People v. Malana y Furugganan

FIRST DIVISION

[G.R. No. 239026. March 18, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.CLIFFORD MALANA y FURUGGANAN, 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. 239026 (PEOPLE OF THE PHILIPPINES, plaintiff-appellee, v. CLIFFORD MALANA y FURUGGANAN, accused-appellant). — Before this Court is an Appeal filed by Clifford Malana y Furugganan (accused-appellant) from the Decision 1 dated January 16, 2018 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 08138. The assailed Decision dismissed the appeal and affirmed the Decision dated December 11, 2015 of the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 9, which found the accused-appellant guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act, as amended.

On June 9, 2011, the accused-appellant was charged of the crime of illegal sale and possession of dangerous drugs under Sections 5 and 11 of R.A. No. 9165, by virtue of two Informations, the accusatory portion of which reads:

CRIMINAL CASE NO. II-10732

That on or about June 7, 2011, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, without any legal authority thereof, did then and there willfully, unlawfully and feloniously, sell, deliver, dispense, give away to another and transport one (1) piece of heat-sealed transparent plastic sachet containing crystalline substance which gave POSITIVE results to the tests for methamphetamine hydrochloride, a dangerous drug, locally known as SHABU, weighing 0.13 gram to a poseur-buyer of the elements of the Philippine National Police Force (PNP) stationed in said municipality, said accused knowing fully well and aware that it is prohibited for any person to sell, deliver, dispense, give away to another or transport any dangerous drugs regardless of the quantity or purity thereof, unless authorized by law.

CONTRARY TO LAW. 2

CRIMINAL CASE NO. II-10733

That on or about June 7, 2011, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, without any legal authority thereof, did then and there willfully, unlawfully and feloniously have in his possession and under his control and custody TEN (10) heat-sealed transparent plastic sachets each containing crystalline substance which gave POSITIVE results to the tests for methamphetamine hydrochloride, a dangerous drug, locally known as SHABU, weighing an aggregate of 2.53 grams, the said accused knowing fully well and aware that it is prohibited for any person to possess and/or carry any dangerous drugs regardless of the quantity, quality or purity thereof, unless authorized by law.

CONTRARY TO LAW. 3

On February 28, 2012, the accused-appellant was arraigned; and assisted by counsel, entered a plea of not guilty for both charges. 4 After the termination of pre-trial on June 27, 2012, trial was jointly held for both charges. 5 CAIHTE

The prosecution presented as witnesses the following Philippine National Police (PNP) officers assigned at Aparri Station: Police Officer 2 Teddy Balanay (PO2 Balanay), Senior Police Officer 2 Reynaldo Carbonel (SPO2 Carbonel), Police Inspector Ismael Zalun (P/Insp. Zalun), and Police Officer 1 Hora Catherine Leal (PO1 Leal). As well, the testimonies of PO1 Nonalyn Delayun, Police Senior Inspector James Bad-E, and SPO1 Elyson Taldtad from the PNP Crime Laboratory, Camp Adduru, Tuguegarao City Office were presented in evidence. 6

The collective testimonies of the prosecution witnesses tend to establish that based on an information received by SPO2 Carbonel on June 7, 2011, P/Insp. Zalun convened a buy-bust team composed of PO2 Balanay, SPO2 Carbonel, SPO2 Ricardo Napao (SPO2 Napao), PO1 Jason Baccay (PO1 Baccay), PO1 Mark Pascual (PO1 Pascual), and PO1 Leal, who acted as the poseur-buyer. Preparations ensued in which it was agreed upon that a missed call would indicate the consummation of the transaction. A marked P500.00 bill was prepared to be used during the simulated sale. 7

After the necessary coordination with the Philippine Drug Enforcement Agency (PDEA), the buy-bust team proceeded to Ryan Hotel in Barangay Maura, Aparri at around 9:15 p.m., PO1 Leal waited for the accused-appellant outside the hotel while the rest of the team waited nearby. After about 30 minutes, accused-appellant arrived on board his motorcycle. PO1 Leal approached him and signified her intent to buy P500.00 worth of shabu. The accused-appellant replied that what he has with him was worth P2,000.00. At that point, PO1 Leal decided to buy everything. As she took the money from her bag, PO1 Leal performed the pre-arranged signal, handed the money to the accused-appellant, who, in turn, handed to her one (1) plastic sachet of shabu. 8

