FIRST DIVISION
[G.R. No. 237692. November 11, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. ARAGASI TOCALO y SABOYOGAN a.k.a. "Chairman" and MINDA TOCALO y BATERNA, accused-appellants.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedNovember 11, 2021which reads as follows:
"G.R. No. 237692 (People of the Philippines v. Aragasi Tocalo y Saboyogan a.k.a. "Chairman" and Minda Tocalo y Baterna). — This is an Appeal 1 from the Decision 2 dated January 12, 2018 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 01622, affirming the conviction of accused-appellants Aragasi Tocalo y Saboyogan and Minda Tocalo y Baterna for Illegal Sale of Dangerous Drugs under Section 5 of Republic Act (R.A.) No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."
At around 8 o'clock in the evening of January 11, 2014, a confidential informant went to the office of Intelligence Agent 1 Marilou C. Bustaliño (IA1 Bustaliño) and reported that a man called "Chairman" and his wife were selling shabu at Vamenta Subdivision, Barra, Opol, Misamis Oriental. 3 According to the informant, this "Chairman" was using his house as a drug den with the help of his son, Lito. 4
Acting on the tip, a buy-bust operation was organized, with IA1 Bustaliño assigned to act as poseur-buyer and Senior Officer 2 Neil Pabilona (SO2 Pabilona) as the arresting officer. At 10 o'clock, the buy-bust team went to the reported location. 5
When the team arrived, the informant went with IA1 Bustaliño to the "Chairman's" house and called him from behind the bamboo gate. They were greeted by an elderly woman who, upon recognizing the informant, invited them to enter the gate. 6
The informant introduced IA1 Bustaliño as a friend who wanted to buy P500.00 worth of shabu. In turn, the elderly woman asked for the payment, and IA1 Bustaliño gave her the buy-money consisting of one (1) P200.00 bill, two P100.00 bills, and two P50.00 bills. After receiving the payment, the woman spoke in Maranao language until an old man, the "Chairman," went outside and handed something to her. The object, a heat-sealed transparent plastic sachet containing a white crystalline substance believed to be shabu, was then given to IA1 Bustaliño. 7
As they were walking out the gate, IA1 Bustaliño executed the pre-arranged signal by making a missed call to SO2 Pabilona. Immediately, the rest of the members of the buy-bust team arrived at the scene and SO2 Pabilona arrested "Chairman" and the woman, who were later identified as accused-appellants Aragasi Tocalo (Aragasi) and Minda Tocalo (Minda), respectively. 8
A body search on Aragasi conducted by SO2 Pabilona yielded one big, three rectangular medium-sized, and five elongated medium-sized sachets, all transparent, heat-sealed, and containing the same white crystalline substance believed to be shabu. 9 Also recovered in plain view were ten open transparent plastic sachets containing traces of the same white crystalline substance, two disposable lighters with improvised needles, nine disposable lighters, five bamboo clippers, two pairs of scissors, four aluminum foil strips, and 38 pieces of transparent plastic sachets inside a transparent cellophane. 10
IA1 Bustaliño went inside the house and marked the item she bought in the presence of Aragasi and Minda. She also made an inventory and took photos of the recovered item in the presence of Aragasi and Minda, a barangay official, and two (2) representatives from the media. 11 Aragasi and Minda were then brought to the office of the buy-bust team. There, the request for laboratory examination of the items was prepared by IA1 Bustaliño, who thereafter brought these items to the laboratory for testing.
The Chemistry Report 12 dated January 12, 2014 signed by Philippine Drug Enforcement Agency (PDEA) Chemist II Jerome M. Garcia stated that the substances seized from Aragasi and Minda tested positive for methamphetamine hydrochloride. Aragasi and Minda were thus charged for illegal sale of dangerous drugs under Section 5, Article II of R.A. No. 9165 before the Regional Trial Court, Branch 40, Cagayan de Oro City (RTC). Aragasi was also charged with illegal possession of dangerous drugs under Section 11, Article II of the same law before the same court.
