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833 Phil. 1055
SECOND DIVISION
[ G.R. No. 233702, June 20, 2018 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. MANUEL GAMBOA Y FRANCISCO @ "KUYA," ACCUSED-APPELLANT.
D E C I S I O N
PERLAS-BERNABE, J.:
The Facts
This case stemmed from two (2) Informations[5] filed before the RTC charging Gamboa of the crime of Illegal Sale and Illegal Possession of Dangerous Drugs, respectively defined and penalized under Sections 5 and 11, Article II of RA 9165, the accusatory portions of which state:
Criminal Case No.14-303187
That on or about January 31, 2014, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, trade, deliver, transport or distribute or give away to another any dangerous drug, did then and there willfully, unlawfully and knowingly sell or offer for sale to a police officer / poseur buyer one (1) heat - sealed transparent plastic sachet containing ZERO POINT ZERO FOUR ONE (0.041) gram of white crystalline substance containing Methamphetamine Hydrochloride, commonly known as Shabu a dangerous drug.
Contrary to law.[6]
Criminal Case No. 14-303188
That on or about January 31, 2014, in the City of Manila, Philippines, the said accused, not having been authorized by law to possess any dangerous drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control (1) heat -sealed transparent plastic sachet containing ZERO POINT ZERO TWO ONE (0.021) gram, of white crystalline substance containing Methamphetamine Hydrochloride, commonly known as Shabu a dangerous drug.
Contrary to law.[7]
The prosecution alleged that on January 30, 2014, the chief of Manila Police District (MPD) gave instructions to organize a buy-bust operation against one alias "Kuya" who was allegedly engaged in rampant selling of shabu at Moriones St., corner Elena St., Tondo, Manila. In response thereto, a team was formed where PO2 Richard Nieva (PO2 Nieva) was designated as the poseur-buyer, while Senior Police Officer 1[8] Brigido Cardifio and Police Officer 3 Noel R. Benitez (PO3 Benitez) served as back-ups. PO2 Nieva prepared the buy-bust money[9] and after coordinating with the Philippine Drug Enforcement Agency (PDEA), the team, together with the confidential informant, proceeded to the target area the following day. Upon arrival thereat, the informant approached Gamboa and introduced PO2 Nieva as a buyer of shabu. The latter asked Gamboa if he could buy P200.00 worth of shabu, handing as payment the buy-bust money, and in turn, Gamboa gave PO2 Nieva a plastic sachet containing white crystalline substance. Afterwhich, PO2 Nieva removed his bull cap, the pre-arranged signal, prompting the back-up officers to rush towards the scene and arrest Gamboa. Subsequently, a preventive search was conducted on Gamboa, where they recovered another plastic sachet and the buy-bust money. PO2 Nieva immediately marked the two (2) plastic sachets and inventoried the items at the place of arrest in the presence of Gamboa and a media representative named Rene Crisostomo. Photographs of the confiscated items were also taken by PO3 Benitez during the marking and inventory. Thereafter, PO2 Nieva brought Gamboa and the seized drugs to the police station where PO3 Benitez prepared the Request for Laboratory Examination.[10] After securing the letter-request, PO2 Nieva delivered the same to Police Chief Inspector Erickson Calabocal (PCI Calabocal), the forensic chemist at the Philippine National Police (PNP) Crime Laboratory, who later on confirmed after examination that the substance inside the seized items were positive for methamphetamine hydrochloride or shabu,[11] a dangerous drug.[12]
For his part, Gamboa denied the allegations against him, claiming that on said day, he was just walking along Pavia Street[13] when three (3) unidentified men arrested him for vagrancy because of his tattoos. He was then brought to the precinct where police officers interrogated him and told him to point to something. When he refused, photographs were taken and he was later on imprisoned.[14]
The RTC Ruling
In a Decision[15] dated October 15, 2015, the RTC found Gamboa guilty beyond reasonable doubt of violating Sections 5 and 11, Article II of RA 9165 and, accordingly, sentenced him as follows: (a) in Crim. Case No. 14-303187, to suffer the penalty of life imprisonment and to pay a fine of P500,000.00; and (b) in Crim. Case No. 14-303188, to suffer the penalty of imprisonment for an indeterminate term of twelve (12) years and one (1) day, as minimum, to seventeen (17) years and four (4) months, as maximum, and to pay a fine of P300,000.00.[16] It held that the prosecution sufficiently established all the elements of the crimes of Illegal Sale and Possession of Dangerous Drugs and that, there was no break in the chain of custody of the seized drugs given that: (a) PO2 Nieva immediately marked and inventoried the seized items at the place of arrest; (b) Gamboa, an investigator, and a media representative were present during the said proceedings; (c) PO2 Nieva personally turned over the items for examination to PCI Calabocal; and (d) PCI Calabocal confirmed that the substance inside the sachets tested positive for shabu.[17] In addition, the RTC ruled that while a representative from the Department of Justice (DOJ) and a barangay official were absent during the inventory, the failure to strictly comply with Section 21, Article II of RA 9165 was not fatal since the police officers actually sought the presence of a media man to witness the proceedings.[18]
Aggrieved, Gamboa appealed[19] to the CA.
