SECOND DIVISION
[G.R. No. 241009. December 11, 2019.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JOVEL SURIMA y PAGLINAWAN, * accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Special Second Division, issued a Resolution dated11 December 2019which reads as follows:
"G.R. No. 241009 (People of the Philippines v. Jovel Surima y Paglinawan). — Assailed in this appeal is the Decision 1 dated March 16, 2018 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 09343 which affirmed the Decision 2 dated March 30, 2016 of Branch 65, Regional Trial Court (RTC) of Makati City finding accused-appellant Jovel Surima y Paglinawan (Surima) guilty beyond reasonable doubt of violating Sections 5 and 11, Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.
The Antecedents
Surima was charged with the Illegal Sale and Possession of Dangerous Drugs under Sections 5 and 11, Article II of RA 9165 in two Informations dated November 29, 2016 which read:
Criminal Case No. R-MKT-16-03015-CR
On the 23rd day of November 2016, in the [C]ity of Makati, the Philippines, accused, without the necessary license or prescription, without being authorized by law, did then and there willfully, unlawfully, and feloniously sell, deliver and give away zero point sixteen (0.16) gram of white crystalline substance containing methamphetamine hydrochloride (shabu), which is a dangerous drug, in consideration of Php500.
CONTRARY TO LAW. 3
Criminal Case No. R-MKT-16-03016-CR
On the 23rd day of November 2016, in the [C]ity of Makati, Philippines, accused, not being authorized by law to possess or otherwise use any dangerous drug and without the corresponding prescription, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control zero point thirty[-]six (0.36) gram of white crystalline substance containing methamphetamine hydrochloride (shabu), a dangerous drug.
CONTRARY TO LAW. 4
During his arraignment on December 15, 2016, Surima entered his pleas of not guilty. 5 Trial ensued.
Version of the Prosecution
On November 23, 2016, the Station Anti-Illegal Drugs Special Operations Task Group (SAID-SOTG) of the Makati Central Police Station received a report from a confidential informant (CI) that Surima was engaged in illegal drug activities in Brgy. Tejeros, Makati City. On the basis of this report, Police Senior Inspector Anthony B. Bagsik (PSI Bagsik) formed a buy-bust team with Police Officer II Dexter S. Magno (PO2 Magno) as the poseur-buyer and PO1 Jeryll 6 Byron Melad (PO1 Melad) as his immediate back up. 7
The SAID-SOTG also forwarded a Coordination Form/Authority to Operate 8 to the Philippine Drug Enforcement Agency (PDEA), which, in turn, sent through fax, Control Number 10001-112016-0584, thereby authorizing the buy-bust team to proceed with the buy-bust operation. During the briefing, PSI Bagsik gave PO2 Magno a P500-bill that was then marked with the latter's initials, "DSM," at the upper right hand corner, to be used as buy-bust money. 9
At the target area, the CI introduced PO2 Magno to Surima as the buyer of shabu. Surima asked PO2 Magno how much he wanted to purchase and the latter answered that he was going to buy P500.00 worth of shabu. PO2 Magno then gave Surima the marked money, and, in return, Surima took out two small, heat-sealed plastic sachets of suspected shabu from his left pocket and handed one to PO2 Magno. Once the exchange was completed, PO2 Magno scratched his head, the pre-arranged signal, to show that the transaction had already been consummated. PO2 Magno immediately placed Surima under arrest and informed him of his constitutional rights. Thereafter, PO2 Magno conducted a body search on Surima which yielded one small, heat-sealed plastic sachet of suspected shabu and the marked money. 10
The buy-bust team proceeded to the barangay hall of Brgy. Tejeros, Makati City where the physical inventory 11 and taking of photograph 12 of the seized items were conducted in the presence of Barangay Captain Teresita Brillantes. During the inventory, PO2 Magno marked the plastic sachet that was the subject of the sale with "DSM-1" and the other plastic sachet recovered from Surima with "DSM-2." 13 Afterwards, the buy-bust team brought Surima and the seized items to the SAID-SOTG Office for further investigation. 14 PO3 Voltaire Esguerra, the investigating officer, then prepared the Request for Laboratory Examination, 15 Request for Drug Test, 16 and Chain of Custody Form. 17 At around 9:30 p.m., PO2 Magno turned over the seized plastic sachets to Police Chief Inspector May Andrea A. Bonifacio (PCI Bonifacio) of the Southern Police District Crime Laboratory, together with the Request for Laboratory Examination 18 and Request for Drug Test. 19 Per Chemistry Report No. D-2309-16 20 dated November 24, 2016 prepared by PCI Bonifacio, the subject specimens tested positive for the presence of methamphetamine hydrochloride, or more commonly known as shabu, a dangerous drug.
