SECOND DIVISION
[G.R. No. 248369. July 12, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. BENJIE VARONA y SIERRA, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated12 July 2021which reads as follows:
"G.R. No. 248369 (People of the Philippines v. Benjie Varona y Sierra). — We acquit.
In drug related cases, the State bears the burden not only of proving the elements of the offense but also the corpus delicti itself. 1 The seized drug itself constitutes the corpus delicti of the offense. The prosecution is, thus, tasked to establish that the substance illegally possessed or sold by the accused is the very substance presented in court 2 with the same unshakeable accuracy as that required to sustain a finding of guilt.
The Informations 3 here alleged that appellant, Benjie Varona y Sierra committed the offenses on January 28, 2014 before the amendment of Republic Act No. 9165 (RA 9165) 4 by Republic Act No. 10640 (RA 10640). 5 The applicable law, therefore, is RA 9165. Section 21, Article II thereof prescribes the standard in preserving the corpus delicti in illegal drug cases, viz.:
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;
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The Implementing Rules and Regulations (IRR) of RA 9165 further decrees: CAIHTE
Section 21. (a) The apprehending officer/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: 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, further, that non-compliance with 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 of and custody over said items.
It is essential that the identity of the seized drug be established with moral certainty. In order to obviate any unnecessary doubts on such identity, the prosecution must show an unbroken chain of custody. It must be able to account for each link in the chain of custody over the dangerous drug from the moment of seizure up to its presentation in court as evidence of the corpus delicti. 6
Generally, there are four (4) links in the chain of custody of the seized illegal drug: (i) its seizure and marking, if practicable, from the accused, by the apprehending officer; (ii) its turnover by the apprehending officer to the investigating officer; (iii) its turnover by the investigating officer to the forensic chemist for examination; and (iv) its turnover by the forensic chemist to the court. 7
In People v. Lim, 8 the Court emphasized the importance of the first link which refers to the seizure and marking which must be done immediately at the place of the arrest. It includes the physical inventory and taking of photograph of the seized items which should be done in the presence of the accused or his/her representative or counsel, together with an elected public official, a representative from the media, and a representative from the DOJ. The presence of these insulating witnesses is vital as it forecloses the pernicious practice of planting of evidence.
Here, the first link of the chain of custody had been breached early on.
The prosecution established that the seized items were marked immediately at the place of arrest. After marking, the arresting team proceeded to the police station for the inventory. The inventory was done in the presence of appellant, Sangguniang Barangay member Johnny Reosura, and media representative Roxano Estrella (DYRL). A DOJ representative, however, was conspicuously absent during the inventory. The prosecution acknowledged that the arresting officers were not able to secure the attendance of a DOJ representative as required by RA 9165.
It bears emphasis that the absence of a DOJ representative does not per se render the confiscated items inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21, Article II of RA 9165 must be adduced. 9 A general statement that a witness is not available would not suffice. People v. Rodriguez10 elucidates:
In People v. Lim, the Court emphasized the importance of the presence of the three insulating witnesses during the physical inventory and the photograph of the seized items. And in case of their absence, the Court ruled that the prosecution must allege and prove the reasons for their absence and convince the Court that earnest efforts were made to secure their attendance. The Court explained —
Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos requires:
It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse. Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for noncompliance. 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 knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable. (Emphasis in the original)
Simply put, under prevailing jurisprudence, in case the presence of any or all the insulating witnesses was not obtained, the prosecution must allege and prove not only the reasons for their absence, but also the fact that earnest efforts were made to secure their attendance.
Here, no justifiable ground was offered why the presence of a DOJ representative was not secured by the prosecution nor were the required earnest efforts specified to secure such presence. Intelligence Officer 1 Benedicto Ramos' (IO1 Ramos) testimony on this score reveals, thus: 11
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Q: Looking at the certificate of inventory I noticed that under the above-line reserved for DOJ is blank, why?
A: There was no DOJ representative available that time.
Q: What efforts, if any, did you exert to secure the presence of the DOJ representative? DETACa
A: During that time, we were already running after the reglementary period, because we have to travel to Iloilo City.