After receiving the signal from PO1 Leal, the buy-bust team proceeded to the scene and arrested the accused-appellant. SPO2 Napao frisked the accused-appellant and recovered in his possession: a one (1) cal. 45, thirteen (13) live ammunitions, and one (1) hand grenade. Whereas it was PO1 Pascual who recovered the "marked money and boodle money" from the accused-appellant. 9

The accused-appellant was brought to the Barangay Hall of Maura, Aparri wherein the items seized were marked and inventoried in the presence of Barangay Captain Chan and Barangay Councilor Palattao. 10 Thereafter, the police officers together with the barangay officials brought the accused-appellant and the seized items to the Aparri Police Station. 11

At the police station, the accused-appellant was bodily searched by PO1 Baccay. A purse containing seven pieces of heat-sealed plastic sachets was found on the accused-appellant's right pocket. PO1 Pascual also found three (3) more plastic sachets inside the tube "cool mint" from the accused-appellant. After the items were marked, a confiscation receipt was prepared and custody over the items were turned over to PO2 Balanay. 12

On June 8, 2011, PO2 Balanay gave the items to SPO2 Carbonel who then delivered the same along with the letter request for examination to the Regional Crime Laboratory Office in Camp Adduru, Tuguegarao City. It was PO1 Delayun who received and entered the same in the logbook, and forwarded the same to Engr. Bad-E, the forensic chemist. Each of the 11 plastic sachets were tested and yielded positive for the presence of methamphetamine hydrochloride. 13

The accused-appellant testified in his defense. In the main, he puts forth the defense of frame-up. Accused-appellant claimed that no buy-bust operation took place and that under no instance was the mentioned prohibited items taken from him. He averred that at around 10:00 p.m. of June 7, 2011, he was playing peque at a wake in Maura, Aparri, Cagayan with several persons including SPO2 Napao and P/Insp. Zalun. Later, as accused-appellant was on his way to his motorcycle about to go home, he was called by a woman who was on board a tricycle. The woman, later identified to be PO1 Leal, asked the accused-appellant if he knows of any source, to which he replied in the negative. PO1 Leal then asked him if he wanted to sell, to which the accused-appellant declined. As the accused-appellant turned to leave, PO1 Leal grabbed and held his left arm. Then, SPO2 Napao and P/Insp. Zalun arrived, they pulled the accused-appellant, made him lie face down to the ground. The accused-appellant was then bodily searched but no illegal item was recovered from his possession. Accused-appellant was brought to the barangay hall where he was again searched; which again yielded nothing illegal. However, when the barangay officials arrived, the police officers told them that a plastic sachet, marked money, firearm, and a hand grenade were confiscated from him. Accused-appellant told the barangay captain that the items were not his, but the latter ignored him. The accused-appellant was later brought to the police headquarters where he was booked and processed. 14

On December 11, 2015, the RTC of Aparri, Cagayan, Branch 9, rendered its Decision 15 finding as follows:

WHEREFORE, foregoing premises considered, this court hereby finds accused CLIFFORD MALANA Y FURAGGANAN GUILTY beyond reasonable doubt of the offense of illegal sale of 0.13 gram of methamphetamine hydrochloride, popularly known as shabu and he is hereby sentenced in Criminal Case No. II-10732 to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00).

With respect to CRIMINAL CASE NO. II-10733, which is illegal possession of ten (10) plastic sachets, each containing shabu, with an aggregate weight of 2.53 grams, the said accused is hereby ACQUITTED on the grounds of reasonable doubt.

The eleven (11) pieces of plastic sachets each containing white crystalline substance proven to be shabu, which are the subjects of these cases, are hereby ordered forfeited and confiscated in favor of the government and the Officer-In-Charge of the Office of the Branch Clerk of Court is hereby directed to turn over the said dangerous drug to the Philippine Drug Enforcement Agency (PDEA) Regional Office No. 02, Tuguegarao City for proper disposition in accordance with law.

