FIRST DIVISION
[G.R. No. 245925. October 13, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. RAMA MACALUMA-DOLONAN AND ABDULRADZES DUMATO DOLONAN A.K.A. "ZED",accused-appellants.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated October 13, 2021which reads as follows:
"G.R. No. 245925 (People of the Philippines v. Rama Macaluma-Dolonan and Abdulradzes Dumato Dolonan a.k.a. "Zed"). — On appeal is the Decision 1 dated July 31, 2018 of the Court of Appeals (CA), which affirmed the Decision 2 dated October 21, 2016 of the Regional Trial Court (RTC), San Miguel, Zamboanga del Sur, Branch 29, finding: (1) accused-appellants Rama Macaluma-Dolonan (Rama) and Abdulradzes Dumato Dolonan a.k.a. "Zed" (Abdulradzes) guilty of the crime of Illegal Sale of Dangerous Drugs, in violation of Section 5, Article II of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, in Criminal Case No. 2010-058; and (2) accused-appellant Abdulradzes guilty of the crime of Illegal Possession of Dangerous Drugs, in violation of Section 11, Article II of the same law, in Criminal Case No. 2010-057. HTcADC
On August 28, 2019, the Office of the Solicitor General (OSG), representing the People, filed a Manifestation 3 that in lieu of supplemental brief, it would no longer file a supplemental brief. On the other hand, Rama and Abdulradzes filed their Supplemental Brief 4 before this Court.
In its Appellee's Brief, 5 the OSG argued that the CA correctly found Rama and Abdulradzes guilty beyond reasonable doubt of the offenses charged.
The OSG elucidated the elements of illegal sale of shabu were proven. First, Rama's and Abdulradzes' identities as the sellers of shabu were established through the positive testimony of Inspection Officer (IO) 2 Patricio S. Alerta, Jr. (IO2 Alerta), the poseur-buyer. 6 He also identified in open court the object of the sale, which was a plastic sachet containing shabu, and the P300.00 buy-bust money given as payment to Rama. 7Second, the delivery of shabu to IO2 Alerta, and the receipt of the buy-bust money by Rama and Abdulradzes consummated the illegal sale of shabu. 8
Further, the requisites to prove illegal possession of shabu were also met. First, Rama and Abdulradzes were proved to have freely and consciously possessed shabu. IO2 Alerta categorically testified that, after he and Rama agreed on the price of the shabu, Abdulradzes went inside the house, and later came out carrying a lunchbox. 9 When IO2 Alerta subsequently seized the said lunchbox, it was found to have contained five (5) plastic sachets of shabu. 10Second, Abdulradzes failed to present evidence to prove that his possession of the plastic sachets of shabu was authorized by law. 11
The OSG also argued that since the elements of illegal possession and sale of shabu were proven beyond reasonable doubt, the RTC and the CA were correct in not giving credence to Rama and·Abdulradzes' bare defense of denial. 12
Lastly, the OSG averred that the chain of custody of the seized shabu was established even if the custodian was not presented in court. 13 In the absence of bad faith, ill motive or proof that the·evidence has been tampered with, the integrity of the evidence is presumed to have been preserved. 14 Here, Rama and Abdulradzes failed to produce any convincing proof that the evidence submitted by the prosecution had been tampered with and could not point out any ill-motive on the part of the Philippine Drug Enforcement Agency (PDEA) agents who arrested them. 15
On the other hand, in their Appellants' Brief, 16 Rama and Abdulradzes alleged that the chain of custody of the shabu was not established. 17 According to Rama and Abdulradzes, the prosecution's evidence failed to establish the chain that would have proven that the shabu presented in court was the very same specimen seized from them, 18 for the following reasons: (1) when the specimen was presented in court, PS/Insp. Farahdiva De Leon De Llana-Guillergen did not identify the condition of the specimen; whether it showed any sign of tampering; and (2) the non-presentation of the custodian of the shabu creates doubt as to the integrity of the evidence presented in court. 19
Rama and Abdulradzes also averred in their Supplemental Brief 20 that the CA erred in convicting them because the buy-bust team failed to strictly comply with Section 21 of R.A. No. 9165. They argued that the insulating witnesses were neither present at the time that they were arrested without warrant, nor were they present when the drugs were marked and when the physical inventory of shabu was made. 21 The marking of the shabu seized was also not done in Rama and Abdulradzes' presence.
