SECOND DIVISION
[G.R. No. 251990. July 7, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ELMA MARQUEZ y GEMENA, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated07 July 2021which reads as follows:
"G.R. No. 251990 (People of the Philippines v. Elma Marquez y Gemena) — The conviction of accused-appellant Elma Marquez y Gemena (Elma) for violation of Sections 5 and 11, Article II of Republic Act (RA) No. 9165, 1 in CA-G.R. CR-HC No. 02770 rendered by the Court of Appeals (CA)-Cebu City in its Decision dated December 9, 2019, 2 is the subject of the instant appeal 3 before the Court.
We acquit.
In cases of Illegal Sale and Possession of Dangerous Drugs, the drugs seized from the accused constitute the very corpus delicti of the offense. 4 For this reason, it is of utmost importance that the integrity and identity of the seized drugs be shown to have been duly preserved. The prosecution must satisfactorily establish that the dangerous drugs presented in court as evidence against the accused are the same drugs that were seized from him in the first place. 5 Failure to prove the integrity of the corpus delicti renders the evidence of the State insufficient to prove the guilt of the accused beyond reasonable doubt and, hence, warrants an acquittal. 6 In this regard, Section 21 7 of RA No. 9165, as amended by RA No. 10640, 8 provides the procedural safeguards to observe to remove any doubt on the integrity and identity of the seized drugs.
To ascertain that the illegal drugs presented in court are the ones seized from the accused, the prosecution must show compliance with the chain of custody rule. Chain of custody means the duly recorded, authorized movements and custody of the seized drugs at each stage, from the moment of confiscation to the receipt in the forensic laboratory for examination until it is presented to the court. 9 In Mallillin v. People, 10 the Court explained the importance of compliance with the chain of custody rule, to wit: cDCEIA
As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.
While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering — without regard to whether the same is advertent or otherwise not — dictates the level of strictness in the application of the chain of custody rule. 11 (Emphases ours.)
Accordingly, the movement and custody of the drugs must be shown through the following linkages: first, the confiscation and marking of the drug seized from the accused by the apprehending officer; second, the turnover of the seized drug by the apprehending officer to the investigating officer; third, the investigating officer's turnover of the specimen to the forensic chemist for examination; and fourth, the submission of the specimen by the forensic chemist to the court. 12 Here, we find that the identity of the corpus delicti had been compromised. The prosecution failed to establish that the drugs seized from Elma were the same drugs presented before the trial court.
There is an irregularity in the first link of the chain, or the confiscation and marking of the seized drugs. The narration of facts established by the prosecution lacked material details on how Police Officer Edwardo Marinduque, Jr. (PO Marinduque) identified which sachets were subject of illegal sale and illegal possession of dangerous drugs before marking them. In this case, the CA acknowledged that PO Marinduque did not specifically mention how he handled the lone sachet subject of the buy-bust to distinguish it from the six (6) plastic sachets found inside Elma's bag. Nevertheless, the CA sustained the conviction because "the integrity of the evidence is presumed to have been preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with." 13 The CA added that Elma "was not in any way prejudiced if indeed the sachets were co-mingled" 14 and that "any possible interchange of sachets is immaterial" 15 because the sachet subject of the illegal sale charge weighed only 0.13 gram, as compared to the sachets subject of the unlawful possession which weighed at least 0.18 gram. We are baffled as to how the CA could have arrived at this conclusion.
In all criminal prosecutions, the accused is presumed innocent of the charge laid, unless the contrary is proven beyond reasonable doubt. The burden of proof lies with the prosecution. In drugs cases, the prosecution has the burden of establishing the identity of the confiscated items. 16 Indeed, the accused's conviction for violation of RA No. 9165 cannot depend on a guessing game where the illicit drugs are the very corpus delicti of the offense. A unique characteristic of narcotic substances is that they are not readily identifiable as they are subject to scientific analysis to determine their composition and nature. The risk of tampering, loss, or mistake is greatest. 17 cDTACE
Here, the failure of the prosecution to establish how the seized items were handled adversely affected the trustworthiness of the incriminations against Elma. 18 Any reasonable mind might ask these questions: Is the sachet of shabu allegedly subject of the sale the very same object tested and offered in court as evidence? Are the six (6) sachets of shabu allegedly found inside Elma's bag the very same items submitted to the laboratory, tested, and found positive for methamphetamine hydrochloride, and offered in court as evidence? 19 Effectively, there is no reasonable guaranty as to the integrity of the specimens inasmuch as the prosecution failed to rule out the possibility of substitution of the seized items, which cannot but inure to its detriment. 20 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 crime of illegal possession or illegal sale of dangerous drugs.
In People v. Santiago, 21 the packet of drugs sold to the poseur-buyer was indistinguishable from the four (4) other packets allegedly seized from the accused. The apprehending officer could not discern which of the packets would prove the crimes of sale and possession of dangerous drugs, as their only distinguishing features would be the miniscule differences in their weight. Likewise, in People v. Dahil, 22 the 11 sachets of marijuana, which served as evidence of different criminal charges, could not be readily identified as the police officers failed to mark and distinguish the drugs. As in this case, we cannot discount the possibility that the sachet sold by Elma and the six (6) sachets found in her possession were not interchanged before they were marked. PO Marinduque's testimony did not disclose whether he took the necessary precaution to avoid the confusion of the drugs that were seized. PO Marinduque simply testified that he marked the sachets seized from Elma. The prosecution did not address this procedural lapse, thus constraining the Court to speculate which of the sachets of shabu pertains to illegal sales and to illegal possession of dangerous drugs.