Aragasi and Minda denied the accusations against them. According to Aragasi, he was inside their house with Minda and their family on the night of January 11, 2014. At about 8 o'clock in the evening, several men suddenly barged inside their home and introduced themselves as PDEA agents. They were told to only speak in Visayan and Tagalog because the agents could not understand Maranao. The agents were looking to arrest a certain "Chairman," whom he denied being the said person. The agents also alleged that he and his wife were selling shabu, which they denied. A little later, Barangay Kagawad Manny Bersabal arrived at the scene and signed a document. He, Minda, and their son, Saahoden, were then made to ride a truck and they were brought to the PDEA Office. Their son was released, but he and Minda remained in detention. 13
Minda had a similar version of what transpired the night they were arrested. According to her, she told the PDEA agents that her husband was not the "Chairman" they were looking for. She and her son, however, were told not to move. Meanwhile, one of the PDEA agents called a barangay kagawad, who arrived minutes later and signed a document given to him by the agents. 14 At the PDEA Office, a man who introduced himself as the PDEA Director told her not to worry since they were improperly arrested. 15
After trial, the RTC rendered its Consolidated Judgment 16 dated November 18, 2016, finding Aragasi and Minda guilty of illegal sale of dangerous drugs.
The RTC, however, acquitted Aragasi of the charge for illegal possession of dangerous drugs on the ground that the prosecution failed to establish the identity of the dangerous drugs allegedly seized from him. It noted that at the time SO2 Pabilona testified in court, the sachets of shabu supposedly seized from Aragasi were no longer available as they had been presumably destroyed by the fire that occurred in the Hall of Justice Cagayan de Oro City, which also housed the Office of the Provincial Prosecutor on January 30, 2015. 17
The dispositive portion of the RTC Decision states:
WHEREFORE, all the foregoing premises considered, the court hereby rules as follows:
1. In Crim. Case No. 2014-076, accused Aragasi S. Tocalo a.k.a. "Chairman" and Minda B. Tocalo are hereby found GUILTY beyond reasonable doubt of having committed the offense charged in the information (violation of Section 5, Article II of R.A. 9165). They are hereby sentenced to suffer the penalty of life imprisonment and to pay a fine in the amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00) each, without subsidiary imprisonment in case of insolvency. The period of their preventive detention shall be credited in their favour; and
2. In Crim. Case No. 2014-077, the court rules to ACQUIT accused Aragasi S. Tocalo of the crime of Violation of Section 11, Par. 2(3), Article II of R.A. 9165, for failure of the prosecution to prove his guilt beyond reasonable doubt.
SO ORDERED.18
Aragasi and Minda appealed to the CA. They argued that the RTC erred in convicting them, since the prosecution failed to establish that the drug specimen presented during trial was the one that was allegedly seized from them. 19 According to Aragasi and Minda, the procedure under Section 21 of R.A. No. 9165 was not complied with by the apprehending officers. They were not made to witness the marking of the drug supposedly seized from them, and there was no representative from the Department of Justice. The barangay kagawad and the media representative, on the other hand, only came after the buy-bust operation was conducted, and were only made to sign the inventory that was already prepared. 20
The People, through the Office of the Solicitor General, counters that the prosecution has sufficiently established all the elements of the crime of illegal sale of dangerous drugs through the testimonies of IA1 Bustaliño and SO2 Pabilona regarding the conduct of the buy-bust operation. 21 Moreover, they argue that there was substantial compliance with the provisions of Section 21 of R.A. No. 9165 since the links in the chain of custody of the evidence were clearly established by the prosecution. 22
In its Decision 23 dated January 12, 2018, the CA affirmed the RTC's conviction of Aragasi and Minda, thus:
WHEREFORE, this Appeal is DENIED. The Consolidated Judgment of the Regional Trial Court in Criminal Case No. 2014-076 finding Aragasi Tocalo y Saboyogan a.k.a. "Chairman" and Minda Tocalo y Baterna guilty beyond reasonable doubt of violating Section 5, Article II of R.A. 9165 as well as sentencing them to LIFE IMPRISONMENT and imposing a FINE of FIVE HUNDRED THOUSAND PESOS (P500,000.00) each, without subsidiary imprisonment in case of insolvency is AFFIRMED.
SO ORDERED. 24
Hence, this appeal.
The parties adopted their respective Appellants' 25 and Appellee's 26 Briefs filed before the CA as their Supplemental Briefs before the Court. 27
The appeal is meritorious.
