisonment ranging from Twelve [12] years and one [1] day to Thirteen [13] years and to pay the Fine in the amount of Three Hundred Thousand Pesos [P300,000.00] without subsidiary imprisonment in case of non-payment of Fine. Accused MARIVIC SUMINIG y PASCUA is hereby acquitted of the offense charged.
2. In Criminal Case No. 2010-026, accused MARLON LIM y ATILANO and MARIVIC SUMINIG y PASCUA are hereby found GUILTY of the crime charged and each of them is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and a Fine in the amount of Five Hundred Thousand Pesos [P500,000.00] without subsidiary imprisonment in case of non-payment of Fine. aScITE
xxx xxx xxx
Let the penalty imposed on the accused be a lesson and an example to all who have the same criminal propensity and proclivity to commit the same forbidden act, that no man is above the law, and that crime does not pay. The pecuniary gain and benefit which one can enjoy from trading, selling or manufacturing or even by just merely possessing illegal drugs, or from committing any other acts penalized under Republic Act 9165, cannot compensate for the penalty which one will suffer if ever he is arrested, prosecuted, convicted, and penalized to the full extent of the law.
SO ORDERED. 19
The RTC found that the prosecution was able to establish all the elements of the crimes charged and an unbroken chain of custody. 20 However, Marivic/Babet cannot be convicted for illegally possessing a sachet of shabu as charged under Criminal Case No. 2010-025 when the sachet of shabu was taken from Lim, not from her person. 21
Aggrieved, appellants appealed to the CA.
Ruling of the CA
In its Decision, 22 the CA affirmed appellants' conviction. It, however, modified the penalty for the illegal sale, thus —
WHEREFORE, the Appeal is DENIED. Judgment dated November 14, 2013 of the Regional Trial Court of Misamis Oriental, Branch 25, Cagayan De Oro City sitting as Special Drugs Court finding accused-appellant Marlon Lim y Atilano and accused-appellant Marivic Suminig y Pascua guilty beyond reasonable doubt in Criminal Case No. 2010-026 for violation of Section 5 of the Republic Act No. 9165 otherwise known as Comprehensive Dangerous Drugs Act of 2002 and for finding accused-appellant Marlon Lim y Atilano guilty beyond reasonable doubt in Criminal Case No. 2010-025 for violation of Section 11 of Article II of the same law is AFFIRMED with MODIFICATION with respect to the penalty to be imposed in Criminal Case No. 2010-026 for both appellants as reclusion perpetua instead of life imprisonment.
SO ORDERED. 23
Hence, this appeal.
For purposes of this appeal, the Office of the Solicitor General 24 and the Public Attorney's Office 25 manifested that they were no longer filing their respective supplemental briefs.
Issue
The issue is whether or not the CA correctly found (a) appellants guilty beyond reasonable doubt for the offense of illegal sale and (b) Marlon of illegal possession of prohibited drugs under RA 9165.
Ruling of the Court
The Court finds the appeal meritorious.
Appellants were charged with illegal sale and illegal possession of dangerous drugs, defined and penalized under Sections 5 and 11, respectively, of Article II of RA 9165. For the prosecution of the crime of illegal sale of prohibited drugs, the following elements must be established: (1) the 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. 26 On the other hand, for illegal possession of dangerous drugs, the prosecution must prove that the accused was in possession of the dangerous drug without authority of law, and the accused freely and consciously possessed the dangerous drug. 27
It is essential that the identity and integrity of the illegal drugs must be shown to have been preserved. To remove any doubt or uncertainty on the identity and integrity of the seized drugs, evidence must definitely show that the illegal drugs offered in court as exhibit are the same as those recovered from the accused. 28 This requirement is known as the chain of custody rule under RA 9165, created to safeguard doubts concerning the identity of the seized drugs. 29
Section 21, Article II of RA 9165, then applicable at the time of the commission of the offenses, provides the chain of custody rule, outlining the procedure police officers must follow in handling the seized drugs, in order to preserve their integrity and evidentiary value. 30
It is well-settled that the following links should be established in the chain of custody of the confiscated item: 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 turnover 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. 31
The first link speaks of seizure and marking which should be done immediately at the place of arrest and seizure. It also includes the physical inventory and taking of photograph of the seized or confiscated items which should be done in the presence of the accused, a media representative, a representative from the Department of Justice (DOJ), and any elected public official. 32
During the marking and inventory of the seized items, only one of the three (3) required witnesses was present, namely, the representative from the media. It is worth noting that the said witness was not present during the buy-bust operation. In any case, there was no representative from the DOJ and any elected public official at that time. The presence of the required witnesses at the time of the apprehension and inventory is mandatory. The law imposes the said requirement to serve an essential purpose. 33 Their presence at the time of seizure and confiscation would belie any doubt as to the source, identity, and integrity of the seized drug. The presence of the insulating witnesses would controvert the usual defense of frame-up, as they 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, Article II of RA 9165, as amended. 34 It is to stress that the prosecution did not even offer any explanation for the absence of the elected public official and a representative from the DOJ.
