FIRST DIVISION
[G.R. No. 247499. June 16, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. JORGE TUADA TUBAT, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated June 16, 2021 which reads as follows:
"G.R. No. 247499 (People of the Philippines v. Jorge Tuada Tubat). — This is an ordinary appeal 1 filed by accused-appellant Jorge Tuada Tubat (Tubat) assailing the Decision 2 dated September 26, 2018 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02462. The CA affirmed the Judgment 3 dated November 7, 2016 of the Regional Trial Court (RTC), Branch 30, Dumaguete City, finding Tubat guilty beyond reasonable doubt of illegal sale of 7.98 grams of marijuana in violation of Section 5, Article II of Republic Act No. (R.A.) 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," as amended.
The Amended Information against Tubat reads:
That on March 25, 2015, at around 8:30 o'clock in the evening at Lipayo, Dauin, Negros Oriental, Philippines and within the jurisdiction of this Honorable Court, the abovementioned accused, did then and there willfully, unlawfully, feloniously deliver and sell three (3) matchboxes containing a total of 7.98 grams of Dried Marijuana fruiting tops, a dangerous drug, to a police poseur buyer, without authority of law.
That accused was found positive for THC metabolites under Chemistry Report DT-098-15.
Contrary to law. 4 (Underscoring in the original)
Tubat pleaded not guilty to the offense charged. 5 Trial ensued. The prosecution presented seven witnesses, namely: Police Officer 3 Edilmar Manaban (PO3 Manaban); Police Officer 1 Jay Mark Sojor (PO1 Sojor); Police Chief Inspector Josephine Llena (PCI Llena); Police Officer 1 Ranel Milan (PO1 Milan); Department of Justice (DOJ) representative Lemuel Lagahit (Lagahit); Barangay Captain Virgilio Alama (Alama); and Police Officer 1 Christopher Dordado (PO1 Dordado). 6 The defense presented Tubat as its sole witness. 7
Version of the Prosecution
The combined testimonies of the prosecution witnesses established that on March 5, 2015 at around 9:00 p.m., the intelligence officer of Dauin Police Station, Dauin, Negros Oriental received an information from their confidential informant (CI) that a certain "Naning" (later identified as Tubat) is involved in illegal drug activities. The information was relayed to OIC Police Chief PSI Edwin Tuble (Tuble) who directed PO1s Sojor and Milan to conduct a stake out surveillance operation in the residence of Tubat in Barangay Lipayo, Dauin to check the veracity of the report. 8 The surveillance was conducted for a week. Thereafter, with the aid of the CI, a test-buy was made on March 12, 2015. The CI was able to purchase from Tubat a matchbox filled with suspected marijuana leaves worth P150.00, while PO1s Sojor and Milan watched from 5 to 10 meters. The contents of the matchbox were examined at the Negros Oriental Provincial Crime Laboratory. They tested positive for marijuana. Consequently, a buy-bust operation against Tubat was planned. 9
On March 25, 2015, at around 7:00 p.m. a briefing was conducted for the buy-bust operation with PO1 Sojor designated as the poseur-buyer, PO1 Milan as the immediate back-up, and PO1 Dordado as the photographer. The rest of the team were assigned as area security. PO1 Sojor prepared one P500.00 bill and placed his initials on the image of the blue-naped parrot found on the bill. The pre-arranged signal for a completed transaction was for PO1 Sojor to turn on his flashlight. The buy-bust operation was coordinated with the local Philippine Drug Enforcement Agency (PDEA). After receipt of the Certificate of Coordination, 10 the team proceeded to Barangay Lipayo, Dauin with PO1 Sojor boarding a motorcycle with the CI. 11
The team arrived at the location at 8:10 p.m. PO1 Sojor and the CI proceeded to the area of operation while the rest hid in the bushes. After 5 to 10 minutes, PO1 Sojor and the CI saw Tubat approaching. PO1 Sojor recognized the silhouette of Tubat due to the long week of surveillance that they conducted. The CI approached Tubat and introduced PO1 Sojor as the buyer. Tubat asked PO1 Sojor how much is he going to buy, and the latter answered three matchboxes of marijuana in Visayan dialect. PO1 Sojor gave Tubat the marked money. Tubat placed it in his right front pocket. Thereafter, he gave PO1 Sojor 3 matchboxes. PO1 Sojor examined the matchboxes and after smelling marijuana thereon, he put on his flashlight to signal the consummation of the transaction. 12 He placed the 3 matchboxes inside the pocket of his jacket and introduced himself as a police officer. He arrested the accused while PO1 Milan, who was then 5 to 10 meters away, rushed to the scene and helped subdue the accused. PO1 Sojor informed Tubat of his constitutional rights and the nature of his arrest. When asked for his name, the accused answered "George Tuada Tubat." 13 PO1 Sojor conducted a body search on Tubat. He recovered the marked P500 bill in Tubat's right front pocket. 14
