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617 Phil. 109


[ G.R. No. 184037, September 29, 2009 ]




Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA) Decision[2] dated January 31, 2008, which affirmed the Decision[3] of the Regional Trial Court (RTC) of Mandaluyong City, Branch 214, dated July 21, 2006, convicting petitioner Antonio Lopez y dela Cruz (petitioner) of the crime of Illegal Possession of Drugs.

Petitioner was charged in an Information,[4] dated April 24, 2003, that reads:

That on or about the 23rd day of April 2003, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) heat-sealed transparent plastic sachet containing 0.10 gram of white crystalline substance, found positive to the test for Methamphetamine Hydrochloride commonly known as "shabu," a dangerous drug.


The prosecution, through the testimony of arresting officer, Police Officer 2 Apolinario Atienza (PO2 Atienza), a member of Task Force Mapalakas of the Mandaluyong City Police Station, established that on April 23, 2003 at about 3:00 a.m., while conducting a routinary foot patrol along Pantaleon Street, Barangay Hulo, Mandaluyong City, PO2 Atienza saw petitioner at a distance of seven (7) meters walking in his direction; that, as the place was well-lit, he saw petitioner, walking with head bowed, looking at his hand, which held a plastic sachet containing a crystalline substance; and that he approached petitioner, held the latter's hand and asked, "Ano yan?" but petitioner did not answer. Thereafter, PO2 Atienza introduced himself to petitioner as a member of the Mandaluyong police, arrested him, and informed him of his constitutional rights to remain silent and to counsel. He then brought petitioner to the Mandaluyong Medical Center for a check-up. He also confiscated the plastic sachet and brought it to the police station. He prepared a request and then placed the markings "APA"-his initials―on the plastic sachet.[5]

Chemistry Report No. D-737-03E[6] prepared by Police Senior Inspector and Forensic Chemical Officer Annalee R. Forro, whose testimony was made subject of stipulation by both parties,[7] revealed the following results:


A - One (1) heat-sealed transparent plastic sachet with markings "APA" containing 0.10 gram of white crystalline substance.

x x x x


Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine Hydrochloride, a dangerous drug.


Specimen A contains Methamphetamine Hydrochloride, a dangerous drug.

The testimony of PO1 Julius B. Bacero (PO1 Bacero), companion of PO2 Atienza, was also dispensed with, as both the prosecution and the defense stipulated on the following: a) that he was a member of the Philippine National Police (PNP) assigned to the Mandaluyong City Police Force; b) that he was one of the members of the buy-bust team as backup, which operated against petitioner on April 23, 2003 along Pantaleon St., Barangay Hulo, Mandaluyong City; c) that as a back-up, his duty was only to secure the premises; and d) that he had no personal knowledge as to the circumstances surrounding the arrest of petitioner, as the former only saw the latter when he was already being brought by PO2 Atienza to their vehicle.[8]

The testimony of Senior Police Officer 1 Jaime Masilang -- who took the statement of the arresting officers, prepared and forwarded the referral letter, the arrest report, the affidavit of arrest, and the request for a drug test to the Prosecution Office, and put the markings on the evidence recovered -- also became the subject of stipulation.[9]

As sole witness for the defense, petitioner testified that, on April 23, 2003 at around 2:00 to 3:00 a.m., he went to a bakery about 30 meters away from his house in Barangay Hulo to buy pandesal. Suddenly, two vehicles stopped in front of him. PO2 Atienza and his companion, PO1 Bacero, alighted from the vehicle and frisked him. When PO2 Atienza found nothing in his possession, the two police officers pushed him inside their vehicle and handcuffed him. He was then brought to the office of one Major Kalag. Petitioner insisted that he was framed and that the shabu was taken by PO2 Atienza from the drawer of the table of Major Kalag. Afterwards, he was detained at the Criminal Investigation Division and charged with illegal possession of shabu. On cross-examination, petitioner testified that, prior to his arrest, he did not know Major Kalag or PO2 Atienza, or the two had any ill motive against him.[10]

On July 21, 2006, the RTC rendered a Decision finding petitioner guilty of the crime of illegal possession of drugs. The RTC gave credit to the positive testimony of PO2 Atienza, who was able to recall the incident vividly and to identify the evidence in open court. The RTC held that the acts of PO2 Atienza enjoyed the presumption of regularity in the performance of his official duty. Thus, the RTC disposed of the case in this wise:

WHEREFORE, the prosecution having successfully established the guilt of the accused beyond reasonable doubt[,] he is hereby sentenced to suffer the penalty of imprisonment of TWELVE (12) YEARS AND ONE (1) DAY and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

Accused is credited in full of the preventive imprisonment [he has] already served in confinement.

