THIRD DIVISION
[G.R. No. 249301. June 22, 2020.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. MICHAEL NABUAL y TABUAK, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJune 22, 2020, which reads as follows:
"G.R. No. 249301 (PEOPLE OF THE PHILIPPINES, plaintiff-appellee v. MICHAEL NABUAL y TABUAK, accused-appellant.) — The Court NOTES accused-appellant's Manifestation in Lieu of Supplemental Brief dated February 26, 2020 stating that a supplemental brief would no longer be filed considering that he had exhaustively discussed the issues presented for resolution in his Brief for accused-appellant dated June 2, 2017 filed before the Court of Appeals.
In an Information, 1 accused-appellant Michael Nabual (Nabual) was charged with illegal sale of dangerous drugs under Section 5 2 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as follows:
That on or about the 27th day of August 2012, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, did, then and there willfully, unlawfully and feloniously sell to SPO1 BADALF MONTE, posing as a buyer, one (1) piece of heat sealed transparent plastic sachet containing 0.03 [gram] of white crystalline substance which gave positive result to the tests for the presence of Methamphetamine Hydrochloride, a dangerous drug, in violation of the above cited law.
CONTRARY TO LAW. 3
According to the prosecution, on August 27, 2012, a confidential informant went to the Marikina City police informing them of the ongoing selling of drugs by an "alyas Ping-Ping" and an "alyas Mochael" at Upper Balite, Barangay Fortune, Marikina City. 4
At this, Police Chief Inspector Eduardo Gillera (PCI Gillera) organized a buy-bust team with Senior Police Officer 1 Arnel Manuel (SPO1 Manuel) as team leader, Senior Police Officer 1 Badalf Monte (SPO1 Monte) as poseur-buyer, and Police Officer 3 Orlino del Rosario (PO3 del Rosario) as SPO1 Monte's back-up. PCI Gillera handed SPO1 Monte three (3) P100 bills as buy-bust money. SPO1 Manuel then sent the Philippine Drug Enforcement Agency a coordination and pre-operational report. 5
After their preparations, the buy-bust team proceeded to Upper Balite along with the informant. Upon reaching their destination, they parked their car at a jeepney parking area. 6
Thereafter, SPO1 Monte and the informant went to an alley and saw "alyas Mochael." The informant then introduced SPO1 Monte to "alyas Mochael," who a sked about the quantity of drugs they intended to buy. SPO1 Monte replied "tatlong piso[,]" and gave "alyas Mochael" the three (3) P100 bills. In exchange, "alyas Mochael" gave SPO1 Monte a plastic sachet containing white crystalline substance. SPO1 Monte then examined and confirmed the plastic sachet's contents. 7
While holding "alyas Mochael's" right arm, SPO1 Monte scratched his head as a signal of the sale's completion. PO3 Del Rosario then rushed in. After arresting "alyas Mochael," SPO1 Monte marked one side of the plastic sachet with "MTN 8-27-12" and affixed his signature on the other side. 8
"Alyas Mochael" was then brought to the barangay hall where the police officers conducted an inventory in the presence of Kagawad Elpidio Felipio and media representative Edwin Moreno. 9
Sometime after, the police officers prepared a Request for Laboratory Examination and Request for Drug Test Examination. Upon examination by Police Senior Inspector Margarita Libres (PSI Libres), the submitted specimen tested positive for shabu. 10
Testifying in his defense, Nabual, a jeepney barker, recalled being at the jeepney terminal in Upper Balite on August 27, 2012, 5:30 p.m., when he noticed people running. He then saw some persons pursuing Pingping, a driver. Failing to catch Pingping, those persons returned to a "kanto." On the way back, two (2) of them grabbed Nabual by his shirt and dragged him. Thereafter, he was placed under arrest near a red Tamaraw FX. 11
In its Decision, 12 the Regional Trial Court found Nabual guilty beyond reasonable doubt of violating Section 5 of Republic Act No. 9165. It reasoned that the identity and integrity of the illegal drugs seized from Nabual had been maintained, thereby warranting the conclusion that he was selling shabu. 13 The dispositive portion of this Decision reads:
WHEREFORE, in light of the above disquisitions, judgment is hereby rendered finding the accused Michael Nabual y Tabuac guilty beyond reasonable doubt of violating Section 5, Article II, Republic Act No. 9165, and sentencing him to suffer the penalty of life imprisonment and ordering him to pay a fine of Five Hundred Thousand Pesos (P500,000.00).
