SECOND DIVISION
[G.R. No. 252564. June 21, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MARILOU QUERIJERO y ABRIGO, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated21 June 2021 which reads as follows: HTcADC
"G.R. No. 252564 (People of the Philippines v. Marilou Querijero y Abrigo). — In this appeal, 1 Marilou Querijero y Abrigo (accused-appellant) contends that the prosecution failed to prove that the poseur-buyer personally bought the shabu from her because the sale was negotiated with the confidential informant. She likewise faults the trial court and the Court of Appeals (CA) for failing to recognize the significant break in the fourth link in the chain of custody of the illegal seized drugs. Specifically, the accused-appellant argues that there was no evidence presented on how the seized items were handled from the time the forensic chemist concluded his laboratory examination, until the presentation of the corpus delicti before the trial court. Considering these lapses, the accused-appellant submits that the presumption of regularity in the performance of duties cannot be applied in favor of the buy-bust team, hence, prays for her acquittal.
There is merit in this appeal.
The elements of Illegal Sale of Dangerous Drugs under Section 5, Article II of Republic Act (RA) No. 9165 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002" are: (a) the identity of the buyer and the seller, the object, and the consideration; and (b) the delivery of the thing sold and the payment. 2 Relative to this, there should be proof that the transaction or sale took place, coupled with the presentation in court of the corpus delicti as evidence. Now, to establish the identity of the dangerous drug, the prosecution must be able to account for each of the four links of the chain of custody, from the moment the drugs are seized up to their presentation in court, 3 thus: (1) the confiscation and marking, if practicable, of the specimen seized from the accused by the apprehending officer; (2) the turnover of the seized item by the apprehending officer to the investigating officer; (3) the investigating officer's turnover of the specimen to the forensic chemist for examination; and, (4) the submission of the item by the forensic chemist to the court. 4
As part of the chain of custody procedure, RA 9165 requires that the marking, physical inventory, and photography of the seized items be conducted immediately after seizure and confiscation of the same. It is further mandated that the inventory and photography 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 contaminating of evidence. If the incident happened prior to the amendment of RA 9165 by RA 10640, 5 as in this case, three (3) insulating witnesses are required: a representative from the media and the Department of Justice, and any elected public official. Meanwhile, if the arrest was after the amendment of RA 9165, the new law RA 10640, which took effect on August 7, 2014, 6 requires the presence of at least two (2) witnesses: an elected public official and a representative of the National Prosecution Service or the media. 7
In the present case, the trial court and the CA correctly held that the accused-appellant was caught in flagrante delicto of selling shabu to Police Officer (PO) 2 Glenda Berango (PO2 Berango), as poseur-buyer, during a legitimate buy-bust operation conducted by the Naga City, Philippine National Police. Contrary to the accused-appellant's argument that the transaction was only between her and the informant and she had no contact with the poseur-buyer, it was clearly established by the prosecution that PO2 Berango was introduced by the informant as the buyer, and the police officer was able to successfully buy shabu from the accused-appellant. 8
Next, we discuss the alleged gap in the fourth link of the chain of custody which compromised the integrity and evidentiary value of the seized drugs. Here, the CA gave credence to the Forensic Chemist's testimony that he received the white crystalline substance for laboratory examination and, after the conduct thereof, reduced his findings in Chemistry Report No. D-254-2014, 9 showing positive results for the presence of Methamphetamine Hydrochloride. The prosecution was able to show that Forensic Chemist Police Senior Inspector Jun F. Malong (PSI Malong) took the necessary precautionary measures by sealing the specimen and marking it with his initials "JFM" and signing it. Before turning over to the Evidence Custodian, he placed the shabu specimen in a bigger sachet with the marking "D-254-2014." When subpoenaed, PSI Malong personally retrieved the same big sachet containing the shabu, brought it to the trial court, and duly identified this evidence during trial. 10
However, the Court sees that the testimony of the Forensic Chemist on the steps taken to preserve the identity, integrity, and evidentiary value of the confiscated item only mentioned the shabu specimen, BUT not the six (6) pieces of glass pipes seized during the same buy-bust operation. The Forensic Chemist admits that he has no recollection of receiving these items in the laboratory. 11 One may ask, is this circumstance important for purposes of this appeal, which only involve the offense of illegal sale of drugs, when the CA did not hesitate to acquit accused-appellant and dismiss the charge of illegal possession of drug paraphernalia? The answer is affirmative. In its Decision 12 dated September 11, 2019, the CA found that: CAIHTE
Appellant was also charged in Crim. Case No. 2014-0387 with illegal possession of drug paraphernalia consisting of six pieces of glass water pipes marked with "GLB-2A-7-14-14" to "GLB-7A-7-14-14" which were recovered together with the dangerous drugs during the buy-bust operation.