The CA Ruling
In a Decision[20] dated May 31, 2017, the CA affirmed the RTC's ruling,[21] finding all the elements of the crimes charged present as Gamboa was caught in flagrante delicto selling shabu and in possession of another sachet containing the same substance.[22] The CA ruled that the integrity and evidentiary value of the seized drugs were duly preserved, considering that the sachets remained in PO2 Nieva's possession from the time of its confiscation until they were transmitted to the PNP Crime Laboratory for examination.[23]
Hence, this appeal.
The Issue Before the Court
The issue for the Court's resolution is whether or not the CA correctly upheld Gamboa's conviction for Illegal Sale and Illegal Possession of Dangerous Drugs.
The Court's Ruling
The appeal is meritorious.
At the outset, it must be stressed that an appeal in criminal cases opens the entire case for review and, thus, it is the duty of the reviewing tribunal to correct, cite, and appreciate errors in the appealed judgment whether they are assigned or unassigned.[24] "The appeal confers the appellate court full jurisdiction over the case and renders such court competent to examine records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law."[25]
Here, Gamboa was charged with the crimes of Illegal Sale and Illegal Possession of Dangerous Drugs, respectively defined and penalized under Sections 5 and 11, Article II of RA 9165. Notably, in order to properly secure the conviction of an accused charged with Illegal Sale of Dangerous Drugs, the prosecution must prove: (a) the identity of the buyer and the seller, the object, and the consideration; and (b) the delivery of the thing sold and the payment.[26] Meanwhile, in instances wherein an accused is charged with Illegal Possession of Dangerous Drugs, the prosecution must establish the following elements to warrant his conviction: (a) the accused was in possession of an item or object identified as a prohibited drug; (b) such possession was not authorized by law; and (c) the accused freely and consciously possessed the said drug.[27]
Case law states that in both instances, it is essential that the identity of the prohibited drug be established with moral certainty, considering that the dangerous drug itself forms an integral part of the corpus delicti of the crime. Thus, in order to obviate any unnecessary doubt on the identity of the dangerous drugs, the prosecution has to show an unbroken chain of custody over the same and account for each link in the chain of custody from the moment the drugs are seized up to its presentation in court as evidence of the crime.[28]
Section 21, Article II of RA 9165 outlines the procedure which the police officers must follow when handling the seized drugs in order to preserve their integrity and evidentiary value.[29] Under the said section, prior to its amendment by RA 10640,[30] the apprehending team shall, among others, 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, 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 of the same, and the seized drugs must be turned over to the PNP Crime Laboratory within twenty-four (24) hours from confiscation for examination.[31] In the case of People v. Mendoza,[32] the Court stressed that "[w]ithout the insulating presence of the representative from the media or the Department of Justice, or any elected public official during the seizure and marking of the [seized drugs), the evils of switching, 'planting' or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the [said drugs] that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the x x x presence of such witnesses would have preserved an unbroken chain of custody."[33]
The Court, however, clarified that under varied field conditions, strict compliance with the requirements of Section 21, Article II of RA 9165 may not always be possible.[34] In fact, the Implementing Rules and Regulations (IRR) of RA 9165 – which is now crystallized into statutory law with the passage of RA 10640[35] – provide that the said inventory and photography may be conducted at the nearest police station or office of the apprehending team in instances of warrantless seizure, and that non-compliance with the requirements of Section 21, Article II of RA 9165 – under justifiable grounds – will not render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer or team.[36] In other words, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21, Article II of RA 9165 and its IRR does not ipso facto render the seizure and custody over the items as void and invalid, provided that the prosecution satisfactorily proves that: (a) there is justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved.[37] In People v. Almorfe,[38] the Court explained that for the above-saving clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that the integrity and evidentiary value of the seized evidence had nonetheless been preserved.[39] Also, in People v. De Guzman,[40] it was emphasized that the justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist.[41]
In this case, the Court finds that the police officers committed unjustified deviations from the prescribed chain of custody rule, thereby putting into question the integrity and evidentiary value of the items purportedly seized from Gamboa.