In a successful prosecution for violation of Section 5, Article II of R.A. No. 9165, the following elements must be proven beyond reasonable doubt: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment. What is material is proof that the transaction actually occurred, coupled with the presentation before the court of the corpus delicti. 28 What is more, the fact that the substance bought during the buy-bust operation is the same substance offered in court should be proven. 29 This is where the chain of custody requirement in drugs cases come into play to ensure that doubts concerning the identity of the seized drugs are removed. 30
In this regard, Section 21, 31 Article II of R.A. No. 9165, lays down the procedure that the police operatives must follow to maintain the integrity of the seized drugs. In Fuentes v. People, 32 the Court summarized this procedure as follows:
As part of the chain of custody procedure, the law requires that the apprehending team, immediately after seizure and confiscation, conduct a physical inventory and photograph the seized items 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 namely: (a) if prior to the amendment of RA 9165 by RA 10640, "a representative from the media AND the Department of Justice (DOJ), and any elected public official"; or (b) if after the amendment of RA 9165 by RA 10640, "[a]n elected public official and a representative of the National Prosecution Service OR the media." 33
Considering that the crime committed by accused-appellants occurred in January 2014, or before the effectivity of the amending law, R.A. No. 10640, which became effective on August 7, 2014, it is the provisions of R.A. No. 9165 that should prevail.
In the present case, there were unjustified deviations from the chain of custody procedure, thereby casting doubt on the integrity and evidentiary value of the dangerous drugs allegedly seized from accused-appellants.
First, no photographs of the seized items were taken in their presence and the required witnesses. Attached to the records are photographs of the barangay kagawad and the media representative supposedly signing the inventory; however, there were no photographs of the actual seized items. Notably, the prosecution did not acknowledge, more so, address this lapse during trial. In any case, these photographs were not included by the prosecution in its Formal Offer of Exhibits 34 dated March 30, 2016.
Second and more importantly, there was non-compliance with the three-witness rule under Section 21 of R.A. No. 9165. Pursuant thereto, the following witnesses must be present on the taking of inventory and photograph of the seized items: (1) a representative from the media, (2) a representative from the Department of Justice (DOJ), and (3) any elected public official.
Here, it was established that there was no representative from the DOJ present during the operation. In his testimony, IA1 Bustaliño admitted that only a barangay official and a representative from the media supposedly witnessed the conduct of the inventory. 35 This was made manifest by the Inventory of Seized Items/Confiscated Non-Drugs, 36 which showed that it was signed only by barangay kagawad Manny Bersabal and media representative Jayare Abesamis.
The prevailing rule is that in cases where the presence of witnesses was not obtained, the prosecution must establish not only the reasons for their absence, but also that earnest efforts had been exerted to secure their presence. 37 In the present case, there was no explanation whatsoever from the prosecution as to why a representative from the DOJ was not secured by the buy-bust team to witness the conduct of the inventory. In fact, the evidence for the prosecution is totally silent on this point.
It should be emphasized that the presence of the three witnesses is required to guarantee against the unlawful planting of evidence and of frame-up. The three witnesses are necessary to remove any taint of irregularity or illegitimacy in the conduct of the apprehension of the accused in the buy-bust operation. 38 Thus, it has been ruled in a line of cases 39 that the absence of any or all the required witnesses under Section 21, R.A. No. 9165 without justifiable reason is tantamount to failure to establish the chain of custody.
Apart from the non-observance of the procedure in Section 21 of R.A. No. 9165, without justifiable reason, there is doubt as to whether the shabu allegedly seized from accused-appellants is the same shabu subjected to laboratory examination and presented in the RTC.
IA1 Bustaliño testified that she personally delivered the drug specimen to the crime laboratory for examination. 40 The forensic chemist, Jerome M. Garcia, however, did not testify as from whom he received the specimen subject of the Chemistry Report 41 dated January 12, 2014. He merely stated that an "agent of the PDEA," handed the specimen to him for examination. 42 To the mind of this Court, such an absence of specificity creates a break in the links of the chain of custody of evidence.
