FIRST DIVISION
[G.R. No. 222495. June 30, 2021]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. DIVINA MALAYO a.k.a. "TAIWANESE," ET AL., accused-appellants.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated June 30, 2021 which reads as follows:
"G.R. No. 222495 — (PEOPLE OF THE PHILIPPINES, plaintiff-appelleev. DIVINA MALAYO a.k.a. "Taiwanese," ET AL., accused-appellants). — This treats of the Notice of Appeal 1 under Section 13 (c), Rule 124 of the Rules on Criminal Procedure, as amended by A.M. No. 00-5-03-SC, filed by Divina Malayo, a.k.a. "Taiwanese" (Malayo) and Anastacio Del Mindo, Jr. (Del Mindo), (accused-appellants) seeking the reversal of the January 7, 2014 Decision 2 of the Court of Appeals (CA) in CA-G.R. CR No. 33147, affirming with modification the August 20, 2009 Decision 3 of the Regional Trial Court (RTC) of Romblon, Romblon, Branch 81 finding accused-appellants guilty beyond reasonable doubt of the crime of illegal sale of dangerous drugs, in violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as, "The Dangerous Drugs Act of 2002."
The Case
This case stemmed from an Information 4 filed before the RTC charging accused-appellants Malayo and Del Mindo of the crime of illegal sale of dangerous drugs, in violation of Section 5, Article II of R.A. No. 9165, the accusatory portion of which reads:
That on or about the 11th day of October 2005, at around 9:05 o'clock in the evening, in Barangay III, Poblacion, Municipality of Romblon, Province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating and mutually helping each other, did then and there willfully, unlawfully and feloniously sell, trade and deliver 0.091 gram of methamphetamine hydrochloride commonly known as "Shabu," a dangerous drug, without any authority of law to a police officer who acted as poseur buyer.
Contrary to law. 5
Upon arraignment, both accused-appellants pleaded not guilty to the offense charged. Thereafter, pre-trial and trial on the merits ensued. 6
Antecedents
Prosecution's Version of Facts
Sometime in October 2005, a confidential informant came to the office of the Provincial Police Director of the Romblon Provincial Office and informed the police officers that accused-appellants are conducting illegal drug activities in Madron St., Barangay III, Romblon, Romblon. Police Inspector Sonia B. Gaviana (PI Gaviana) then conducted a surveillance of the accused-appellants' house. She observed that a lot of people were going in and out of the house. 7
A week after, or in the evening of October 11, 2005, PI Gaviana, together with her team, composed of Police Officer 2 Eugene Cipriano (PO2 Cipriano), PO1 Efren Santiago (PO1 Santiago) and PO1 Miriam Grace Gumban (PO1 Gumban), with the confidential informant, conducted a buy-bust operation against accused-appellants. PI Gaviana served as the poseur buyer, while the three other police officers acted as backup arresting officers. PI Gaviana was provided a P500.00 as marked money. They then proceeded to the house of accused-appellants. When they arrived, PI Gaviana was introduced by the confidential informant to Malayo as a prospective buyer of shabu. When Malayo asked PI Gaviana how much would she be buying, PI Gaviana answered, "P500.00." Malayo, thereby, told Del Mindo "P500.00 daw." Del Mindo then handed one sachet of shabu to Malayo. When PI Gaviana gave the money, Malayo handed the shabu to PI Gaviana. PI Gaviana, then grabbed Malayo's hands and introduced herself as a police officer. When Malayo resisted, the backup arresting officers arrived. They then successfully arrested Malayo. Del Mindo attempted to escape by going inside the house, but he was stopped and arrested by PO2 Cipriano. 8
Accused-appellants were then brought to the provincial police office where the seized item was marked with "SBG" and inventoried in their presence and the presence of barangay officials, Barangay Chairman Peter Morante (Chairman Morante) and Barangay Kagawad Almi M. Prestosa (Kagawad Prestosa). The Inventory of Confiscated and Seized Articles was prepared. PI Gaviana likewise prepared the Evidence of Chain of Custody. She handed the same, as well as the seized item, to PO1 Abeth Yanson (PO1 Yanson). PO1 Yanson, thereafter, delivered the Request to Conduct Laboratory Examination signed by his superior officer, Police Senior Superintendent Mario Sinsin Velando (PSS Velando). The request was received by PO3 Aguila. 9