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The six pieces of drug paraphernalia in Crim. Case No. 2014-0387 were included in the Receipt/Inventory of Property Seized. However, these items were not included in the Request for Laboratory Examination. As such, while the police officers have complied with the first and second links of the chain of custody with respect to the six pieces of drug paraphernalia, there is want of evidence that the third and fourth links in the chain of custody were established.
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Clearly, after the confiscated drug paraphernalia were marked, inventoried[,] and photographed, the police officers could no longer account for their whereabouts. The testimony of the Forensic Chemist attests to this, thus:
Q Why did you examine other items in connection with this case?
A I will check from the records Sir whether there are other cases which pertains to Marilou Querijero.
Q So you are practically saying Mr. Witness that you are not sure whether the six (6) pieces glass water pipes subject of Crim. Case No. 2014-0387 involving Marilou Querijero were examined by you?
WITNESS:
A I could not recall. I will check the record if the said specimen were submitted to our office.
ATTY. ABANTE, JR.:
You are not sure.
With the failure to include the six pieces of drug paraphernalia in the items subjected to laboratory examination, it necessarily follows that the prosecution failed to prove that such items were intended to be used as drug paraphernalia. x x x. 13(Citations omitted;·Emphases and underscoring supplied)
As we see it, the fact that the police officers could no longer account for the glass pipes that were seized with the shabu during the same buy-bust operation, which led to the accused-appellant's acquittal for violation of Section 12, should have alerted the Regional Trial Court and the CA that something more was amiss. 14
It is on record that the shabu and the glass pipes were kept inside the same blue Duralex box 15 seized from the accused-appellant. The confiscated items were all listed in the Receipt/Inventory of Property Seized, marked as evidence, and photographed. As such, these items should have been kept intact and accounted for during the booking procedures in the police station. Yet, the prosecution admits that the glass pipes were already missing by the time the Request for Laboratory Examination was prepared and only the shabu specimen was submitted to the laboratory for examination. The unexplained disappearance of six (6) items included in the Receipt/Inventory of Property Seized cast a heavy shadow on the integrity of the buy-bust operation and the soundness and reliability of the procedures followed by the police operatives. 16 Particularly, the corresponding inventory that recorded the items taken from the accused-appellant is rendered doubtful on whether there was indeed shabu or only drug paraphernalia that was seized during the buy-bust. It engendered reasonable doubt and suspicion of planting or tampering with evidence. To be sure, the lapse in the chain of custody permeates not only the indictment for violation of Section 12, where the accused-appellant has been discharged due to mishandling of evidence. Inevitably, the same doubt blurs the accused-appellant's guilt on the simultaneous offense of violation of Section 5.