The appeal is meritorious.
To enable the Court to determine whether the findings against accused-appellants should be sustained or struck down in their favor, the appeal opens the entire records for review. 22 The appeal gives the appellate court full jurisdiction over the case and renders such court competent to examine records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law. 23
To be convicted of the crime of illegal sale of prohibited drugs under Section 5, Article II of R.A. No. 9165, the following must concur: (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. 24
On the other hand, to be convicted of the crime of illegal possession of prohibited drugs under Section 11, Article II of R.A. No. 9165, it must be shown that: (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug; (2) such possession is not authorized by law; and (3) the accused was freely and consciously aware of being in possession of the drug. 25
In both cases, the corpus delicti is the prohibited drugs seized from the accused. 26 In People v. Sagana, 27 this Court emphasized:
"[I]t is of paramount importance that the existence of the drug, the corpus delicti of the crime, be established beyond doubt." Its identity and integrity must be proven to have been safeguarded. Aside from proving the elements of the charges, "the fact that the substance illegally possessed and sold [was] the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict." The chain of custody carries out this purpose "as it ensures that unnecessary doubts concerning the identity of the evidence are removed." 28
A buy-bust operation is a legally effective and proven procedure sanctioned by law, for apprehending drug peddlers and distributors. 29 Still, strict compliance with the procedures laid down by the law is required to ensure that rights are safeguarded. 30
To establish the identity of the dangerous drug, the prosecution must account for each link in its chain of custody:
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 by the forensic chemist to the court. 31
As part of the chain of custody procedure, R.A. No. 9165 requires that the marking, physical inventory, and photograph of the seized items be conducted immediately after the seizure and confiscation. 32 Further, the law requires that the inventory and photograph be done 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, whose presence serves to ensure the establishment of the chain of custody and remove any suspicion of switching, planting, or contamination of evidence. 33 If the incident happened prior to the amendment of R.A. No. 9165 by R.A. No. 10640, 34 as in this case, the three insulating witnesses required are: a representative from the media and the Department of Justice, and any elected public official. If the arrest was made after the amendment of R.A. No. 9165, R.A. No. 10640, which took effect on August 7, 2014, 35 requires the presence of at least two (2) witnesses: an elected public official and a representative of the National Prosecution Service or the media. 36 aScITE
The prosecution failed to establish the chain of custody of the seized shabu from the time they were recovered from accused-appellants, up to the time that these were presented in Court.
The absence of the insulating
Jurisprudence has settled that the three insulating witnesses must be physically present not only at the time or near the place of apprehension, but more importantly, at the time of the warrantless arrest. 37 In People v. Tomawis, 38 this Court puts emphasis on the purpose of the law in requiring the presence of the insulating witnesses, to wit:
While the IRR allows alternative places for the conduct of the inventory and photographing of the seized drugs, the requirement of having the three required witnesses to be physically present at the time or near the place of apprehension, is not dispensed with. The reason is simple, it is at the time of arrest — or at the time of the drugs' "seizure and confiscation" — that the presence of the three 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.
The raison d'être for requiring the presence of the insulating witnesses from the time of the warrantless arrest, is for them to be ready to witness the inventory and photographing of the seized and confiscated drugs immediately after seizure and confiscation. 39
While non-compliance may be allowed under justifiable circumstances, the prosecution must show that the apprehending officers exerted earnest efforts to comply with the procedure. 40 However, this Court stresses that at the time of the planning of the buy-bust operation, the buy-bust team must not assume that such justifiable circumstances would be applicable, and that strict adherence to the law must be complied with.
