THIRD DIVISION
[G.R. No. 252696. July 13, 2022.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. SALIK RASCA y BERTODAH, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJuly 13, 2022, which reads as follows:
"G.R. No. 252696 (People of the Philippines v. Salik Rasca y Bertodah). — This is an appeal from the Decision 1 dated January 24, 2020 of the Court of Appeals (CA) in CA-G.R CR-H.C. No. 12343, which affirmed the Decision 2 dated July 4, 2018 of the Regional Trial Court (RTC) of Olongapo City, Branch 75, finding Salik Rasca y Bertodah (accused-appellant) guilty beyond reasonable doubt of violation of Section 5 and Section 11, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.
In two Informations 3 dated August 24, 2017, the accused-appellant was charged with illegal sale and illegal possession of dangerous drugs, committed as follows:
Criminal Case No. 2017-1421
That on or about the twenty-second (22nd) day of August, 2017, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, without being lawfully authorized, did then and there willfully, unlawfully and knowingly sell and deliver to poseur-buyer PO2 Junie Rose P. Bonilla P300.00 (SN-HY758885, NK315333 and BM925622 worth of Methamphetamine Hydrochloride, otherwise known as "Shabu," a dangerous drug weighing One Hundred Twenty-Nine Thousandths (0.129) of a gram placed in one (1) heat-sealed transparent plastic sachet, with marking EXH. A JPB RMB.
CONTRARY TO LAW.
Criminal Case No. 2017-1422
That on or about the twenty-second (22nd) day of August, 2017, in the City of Olongapo, Philippines and within jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have is his effective possession and control three (3) heat[-]sealed transparent plastic sachets containing Methamphetamine Hydrochloride or "shabu," a dangerous drug, with the following markings and weight:
|
Exh. A1 JPB RMB |
= |
0.162 gram |
|
Exh. A2 JPB RMB |
= |
0.191 gram |
|
Exh. A3 JPB RMB |
= |
0.118 gram |
|
|
|
–––––––––– |
|
TOTAL |
|
0.471 gram |
said accused not having the corresponding license or prescription to possess the dangerous drug.
CONTRARY TO LAW. 4
During arraignment, accused-appellant pleaded not guilty to the charges against him. Joint trial ensued thereafter. 5
The prosecution presented its witness, Police Officer (PO) 2 Junie Rose Bonilla (PO2 Bonilla). After PO2 Bonilla testified, the parties stipulated on the supposed testimonies of the following: PO3 Jairus de Jesus (PO3 De Jesus) as the back up of PO2 Bonilla in the buy-bust operation; PO2 Randolf Baltero (PO2 Baltero) as the investigator who marked the exhibits with his initials "RMB" and conducted the physical inventory; and Forensic Chemist PCI Insp. Maria Cecilia G. Tang, who examined the exhibits and found them positive for shabu. 6
According to PO2 Bonilla, the City Police Drug Enforcement Unit (CPDEU) of Olongapo City received an information from a confidential agent and a barangay kagawad of Sta. Rita, Olongapo City concerning street level drug trafficking activities of a certain "DVD" within the area of Purok 1, Santolan Street, Sta. Rita, Olongapo City. Armed with this information, the CPDEU conducted monitoring operations in the area. They saw drug personalities conversing and exchanging something with "DVD," who was later identified as the accused-appellant. 7
On August 22, 2017, the CPDEU received a phone call from their confidential agent that the latter has already gained the trust and confidence of "DVD." Thus, a buy-bust team was organized. PO2 Bonilla acted as the poseur-buyer, while other officers including PO3 De Jesus were designated as his backup. PO2 Bonilla received three (3) P100.00 bills with serial numbers HY758885, NK315333 and BM925622 as buy-bust money and each bill was marked with the initials "JPB." 8
At around 10:20 in the evening, the buy-bust team proceeded to the target area. Upon the accused-appellant's arrival, the confidential agent and PO2 Bonilla approached him. The confidential agent introduced PO2 Bonilla to the accused-appellant as his "tropa" and said "tropa ko to pre tumitira din to." The accused-appellant then asked, "Ahh okay ano kuha ka ba pre?" PO2 Bonilla responded "3H lang pre" which meant three hundred pesos (P300.00). Afterwards, the accused-appellant took out a black coin purse from his pocket, opened it, retrieved a sachet suspected to contain shabu, and gave the sachet to PO2 Bonilla. In turn, PO2 Bonilla gave accused-appellant the marked money. Thereafter, PO2 Bonilla executed the pre-arranged signal by sending a blank text message to PO3 De Jesus. PO3 De Jesus rushed to PO2 Bonilla and assisted in the accused-appellant's arrest. They handcuffed the accused-appellant, introduced themselves as police officers, and informed him of his constitutional rights. From the accused-appellant, they recovered the marked money and a black coin purse. PO2 Bonilla opened the black coin purse and found three sachets of suspected shabu. 9