An examination of the records reveals that while the seized items were properly marked by PO2 Nieva immediately upon confiscation at the place of the arrest and in the presence of Gamboa and a media representative, the same was not done in the presence of any elected public official, as well as a representative from the DOJ. In fact, such lapse was admitted by PO2 Nieva when he stated that:
[Fiscal Maria Cielo Rubie O. Galicia (Fiscal Galicia)]: You make the marking at the place. Were there barangay officials present during the marking of the evidence, Mr. Witness?
[PO2 Nieva]: My other co-policemen went to the barangay office, ma'am.
x x x x
Fiscal Galicia: Were there barangay officials present?
[PO2 Nieva]: No, ma'am.
[Fiscal Galicia]: Why, Mr. Witness?
[PO2 Nieva]: No one arrived to witness, ma'am.
x x x x
Fiscal Galicia: Who called, Mr. Witness for this barangay official?
[PO2 Nieva]: We called for the barangay official by the other operatives but no one went to the area, ma'am.
[Fiscal Galicia]: When you came to the area, what else did you do if any, Mr. Witness?
[PO2 Nieva]: The one who arrived there was the media man Mr. Rene Crisostomo, ma'am.
[Fiscal Galicia]: And what did he do if any in the area?
[PO2 Nieva]: He witnessed the evidences and he signed the form of the seized evidence, ma'am.
x x x x[42] (Emphases and underscoring supplied)
The law requires the presence of an elected public official, as well as representatives from the DOJ or the media to ensure that the chain of custody rule is observed and thus, remove any suspicion of tampering, switching, planting, or contamination of evidence which could considerably affect a case. However, minor deviations may be excused in situations where a justifiable reason for non-compliance is explained. In this case, despite the non observance of the witness requirement, no plausible explanation was given by the prosecution. In an attempt to justify their actions, PO2 Nieva testified that:
[Fiscal Galicia]: You mentioned earlier that no one came to the area, no one from the barangay came to the area to witness the marking of the evidence. What barangay did you try to call, Mr. Witness?
[PO2 Nieva]: I was not the one who called but it was my companion because I was concentrated with the subject, ma'am.
[Fiscal Galicia]: Why Mr. Witness just call and why not go to the barangay and there marked the evidence?
[PO2 Nieva]: Violating the Section 21 of the Republic Act 9165 that if I transferred the evidences to the barangay not in the crime scene.
[Fiscal Galicia]: But there's no witness at the crime scene to witness the markings, no one in the barangay came?
[PO2 Nieva] Yes, ma'am but the media man arrived.
x x x x[43] (Underscoring supplied)
It is well to note that the absence of these representatives does not per se render the confiscated items inadmissible.[44] 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.[45] In People v. Umipang,[46] 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."[47] Verily, mere statements of unavailability, absent actual serious attempts to contact the barangay chairperson, any member of the barangay council, or other elected public official are unacceptable as justified grounds for non-compliance.[48] 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, Article II 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 circumstance, their actions were reasonable.[49]
Thus, for failure of the prosecution to provide justifiable grounds or show that special circumstances exist which would excuse their transgression, the Court is constrained to conclude that the integrity and evidentiary value of the items purportedly seized from Gamboa have been compromised. It is settled that in a prosecution for the sale and possession of dangerous drugs under RA 9165, the State carries the heavy burden of proving not only the elements of the offense, but also to prove the integrity of the corpus delicti failing in which, renders the evidence for the State insufficient to prove the guilt of the accused beyond reasonable doubt.[50] Consequently, Gamboa's acquittal is in order.