At the crime scene, PO1 Sojor placed masking tapes on each of the 3 matchboxes, marking them with the initials "GTT-3-25-15-BB-1," "GTT-3-25-15-BB-2," and "GTT-3-25-15-BB-3," respectively. 15 Witnesses were called for the inventory. Barangay Captain Alama arrived first. It is from him that the buy bust team secured emergency lights because the area where the buy-bust was conducted was a dark, grassy area, with no houses on sight. 16 The inventory was made in the presence of Tubat and third-party witnesses Alama, DOJ Representative Lagahit, and Media Representative Neil Rio. It was photographed by PO1 Dordado. A Receipt Inventory of Property/Items Seized 17 was prepared by PO1 Sojor and signed by all the foregoing witnesses. After the Inventory, Tubat and the buy-bust team proceeded to the Dauin Police Station. There, Tubat informed PO1 Sojor that his first name is spelled as "Jorge," and not "George." PO1 Sojor prepared a Request for Laboratory Examination and Drug Test. 18 He placed the 3 matchboxes inside a white mailing envelope which he tape-sealed and signed. He brought it to the Negros Oriental Provincial Crime Laboratory (Crime Lab) for examination. 19
PO3 Manaban, the duty officer, at the Crime Laboratory received the seized items at 2:20 a.m. of March 26, 2015. He opened the white mailing envelope to check whether its contents tallied with the request for examination. Satisfied, he returned the matchboxes in the envelope, which he re-sealed and signed. He placed the envelope in his locker, of which he has sole access. At 2:50 a.m. of the same day, PO3 Manaban turned over the envelope to PCI Llena, the forensic chemist of the Crime Laboratory. PCI Llena first ascertained that the items she received were listed in the request for examination. Consequently, she assigned these with her examiner markings as follows: Specimens "A-1," "A-2," and "A-3" D-119-15 JSL for the three matchboxes with markings "GTT-3-25-15-BB-1," "GTT-3-25-15-BB-2," and "GTT-3-25-15-BB-3," with signatures, respectively. Each containing dried suspected marijuana fruiting tops. The aggregate weight of the items were 7.98 grams of marijuana. The qualitative examination on the specimens yielded positive results to the presence of marijuana, which was reflected in Chemistry Report No. D-119-15. 20 The urine sample of Tubat also tested positive for the presence of THC-metabolites. PCI Llena kept the specimens in the evidence vault of the Crime Lab of which she has sole access. Eventually she submitted the specimens and her chemistry reports to the RTC for the trial of the case on April 16, 2015. 21
Version of the Defense
Tubat interposed the defense of denial and frame-up. He narrated that at around 8:00 p.m. of March 25, 2015, while he was walking home from his Uncle Primo's house in Upper Lipayo, Dauin, two persons suddenly approached him from his left side and pinned him down on the ground. These persons placed handcuffs on him and when asked why they did that, they replied that they do not need a warrant of arrest. At that time, it was already dark, and the streets were not lighted. Tubat was made to sit down while the two persons searched the area using their flashlights. After a while, the barangay captain of Lipayo arrived with emergency lights as well as five other police officers who brought a table and a chair. The latter placed 3 matchboxes and a P500.00-bill on the table. They called a media practitioner, who asked Tubat why he was arrested. Tubat replied that he did not know the reason. Afterwards, he was brought to the police station. He denied selling dangerous drugs. He asserted that the P500.00-bill and the three matchboxes of dried marijuana came from the police. 22
Ruling of the Regional Trial Court