Subsequently, the accused-appellant was brought to the CPDEU office where the physical inventory was held. PO2 Bonilla placed his initials "JMB" on the confiscated items and turned them over to PO2 Baltero, who marked the items with "RMB." Thus, the confiscated items were marked with "JPB-RMB." A barangay kagawad and a media representative from Media Brigada News FM witnessed the inventory. PO2 Baltero then delivered the items to the crime laboratory where they were tested and found positive for the presence of Methamphetamine Hydrochloride, or shabu. Accused-appellant's urine was also submitted for examination, which also tested positive for the presence of methamphetamine hydrochloride. 10
The defense presented the lone testimony of accused-appellant. He narrated that on August 22, 2017 at around 1:00 o'clock in the afternoon, he was with his children, preparing lunch in their residence at Purok 1, Sta. Rita, Olongapo City. Suddenly, five (5) male persons forcibly entered their house. The men pointed a gun at him and ordered him to go inside a room. He was handcuffed and commanded to lie on the ground. The men asked him to bring out something but did not know what it was. Later on, he was brought to the police station and was asked to sign documents. He was also photographed with drugs laid on the table. 11
The RTC Ruling
In a Decision 12 dated July 4, 2018, the RTC found the accused-appellant guilty of the offenses charged against him. The RTC held that all the elements of the offense of sale of dangerous drugs have been established. The prosecution's evidence showed that the sale actually took place and that the accused-appellant sold shabu, which was the same as that identified in court during trial. Also, the poseur-buyer positively identified the accused-appellant as the seller of the drugs and his testimony sufficiently established the exchange of the drug and the payment for the same. 13 The fallo of the Decision reads:
1. In Criminal Case No. 2017-1421, the Court finds Salik Rasca y Bertodah GUILTY beyond reasonable doubt of Violation of Section 5, R.A. 9165 and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00 plus costs without subsidiary imprisonment in case of insolvency;
2. In Criminal Case No. 2017-1422, the Court finds Salik Rasca y Bertodah GUILTY beyond reasonable doubt of Violation of Section 11, R.A. 9165 and sentences him to suffer the penalty of imprisonment from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of P300,000.00 plus cost, without subsidiary imprisonment in case of insolvency.
He shall also suffer the accessory penalties under Section 35, R.A. 9165 and shall be credited in the service of his sentence with the full time during which he has undergone preventive imprisonment subject to the conditions imposed under Art. 29 of the Revised Penal Code as amended.
The shabu sachets marked in evidence are ordered confiscated in favor of the government and to be disposed of in accordance with law.
SO DECIDED.
GIVEN this 4th day of July, 2018 at Olongapo City. 14
Aggrieved by the RTC Decision, the accused-appellant filed an appeal before the CA. In his Appellant's Brief, 15 the accused-appellant assigned the following errors:
First, the RTC gravely erred in convicting him of violation of Sections 5 and 11, Article II of R.A. No. 9165 despite that the chemistry report, purportedly proving that the subject specimen is a dangerous drug, has no evidentiary weight; Second, the RTC gravely erred in convicting him despite the prosecution's failure to sufficiently show that there is an unbroken chain of custody of the subject specimens; Third, the RTC gravely erred in declaring that the narcotics officers had properly handled and disposed of the confiscated dangerous drugs, in compliance with the law; and last, the RTC gravely erred in disregarding his defense of denial. 16
The CA Ruling
In a Decision 17 dated January 24, 2020, the CA affirmed the verdict of the RTC. The CA ratiocinated that while the procedure laid down under Section 21 of R.A. No. 9165 was not thoroughly complied with, the failure of the law enforcers to comply strictly thereto will not exonerate the accused-appellant. Although the barangay kagawad and media representative did not witness the actual seizure of the contraband, the chain of custody of the seized drug was not broken. 18 Additionally, the team provided a justification for their deviation from the process: they conducted the marking and inventory at the police station instead of the place of arrest for security purposes. 19
The dispositive portion of the decision reads:
WHEREFORE, the foregoing considered, the instant appeal is hereby DISMISSED and the appealed Decision dated July 4, 2018 AFFIRMED in toto. No costs.