Version of the Defense
Surima raised the defenses of denial and frame-up. He narrated that:
x x x [A] day before the alleged incident, at around 6:00 o'clock in the morning, he was selling fighting cocks along Batute Street, Barangay Tejeros, Makati City, when several police officers suddenly arrived and frisked him. Despite not finding anything illegal, he was placed under arrest and brought to the police station. He later on learned that the present charges were initiated against him. 21
Ruling of the RTC
In its Decision dated March 30, 2016, the RTC found Surima guilty beyond reasonable doubt of violating Sections 5 and 11, Article II of RA 9165. 22 The RTC ruled that the prosecution had sufficiently proven the elements of the illegal sale and possession of dangerous drugs. 23 Moreover, it held that the prosecution, too, had established an unbroken chain of custody over the seized items, viz.:
The unbroken chain of custody was established in the instant cases through the following links: (1) PO2 Dexter Magno recovered and marked the sachets containing white crystalline substance with "DSM-1" and "DSM-2"; (2) a request for laboratory examination of the seized items was signed by PO3 Voltaire Esguerra, the investigator on case to whom the subject pieces of evidence were shown by PO2 Magno for proper documentation after the inventory; (3) the delivery by PO2 Dexter Magno of the same items to PCI May Andrea Bonifacio who received the same from Magno at the Southern Police District Crime Laboratory; (4) Physical Science Report No. D-2309-16 was prepared by PCI May Andrea Bonifacio which confirmed after due examination that the marked items bought and recovered from the accused were shabu; and (5) the eventual presentation of the items which were brought officially to the court by PCI May Andrea Bonifacio and marked as Exhibits "R" and "S". 24
Accordingly, the RTC sentenced Surima to suffer the penalties of: (a) life imprisonment and a fine of P500,000.00 for violation of Section 5, Article II of RA 9165 in Criminal Case No. R-MKT-16-03015-CR; and (b) imprisonment for a period of twelve (12) years and one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and a fine of P300,000.00 for violation of Section 11, Article II of RA 9165 in Criminal Case No. R-MKT-16-03016-CR. 25
Surima thereafter appealed the RTC Decision before the CA. 26
Ruling of the CA
In its Decision 27 dated March 16, 2018, the CA affirmed the RTC Decision in toto. 28 Like the RTC, the CA found that the prosecution had adequately established the elements of the offenses charged. 29 It also agreed with the RTC that "there was no break in the chain of custody over the confiscated sachets of shabu from Surima and that the integrity and evidentiary value thereof were properly preserved," 30viz.:
x x x The records of the case show that in front of appellant and other members of the buy-bust team, PO2 Magno marked the plastic sachet he bought from appellant with "DSM-1" while the other plastic sachet recovered from appellant's possession was marked as "DSM-2." An Inventory Receipt of the seized items was prepared which was signed by appellant and witnessed by Brgy. Chairman Teresita Brillantes. Appellant and the pieces of evidence were then brought to the police station. PO2 Magno turned over the drug specimens to investigator PO3 Voltaire Esguerra. A letter-request for laboratory examination to the Crime Laboratory was prepared. PO2 Magno then personally delivered the letter-request along with the seized items to the Crime Laboratory where it was received by PCI May Andrea Bonifacio at 9:30 p.m. of November 23, 2016 as shown by the rubber stamped delivery receipt thereof. The examination was conducted by PCI Bonifacio, a Forensic Chemist at the Southern Police District Crime Laboratory Office. Upon completion of the laboratory examination of the seized items, PCI Bonifacio deposited the same to the evidence custodian of their office. PCI Bonifacio later retrieved the same from the evidence custodian for presentation in court. x x x 31
The CA further noted that the absence of a representative from the Department of Justice (DOJ) or the media during the physical inventory and marking of the seized items was inconsequential. 32 It explained that:
Here, there is substantial compliance by the police officers as to the required procedure on the custody and control of the confiscated item. The succession of events established by the evidence and the overall handling of the seized items by the police officers all show that the items seized were the same evidence subsequently identified and presented in court. 33
Aggrieved, Surima filed the present appeal before the Court. 34
The Issues