Let the physical evidence subject matter of this case be confiscated and forfeited in favor of the State and referred to the PDEA.


Aggrieved, petitioner appealed to the CA.[12] On January 31, 2008, the CA affirmed the decision of the RTC. The CA held that the shabu was not a product of an illegal search and, therefore, admissible in evidence. The CA opined that the plain-view doctrine was applicable to the seizure of the shabu, ratiocinating that the prohibited substance was within the plain view of PO2 Atienza who was on a routinary foot patrol, and that the police officer inadvertently came across petitioner, who was caught in flagrante delicto. Moreover, the CA held that petitioner was estopped from questioning the failure of the arresting officers to comply with Section 21[13] of Republic Act (R.A.) No. 9165,[14] in view of the admission by the defense of the Chemistry Report prepared by the Forensic Chemical Officer which positively identified the sachet's contents as shabu. Affirming the findings of the RTC, the CA likewise accorded the police officers the benefit of the presumption of regularity in the performance of their official duties.

Subsequently, petitioner filed a Motion for Reconsideration[15] which the CA, however, denied in its Resolution[16] dated August 1, 2008.

Hence, this Petition raising the following issues:







Petitioner, through the Public Attorney's Office, avers that PO2 Atienza is not a member of the Drug Enforcement Unit of the PNP and has no training with respect to drug cases; thus, the latter was not in a position to immediately identify the plastic sachet as containing shabu. Furthermore, at the time of arrest, petitioner was merely holding a plastic sachet, an act that did not constitute a crime that would justify his warrantless arrest; that considering the time and place where the arrest took place, it was improbable and incredible for PO2 Atienza, at a distance of seven (7) meters, to have easily determined that the plastic sachet, so small in size, contained shabu. Petitioner submits that in the absence of evidence and corroborating testimony of any other witness, his alleged culpability, based on the sole testimony of PO2 Atienza, shows that there was lack of probable cause, at the outset, to arrest him. Accordingly, the search made on petitioner, as an incident to the illegal arrest, was likewise illegal.

Moreover, petitioner claims that PO2 Atienza's failure to comply with the provisions of R.A. No. 9165 casts doubt on the validity of the arrest and the admissibility of the evidence allegedly seized from him. He says that Section 21 of R.A. No. 9165 and Section 2[18] of Regulation No. 1 of the Dangerous Drugs Board, Series of 2002, were violated. In addition, the plastic sachet containing the shabu was marked inside the police headquarters and not at the scene of the crime.

Petitioner asseverates that these violations cast a serious doubt on the identity and integrity of the shabu allegedly confiscated from him. In the same manner, there was utter failure on the part of the prosecution to prove the crucial link in the chain of custody of the shabu, which constitutes the corpus delicti of the offense. Lastly, petitioner argues that the presumption of regularity in the performance of official duty of police officers should not by itself prevail over the presumption of innocence and the constitutionally protected rights of an individual.[19]

On the other hand, respondent People of the Philippines, through the Office of the Solicitor General (OSG), asserts that petitioner's warrantless arrest is valid pursuant to Section 5(a), Rule 113 of the Rules of Criminal Procedure, commonly referred to as the rule on in flagrante delicto arrests; that petitioner was validly searched because he was caught in flagrante delicto or in "plain view" committing an offense; and that any objection involving petitioner's arrest, which should have been made before he entered his plea, is deemed waived because petitioner had been arraigned, participated in the trial and presented his evidence. The OSG also claims that non-compliance with the requirements of Section 21 of R.A. No. 9165 is not fatal to the cause of the prosecution that would render inadmissible the plastic sachet confiscated from petitioner, pointing out that there was continuity in the handling of the prohibited drug from the time it was confiscated until it was delivered for examination. Thus, its integrity and evidentiary value had been preserved, justifying its admission and consideration by the RTC and the CA. Lastly, the OSG insists that petitioner's guilt was sufficiently proven beyond reasonable doubt as found by both the RTC and the CA, giving the police officers the benefit of the presumption of regularity in the performance of official functions and discarding petitioner's defense of frame-up.[20]

The Petition is impressed with merit.

In illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[21]

Given the factual milieu of this case, we find our ruling in Guido Catuiran y Necudemus v. People of the Philippines[22] instructive:

We begin with the precept that in criminal prosecutions, fundamental is the requirement that the elemental acts constituting the offense be established with moral certainty as this is the critical and only requisite to a finding of guilt. In prosecutions involving narcotics, the narcotic substance 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. Of prime importance therefore in these cases is that the identity of the dangerous drug be likewise established beyond reasonable doubt. In other words, it must be established with unwavering exactitude that the dangerous drug presented in court as evidence against the accused is the same as that seized from him in the first place. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Indeed, it is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.

In this case, PO2 Atienza himself testified that he confiscated the prohibited drug and brought it to his office. He then prepared the request and only then―in the office―did he place his initials "APA" on the plastic sachet. The prosecution also failed to establish that petitioner was present when PO2 Atienza marked the said plastic sachet. These shortcomings militate against the prosecution's case. In the similar case of Ronald Carino and Rosana Andes v. People of the Philippines,[23] this Court emphasized the requirement of law that the prohibited drug seized be marked in the presence of the accused. Such flaw not only casts doubt on the identity of the corpus delicti but also tends to negate, if not totally discredit, the claim of regularity in the conduct of official police operation.

All told, the identity of the corpus delicti in this case was not proven beyond reasonable doubt. The courts below heavily relied on the testimony of PO2 Atienza and, in the same way, banked on the presumption of regularity. It bears stressing that this presumption only arises in the absence of contradicting details that would raise doubts on the regularity in the performance of official duties. Where, as in this case, the police officers failed to comply with the standard procedure prescribed by law, there is no occasion to apply the presumption.[24]

With the foregoing disquisition, we find no necessity to discuss petitioner's submission that the arrest and subsequent seizure were attended by a constitutional infirmity.

WHEREFORE, in view of the foregoing, the Decision dated January 31, 2008 of the Court of Appeals affirming the judgment of conviction by the Regional Trial Court of Mandaluyong City, Branch 214, is hereby REVERSED and SET ASIDE. Petitioner Antonio Lopez y dela Cruz is ACQUITTED based on reasonable doubt and is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt.


Ynares-Santiago, (Chairperson), Chico-Nazario, Velasco, Jr., and Peralta, JJ., concur.

[1] Rollo, pp. 9-28.

[2] Particularly docketed as CA-G.R. CR. No. 30492, penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Lucas P. Bersamin (now a member of this Court) and Estela M. Perlas-Bernabe, concurring; id. at 68-78.

[3] CA rollo, pp. 12-14.

[4] Records, pp. 1-2.

[5] TSN, February 24, 2004, pp. 2-9.

[6] Records, p. 15.

[7] Id. at 65.

[8] Id. at 179.

[9] Id. at 173.

[10] TSN, March 28, 2006, pp. 3-6.

[11] CA rollo, p. 14.

[12] Id. at 15.

[13] 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 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.

[14] The Comprehensive Dangerous Drugs Act of 2002.

[15] CA rollo, pp. 89-94.

[16] Id. at 110-111.

[17] Supra note 1, at 13.

[18] Section 2. Seizure or confiscation of drugs or controlled chemicals or laboratory equipment.

a. The apprehending team having initial custody and control of dangerous drugs or controlled chemical or plant sources of dangerous drugs or laboratory equipment shall immediately, after the seizure and confiscation, physically inventory and photograph the same in the presence of:

(i) the person from whom such items were confiscated and/or seized or his/her representative or counsel;
(ii) a representative from the media;
(iii) a representative from the Department of Justice; and
(iv) any elected public official;

who shall be required to sign copies of the inventory report covering the drug/equipment and who shall be given a copy thereof. Provided, that the physical inventory and photograph shall be conducted at the place where the search is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of a seizure without warrant; Provided further that non-compliance with these requirement 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 seizure of and custody over said items.

b. The drugs or controlled chemicals or laboratory equipment shall be properly marked for identification, weighed when possible or counted, sealed, packed and labeled by the apprehending officer/team.

[19] Id.

[20] Rollo, pp. 98-113.

[21] People v. Naquita, G.R. No. 180511, July 28, 2008, 560 SCRA 430, 451.

[22] G.R. No. 175647, May 8, 2009.

[23] G.R. No. 178757, March 13, 2009.

[24] People v. Garcia, G.R. No. 173480, February 25, 2009.

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