The prosecution admits that following appellants' arrest, the PDEA operatives immediately brought them to their office together with the seized items and that the marking, inventory, and taking of photographs of the seized items were done thereat. However, the prosecution did not proffer any explanation as to why the PDEA operatives deviated from the prescribed procedure under Section 21, Article II of RA 9165, and merely contended that the integrity and evidentiary value of the seized item had not been compromised. 35
The Court recognizes that under varied field conditions, strict compliance with the requirements of Section 21, Article II of RA 9165 may not always be possible. During such eventualities, the failure of the apprehending team to strictly comply with the same would 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 a justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. The foregoing is based on the saving clause found in Section 21 (a), Article II of the Implementing Rules and Regulations of RA 9165, which was adopted by RA 10640. 36
In People v. Dela Torre, 37 however, the Court explained that for the above-saving clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that the integrity and evidentiary value of the seized evidence had nonetheless been preserved. The justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist. HEITAD
Further, the prosecution failed to allege and prove the reasons for the absence of the elected public official and DOJ representative and convince the Court that earnest efforts were exerted to secure their attendance. The lack of evidence of serious attempts to secure the presence of the two (2) required witnesses results is a substantial gap in the chain of custody of evidence that adversely affects the authenticity of the prohibited substance presented in court. 38
Clearly, the prosecution cannot simply invoke the saving clause found in Section 21 — that the integrity and evidentiary value of the seized item have been preserved — without justifying their failure to comply with the requirements stated therein. 39 Moreover, a stricter adherence to Section 21 is required where the quantities of illegal drugs seized are minuscule, as in the instant case where 0.01 and 0.03 gram of shabu were allegedly obtained from appellants and Marlon, respectively, during the illegal sale and illegal possession, respectively. They are extremely small amounts which are highly susceptible to planting, tampering or alteration of evidence. 40
Appellants must perforce be
In cases of sale and possession of dangerous drugs, the dangerous drug itself seized from the accused constitutes the corpusdelicti of the offense. Hence, it is of utmost importance that the integrity and identity of the seized drugs must be shown to have been duly preserved. The chain of custody rule performs this function as it erases unnecessary doubts concerning the identity of the evidence. 41 The rule is imperative, as it is essential that the prohibited drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit, and the identity of the said drug is established with the same unwavering exactitude as that required to make a finding of guilt. 42
The PDEA operatives' failure to strictly comply with the requirements of the law, and to give justifiable grounds for their deviations had compromised the integrity and evidentiary value of the corpus delicti, warranting appellants' acquittal for reasonable doubt. Verily, when there are doubts on whether the seized substance was the same substance examined and established to be the prohibited drug, there can be no offense of illegal possession or illegal sale of a prohibited drug. 43
WHEREFORE, the instant appeal is hereby GRANTED. The Decision dated 07 October 2015 of the Court of Appeals, Cagayan de Oro Station in CA-G.R. CR-HC No. 01232-MIN is REVERSED and SET ASIDE. Appellants MARLON LIM y ATILANO and MARIVIC SUMINIG y PASCUA are hereby ACQUITTED on the ground of reasonable doubt. They are ORDERED immediately released unless they are being lawfully held in custody for any other reason. Let an entry of final judgment be issued immediately.