Police Superintendent Julieta de Villa (P/Supt. De Villa) conducted the chemistry examination of the 0.091 gram white crystalline substance inside the heat-sealed transparent plastic sachet with marking "SBG." The examination gave a positive result of the presence of Methamphetamine Hydrochloride, or shabu. 10
Defense's Version of Facts
At around 8:00 in the evening of October 11, 2004, a man wearing a green polo shirt entered accused-appellants' house and approached Del Mindo, who was then cooking. He was looking for Malayo. When the man in green polo saw Malayo sleeping inside the bedroom, he awakened her. When Malayo was awakened, she recognized the man in green polo as the PNP Provincial Director of Romblon, PSS Velando, accompanied by PI Gaviana. Malayo, together with her husband, Del Mindo, was invited to the police station for questioning. In the police station, Del Mindo saw their barangay captain signing a document presented by the police officers. They were then arrested allegedly for illegal possession of dangerous drugs. 11
The RTC Ruling
The RTC rendered a Decision 12 finding accused-appellants guilty beyond reasonable doubt of illegal possession of dangerous drugs in violation of Section 5, Article II of R.A. No. 9165. The trial court adopted the presumption of regularity in the performance of the duty of police officers in the apprehension and prosecution of drug traffickers. The trial court likewise concluded that the integrity and the evidentiary value of the seized drug were duly preserved from the time it was seized from accused-appellants until it was presented in court during trial. 13 Accordingly, the trial court disposed of the case in this wise:
WHEREFORE, PREMISES CONSIDERED, this Court finds both accused, DIVINA MALAYO and ANASTACIO DEL MINDO, JR., GUILTY beyond reasonable doubt for Violation of Section 5, in relation to Sec. 26, Article II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, which repealed R.A. 6425 and amended R.A. 7659, and hereby sentences each of them to suffer imprisonment from Six (6) months of arresto mayor, as minimum, to Two (2) years and Four (4) months of prision correccional, as maximum, and to pay the costs. They are entitled to credit for the period of preventive imprisonment they have served while under detention, pursuant to Article 29 of the Revised Penal Code.
SO ORDERED. 14
Aggrieved, accused-appellants appealed to the CA.
The CA Ruling
In a Decision 15 promulgated on January 7, 2014, the CA affirmed with modification the RTC Decision. Similar to the trial court's findings, the CA ruled that the prosecution was able to establish all the elements of the crime charged; that the evidentiary value of the seized drug was preserved despite some lapses in the handling thereof. It further ratiocinated that despite the prosecution's failure to formally offer as evidence the shabu, the fact that it was identified in the chemistry report as shabu, as well as it was testified on by the chemist who conducted the examination, cures such defect. Anent the duration of imprisonment and award of damages, the CA modified it to conform with the existing rules and jurisprudence. 16 The fallo of the assailed Decision reads:
WHEREFORE, premises considered, the decision dated August 20, 2009 of the Regional Trial Court of Romblon, Branch 81 is AFFIRMED with MODIFICATION. As modified, the accused-appellants are sentenced to suffer life imprisonment and a fine of Five Hundred Thousand (Php500,000.00) Pesos each.
Let copies of this Decision be furnished the Office of Court Administrator, Supreme Court with address at Taft Avenue corner Padre Faura, Ermita, Manila and the Prosecutor General, National Prosecution Service, Department of Justice with address at Padre Faura, Ermita, Manila for their information and guidance.
No cost.
SO ORDERED. 17
Undaunted, accused-appellants filed a Notice of Appeal 18 under Rule 124, Section 13 (c) of the Rules of Criminal Procedure.
Issue
Whether the Court of Appeals erred in affirming the trial court's decision convicting accused-appellants Malayo and Del Mindo of the crime charged despite the failure of the prosecution to formally offer as evidence the corpus delicti, that is, the seized drug.