As a final .note, the Court finds it fitting to echo its recurring pronouncement in recent jurisprudence on the subject matter:
The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. Order is too high a price for the loss of liberty. x x x.[51]
"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 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."[52]
WHEREFORE, the appeal is GRANTED. The Decision dated May 31, 2017 of the Court of Appeals in CA-G.R. CR-HC No. 07857 is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant Manuel Gamboa y Francisco@ "Kuya" is ACQUITTED of the crimes charged. 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.
SO ORDERED.
Carpio, Senior Associate Justice (Chairperson), Caguioa, and Reyes, Jr., JJ., concur.
Peralta, J., please see separate concurring opinion.
[1] See Notice of Appeal dated June 15, 2017; rollo, 18-20.
[2] Id. at 2-17. Penned by Associate Justice Stephen C. Cruz with Associate Justices Jose C. Reyes, Jr. and Nina G. Antonio-Valenzuela concurring.
[3] CA rollo, pp. 49-55. Penned by Presiding Judge Sarah Alma M. Lim.
[4] Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES," approved on June 7, 2002.
[5] Both dated February 4, 2014. Records, pp. 2-3.
[6] Id. at 2.
[7] Id. at 3.
[8] "Senior Police Officer 3" and "Police Officer 3" in some parts of the records.
[9] The buy-bust money was composed of two (2) pieces of one hundred peso bills, each marked with the letters "RN," representing the initials of poseur-buyer PO2 Nieva. See rollo, pp. 4-5.
[10] Dated January 31, 2014. Records, p. 9.
[11] See Chemistry Report No. D-053-14 dated February 1, 2014; id. at 10.
[12] See rollo, pp. 4-6. See also CA rollo, pp. 51-52.
[13] "Pravia St., Tondo, Manila" in some parts of the records.
[14] See rollo, p. 6. See also CA rollo, p. 52.
[15] CA rollo, pp. 49-55.
[16] Id. at 55.
[17] See id. at 53.
[18] See id. at 54-55.
[19] See Notice of Appeal dated October 20, 2015; records, p. 79.
[20] Rollo, pp. 2-17.
[21] Id. at 16.
[22] See id. at 8-13.
[23] See id. at 14-16.
[24] See People v. Dahil, 750 Phil. 212, 225 (2015).
[25] People v. Comboy, G.R. No. 218399, March 2, 2016, 785 SCRA 512, 521.
[26] People v. Sumili, 753 Phil. 342, 348 (2015).
[27] People v. Bio, 753 Phil. 730, 736 (2015).
[28] See People v. Viterbo, 739 Phil. 593, 601 (2014).
[29] People v. Sumili, supra note 26, at 349-350.
[30] 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"' approved on July 15, 2014.
[31] Se Section 21 (1) and (2), Article II of RA 9165.
[32] 736 Phil. 749 (2014).
[33] Id. at 764; emphases and underscoring supplied.
[34] See People v. Sanchez, 590 Phil. 214, 234 (2008).
[35] Section 1 of RA 10640 states:
SECTION 1. Section 21 of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002", is hereby amended to read as follows:
"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.
x x x x"
[36] See Section 21 (a), Article II of the IRR of RA 9165. See also People v. Ceralde, G.R. No. 228894, August 7, 2017.
[37] See People v. Goco, G.R. No. 219584, October 17, 2016, 806 SCRA 240, 252.
[38] 631 Phil. 51 (2010).
[39] Id. at 60.
[40] 630 Phil. 637 (2010).
[41] Id. at 649.
[42] TSN, October 23, 2014, pp 22-23.
[43] Id. at 40-41.
[44] See People v. Umipang, 686 Phil. 1024, I 052 (2012).
[45] See id. at 1052-1053.
[46] Id.
[47] Id. at 1053.
[48] See id.
[49] See People v. Crispo, G.R. No. 230065, March 14, 2018.
[50] See People v. Umipang, supra note 44,. at 1039-1040; citation omitted.
[51] People v. Go, 457 Phil. 885, 925 (2003), citing People v. Aminnudin, 246 Phil. 424, 434-435 (1988).