In its Decision 23 dated November 7, 2016, the RTC convicted Tubat for the crime of violation of Section 5, Article II of R.A. 9165, as amended, sentencing him to suffer the penalty of life imprisonment and to pay a fine in the amount of P500,000.00. It ruled that the prosecution clearly established the two elements of illegal sale of dangerous drugs. PO1 Sojor testified that there was an actual exchange of buy-bust money and marijuana. Tubat was caught in flagrante of selling illegal drugs, thus his arrest was legal. Further, the RTC held that the integrity and evidentiary value of the seized drugs were properly preserved. At the crime scene, PO1 Sojor marked the three matchboxes containing marijuana fruiting tops as well as conducted the inventory in the presence of the required witnesses. PO1 Dordado took photographs of the same. PO1 Sojor submitted the confiscated items to the Crime Laboratory. PO3 Manaban received them and turned them over to PCI Llena for examination. 24
Conversely, the RTC found Tubat's defense of denial as flimsy and self-serving as it was not substantiated by clear and convincing evidence. Furthermore, there appears no ulterior motive on the part of the police officers to falsely charge Tubat of a serious offense. 25
Tubat appealed to the CA.
Ruling of the Court of Appeals
In its assailed Decision, 26 the CA affirmed the ruling of the RTC. It held that as long as the police officer went through the buy-bust operation as a buyer, whose offer was accepted by the accused-appellant, followed by the delivery of the dangerous drugs to the former, the crime of illegal sale of dangerous drugs is consummated. It ruled that the prosecution was able to establish every link in the chain of custody from the moment the dangerous drugs were seized from Tubat until the time they were offered in court as evidence. It also found that the testimony of Tubat as highly improbable. The defense of frame-up is inherently weak and could not overturned the evidence presented by the prosecution. 27
Undaunted, Tubat filed the present appeal. Both Tubat and the Office of the Solicitor General (OSG), on behalf of the People, filed their respective Manifestation in Lieu of Supplemental Brief, 28 informing the Court that they will no longer file any supplemental brief considering that they had exhaustively discussed their arguments in their Briefs before the CA.
Arguments of Accused-Appellant
Tubat argued first and foremost that the alleged buy-bust operation was a fabricated story to cover up his illegal arrest. He asserted that the existence of the so-called CI was dubious. It was unclear how the information against him was relayed by the informant. 29 The test-buy was also not supported by documentary evidence. The absence of surveillance operation renders the genuineness of the buy-bust operation suspect. The marked money was not recorded in the police blotter. The sale appeared to be too contrived to inspire belief. It is suspicious that Tubat had in his possession 3 boxes of marijuana ready and available for sale to PO1 Sojor who intended to buy 3 matchboxes with his P500.00 buy-bust money. The prosecution perfectly dovetailed a story. If indeed Tubat was in the business of selling marijuana, he should have had in his custody enough stock as merchandise. 30 Since there was no buy-bust operation to speak of, the warrantless arrest against Tubat and the subsequent search on his person were illegal. The items recovered from his possession cannot be used in evidence against him. 31
Second, Tubat claimed that there was non-compliance with the provisions of Section 21, Article II of R.A. 9165. The Receipt Inventory of Property/Item Seized only indicated "matchbox" three times with no mention of drugs or marijuana as their supposed contents. Even the photographs of the inventory did not show any signs of marijuana. 32 The police officers neither provided any justification why the inventory did not reflect the illegal drugs nor recognized the procedural lapses on their part. Failure to comply with Section 21 implies a concomitant failure to establish the identity of the seized illegal items as part of the corpus delicti. Accordingly, Tubat must be acquitted. 33
Arguments of the Plaintiff-Appellee
The OSG insisted that Tubat was caught in flagrante delicto of selling marijuana, a dangerous drug, to PO1 Sojor, the poseur buyer. PO1 Sojor's testimony established that a sale transaction took place between him and Tubat. He first handed the P500.00 bill to Tubat, who in turn handed to him 3 matchboxes with dried marijuana leaves inside each box. 34 The OSG maintained that the four links in the chain of custody was established through the testimonial and documentary evidence presented by the apprehending officers. 35
Issue
The issue in this case is whether the CA erred in upholding Tubat's conviction for illegal sale of dangerous drugs.