The illegal drug mentioned in the information of this case is hereby confiscated in favor of the government to be disposed of in the manner provided for by law.
SO ORDERED. 14 (Emphasis in the original)
Nabual then appealed to the Court of Appeals. 15
In its assailed Decision, 16 the Court of Appeals affirmed Nabual's conviction. According to it, the identity and integrity of the allegedly seized shabu was maintained despite ostensible lapses in the chain of custody. 17 It added that there was substantial compliance with chain of custody requirements, underscoring, in particular, that the inventory was "signed by a public official, and a representative from the media." 18 The dispositive portion of this Decision reds:
WHEREFORE, the instant appeal is DENIED. The Decision of the Regional Trial Court of Marikina City, Branch 273 in Criminal Case No. 2012-4067-D-MK dated 12 December 2016 is affirmed.
SO ORDERED. 19 (Emphasis in the original)
For this Court's resolution is the sole issue of whether or not accused-appellant Michael Nabual y Tabuak is guilty beyond reasonable doubt of illegal sale of dangerous drugs.
The elements for conviction of the crime of illegal sale of dangerous drugs punishable under Section 5 of Republic Act No. 9165 are settled. In People v. Morales: 20
In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (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. 21 (Citation omitted, emphasis in the original)
With respect to the corpus delicti, Section 21 of Republic Act No. 9165 spells out requirements concerning the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug, paraphernalia. Section 21 was amended in 2014 by Republic Act No. 10640. However, as the incidents subject of this case occurred in 2012, the original formulation of Section 21 governs. Prior to the amendments introduced by Republic Act No. 10640, the portions of Section 21 which concerned custody of seized items immediately after confiscation or seizure, as well as prior to the filing of a criminal case, read:
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;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours[.] (Emphasis in the original)
It is settled in jurisprudence that noncompliance with Section 21 (1) of Republic Act No. 9165 implies "a concomitant failure on the part of the prosecution to establish the identity of the corpus delicti[.]" 22 Non-compliance "produce[s] doubts as to the origins of the [seized paraphernalia]." 23 This standard "is in keeping with the basic standard for establishing guilt in criminal proceedings: proof beyond reasonable doubt." 24 Considering that non-compliance engenders doubt on one of the elements of the crime, it follows that unjustified noncompliance must result in the acquittal of an accused. 25
In this case, the buy-bust team's course of action is tainted with unjustified deviations from Section 21 (1)'s requirements.
Moreover, not even one of the required witnesses — a representative from the media, the Department of Justice, and an elected public official — was present during the actual arrest and seizure.
People v. Tomawis26 was unequivocal on the need for the require witnesses to be present during actual arrest and seizure:
The presence of the witnesses from the DOJ, media, and from public elective office is necessary to protect against the possibility of planting, contamination or loss of the seized drug. Using the language of the Court in People v. Mendoza, without the insulating presence of the representative from the media or the DOJ and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA 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 subject sachet that was evidence of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused.
The presence of the three witnesses must be secured not only during the inventory but more importantly at the time of the warrantless arrest. It is at this point in which the presence of the three witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug. If the buy-bust operation is legitimately conducted, the presence of the insulating witnesses would also controvert the usual defense of frame-up as he witnesses 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 of RA 9165.
The practice of police operatives of not bringing to the intended place of arrest the three, witnesses, when they could easily do so — and "calling them in" to the place of inventory to witness the inventory and photographing of the drugs only after the buy-bust operation has already been finished — does not achieve the purpose of the law in having these witnesses prevent or insulate against the planting of drugs.
To restate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be secured and complied with at the time of the warrantless arrest; such that they are required to be at or near the intended place of the arrest so that they can be ready to witness the inventory and photographing of the seized and confiscated drugs "immediately after seizure and confiscation." 27 (Citations omitted, emphasis in the original)
Even during the subsequent inventory and taking of photographs — which were not done at the place of arrest and seizure — the required witnesses were incomplete. There was no representative from the Department of Justice.