SO ORDERED. 20
Hence, this appeal.
Issue
The issue for resolution is whether or not the accused-appellant is guilty beyond reasonable doubt for violations of Sections 5 and 11, Article II of R.A. No. 9165.
The Court's Ruling
On September 14, 2020, the Court issued a Resolution 21 notifying the parties that they may file their respective supplemental briefs. In response, the appellee, through the Office of the Solicitor General filed a Manifestation and Motion 22 maintaining that it will no longer file a supplemental brief considering that it had sufficiently discussed the facts and issues in the Brief for the Appellee. 23 The accused-appellant filed a Manifestation 24 dated January 19, 2021 stating that he re-pleads and adopts all arguments raised in his Brief. 25
Accused-appellant contends that there exists reasonable doubt that the items submitted to the laboratory for qualitative examination and presented before the court as evidence were the same contraband items allegedly confiscated from him, since the police officers failed to observe the statutory requirements mandated under the law to ensure their integrity. 26
First, PO2 Bonilla placed the sachet he bought and confiscated from the accused-appellant inside his pockets. This act casts doubt on the integrity of the dangerous drugs allegedly seized from the accused-appellant since it cannot be ascertained whether PO2 Bonilla's pockets were actually empty to ensure that the items he placed therein will not be exchanged for another. 27 Second, the inventory was not immediately conducted at the place of seizure. The police officer waited until they returned to the police station to conduct the inventory. Next, only a barangay kagawad and a media representative witnessed and signed the inventory. Furthermore, they were not able to witness the actual seizure of the illegal items. 28 The accused-appellant stressed that since the case involves a buy-bust operation, the officers had sufficient opportunity to make the necessary arrangements to carry out their plan. However, they failed to comply with the requirements under Section 21 of R.A. No. 9165, without any justifiable reason. 29
The appeal is meritorious.
Section 21 of R.A. No. 9165, as amended by R.A. No. 10640, which took effect on July 23, 2014, requires the following:
Under R.A. [No.] 10640, the marking, physical inventory and photographing of the seized items by the apprehending team shall be conducted immediately after seizure and confiscation, and in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel. The law also mandates that the foregoing be witnessed by specific persons, namely: (a) an elected public official; AND (b) a representative of the National Prosecution Service OR the media. 30
In line with the foregoing provision, the physical inventory and photographing of the drugs are to be conducted immediately after, or at the place of apprehension. "It is only when the same is not practicable that the Implementing Rules and Regulations of R.A. No. 9165 allows the inventory and photographing to be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the apprehending officer/team." 31 While the law states that the failure of the apprehending team to strictly comply with the requirements of Section 21 does not necessarily render the seizure void, the prosecution must provide a justifiable ground for its non-compliance. Additionally, the apprehending officer must properly preserve the integrity and the evidentiary value of the seized items. 32
In the present case, both the marking and physical inventory of the confiscated contraband were conducted only at the CPDEU Office, and not at the place of the accused-appellant's arrest. In PO2 Bonilla aid PO3 De Jesus' Joint Affidavit of Arrest, 33 they narrated that the marking and physical inventory were made at their office to secure themselves from any commotion, considering that their operation was risky. 34 Disconcertingly, the CA acknowledged this as a justifiable ground for non-compliance with the rule on conducting the inventory at the place of arrest. This is grave error since neither PO2 Bonilla nor PO3 De Jesus testified on this matter. The prosecution was not able to establish how the commotion could have hampered the inventory as well as the magnitude of the supposed risk to the apprehending team's security. Besides, the Court has already pronounced that the existence of commotion alone does not validly excuse the police officers from conducting the physical inventory at the place of arrest. 35 In People v. Ramos, 36 the Court ruled that it is not sufficient to allege that because of a commotion, the physical inventory and photographing were not done at the crime scene. The prosecution should expound how the commotion would threaten the safety of the operatives involved in the buy-bust. 37
Anent the requirement on the presence of insulating witnesses, a barangay kagawad and a media representative witnessed the inventory as testified to by PO2 Bonilla. 38 While the number of witnesses complies with R.A. No. 10640, which requires the presence of only two witnesses, the law still necessitates that the two witnesses be present during the time of actual arrest and seizure. In People v. Tomawis, 39 the Court held that the presence of witnesses is most needed at the time of arrest or at the time of the drugs' seizure, since it is their presence that would insulate against the police practice of planting evidence. 40
Evidently, PO2 Bonilla did not explain why the witnesses were present only at the inventory and not during the arrest. Considering that a buy-bust operation is, by nature, a planned activity, the buy-bust team has enough time to call on and bring with them the witnesses. 41 The Court also takes note of PO2 Bonilla's testimony that, prior to the buy-bust operation, police officers monitored drug personalities including the accused-appellant, viz.:
PROS. MF TADILI:
xxx xxx xxx
Q: Is there [a] surveillance conducted before the buy-bust operation?