Moreover, only an elected public official plainly witnessed the conduct of the inventory process. As amended by RA No. 10640, Section 21 requires the physical inventory and photography to be done in the presence of the accused, or his representative or counsel, and certain required witnesses, namely: an elected public official, and a representative of the National Prosecution Service or the media. The witness requirement mandates the presence of the witnesses during the conduct of the inventory to ensure that the evils of switching, planting, or contamination of evidence will be adequately prevented. 23 Here, it is undisputed that the media representative arrived after the buy-bust team completed the inventory, viz.:
[In the Pre-trial Order, the parties made the following stipulations regarding the testimony of media representative JUANCHO R. GALLARE:]
1. That he is the media representative representing Sky Cable;
2. That he witnessed the inventory of the items seized from the accused which inventory was already prepared when he arrived;
3. That he saw the items seized as listed in the inventory;
4. That his image is depicted in a photograph marked as Exhibit "H-1-b". 24 (Emphasis supplied.)
Minor deviations may be excused in situations where a justifiable reason for non-compliance is explained. In this case, however, the prosecution did not proffer any explanation to justify the procedural lapse. Certainly, the prosecution bears the burden of proof to show good cause for non-compliance with the procedure laid down in Section 21. It has the positive duty to demonstrate observance thereof so that, during the proceedings before the trial court, it must acknowledge and justify any perceived deviations from the requirements of the law. Its failure to follow the mandated procedure must be adequately explained and must be proven under the rules on evidence. 25
The fourth link in the chain is also tainted with infirmity. The records bear that Police Chief Inspector Josephine S. Llena (PCI Llena) delivered the seven (7) sachets of shabu to the prosecutor, 26 instead of submitting the specimens to the court, as definitively required by the chain of custody rule. In People v. De Guzman, 27 we ruled that the turnover of the drugs from the n are brought to the court. 29 In this case, the prosecution clearly failed to establish the continuous custody of the corpus delicti from the time they were confiscated until they were offered in evidence.
We stress, while the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent, and it cannot by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity is disputable and cannot be regarded as binding truth. 30 Indeed, when the performance of duty is tainted with irregularities, such presumption is effectively destroyed. 31 Hence, the accused Elma Marquez y Gemena must be acquitted.
FOR THESE REASONS, the appeal is GRANTED. The Court of Appeals-Cebu City's Decision dated December 9, 2019, in CA-G.R. CR-HC No. 02770 is REVERSED. Elma Marquez y Gemena is ACQUITTED in Criminal Case Nos. 2017-24827 and 2017-24828, and is ORDERED IMMEDIATELY RELEASED from detention, unless she is lawfully held for another cause.
Let a copy of this Resolution be furnished to the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director is directed to report to this Court the action taken within five (5) days from receipt of this Resolution.
Let an entry of judgment be issued immediately.
SO ORDERED." (Lopez, J.Y., J., designated additional Member per Special Order No. 2822 dated April 7, 2021.)
By authority of the Court:
(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court
Footnotes
1. 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 June 7, 2002.
2.Rollo, pp. 5-16; CA rollo, pp. 85-96. Penned by Associate Justice Carlito B. Calpatura, with the concurrence of Associate Justices Gabriel T. Ingles and Dorothy Montejo-Gonzaga.
3. CA rollo, pp. 97-98.
4.People v. Ismael, 806 Phil. 21, 29 (2017).
5. See id.
6.People v. Cariño, G.R. No. 233336, January 14, 2019.
7. 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. — x x x
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of 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 and custody over said items. x x x
This is implemented by Section 21 (a), Article II of the Implementing Rules and Regulations of R.A. No. 9165 which states:
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. — x x x
(1) 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 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; x x x
8. Entitled "AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF [RA] No. 9165, OTHERWISE KNOWN AS THE 'COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002,'" approved on July 15, 2014, 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, 2013 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); hence, RA No. 10640 became effective on August 7, 2014.
9. Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002.
10. 576 Phil. 576 (2008).
11.Id. at 587.
12.People v. Bugtong, 826 Phil. 628, 638-639 (2018).
13. CA rollo, p. 91.
14.Id.
15.Id.
16.People v. Sagana, 815 Phil. 356, 376 (2017).
17. See Carino v. People, 600 Phil. 433 (2009); Mallillin v. People, supra note 10.
18. See People v. Subangan, G.R. No. 243660 (Notice), July 15, 2020.
19. See Mallillin v. People, supra note 10.
20.People v. Sagana, supra.
21. G.R. No. 219608 (Notice), July 1, 2020.
22. 750 Phil. 212 (2015).
23.People v. Cariño, G.R. No. 233336, January 14, 2019.
24. See CA rollo, p. 46.
25. See People v. Dela Torre, G.R. No. 238519, June 26, 2019.
26.Rollo, p. 13. In an Order dated November 23, 2017, the parties entered into the following stipulations regarding the testimony of PCI Josephine S. Llena: "[t]he tape sealed envelope being submitted by the PCI Josephine S. Llena and handed to the Prosecutor is an improvised white envelope with markings and with signatures on the masking tape x x x." See also rollo, pp. 13-14.
27. 825 Phil. 43 (2018).
28. Note from the Publisher: Copied verbatim from the official document. Missing Footnote Reference and Footnote Text.
29.Id.
30.Mallillin v. People, supra note 10; People v. Cañete, 433 Phil. 781, 794 (2002).
31.People v. Dela Cruz, 589 Phil. 259 (2008).
n Note from the Publisher: Copied verbatim from the official document.