Ruling of the Court
The appeal is meritorious. The Court acquits Tubat for illegal sale of dangerous drugs for failure of the prosecution to prove his guilt beyond reasonable doubt.
To convict a person charged with the crime of violation of Section 5, Article II of R.A. 9165, the State must prove the following: (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 therefor. 36 The State bears not only the burden of proving these elements but also proving the corpus delicti of the crime, which is the dangerous drugs itself. Any doubt in the identity and integrity of the corpus delicti warrants the acquittal of the accused. 37 To remove any unnecessary doubts on account of switching, planting, or contamination of the evidence, the prosecution must be able to account for each link in the chain of custody from the moment of the seizure of the dangerous drugs up to their presentation in court. 38 While a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for apprehending drug peddlers and distributors, the law requires strict compliance with the procedures laid down in Section 21 of R.A. 9165, 39 which provides the chain of custody rule.
Here, the alleged illegal sale of dangerous drugs was committed on March 25, 2015, hence Section 21 as amended by R.A. 10640, 40 which took effect on July 23, 2014, applies, to wit:
(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 person 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. (Emphasis supplied)
Unlike the original provision, the amended text of Section 21 requires the presence of only two witnesses during the inventory of the seized drugs, which are an elected public official and a representative of the National Prosecution Service (NPS) or the media. However, case law teaches that the required witnesses should be present not only during the inventory but more importantly at the time of the warrantless arrest of the accused because their presence at the time of seizure and confiscation would belie any doubt as to the source, identity, and integrity of the seized drug. 41
The four links in the chain of custody are summarized as follow: (1) the seizure and marking, if practicable, of the illegal drug and drug paraphernalia recovered from the accused by the apprehending officer; (2) the turnover of the seized items by the apprehending officer to the investigating officer; (3) the turnover of the confiscated items by the investigating officer to the forensic chemist for laboratory examination; and (4) the turnover and submission of the illegal drug from the forensic chemist to the court. 42 In this case, the buy-bust operation was not conducted in accordance with law.
First, the Joint Affidavit of Arrests 43 executed by PO1's Sojor and Milan provided that only the police officers and the CI were present during the apprehension of Tubat in Barangay Lipayo, Dauin, Negros Oriental. This is notwithstanding the long period of time between their receipt of the information from the CI that a certain Naning was engaged in illegal drug activities on March 5, 2015, their alleged test-buy on March 12, 2015, and the actual buy-bust operation on March 25, 2012. There was no attempt whatsoever on the part of the police officers to invite the required third-party witnesses ahead of time. During his cross-examination, Barangay Captain Alama disclosed that he was not present when Tubat was arrested although his residence is just near the area of operation. He was called by the police after Tubat's apprehension. He declared that his only participation was to witness the inventory of the seized drugs. 44
Second, based on the testimony of PO1 Sojor in the RTC, he marked the 3 matchboxes without the presence of the required witnesses. The witnesses were merely "called in" after the marking of the seized illegal drugs for purposes of inventory. 45 In People v. Leaño, 46 We held that the subsequent inventory of the seized items at the police station in the presence of the accused and the required witnesses does not validate an incipiently defective marking.