Surima raises the following issues for the Court's resolution:
First, whether the integrity and the evidentiary value of the confiscated drugs had been preserved, considering the absence of a representative from either the DOJ or the media during the physical inventory and taking of photograph of the seized items, which is among the mandatory requirements under Section 21, Article II of RA 9165, as amended by RA 10640; 35 and second, whether the chain of custody over the seized items was sufficiently established, given the prosecution's failure to provide a detailed account as regards the handling and safekeeping of these items from the time they were confiscated up to their presentation in court during the trial. 36
The Court's Ruling
"For prosecutions involving dangerous drugs, the dangerous drug itself constitutes the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt." 37 In other words, the identity of the dangerous drug, along with the other elements of the offense/s charged, must be established with moral certainty. 38 "Such proof requires an unwavering exactitude that the dangerous drug presented in court as evidence against the accused is the same as that seized from him." 39
However, it should be stressed that "the presentation of evidence establishing the elements of the offenses of illegal sale and possession of dangerous drugs alone is insufficient to secure or sustain a conviction under RA 9165." 40 The prosecution, too, must sufficiently establish that the dangerous drug presented in court is the same dangerous drug actually confiscated from the accused; otherwise, the accused must be acquitted on the ground of reasonable doubt. 41
It is for this particular purpose that the chain of custody rule under Section 21, Article II of RA 9165 comes into play, more so in cases where the dangerous drug seized is of minuscule quantity, which is evidently harder to identify and is highly susceptible to tampering, alteration, or substitution. Here, serious consideration is taken of the fact that the quantity of shabu allegedly confiscated from Surima is only 0.52 gram in total, 42 and, thus requires a more stringent foundation with regard to the chain of custody to ensure that the shabu presented in court during the trial is the same one actually seized from Surima during the buy-bust operation.
Section 21, Article II of RA 9165 provides the procedural safeguards that the apprehending team is required to observe in the handling and safekeeping of seized illegal drugs in order to preserve their identity and integrity as evidence. "As indicated by their mandatory terms, strict compliance with the prescribed procedure is essential and the prosecution must show compliance in every case." 43
Since the buy-bust operation against Surima took place in 2016, the procedure under Section 21, par. 1, Article II of RA 9165, as amended by RA 10640, 44 is applicable in this case, viz.:
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. — 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 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. (Emphases and italics supplied.)
After a careful review of the records, the Court finds that the buy-bust team had failed to strictly comply with the prescribed procedure under Section 21, par. 1, considering that: first, the marking, physical inventory, and taking of photograph of the seized items were conducted at the barangay hall of Brgy. Tejeros instead of the place of arrest, or at the nearest police station or office; and second, a representative from either the DOJ or the media was notably absent during the marking, physical inventory, and taking of photograph of the items.
While it is true that "non-compliance with the prescribed procedures under Section 21, par. 1, does not, as it should not, automatically result in an accused's acquittal," 45 the saving mechanism that excuses any deviations from the standard procedure only operates "under justifiable grounds, and as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team." 46 Thus, the Court emphasized in People v. Sipin47 that:
The prosecution bears the burden of proving a valid cause for noncompliance with the procedure laid down in Section 21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance thereto in such a way that during trial proceedings, it must initiate in acknowledging and justifying any perceived deviations from the requirements of law. [The apprehending officer/team's] failure to follow the mandated procedure must be adequately explained, and must be proven as a fact in accordance with the rules on evidence. It should take note that the rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized items. x x x 48 (Emphasis and underscoring supplied.)