The Court's Ruling
The appeal is impressed with merit.
In the instant appeal, accused-appellants insist that the prosecution's failure to formally offer as evidence the drug allegedly seized from their possession is fatal to its case; while the forensic chemist testified on the drug, it would show that the drug identified by the forensic chemist is different from the drug allegedly seized by the police officers during the buy-bust operation. Accused-appellants further aver that the apprehending officers failed to strictly comply with the requirements outlined in Section 21 of R.A. No. 9165 in that the inventory was not witnessed by representatives of the media and the Department of Justice (DOJ); accordingly, there is reasonable doubt as to their guilt for the crime charged. 19
The Court finds for the accused-appellants.
In every prosecution for illegal sale of dangerous drugs, the prosecution must establish the following elements: (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. 20 Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of the confiscated prohibited or regulated drug as evidence. The narcotic substance itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction. 21 This, however, does not necessarily mean that the sachet of shabu allegedly seized need to be formally offered as evidence.
While the rule is that for evidence to be considered, the same must be formally offered, 22 in People v. Napat-a 23 citing People v. Mate, 24 this Court relaxed the foregoing rule and allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present, viz.: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case. 25
In the instant case, records show that the seized drug was not offered as evidence. Based on the Formal Offer of Evidence, 26 the plastic sachet and its contents were not marked and formally offered as evidence by the prosecution. Hence, the question now is whether the sachet of shabu allegedly seized from accused-appellants, although not formally offered as evidence, were properly identified by the testimony of the witnesses which were incorporated in the records of the case?
The Court rules in the negative.
Records reveal that when PI Gaviana, the poseur buyer, testified, she claimed to have marked the plastic sachet containing the shabu with her initials, "SBG." 27 Interestingly, the sachet was not presented in open court for PI Gaviana to identify that it was indeed the very same sachet on which her initials were allegedly placed. 28
Admittedly, the prosecution offered as evidence the Chemistry Report of the forensic chemist stating that what was inside the plastic sachet seized from accused-appellants was shabu. 29 While the forensic chemist, P/Supt. De Villa, identified a brown envelope containing the plastic sachet with the shabu inside allegedly seized from accused-appellants, 30 her testimony, instead of fortifying the prosecution's case, weakened it.
To recall, according to PI Gaviana, the sachet seized from accused-appellants was marked with her initials "SBG." 31 However, during cross-examination of P/Supt. De Villa and when the small brown envelope, allegedly containing the seized drug from accused-appellants, was opened by the interpreter, the interpreter noted that "inside it is a small sachet marked -)." 32 These markings, "SBG" and "-)" are indubitably different and distinct from each other. One is the initial of PI Gaviana, while the other is a sort of a smiley icon. Worse, when the brown envelope was opened and the plastic sachet allegedly containing shabu was presented in open court, P/Supt. De Villa did not point out and identify the marking "SBG" which PI Gaviana allegedly placed in the seized plastic of shabu. 33 These circumstances cast doubt as to whether the sachet of shabu identified by the forensic chemist is the same shabu allegedly seized from accused-appellants.
Records further reveal that PI Gaviana was able to place only her initials in the plastic sachet because it was very small. She explained that since the plastic sachet was very small, she had to place the small plastic sachet into a bigger plastic bag where she placed the date, case number and the accused-appellants' names. 34 Interestingly, the forensic chemist stated that she marked the alleged same plastic sachet with "A," 35 and even her initials, weight of the sample and chemistry case number. 36 This inevitably suggests that the plastic sachet seized by PI Gaviana, which according to her is very small that only her initials were placed, is different from the plastic sachet identified by the forensic chemist who was able to place several markings thereon.
In sum, not only was the initial of PI Gaviana, "SBG," not on the plastic sachet identified by the forensic chemist, it was tagged with a different mark, that is, "-)." There is likewise a difference in the size of the plastic sachets allegedly seized from the accused-appellants and the plastic sachet identified in court by the forensic chemist. The foregoing leads the Court to conclude that the sachet inside the brown envelope identified by the forensic chemist is not the same sachet of shabu allegedly seized from the accused-appellants. Tersely put, the sachet of shabu was not properly identified by the prosecution's witnesses when they testified in court. In fact, their testimonies cast doubt as to whether the plastic sachet identified by the forensic chemist and that seized from accused-appellants are one and the same.