Q: Did you attempt to contact the DOJ representative?
A: It was the decision of our team leader. I already prepared the request for laboratory examination.
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Agent Ricky Pacaonces (IO1 Pacaonces) was also asked why a DOJ representative was not present during the inventory and like IO1 Ramos, he failed to offer a justification for the failure to secure the attendance of this required witness, viz.:
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Q: Who was present when this inventory was conducted?
A: SB Member Johnny Reosura.
Q: And who else?
A: DYRL Reporter Roxano Estrella.
Q: Who else?
A: IO1 Ramos as the seizing officer and me as the arresting officer.
Q: So, those are the only 4 persons present during the inventory?
A: Together with the suspect.
Q: And who else?
A: No more.
Q: So you mean to say that there was no DOJ representative present during the conduct of the inventory?
A: No, sir, there was no DOJ representative present.
Q: Why was that, Mr. Witness?
A: We tried to find for a DOJ representative but there was no available DOJ representative at Murcia and it is hard for us to travel from Murcia to the Hall of Justice to find for a DOJ representative to witness that inventory.
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Q: By the way, going back to the DOJ representative, When you say you tried to find a DOJ representative, what actual efforts did you do to look for a DOJ representative?
A: We asked assistance from Murcia PNP to find for a DOJ representative but they say that in all drug operations in Murcia, no DOJ representative would sign.
Q: Prior to the conduct of the buy-bust operation, did you try to secure the presence of a DOJ representative so that once buy-bust is effected, a DOJ representative will already be present?
A: No, sir.
Q: Why not, Mr. Witness?
A: In our experience, during our operations, only Chief Armando Abanado was the only DOJ representative who would sign the inventory.
Q: So are you telling this court that only Prosecutor Abanado is a DOJ representative in the island of Negros?
A: We tried other persons but they will not sign.
Q: Who are these other persons, Mr. Witness?
A: Before Benjie Varona, as I remember, when we conducted other operations in Murcia and when we proceed to the Provincial Prosecutor's Office. We asked some staff of the Provincial Prosecutor if they will sign the Inventory as a witness and they would say that they do not sign.
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The Court keenly notes that the PDEA agents conducted casing and surveillance on January 24, 2014 where they validated the information that appellant was selling illegal drugs. It was only four (4) days later, or on January 28, 2014, that a buy-bust operation was conducted on appellant. The buy-bust team clearly had more than sufficient time to contact the office of the DOJ in their locality to ensure the presence of a representative from that office during the buy-bust operation. If no DOJ representative would agree to witness the inventory, as the prosecution claimed, the buy-bust team should have considered contacting other localities to find one who would be willing to stand as such insulating witness. From the testimony of IO1 Pacaonces, the team simply assumed that they would not be able to find a DOJ representative to act as a witness during the inventory because this has always been the case, prior to the buy-bust operation on appellant.
In People v. Malana, 14 the Court explained that the police officers who conducted the buy-bust operation had one whole day to secure the attendance of the required witnesses. They failed to do so. Resultantly, the accused was acquitted. Here, the buy-bust team had all of four (4) days to contact the DOJ office but still failed to ensure the attendance of an insulating witness from said office and no plausible explanation was given for such failure. This irregularity and deviation from the prescribed procedure is utterly inexcusable. aDSIHc
Another irregularity in the first link of the chain of custody lies in the execution of the Certificate of Inventory.
Section 21, Article II of RA 9165 requires that the copies of the inventory should be signed by all of the following persons: (a) accused or his/her representative or counsel, (b) an elected public official, (c) a representative from the media, and (d) a representative from the DOJ. 15
Records bear the Certificate of Inventory 16 was not signed by appellant or his counsel or representative. The prosecution acknowledged the defect but failed to provide a justification why appellant was not able to sign the Certificate of Inventory. IO1 Pacaonces testified, thus:
Q: Was the accused asked to sign the Certificate of Inventory, if you know?
A: Yes, sir.