A: Monitoring only, ma'am[.]
Q: Were you the one who monitored the accused?
A: Three (3) of us, ma'am[.]
Q: What did you find out during the monitoring?
A: During the monitoring, we find [sic] out that most of drug personalities came into [sic] this man are really buying based on our monitoring[.]
xxx xxx xxx 42
Overall, the prosecution failed to strictly comply with the standard procedures mandated under Section 21 of R.A. No. 9165, as amended by R.A. No. 10640, and justify the deviations therefrom. As such, the Court deems it necessary to acquit the accused-appellant from the charges against him.
WHEREFORE, the Decision dated January 24, 2020 of the Court of Appeals in CA-G.R. CR-H.C. No. 12343 is REVERSED AND SET ASIDE. Accused-appellant Salik Rasca y Bertodah is ACQUITTED for the prosecution's failure to prove his guilt beyond reasonable doubt. He is ORDERED immediately RELEASED from detention, unless he is confined for any other lawful cause.
Let a copy of this Resolution be furnished to the Director General of the Bureau of Corrections for immediate implementation. The Director General is directed to report to this Court the action taken within five (5) days from receipt of this Resolution. Copies shall also be furnished to the Director General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information.
Let entry of final judgment be issued immediately.
SO ORDERED."(Dimaampao, J., recused himself from the case due to his prior action in the CA; Kho, Jr., J., designated additional Member per Raffle dated July 6, 2022.)
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 3-21. Penned by Associate Justice Danton Q. Bueser, with Associate Justices Ronaldo Roberto B. Martin and Walter S. Ong, concurring.
2. CA rollo, pp. 51-58. Penned by Presiding Judge Raymond C. Viray.
3. Records, pp. 1-2, 23-24.
4.Id. at 28-29.
5. CA rollo, p. 72.
6. Records, p. 66.
7. CA rollo, pp. 75-76.
8.Id. at 76.
9.Id. at 76-77.
10.Id. at 77-79.
11.Id. at 32.
12.Id. at 51-58.
13.Id. at 55.
14.Id. at 58.
15.Id. at 27-49.
16.Id. at 27-28.
17.Rollo, pp. 3-21.
18.Id. at 18.
19.Id. at 18-19.
20.Id. at 20.
21.Id. at 27.
22.Id. at 37-39.
23.Id. at 37.
24.Id. at 32-33.
25.Id. at 32.
26. CA rollo, p. 36.
27.Id. at 36-38.
28.Id. at 42.
29.Id. at 45.
30.People v. Ruiz, G.R. No. 243635, November 27, 2019.
31.People v. Garcia, G.R. No. 215344, June 10, 2019.
32.People v. Sood, 832 Phil. 850, 861 (2018).
33. Records, pp. 70-72.
34.Id. at 72.
35.People v. Fulinara, G.R. No. 237975, June 19, 2019.
36. G.R. No. 236455, February 19, 2020.
37.Id.
38. TSN dated March 1, 2018, pp. 12-13.
39. 830 Phil. 385 (2018).
40.Id. at 105.
41.People v. Musor, G.R. No. 231843, November 7, 2018.
42. TSN dated March 1, 2018, p. 4.