Third, the first link in the chain of custody further requires that aside from marking, the seized items should be placed in an envelope bag unless the type and quantity of these items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody. The purpose of placing the seized item in an envelope or evidence bag is to ensure that the item is secured from tampering, especially when it is susceptible to alteration or damage. 47 In this case, there was no mention if PO1 Sojor placed the confiscated items in an envelope. What is clear from the records is his candid statement that he put the three matchboxes in the pocket of his jacket after the inventory until the buy-bust team reach the police station. 48 In People v. Mamuyac, Jr. y Palma, 49 We held that a police officer's act of placing the seized drugs in his pocket is a doubtful and suspicious way of keeping the integrity of the seized items. For no one would know what other things are inside his/her pockets and what could have come out of the same. 50
Notably, the abovementioned irregularities would not ipso facto render the seizure and custody of the confiscated items invalid provided that the prosecution shows that: (a) there is justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. This is the so-called saving clause found in the last sentence of paragraph 1, Section 21. 51 However, the police officers failed to satisfy both requisites. The prosecution did not justify much less acknowledge the deviations in the mandatory procedure outlined in the law. The breaches of Section 21 cast doubt on the integrity and evidentiary value of the seized drugs. Accordingly, Tubat is entitled to an acquittal based on reasonable doubt.
WHEREFORE, the appeal is GRANTED. The Decision dated September 26, 2018 of the Court of Appeals in CA-G.R. CR-HC No. 02462 is hereby REVERSED and SET ASIDE. Accused-appellant Jorge Tuada Tubat is ACQUITTED of the crime charged against him, and is ORDERED to be IMMEDIATELY RELEASED, unless he is being lawfully held in custody for any other reason. The Director General of the Bureau of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt hereof.
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. 20-21.
2. Penned by Associate Justice Marilyn B. Lagura-Yap, with the concurrence of Associate Justices Gabriel T. Ingles and Emily R. Alino-Geluz; id. at 5-19.
3. Penned by Judge Rafael Cresencio C. Tan, Jr.; CA rollo, pp. 45-55.
4. Records, p. 25.
5.Rollo, p. 7.
6. CA rollo, p. 45.
7.Id. at 49.
8.Rollo, p. 7; see also Joint Affidavit of Arrest of Sojor and Milan (Exhibit "M").
9. CA rollo, p. 46.
10. Exhibit "L" of the Prosecution.
11.Id.
12. TSN dated September 21, 2016 of PO1 Sojor, p. 9.
13.Rollo, p. 8.
14. CA rollo, p. 47.
15.Id.
16.Id.
17. Exhibit "I" of the Prosecution.
18. Exhibit "A" of the Prosecution.
19. CA rollo, pp. 47-48.
20. Exhibit "B" of the Prosecution.
21. CA rollo, pp. 48-49.
22.Id. at 49-50.
23. Penned by Judge Rafael Cresencio C. Tan Jr.; id. at 45-55.
24.Id. at 50-51.
25.Id. at 52.
26.Supra note 2.
27.Rollo, pp. 14-17.
28.Id. at 30-32, 34-35.
29.Id. at 27-29.
30.Id. at 29-32.
31.Id. at 37.
32.Id. at 33-37.
33. CA rollo, pp. 40-41.
34.Id. at 72.
35.Id. at 74-76.
36.People v. Manabat, G.R. No. 242947, July 17, 2019, citing People v. Opiana, 750 Phil. 140, 147 (2015).
37.People v. Sultan, G.R. No. 225210, August 7, 2019.
38.People v. Lumaya, 827 Phil. 473, 484 (2018).
39.People v. Manabat, G.R. No. 242947, July 17, 2019, citing People v. Mantalaba, 669 Phil. 461, 471 (2011).
40. RA No. 10640 or 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."
41.People v. Tomawis, 830 Phil. 385, 409 (2018).
42.People v. Lim, G.R. No. 231989, September 4, 2018.
43. Exhibit "M" of the Prosecution.
44. TSN dated September 27, 2016, pp. 5-6.
45. TSN dated September 21, 2016, pp. 11-13.
46. G.R. No. 246461, July 28, 2020.
47.Tumabini v. People, G.R. No. 224495, February 19, 2020, citingPeople v. Martinez, 652 Phil. 347, 377 (2010), citing People v. Sanchez, 590 Phil. 214, 242 (2008) and Ramos v. People, G.R. No. 227336, February 26, 2018, 856 SCRA 459, 481-482.
48. TSN dated September 21, 2016, p. 17.
49. G.R. No. 234035, August 19, 2019, citing People v. Bartolini, 791 Phil. 626, 638 (2016).
50.People v. Leaño, G.R. No. 246461, July 28, 2020.
51. 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. x x x