In this case, the prosecution utterly failed to acknowledge and justify the buy-bust team's noncompliance with the prescribed procedure. To illustrate, in the Joint Affidavit of Arrest of PO2 Magno and PO1 Melad, the police officers narrated that the buy-bust team specifically went to the barangay hall to conduct the physical inventory of the seized items, and, at the same time, look for an elected official and representatives from the DOJ and the media to witness the proceedings. 49 There was, however, no explanation as to why the physical inventory had to be conducted at the barangay hall and not at the nearest police station or office as required by law.
Similarly, the prosecution also failed to squarely address the absence of a representative from the DOJ or the media during the marking, physical inventory, and taking of photograph of the confiscated items. Although it is true that the absence of the necessary witnesses under Section 21, paragraph 1 does not per se render the seized items inadmissible in evidence, the prosecution must prove that earnest efforts were employed by the apprehending officers/team to secure their attendance in order to comply with the procedural requirements under the law. 50 "Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for noncompliance." 51
In People v. Lim52(Lim), the Court reiterated that the prosecution, too, must allege and prove that the presence of the three witnesses to the physical inventory and taking of photograph of the seized dangerous drug was not secured due to reason/s such as:
(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph[-taking] of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape. 53
Simply put, the prosecution is required not only to allege and prove that there were indeed justifiable ground/s for the absence of the necessary witnesses, but also, to show that the apprehending officers/team had actually exerted earnest efforts in contacting these witnesses as part of their preparation for the buy-bust operation. 54"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"55 in order to strictly comply with the mandatory procedure under Section 21, par. 1, Article II of RA 9165, as amended by RA 10640.
Here, the prosecution clearly failed to allege and prove that: (a) earnest efforts were employed by PO2 Magno and his team to secure the attendance of the necessary witnesses despite having considerable time to do so; and (b) the presence of a representative from either the DOJ or the media was not secured due to any of the reason/s enumerated in Lim.
In fact, the records show that the buy-bust operation had actually been planned one day in advance, as evidenced by the Coordination Form/Authority to Operate dated November 22, 2016. This gave the apprehending officers several hours to contact an elected official and a representative from either the DOJ or the media as the buy-bust operation took place at around 8:00 p.m. the following day. Still, it appears as though the apprehending officers only decided to look for persons to witness the physical inventory and taking of photograph of the seized items after the buy-bust operation was concluded.
For clarity and precision, the pertinent portion of the Joint Affidavit of Arrest of PO2 Magno and PO1 Melad is quoted below:
11. From there, we look for any ELECTED Brgy. Official, DOJ representative and MEDIA representative to stand witness for our inventory, hence, there was no available in any of the above mentioned person, likewise, for the reason that the place was hostile and for the security of the SAID-SOTG operatives as well as the security of our arrested person, our team leader decided to leave the area and proceed to Brgy. Hall of Tejeros, Makati City to conduct said inventory. Thereat, we look[ed] for any ELECTED Brgy. Official, DOJ representative and MEDIA representative to stand witness for our inventory and we inventoried the confiscated evidence in the presence of the arrested persons and BRGY. CHAIRMAN TERESITA BRILLANTES OF BRGY. TEJEROS, MAKATI CITY to stand witness in our inventory. Still, we requested the City Prosecutor of Makati for a representative during the physical inventory and taking photographs but to no avail; 56 (Emphasis supplied)
The Court finds the absence of a representative from the DOJ or the media during the marking, physical inventory, and taking of photograph of the seized items in this case to be inexcusable. It is quite evident that the buy-bust team led by PSI Bagsik had failed to make the necessary arrangements before the buy-bust operation took place, despite knowing fully well that they would have to strictly comply with the procedural requirements under the law.
At this point, the Court deems it necessary to stress that the procedural safeguards under Section 21 are a matter of substantive law and not a mere procedural technicality that may be brushed aside and ignored by the State's law enforcers and prosecutors. 57 The Court reiterates that it is the prosecutors' positive duty to prove the apprehending officer/team's compliance with the prescribed procedure in Section 21, viz.:
In this light, prosecutors are strongly reminded that they have the positive duty to prove compliance with the procedure set forth in Section 21, Article II of RA 9165, as amended. As such, they must have the initiative to not only acknowledge but also justify any perceived deviations from the said procedure during the proceedings before the trial court. Since compliance is determinative of the integrity and evidentiary value of the corpus delicti and ultimately, the fate of the liberty of the accused, the fact that any issue regarding the same was not raised, or even threshed out in the court/s below, would not preclude the appellate court, including this Court, from fully examining the records of the case if only to ascertain whether the procedure had been completely complied with, and if not, whether justifiable reasons exist to excuse any deviation. If no such reasons exist, then it is the appellate court's bounden duty to acquit the accused, and perforce, overturn a conviction. 58 (Emphasis and underscoring in the original.)