SO DECIDED. 16

The RTC held that the chain of custody has been established only with respect to one (1) plastic sachet that is the subject of sale. With respect to the 10 plastic sachets allegedly found in the possession of the accused-appellant, the RTC held that "the testimonies of the prosecution witnesses reveal broken links in the chain of custody thereof, and there appears to be inconsistencies as to who recovered and confiscated the same." These affected the integrity and evidentiary value of the 10 plastic sachets which thus warrants the acquittal of the accused-appellant of the crime of illegal possession on the basis of reasonable doubt. 17

The accused-appellant appealed to the CA, which rendered the herein assailed Decision, 18 affirming the Decision of the RTC, viz.:

WHEREFORE, the instant appeal is hereby DENIED for lack of merit. The assailed Decision dated 11 December 2015 of Branch 9 of the Regional Trial Court of Aparri, Cagayan is hereby AFFIRMED.

SO ORDERED. 19

Thus, this appeal.

The parties manifested that they will no longer file their respective supplemental briefs as they have already exhaustively discussed the issues in their briefs before the CA. 20

The accused-appellant argues that the evidence presented by the prosecution failed to establish his guilt beyond reasonable doubt. He claims that the alleged buy-bust operation are riddled with irregularities which rendered it defective. In particular, the accused-appellant cites the officers failure to comply with the PNP Operations Manual which requires that all the buy-bust money must be marked, and for the officers to ensure that the pre-arranged signal is performed only after the consummation of the transaction. 21

Likewise, the accused-appellant claims that "the evidence on record is wanting with respect to the identity of the allegedly seized drugs" as there is failure to comply strictly with the requirements of Section 21 (1) of R.A. No. 9165. 22

The appeal is meritorious.

In order to sustain conviction for the sale of illegal drugs under Section 5 of the Comprehensive Dangerous Drugs Act, the following elements must be established beyond reasonable doubt: (1) proof that the transaction or sale took place, and (2) the presentation in court of the corpus delicti or the illicit drug as evidence. 23

The element of corpus delicti is established by showing compliance with the requirements for the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia as set forth under Section 21 of R.A. No. 9165 must be complied with, viz.: DETACa

Section 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[.] (Emphasis and underscoring supplied)

In the same vein, Section 21 (a) of the Implementing Rules and Regulations of R.A. No. 9165 provides for the proper procedure to be observed in accordance with the foregoing provision and the effect of non-compliance therewith, viz.:

xxx xxx xxx

(a) The apprehending officer/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: 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, further that non-compliance with 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 of and custody over said items.

xxx xxx xxx

In People v. Que, 24 the Court held that R.A. No. 9165 requires nothing less than strict compliance, any deviation affects the chain of custody as it opens the possibility of tampering, substitution, and planting of evidence. For this purpose, even approximate compliance is not enough. 25

In the case at bar, the accused-appellant was arrested for selling shabu in the quantity of 0.13 gram during a buy-bust operation. He was also found to be in possession of dangerous weapons. Strikingly however, the items which are said to have been retrieved from the accused-appellant were not inventoried or photographed immediately after seizure and confiscation as required by the rules. Also, none of the persons required to be physically present are in the scene of the crime at the time of the warrantless arrest. What is more, the prosecution did not offer any justification for the said deviations in the procedure. It was not clear whether the police officers endeavored to comply with the rules but the circumstances make it impossible for them to do so. To be clear, it is not the duty of this Court to speculate or supply these justifications. The burden is upon the prosecution to allege and prove that there is a genuine attempt on the part of the police officers to comply with the law, the reason for their non-compliance with the law, and the steps they have undertaken to preserve the integrity and evidentiary value of the confiscated items. 26

The apprehending officers committed procedural lapses that justify the accused-appellant's acquittal. Apart from that previously mentioned, it bears to state that it was only when the accused-appellant was brought to the barangay hall that the seized items were inventoried, and at the time only barangay officials were present, there were no representatives from the media and the Department of Justice. Neither was it shown if there was an attempt to seek the presence of these witnesses but for some reason it cannot be obtained.

The observance of the prescribed procedure is highlighted by the miniscule amount of the drugs involved and the admitted deviations from the standard procedure that must be observed during the conduct of Anti-Illegal Drugs Operation as prescribed by the 1999 PNP Drug Enforcement Manual. Taken together, these gives reasonable doubt that warrants the accused-appellant's acquittal.