Corollarily, the second element of illegal sale of dangerous drugs, that is, the presentation in court of the corpus delicti or the illicit drug as evidence was not adequately met. Reasonable doubt, therefore, exists as to the guilt of the accused-appellant for the crime charged.
Assuming ex argumenti that the prosecution was able to properly identify the corpus delicti during trial, this Court is still inclined to acquit accused-appellants due to a broken chain of custody.
The prosecution bears the burden of proving the identity and integrity of the corpus delicti, which in this case is the seized plastic sachet containing shabu. This is accomplished by proving an unbroken chain of custody, to ensure that the items presented before the trial court are the same items taken from the accused. The chain of custody rule thus serves as a mode of authenticating evidence that removes doubts regarding the identity of the evidence presented in court. 37
In the case of People v. Kamad, 38 this Court had the opportunity to enumerate the different links that the prosecution must prove in order to establish the chain of custody in a buy-bust operation, namely:
x x x[F]irst, 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. 39
In the instant case, the prosecution failed to comply with the pertinent rules as to the marking and inventory of the seized items.
Section 21 (1) of R.A. No. 9165 provides the procedure for the custody and disposition of confiscated, seized, or surrendered dangerous drugs. 40 Under the said section, prior to its amendment by R.A. No. 10640, 41 the apprehending officers shall, among others, 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 DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. There is, however, a proviso in its implementing rules and regulations, which states: "x x x 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." 42 Otherwise stated, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of R.A. No. 9165 and its Implementing Rules and Regulations does 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 justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. 43
It is established in the instant case that during the inventory of the seized item, there were no representatives from the DOJ and the media. 44 Only Chairman Morante and Kagawad Prestosa, and accused-appellants witnessed the conduct of the inventory. 45 Worse, the apprehending officers offered no excuse for and failed to justify the absence of the representatives of the media and the DOJ. This is clearly in direct violation of the above-quoted rules.
As held in the case of People v. Feriol, 46 where this Court, acquitted therein accused Feriol of the crime of sale of dangerous drugs on the ground of the prosecution's failure to comply with Section 21, Article II of R.A. No. 9165, particularly due to the absence of media and DOJ representatives during the inventory of the seized items:
The procedure in Section 21[, Article II] of [R.A. No.] 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects. Therefore, as the requirements are clearly set forth in the law, then the State retains the positive duty to account for any lapses in the chain of custody of the drugs/items seized from the accused, regardless of whether or not the defense raises the same in the proceedings a quo; otherwise, it risks the possibility of having a conviction overturned on grounds that go into the evidence's integrity and evidentiary value, albeit the same are raised only for the first time on appeal, or even not raised, become apparent upon further review. 47
It bears stressing at this point that "[w]ithout the insulating presence of the representative from the media or the [DOJ], or any elected public official during the seizure and marking of the [seized drugs], the evils of switching, 'planting' or contamination of the evidence that had tainted the buy-busts conducted under the regime of [R.A. No.] 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the [said drugs] that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the x x x presence of such witnesses would have preserved an unbroken chain of custody." 48
The Court, however, clarified that under varied field conditions, strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible. In the case of People v. Año, 49 this Court expounded:
x x x In fact, the Implementing Rules and Regulations (IRR) of RA 9165 — which is now crystallized into statutory law with the passage of RA 10640 — provide that non-compliance with the requirements of Section 21, Article II of RA 9165 — under justifiable grounds — will not automatically render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer or team. In other words, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of RA 9165 and its IRR does 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 justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. In People v. Almorfe, 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. Also, in People v. De Guzman, it was emphasized that 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. 50 (Citations, underscoring and emphasis omitted)
From all the foregoing, this Court holds and so rules that, due to the unexplained absence of the media and DOJ representatives, and the lack of the prosecution to exert effort in securing their presence during the inventory of the seized item, the integrity and evidentiary value thereof have been compromised. Clearly, there was already a broken chain of custody at the very first link. Needless to state, such a broken chain of custody, even by itself, warrants the acquittal of accused-appellants from the crime charged.