In this case, the insulating witnesses were not present during the following instances: (1) when accused-appellants were arrested without a warrant; and (2) when the shabu seized were marked. In addition, the prosecution failed to show that non-compliance with the chain of custody rule was because of justifiable circumstances. There was no proof to show that the apprehending officers exerted earnest efforts to comply with the procedure.
Based on IO2 Alerta's testimony, the only persons present during accused-appellants' arrest were IO2 Alerta himself, the confidential informant, and other members of the buy-bust team:
Q: While you were in your office, what happened there? Or what transpired?
A: At about 7:00 o'clock in the morning, sir, there was a case conference conducted in our office.
Q: What was that case conference about, Mr. Witness?
A: That was about a buy[-]bust operation, sir.
Q: Did you have any target of that buy[-]bust operation, Mr. Witness?
A: The buy bust operation was against the spouses Zed and Rama, Sir.
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Q: So when you were already in the area, Mr. Witness, what transpired next?
A: Upon arriving [at] the area, sir, we parked our motorcycle at the highway fronting the house of the target. The house is made or a light material. 41
For the marking of the shabu seized, neither IO2 Alerta's testimony nor IO1 Arlene P. Decano's (IO1 Decano) testimony mentioned that the marking was done in the insulating witnesses' presence:
Q: So when you held the woman and the man was arrested, what happened next?
A: I then confiscated the small plastic lunchbox placed at the bamboo chair, sir.
Q: Showing to you this small plastic lunchbox color white with blue cover, can you recognize it, Mr. Witness?
A: This is the very same lunchbox that I confiscated during the said operation, sir.
Q: We have pre-marked this small plastic lunchbox as our Exhibit "H" during the pre-trial of this case, your honor. After you confiscated the lunchbox, what did you do with it?
A: I opened the lunchbox and I found other five (5) sachets of shabu, sir.
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Q: So after you found the contents the small plastic lunchbox, Mr. Witness, you started marking the seized items, is that correct?
A: Yes, sir. HEITAD
Q: Where did you make the marking of the seized items, Mr. Witness?
A: Inside her house, sir.
Q: What was the first item that you marked, Mr. Witness?
A: The buy[-]bust evidence, sir.
Q: Do you still recall what marking did you place on the buy[-]bust evidence?
A: I placed on the buy[-]bust evidence my initial "PSA" "BB" and the date of the operation, sir.
Q: What was the date of the operation, Mr. Witness?
A: That was on August 12, 2010, sir.
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Q: Can you conclude that this is the very same shabu that you were able to buy because it bears the same marking?
A: Yes, sir.
Q: And after that, you also marked the other sachets of shabu, is that correct?
A: Yes, sir.
Q: What are the other markings placed on the other sachets of shabu?
A: I placed them "PSA-1" to "PSA-5" and the date of the operation, sir.
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Pros. Vercide:
After the five (5) sachets of shabu, Mr. Witnesses, what are the other items that you marked?
A: I also marked the one (1) improvised plastic scoop, sir.42
Likewise, IO1 Decano testified that IO2 Alerta simply marked the drugs seized, with only IO1 Decano, IO2 Alerta and the accused-appellants, present:
Q: Was the marking of the seized items done at the house of the suspect, [M]adam [W]itness?
A: Yes, Your Honor, after I brought the man suspect to the house, IO2 Alerta put immediately the marking [on] the seize[d] drug and non-drug evidences, Your Honor.
Q: And you were [near him] when [he made] his marking, [M]adam [W]itness?
A: Yes, Your Honor.
Q: Can you still recall of what evidences (sic) to be marked, [M]adam [W]itness?
A: Yes, the shabu and the buy[-]bust money, Your Honor. 43
It can be gleaned from the testimonies of IO2 Alerta and IO1 Decano that although the marking of the seized drug was done at the place of the arrest, it was not done in the presence of the required insulating witnesses. Neither IO2 Alerta's nor IO1 Decano's testimony proves that the buy-bust team exerted earnest efforts in securing the presence of the insulating witnesses at the time of the warrantless arrest and marking of the seized drug. The failure to prove any earnest effort or justifiable reason to excuse the absence of the required insulating witnesses at the time of the warrantless arrest and marking of the seized drug, support the acquittal of accused-appellants.