All told, the procedural lapses committed by the buy-bust team which, unfortunately, were left unacknowledged and unjustified by the State, broke the chain of custody and tainted the integrity and the evidentiary value of the seized shabu that was ultimately presented as evidence before the trial court. Given the prosecution's failure to prove the indispensable element of corpus delicti, Surima must necessarily be acquitted on the ground of reasonable doubt.
WHEREFORE, premises considered, the appeal is GRANTED. The Decision dated March 16, 2018 of the Court of Appeals in CA G.R. CR-H.C. No. 09343 is REVISED and SET ASIDE. Appellant Jovel Surima y Paglinawan is hereby ACQUITTED of the charges against him for failure of the prosecution to prove his guilt beyond reasonable doubt. The Director of the Bureau of Corrections is ordered to cause his immediate release, unless he is being lawfully held in custody for any other reason.
Let a copy of this Resolution be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation, who is ORDERED to REPORT to this Court the action he has taken within five (5) days from receipt of this Resolution.
SO ORDERED."
Very truly yours,
(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
* Referred to as Jovel Surima y Pagkalinawan in some parts of the records.
1.Rollo, pp. 2-17; penned by Associate Justice Ramon R. Garcia with Associate Justices Myra V. Garcia-Fernandez and Germano Francisco D. Legaspi, concurring.
2. CA rollo, pp. 43-49; penned by Presiding Judge Edgardo M. Caldona.
3. Records, p. 1.
4.Id. at 33.
5.Id. at 70.
6. "Jeryl" in some parts of the records.
7.Rollo, p. 5.
8. Records, p. 17.
9.Rollo, p. 5.
10.Id. at 6.
11. Records, p. 100.
12.Id. at 101-102.
13.Rollo, p. 6.
14.Id.
15. Records, p. 104.
16.Id. at 105.
17.Id. at 103.
18.Id. at 20, 52.
19.Id. at 22, 54.
20.Id. at 106.
21. See Appellant's Brief, CA rollo, p. 30.
22.Id. at 49.
23.Id. at 46-47.
24.Id. at 47-48.
25.Id. at 49.
26.Id. at 9-10.
27.Rollo, pp. 2-13.
28.Id. at 16.
29.Id. at 11-12.
30.Id. at 12.
31.Id. at 12-13.
32.Id. at 13.
33.Id. at 14.
34.Id. at 18-19.
35. CA rollo, pp. 31-34.
36.Id. at 35-37.
37.Derilo v. People, 784 Phil. 679, 686 (2016).
38.Id.
39.People v. De Guzman, G.R. No. 219955, February 5, 2018, 854 SCRA 116, 124 citing Derilo v. People, supra note 37.
40.Id. at 125.
41. See People v. Denoman, 612 Phil. 1165, 1175 (2009).
42. See Informations dated November 29, 2016, records, pp. 1 and 33.
43. People v. Denoman, supra note 41.
44. 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.
45. See People v. De Guzman, supra note 39 at 126.
46. People v. Prudencio, 800 Phil. 128, 140 (2016).
47. G.R. No. 224290, June 11, 2018, 866 SCRA 73.
48. Id. at 98, citing People v. Saragena, G.R. No. 210677, August 23, 2017, 837 SCRA 529.
49. Records, p. 96.
50. People v. Ramos, G.R. No. 233744, February 28, 2018, 857 SCRA 175, 190.
51. Id.
52. G.R. No. 231989, September 4, 2018.
53. Id. Emphasis omitted.
54. See People v. Ramos, supra note 50.
55. Id. at 190-191.
56. Records, p. 64.
57. See People v. Segundo, 814 Phil. 697, 722 (2017).
58. People v. Jugo, G.R. No. 231792, January 29, 2018, 853 SCRA 321, 337-338.