All told, this Court holds and so rules that the prosecution's evidence, both testimonial and documentary, had raised reasonable doubt on whether or not accused-appellants are indeed guilty of the crime charged. As a consequence, this Court is constrained to acquit accused-appellants on the ground of reasonable doubt.
WHEREFORE, the instant appeal is hereby GRANTED. The January 7, 2014 Decision of the Court of Appeals in CA-G.R. CR No. 33147 is hereby REVERSED and SET ASIDE.
Accordingly, Divina Malayo, a.k.a. "Taiwanese" and Anastacio Del Mindo, Jr., are hereby ACQUITTED on reasonable doubt of the crime charged against them and are ORDERED RELEASED from detention, unless they are being lawfully held for another cause. Let a copy of this Resolution be FURNISHED to the Director General of the Bureau of Corrections for immediate implementation. The Director General of the Bureau of Corrections is directed to report to this Court, within five (5) days from receipt of this Resolution, the action he has taken. Copies 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."
By authority of the Court:
LIBRADA C. BUENADivision Clerk of Court
By:
(SGD.) MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 28-29.
2.Id. at 2-27; penned by Associate Justice Leoncia Real-Dimagiba, with Associate Justices Amelita G. Tolentino and Ricardo R. Rosario (now a Member of this Court), concurring.
3. CA rollo, pp. 24-32; penned by Judge Designate Jose M. Madrid.
4. Records, pp. 1-2.
5.Id. at 1.
6.Rollo, p. 3.
7.Id. at 4-5.
8.Id. at 5-6.
9. CA rollo, pp. 141-142.
10.Rollo, pp. 7-8.
11. CA rollo, pp. 28-29.
12.Id. at 24-32.
13.Id. at 30-31.
14.Id. at 31-32.
15.Rollo pp. 2-27.
16.Id. at 9-25.
17.Id. at 25-26.
18.Id. at 28-29.
19.Rollo, pp. 41-64.
20.People v. Abdulah, G.R. No. 243941, March 11, 2020.
21.People v. Mirondo, 771 Phil. 345, 356 (2015).
22. RULES OF COURT, Rule 132, Section 34.
23. 258-A Phil. 994 (1989).
24. 191 Phil. 72 (1981).
25.People v. Napat-a, supra at 998.
26. Records, pp. 99-102.
27. TSN dated March 14, 2006, p. 41.
28.Id. at 41-42.
29. Records, p. 112.
30. TSN dated June 1, 2006, pp. 10-11.
31. TSN dated March 14, 2006, p. 41.
32. TSN dated June 1, 2006, p. 11.
33.Id. at 11-12.
34. TSN dated March 14, 2006, p. 41.
35. TSN dated June 1, 2006, p. 6.
36.Id. at 11.
37.People v. Maralit, G.R. No. 232381, August 1, 2018.
38. 624 Phil. 289 (2010).
39.Id. at 304.
40. See Implementing Rules and Regulations of R.A. No. 9165, Section 21 (a); See also PDEA Guidelines on the Implementing Rules and Regulations of Section 21 of R.A. No. 9165 as amended by R.A. No. 10640 (2015).
41. Entitled "An Act to Further Strengthen the Anti-Drug Campaign of the Government, amending for the Purpose Section 21 of Republic Act No. 9165, Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2002," (2014).
42. Comprehensive Dangerous Drugs Rules of 2002.
43.People v. Dumanjug, G.R. No. 235468, July 1, 2019.
44. Records, p. 109.
45.Id.
46. G.R. No. 232154, August 20, 2018.
47.Id.
48.Id. citing People v. Mendoza, 736 Phil. 749, 764 (2014). Emphasis and underscoring omitted.
49. 828 Phil. 439 (2018).
50.Id. at 449-450.