Non-compliance with the
IO2 Alerta's testimony, 44 the Inventory of Confiscated/Seized Items 45 and the photographs of the accused-appellants and the required insulating witnesses established that the prosecution complied with the required three-witness rule during the physical inventory. However, the chain of custody was still broken because the physical inventory was not conducted at the place of arrest. The law requires that, should physical inventory be conducted at a place other than the place of arrest, a justifiable ground must be proven so·that the chain of custody remains unbroken.
This Court has held that the immediate physical inventory and photograph of the confiscated items at the place of arrest may be excused if the safety and security of the apprehending officers and the witnesses required by law or of the items seized are threatened by immediate or extreme danger, such as retaliatory action of those who have the resources and capability to mount a counter-assault. 46 The present case does not fall within the afore-mentioned situations.
IO2 Alerta testified that the inventory of the confiscated items was conducted at their office:
Q: And after the marking, what did you do next?
A: We then returned back to our office with the arrested suspects, sir.
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Q: Showing to you this picture marked as . . ., it shows the two (2) persons, the woman and the man, and the PDEA agent made his marking of the confiscated items, is this the picture taken during the marking of the confiscated items, Mr. Witness? ATICcS
A: Yes, sir, this is the same picture taken during the said operation.
Q: And where was this picture taken, Mr. Witness?
A: This was taken inside the house of the arrested suspects, sir. . .
Q: So when you were already in your office, what transpired there?
A: I then conducted an inventory of all the seized items, sir.
Q: Did you reduce into writing your physical inventory of the seized items, Mr. Witness?
A: Yes, sir.
Q: Showing to you this inventory of the confiscated items, is this the inventory you made?
A: Yes, sir, this is the inventory of the seized items which I prepared last August 12, 2010, with the witnesses of the inventory are as follows: from the media, Vanessa Cagas; from the DOJ, Pros. Joel Vercide; and from elected official, Emeste Mondarte. I signed it as an inventory officer, sir.
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Q: Did the arrested suspects witness the inventory of the confiscated items?
A: Yes, sir.
Q: Aside from the suspects, who were the other persons present during the inventory of the confiscated items?
A: Our investigator and our Provincial Director, sir. 47
Based on the Inventory of Confiscated/Seized Items 48 and IO2 Alerta's testimony, the physical inventory was done at the PDEA Office located at Dao, Pagadian City and not where the buy-bust operation was conducted. Although this process may be excused under justifiable grounds, the present case is not one of those instances. The police officers did not give any justifiable reason as to why the physical inventory was conducted at a place other than the place of arrest. Thus, the general rule that physical inventory must be done at the place of arrest, applies.
The prosecution must prove to the courts that non-compliance with the procedural safeguards under Section 21 of R.A. No. 9165 were not deliberately ignored. 49 The procedure laid down in the said provision is a matter of substantive law and cannot be brushed aside as simple procedural technicality or ignored as an impediment to the conviction of illegal drug suspects. 50 Non-compliance with Section 21 of R.A. No. 9165 may be allowed as an exception to the rule only: (1) where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds, and (2) when the prosecution established that the integrity and evidentiary value of the evidence seized had been preserved. 51
The prosecution's unjustified non-compliance with the required procedures under Section 21 of R.A. No. 9165 and its IRR resulted in a substantial gap in the chain of custody of the seized items from accused-appellants; thus, the integrity and evidentiary value of the drugs seized are put in question. Hence, this Court finds it necessary to acquit accused-appellants for failure of the prosecution to prove their guilt beyond reasonable doubt.