We remind the courts to be mindful that in multiple indictments, like this one for the Illegal Sale of Drugs and Illegal Possession of Drug Paraphernalia arising from a single buy-bust operation, the links in the chain of custody should not be viewed in segments. As the Court held in People v. Lumaya (Lumaya), 17 the lack of a plausible explanation on the missing drug paraphernalia, compounded by the numerical variance in the sachets of shabu allegedly seized from the accused, automatically arouses suspicions of planting, switching, or tampering of evidence. There, the Court noticed that the 18 sachets of shabu in the photographs do not correspond with the 11 sachets listed in the information and that the drug paraphernalia supposedly recovered from the accused were not shown in photographs. These errors created doubts on the integrity and evidentiary value of the seized items, hence, Lumaya was acquitted of all three (3) charges of Illegal Sale and Illegal Possession of Drugs, as well as, Illegal Possession of Drug Paraphernalia, under Sections 5, 11, and 12 Article II of RA 9165.
Similar to Lumaya, the failure of the police officers, in this case, to account for the six (6) glass pipes gave a strong impression of mishandling of evidence which led to the dismissal of the charge of Illegal Possession of Drug Paraphernalia under Section 12 against the accused-appellant. Considering that the shabu involved in this present appeal was seized in the same buy-bust operation with the glass pipes, whose integrity and evidentiary value had been compromised, this circumstance warrants a judgment of acquittal in the offense of Illegal Sale of Dangerous Drugs under Section 5.
WHEREFORE, the appeal is GRANTED. The Decision 18 dated September 11, 2019 of the Court of Appeals in CA-G.R. CR-HC No. 09026, affirming the conviction of accused-appellant Marilou Querijero y Abrigo for violation of Section 5, Article II of Republic Act No. 9165, is hereby REVERSED and SET ASIDE. Accused-appellant Marilou Querijero y Abrigo is ACQUITTED of the offense charged and is ordered immediately RELEASED from custody unless she is being held for some other lawful cause.
Let a copy of this Resolution be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation. The Director is likewise ORDERED to REPORT to this Court the action taking within five (5) days from receipt of this Resolution. aScITE
Let entry of judgement 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.Rollo, pp. 2-28.
2.People v. Dela Cruz, G.R. No. 238212, January 27, 2020.
3.People v. Anicoy, G.R. No. 240430, July 6, 2020.
4.People v. Bugtong, 826 Phil. 628, 638-639 (2018).
5. 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,'" approved on July 15, 2014.
6. In People v. Gutierrez, G.R. No. 236304, November 5, 2018, the Court noted that under Section 5 of RA 10640, it states that the "Act shall take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation." RA 10640 was published on July 23, 2014 in The Philippine Star (Vol. XXVIII, No. 359, Philippine Star Metro section, p. 21) and Manila Bulletin (Vol. 499, No. 23; World News section, p. 6) — both considered as newspapers of general circulation. Thus, following Section 5, amendatory law, RA 10640 appears to have become effective on August 7, 2014 or fifteen days after its publication in the Philippine Star and Manila Bulletin.
7.People v. Dela Cruz, supra note 2.
8. CA rollo, p. 126.
9. CA rollo, p. 49.
10.Id. at 128-130.
11.Id. at 63, RTC's Judgment, p. 3.
12.Rollo, pp. 3-26.
13.Id. at 131-133.
14.People v. Holgado, 741 Phil. 78-99 (2014).
15. The blue Duralex box was marked as "GLB 7-14-14" (Exhibit I) and this box contains one (1) large size heat-sealed plastic sachet (Exhibit A) containing the white crystalline substance with markings ''GLB-17-14-14," together with the six (6) pieces of improvised glass water pipes (Exhibits J to J-5) with markings "GLB 2A 7-14-14" to "GLB 7A 7-14-14" as seen in the Index of Exhibits for the Prosecution. CARollo, pp. 13-15.
16.People v. Holgado, supra note 14.
17. 827 Phil. 473, 487 (2018).
18.Rollo, pp. 3-26. Penned by Court of Appeals Associate Justice Walter S. Ong, with the concurrence Associate Justices Zenaida T. Galapate-Laguilles and Maria Filomena D. Singh.