The Court DIRECTS the Superintendent of the Davao Prison and Penal Farm and the Superintendent of the Correctional Institution for Women-Mindanao to implement the immediate release of MARLON LIM y ATILANO and MARIVIC SUMINIG yPASCUA, respectively, and to report on their compliance within ten (10) days from receipt.
The letter dated March 25, 2021 of accused-appellant Marlon A. Lim, requesting for the status and latest development of his appeal, is NOTED.
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. 03-16; penned by CA Associate Justice Ronaldo B. Martin with Associate Justices Edgardo T. Lloren and Maria Filomena D. Singh, concurring.
2.CArollo, pp. 38-47; penned by RTC Presiding Judge Arthur L. Abundiente.
3. Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.
4. Section 11. Possession of Dangerous Drugs.
5. Comprehensive Dangerous Drugs Act of 2002.
6.Rollo, p. 04.
7.Id. at 04-05.
8.Id. at 05.
9.CArollo, p. 40.
10.Rollo, pp. 05-06.
11.Id. at 06.
12.Id. at 07.
13.Id. at 06-07.
14.Id.
15.Id. at 06, 11.
16.Id. at 09.
17.Id.
18.CArollo, pp. 38-47.
19.Id. at 46-47.
20.Id. at 45-46.
21.Id. at 45.
22.Rollo, pp. 03-16.
23.Id. at 15-16.
24.Id. at 27-33.
25.Id. at 40-43.
26.People v. Pantallano, G.R. No. 233800, 06 March 2019 [Per J. A.B. Reyes, Jr.].
27.People v. Ismael, 806 Phil. 21 (2017), G.R. No. 208093, 20 February 2017 [Per J. Del Castillo].
28.People v. Macaumbang, G.R. No. 208836, 01 April 2019 [Per J. Gesmundo]; see People v.Lumaya, G.R. No. 231983, 07 March 20 18 [Per J. Perlas-Bernabe].
29.People v. Bangcola, G.R. No. 237802, 18 March 2019 [Per J. Gesmundo].
30.People v. Alvaro, G.R. No. 225596, 10 January 2018 [Per J. Perlas-Bernabe].
31.People v. Ubungen, G.R. No. 225497, 23 July 2018 [Per J. Martirez].
32.People v. Posos, G.R. No. 226492, 02 October 2019 [Per J. Lazaro-Javier].
33.People v. Moreno, G.R. No. 234273, 18 September 2019 [Per J. Caguioa].
34.People v. Caranto, G.R. No. 217668, 20 February 2019 [Per J. Caguioa] citing People v.Tomawis, G.R. No. 228890, 18 April 2018 [Per J. Caguioa].
35.CArollo, p. 71.
36.People v. Doctolero, Jr., G.R. No. 243940, 20 August 2019 [Per J. Perlas-Bernabe].
37.G.R. No. 238519, 26 June 2019 [Per J. (now C.J.) Peralta].
38.People v. Vistro, G.R. No. 225744, 06 March 2019 [Per J. Del Castillo].
39.People v. Bahoyo, GR. No. 238589, 26 June 2019 [Per J. A.B. Reyes, Jr.].
40.People v. Bayang, G.R. No. 234038, 13 March 2019 [Per J. (now C.J.) Peralta]; People v. Sali, G.R. No. 236596 (Resolution), 29 January 2020 [Per C.J. Peralta].
41.People v. Hilario, G.R. No. 210610, 11 January 2018 [Per J. Leonardo-de Castro].
42.People v. Malana, G.R. No. 233747, 05 December 2018 [Per J. Caguioa].
43.People v. Hilario, G.R. No. 210610, 11 January 2018 [Per J. Leonardo-de Castro].
n Note from the Publisher: Copied verbatim from the official document.