WHEREFORE, the appeal is GRANTED. The Decision dated July 31, 2018 of the Court of Appeals in CA-G.R. CR-HC No. 01580-MIN, affirming the conviction of: (1) accused-appellants Rama Macaluma-Dolonan and Abdulradzes Dumato Dolonan a.k.a. "Zed" for violation of Section 5, Article II of R.A. No. 9165 in CriminalCase No. 2010-058; and (2) Abdulradzes Dumato Dolonan a.k.a. "Zed" for violation of Section 11, Article II of R.A. No. 9165, ishereby REVERSED and SET ASIDE. Accused-appellants RamaMacaluma-Dolonan and Abdulradzes Dumato Dolonan a.k.a. "Zed" are hereby ACQUITTED of the offenses charged on the ground ofreasonable doubt and are ORDEREDIMMEDIATELYRELEASED unless they are being held for some other lawful cause.Let an entry of judgment be issued immediately.
Let a copy of this Resolution be furnished to the Superintendent of the Davao Prison and Penal Farm, Davao del Norte, who shall SUBMIT a REPORT on the action taken within five (5) days from receipt of notice. Copies of this Resolution shall also be furnished to the Police General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information.
SO ORDERED."Lopez, M., J., on official leave.
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
by:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1. Penned by Associate Justice Perpetua T. Atal-Paño, with Associate Justices Edgardo A. Camello and Walter S. Ong, concurring; rollo, pp. 5-22.
2. Penned by Presiding Judge Ruben N. Bance; CA rollo, pp. 48-53.
3.Rollo, pp. 30-32.
4.Id. at 42-64.
5.Id. at 71-80.
6.Id. at 77.
7.Id.
8.Id.
9.Id. at 78.
10.Id.
11.Id.
12.Id.
13.Id.
14.Id. at 79.
15.Id.
16. CA rollo, pp. 31-43.
17.Id. at 39.
18.Id. at 39-40.
19.Id. at 41.
20.Rollo, pp. 42-64.
21.Id. at 43.
22.People v. Reyes, 797 Phil. 671, 680 (2016).
23.People v. Lira, G.R. No. 235991, March 18, 2021.
24.People v. Rapanan, G.R. No. 252020, May 5, 2021.
25.People v. Hilario, 823 Phil. 580, 588-589 (2018).
26.People v. Sultan, G.R. No. 225210, August 7, 2019.
27. 815 Phil. 356 (2017).
28.Id. at 367-368.
29.People v. Dumanjug, G.R. No. 235468, July 1, 2019.
30.Id.
31.People v. Domondon, G.R. No. 242214, June 23, 2021.
32.Mallari v. People, G.R. No. 242302, June 16, 2021.
33.Id.
34.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 "ComprehensiveDangerous Drugs Act of 2002," Republic Act No. 10640, (2014).
35. R.A. No. 10640 states that it shall "take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation." Verily, a copy of the law was published on July 23, 2014 in the respective issues of "The Philippine Star" (Vol. XXVIII, No. 359, Philippine Star Metro Section, p. 21) and the "Manila Bulletin" (Vol. 499, No. 23; World·News Section, p. 6). Thus, R.A. No. 10640 appears to have become effective on August 7, 2014.
36.People v. Gonzales, G.R. No. 252327 (Minute Resolution), June 28, 2021.
37.People v. Tomawis, 830 Phil. 385, 409 (2018).
38.Supra, at 405.
39.People v. Dumanjug, supra note 29.
40.Jayectin v. People, G.R. No. 247309 (Minute Resolution), October 7, 2020.
41. TSN, IO2 Patricio S. Alerta, Jr., March 14, 2012, pp. 3-8.
42.Id. at 16-19. (Emphases supplied)
43. TSN, IO1 Arlene P. Decano held on July 12, 2012, pp. 7-8.
44. TSN, IO2 Patricio S. Alerta, Jr., March 14, 2012, p. 23.
45. Records, p. 18.
46.People v. Ramos, G.R. No. 236455, February 19, 2020.
47. TSN, IO2 Patricio S. Alerta, Jr., March 14, 2012, pp. 21-23. (Emphases ours)
48. Records, p. 18.
49.People v. Ramos, supra note 46.
50.Id.
51.Id.