The shabu that is the subject of the simulated sale is merely 0.13 gram, surely it is not hard to imagine how the same can easily be the subject of substitution, planting, or contamination, the very evils R.A. No. 9165 seeks to prevent. Thus, the Court must be more rigorous in ensuring that Section 21 of R.A. No. 9165 is the strictly complied with. 27

In the same vein, the prosecution admitted that not all of the money used in the buy-bust operation were marked. More significant, in the testimony of its very witnesses, the prosecution likewise admitted that PO1 Leal, the poseur-buyer, performed the pre-arranged signal prior to the consummation of the transaction. It therefore became unclear whether the police officers which served as back-up came prior to or after the sale was consummated. During the inventory, the dangerous drugs confiscated was marked only with PO2 Leal's initials, without any indication of the date, time, and place where the evidence was seized. These lapses lend serious doubts whether there is indeed merit in the accused-appellant's defense that no sale took place and that he was merely framed-up. It must be stated that these transgressions are not merely customary but are expressly provided for under the 1999 PNP Drug Enforcement Manual, 28 in effect at the time of the buy-bust operation.

In view of non-compliance with the procedure in the handling of the seized drugs, the customary presumption of regularity in the performance of official duties would not suffice. 29 Jurisprudence instructs that the presumption applies only when the officers have shown compliance with the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise or be relied upon. 30

Ultimately, it must be emphasized that the burden of proof is upon the prosecution to establish the guilt of the accused beyond reasonable doubt. In doing so, it must rise on its own merits, without regard to the weakness of the defense. 31 Thus, while admittedly, the accused-appellant's defense of "denial and frame-up" is inherently weak, when however, the evidence presented by the prosecution fall short of the quantum of evidence required, acquittal must follow in view of the constitutionally guaranteed right of the accused to presumption of innocence. 32

WHEREFORE, in view of the foregoing, the appeal is GRANTED. The Decision dated January 16, 2018 of the Court of Appeals in CA-G.R. CR-HC No. 08138, which in turn affirmed the Decision dated December 11, 2015 of the Regional Trial Court of Aparri, Cagayan, Branch 9 in Criminal Case No. II-10732, are hereby REVERSED and SET ASIDE.

Accused-appellant Clifford Malana y Furugganan is ACQUITTED based on reasonable doubt.

The Director of the Bureau of Corrections is directed to: (a) cause the immediate release of accused-appellant Malana, unless he is being lawfully held for another cause; and (b) inform this Court of the date of his release, or the reason for his continued confinement as the case may be, within five (5) days from notice.

Copies of this Resolution must be furnished to the Director General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information. aDSIHc

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. 2-28; penned by Associate Justice Rafael Antonio M. Santos, with Associate Justices Apolinario D. Bruselas, Jr., and Socorro B. Inting, concurring.

2. CA rollo, pp. 6-7.

3.Id.

4.Id.

5.Id.

6.Id. at 7-11.

7.Rollo, p. 3.

8.Id.

9.Id. at 4.

10.Id.

11.Id.

12.Id.

13.Id. at 4-5.

14.Id. at 5-6, CA rollo, p. 12.

15. CA rollo, pp. 6-19; rendered by Presiding Judge Conrado T. Tabaco.

16.Id. at 19.

17.Id. at 18-19.

18.Rollo, pp. 2-28.

19.Id. at 27.

20.Id. at 38-40, 44-45.

21. CA rollo, pp. 68-69.

22.Rollo, p. 70.

23.People v. Que, 824 Phil. 882, 893 (2018), citing People v. Morales, 630 Phil. 215, 236 (2010).

24.Id.

25.Id. at 897-898.

26.People v. Lim, G.R. No. 231989, September 4, 2018.

27.People v. Que, supra note 23, citing Lescano v. People, 778 Phil. 460, 470 (2016).

28. Anti-Drug Operational Procedures

V. Specific Rules

xxx xxx xxx

B. Conduct of Operation: (As far as practicable, all operations must be officer led)

1. Buy-Bust Operation — in the conduct of buy-bust operation, the following are the procedures to be observed:

xxx xxx xxx

f. If buy-bust money is dusted with ultra violet powder make sure that suspect ge[t] hold of the same and his palm/s contaminated with the powder before giving the pre-arranged signal and arresting the suspects;

xxx xxx xxx

m. The seizing officer (normally the poseur-buyer) and the evidence custodian must mark the evidence with their initials and also indicate the date, time and place the evidence was confiscated/seized;

29.People v. Manabat, G.R. No. 242947, July 17, 2019.

30.Id., citing People v. Kamad, 624 Phil. 289, 311 (2010).

31.Daayata v. People, 807 Phil. 102, 118 (2017).

32.People v. Manabat, supra.