In People v. Omamos, 43 the Court held that "it is of paramount necessity that the forensic chemist testifies on the details pertaining to the handling and analysis of the dangerous drug submitted for examination, i.e., when and from whom the drug was received; what identifying labels or other things accompanied it; description of the specimen; and the container it was in." 44 In the present case, the testimony of the forensic chemist lacks the foregoing details; there were no details about how he handled the specimen after receiving it from the PDEA agents or after he conducted the drug examination, except that he supposedly placed the specimen in a secured locker when the examination was done. 45
All told, the series of breach in the chain of custody rule, left unacknowledged and unexplained by the prosecution, is a fatal flaw which had destroyed the integrity and evidentiary value of the corpus delicti. As such, the Court is constrained to acquit accused-appellants based on reasonable doubt.
A final point, the Court reiterates its statement in People v. Manansala46 that "the prosecutors have the positive duty to prove compliance with the requirements of Section 21 (1), R.A. No. 9165, as amended." 47 Thus:
x x x 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 with this procedure 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. 48
WHEREFORE, the appeal is GRANTED. The Decision dated January 12, 2018 of the Court of Appeals in CA-G.R. CR-HC No. 01622 is hereby REVERSED and SET ASIDE. Accordingly, accused-appellants Aragasi Tocalo y Saboyogan a.k.a. "Chairman" and Minda Tocalo y Baterna are ACQUITTED on reasonable doubt and they are ORDERED IMMEDIATELY RELEASED from detention unless they are being held for some other lawful cause.
Let a copy of this Resolution be furnished to the Superintendent of Davao Prison and Penal Farm, B.E. Dujali, Davao del Norte for immediate implementation. He is ORDERED to REPORT to this Court the action taken within five (5) days from receipt of this Resolution. Let an entry of judgment be issued.
Copies shall also be furnished to the Police Director General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 13-14.
2. Penned by Associate Justice Edgardo T. Lloren (Chairperson), with Associate Justices Ruben Reynaldo G. Roxas and Walter S. Ong concurring; id. at 3-12.
3.Id. at 4.
4.Id. at 5.
5.Id.
6.Id.
7.Id.
8.Id.
9.Id.
10.Id.
11.Id.
12. Exhibit "C," Folder of Exhibits, p. 3.
13.Rollo, p. 6.
14.Id.
15.Id. at 7.
16. Penned by Presiding Judge Ma. Corazon B. Gaite-Llanderal; CA rollo, pp. 47-60.
17.Id. at 59.
18.Id. at 60.
19.Id. at 42.
20.Id. at 42-43.
21.Id. at 76-84.
22.Id. at 86.
23.Rollo, pp. 3-12.
24.Id. at 11-12.
25. CA rollo, pp. 31-45.
26.Id. at 66-91.
27.Rollo, pp. 29-30; 34-35.
28.People v. Cadiente, G.R. No. 228255, June 10, 2019, citing People v. Caiz, 790 Phil. 183, 196 (2016).
29.People v. Alagarme, 754 Phil. 449, 457 (2015).
30.People v. Baculio, G.R. No. 233802, November 20, 2019, citing Mallillin v. People, 576 Phil. 576, 587 (2008).
31.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; x x x.
32. G.R. No. 228718, January 7, 2019. (Italics and emphasis in the original)
33.Id.
34. Records, pp. 54-57.
35. TSN, November 26, 2014, p. 8.
36. Exhibit "F," Folder of Exhibits, p. 5.
37.People v. Cadiente, G.R. No. 228255, June 10, 2019.
38.People v. Mendoza, G.R. No. 225061, October 10, 2018, citing People v. Ocampo, 838 Phil. 157, 174 (2018).
39. See People v. Balbarez, G.R. No. 246999, July 28, 2020; People v. Burdeos, G.R. No. 218434, July 17, 2019; People v. Frias, G.R. No. 234686, June 10, 2019; People v. Laway, G.R. No. 227741, March 27, 2019; People v. Malazo, G.R. No. 223713, January 7, 2019; People v. Torio, G.R. No. 225780, December 3, 2018; People v. Mendoza, G.R. No. 225061, October 10, 2018.
40. TSN, November 26, 2016, p. 11.
41. Exhibit "C," Folder of Exhibits, p. 3.
42. TSN, August 6, 2014, p. 8.
43. G.R. No. 223036, July 10, 2019.
44.Id.
45. TSN, August 6, 2014, p. 6.
46. 826 Phil. 578 (2018).
47.Id. at 592.
48.Id. (Emphasis and underscoring in the original).