Republic Act No. 9165's chain of custody requirements admits of exceptions. However, "the prosecution bears the burden of first acknowledging procedural lapses and specifically plead[ing] justifiable grounds for these lapses. It must also plead specific safety measures taken in view of the deviations made from the chain of custody requirements." 28 Particularly concerning the missing witnesses, "it must be alleged and demonstrated that earnest efforts were undertaken to secure their attendance." 29 As this Court has explained:
Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos requires:
It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution mist show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse." Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for non-compliance. These considerations arise from the fact that police officers are ordinarily given sufficient time — beginning from the moment they have received the information about the activities of the accused until the time of his arrest — to prepare for a buy-bust operation and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable. 30 (Citations omitted)
The prosecution here failed to offer any justifiable ground for the total absence of the required witnesses during arrest and seizure, as well as the continuing absence of a required witness during the inventory and taking of photographs done later at the barangay hall.
Even if the absence of required witnesses is to be overlooked and excused, other glaring circumstances cast serious doubt on the prosecution's version of events. To recall, it was supposedly reported that two (2) individuals were in the midst of selling illegal drugs. The buy-bust team allegedly responded to an ongoing illegal activity. Despite this, none but a single sachet of supposed shabu was obtained from accused-appellant.
Common sense dictates that if, indeed, accused-appellant was currently selling drugs, he would have had in his possession more than just a single item. As a seller, he would have had an inventory of goods, or a stock of items for sale. Moreover, it is quite curious that the single item that accused-appellant supposedly had with him for sale, corresponded exactly with the quantity that SPO1 Monte offered to buy. It is quite the coincidence that the single item that accused-appellant happened to have with him corresponded exactly with SPO1 Monte's specifications.
The prosecution's version of events is a little too convenient to support its basic premise of the contingency of an unexpected report, and impromptu action. Basic rationality impels reasonable doubt on accused-appellant's actual vending of shabu when police officers took custody of him. The police officers' noncompliance with chain of custody requirements and the prosecution's incredulous version of events warrant accused-appellant's acquittal.
WHEREFORE, The January 17, 2018 Decision of the Court of Appeals in CA-G.R. CR-HC No. 09015 is REVERSED and SET ASIDE. Accused-appellant Michael Nabual y Tabuak is ACQUITTED for the prosecution's failure to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from confinement unless he is being held for some other lawful cause.
Let a copy of this Resolution be furnished to the Director of the Bureau of Corrections for immediate implementation. The Director of the Bureau of Corrections is directed to report the action he has taken to this Court within five (5) days from receipt of this Resolution.
For their information, copies shall also be furnished to the Director General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency.
Let entry of final judgment be issued immediately.
SO ORDERED." (Gaerlan, J., on leave.)
Very truly yours,
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, p. 4.
2. Republic Act No. 9165, sec. 5 provides:
Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.
The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions.
If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case.
For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemicals trade, the maximum penalty shall be imposed in every case.
If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed.
The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section.
The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.
3.Rollo, p. 4.
4.Id.
5.Id.
6.Id. at 5.
7.Id.
8.Id.
9.Id.
10.Id.
11.Id. at 6.
12. CA rollo, pp. 42-54. The Decision dated December 12, 2016 was penned by Judge Romeo Dizon Tagra of Branch 273, Marikina City, National Capital Judicial Region.
13.Id. at 50.
14.Id. at 54.
15.Rollo, p. 3.
16.Id. at 3-15. The Decision was penned by Associate Justice Jhosep Y. Lopez and concurred in by Associate Justices Celia C. Librea-Leagogo and Manuel M. Barrios of the Eighth Division, Court of Appeals, Manila.
17.Id. at 13.
18.Id. at 14.
19.Id. at 14.
20. 630 Phil. 215 (2010) [Per J. Del Castillo, Second Division].
21.Id. at 228 citing People v. Darisan, 597 Phil. 479 (2009) [Per J. Corona, First Division] and People v. Partoza, 605 Phil. 883 (2009) [Per J. Tinga, Second Division].
22.Id. at 229 citing People v. Orteza, 555 Phil. 701 (2007) [Per J. Tinga, Second Division].
23.People v. Orteza, 555 Phil. 700, 708 (2007) [Per J. Tinga, Second Division] citingPeople v. Laxa, 414 Phil. 156 (2001) [Per J. Mendoza, Second Division].
24.People v. Royol, G.R. No. 224297, February 13, 2019 <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65005> [Per J. Leonen, Third Division].
25.Id.
26. G.R. No. 228890, April 18, 2018, 862 SCRA 131 [Per J. Caguioa, Second Division].
27.Id. at 149-150.
28.People v. Castillo, G.R. No. 238339, August 7, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65610> [Per J. Leonen, Third Division], citing People v. Sanchez, 590 Phil. 214, 234 (2008) [Per J. Brion, Second Division].
29.Id.
30.Id.