Q: And did he?
A: No, sir.
Q: If you know, why was it not indicated in the Certificate of Inventory that the accused refused to sign?
A: Maybe I forgot to write it down.
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Concededly, Section 21, Article II of the IRR of RA 9165 provides that "noncompliance with 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." For this provision to be effective, however, the prosecution must first (1) recognize any lapse on the part of the police officers, and (2) be able to justify the same. 18 As stated, however, no justifiable ground was offered for appellant's failure to sign the Certificate of Inventory. To be sure, the reason stated by IO1 Pacaonces that he merely forgot to specify on the Certificate of Inventory that appellant refused to affix his signature thereon does not justify the absence of appellant's signature on the Certificate of Inventory. This procedural infirmity, sans any valid explanation from the prosecution militates against a finding of guilt against appellant as the integrity and evidentiary value of the corpus delicti would have been compromised. 19
As for the succeeding links in the chain of custody, compliance with the requirements did not serve to cure the incipient breach which attended early on the inventory of the seized drugs. As held in People v. Ismael, 20 there was already a significant break such that there can be no assurance against switching, planting, or contamination even though the subsequent links were not similarly infirm. In other words, there is no way by which the already compromised identity and integrity of the seized drug items be ever cleansed of its incipient defect. Hence, appellant must be acquitted as a matter of right.
A final word. The presumption of regularity of performance of official duty cannot apply as it stands only when no reason exists in the records by which to doubt the regularity of the performance of official duty. 21 The presumption cannot substitute for compliance and mend the broken links. For it is a mere disputable presumption that cannot prevail over clear and convincing evidence to the contrary. And here, the presumption was sufficiently overturned by compelling evidence on record of the breach of the chain of custody rule. 22
ACCORDINGLY, the appeal is GRANTED. The Decision dated March 12, 2019 of the Court of Appeals, Cebu City in CA-G.R. CR-HC No. 02682 is REVERSED and SET ASIDE. Appellant Benjie Varona y Sierra is ACQUITTED of violations of Section 5 and Section 11, Article II of Republic Act No. 9165 in Criminal Case No. 14-38638 and Criminal Case No. 14-38637, respectively.
The Court further DIRECTS the Director of the Bureau of Corrections, New Bilibid Prison, Muntinlupa City, a) to cause the immediate release of Benjie Varona y Sierra from custody unless he is being held for some other lawful cause; and b) to inform the Court of the action taken within five (5) days from receipt of this resolution.
Let entry of judgment be issued immediately.
SO ORDERED." (J. Lopez, J., designated additional member per Special Order No. 2822 dated April 7, 2021.)
By authority of the Court:
TERESITA AQUINO TUAZONDivision Clerk of Court
By:
(SGD.) MA. CONSOLACION GAMINDE-CRUZADADeputy Division Clerk of Court
Footnotes
1.People v. Calates, 829 Phil. 262, 269 (2018).
2. See People v. Dizon @ "Jingle," G.R. No. 223562, September 4, 2019 (citation omitted).
3.Rollo, p. 19.
4. "Comprehensive Dangerous Drugs Act of 2002."
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.'"
6. See People v. Ching, 819 Phil. 565, 576 (2017).
7.People v. De Leon, G.R. No. 227867, June 26, 2019.
8.People v. Luna, 828 Phil. 671, 689 (2018).
9. See People v. Gamboa, 833 Phil. 1055, 1071 (2018).
10. G.R. No. 233535, July 1, 2019 (citations omitted).
11. TSN, August 28, 2014, p. 9.
12.Id.
13. TSN, October 30, 2014, pp. 13-15.
14. G.R. No. 233747, December 5, 2018.
15. See People v. Manabat, G.R. No. 242947, July 17, 2019.
16. Record, p. 29.
17. TSN, October 30, 2014, p. 14.
18.People v. Manabat, supra.
19. See id.
20. See 806 Phil. 21, 34 (2017).
21.People v. Luna, supra at 682.
22. See People v. Martin, G.R. No. 231007, July 1, 2019.