[52] See People v. Miranda, G.R. No. 229671, January 31, 2018.
SEPARATE CONCURRING OPINION
PERALTA, J.:
I concur with the ponencia in acquitting accused-appellant Manuel Gamboa y Francisco of the charges of illegal sale and illegal possession of dangerous drugs, or violation of Sections 5 and 11, Article II of Republic Act No. 9165 (R.A. No. 9165),[1] respectively. I agree that despite the nonobservance of the three-witness requirement under Section 21[2] of R.A. No. 9165, no justifiable reason was proffered by the prosecution as to why the marking of the seized items immediately upon confiscation at the place of arrest was only done in the presence of appellant and a media representative, without the presence of any elected public official and a representative from the Department of Justice. Be that as it may, I would like to emphasize on important matters relative to Section 21 of R.A. No. 9165, as amended.
To properly guide law enforcement agents as to the proper handling of confiscated drugs, Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 filled in the details as to where the inventory and photographing of seized items had to be done, and added a saving clause in case the procedure is not followed:[3]
(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 bears emphasis that R.A. No. 10640,[4] which amended Section 21 of R.A. No. 9165, now only requires two (2) witnesses to be present during the conduct of the physical inventory and taking of photograph of the seized items, namely: (a) an elected public official; and (b) either a representative from the National Prosecution Service or the media.
In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe conceded that "while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired and prevent planting of evidence, the application of said Section resulted in the ineffectiveness of the government's campaign to stop the increasing drug addiction and also, in the conflicting decisions of the courts."[5] Senator Poe stressed the necessity for the amendment of Section 21 based on the public hearing that the Senate Committee on Public Order and Dangerous Drugs had conducted, which revealed that "compliance with the rule on witnesses during the physical inventory is difficult. For one, media representatives are not always available in all comers of the Philippines, especially in the remote areas. For another there were instances where elected barangay officials themselves were involved in the punishable acts apprehended and thus, it is difficult to get the most grassroot-elected public official to be a witness as required by law."[6]
In his Co-sponsorship speech, Senator Vicente C. Sotto III said that in view of a substantial number of acquittals in drug-related cases due to the varying interpretations of prosecutors and judges on Section 21 of R.A. No. 9165, there is a need for "certain adjustments so that we can plug the loopholes in our existing law" and ensure [its] standard implementation."[7] Senator Sotto explained why the said provision should be amended:
Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates. The presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers makes the requirement of Section 21 (a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe for the proper inventory and photograph of the seized illegal drugs.
x x x x
Section 21(a) of RA 9165 need to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of the law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be inventoried and photographed has to include a location where the seized drugs as well as the persons who are required to be present during the inventory and photograph are safe and secure from extreme danger.
It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the place of seizure of illegal drugs or at the nearest police station or office of the apprehending law enforcers. The proposal will provide effective measures to ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and the evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances where there are no media people or representatives from the DOJ available and the absence of these witnesses should not automatically invalidate the drug operation conducted. Even the presence of a public local elected official also is sometimes impossible especially if the elected official is afraid or scared.[8]
However, under the original provision of Section 21 and its IRR, which is applicable at the time the appellant committed the crimes charged, the apprehending team was required to immediately conduct a physical inventory and photograph the drugs after their seizure and confiscation in the presence of no less than three (3) witnesses, namely: (a) a representative from the media, and (b) the DOJ, and; (c) any elected public official who shall be required to sign copies of the inventory and be given copy thereof. The presence of the three witnesses was intended as a guarantee against planting of evidence and frame up, as they were "necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity."[9]
The prosecution bears the burden of proving a valid cause for non-compliance 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 the trial proceedings, it must initiate in acknowledging and justifying any perceived deviations from the requirements of law.[10] Its 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.[11] Strict adherence to Section 21 is required where the quantity of illegal drugs seized is minuscule, since it is highly susceptible to planting, tampering or alteration of evidence. [12]
In this case, the prosecution never alleged and proved that the presence of all the required witnesses was not obtained for any of the following reasons, such as: (1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs were 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[13] 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.
Invocation of the disputable presumptions that the police officers regularly performed their official duty and that the integrity of the evidence is presumed to be preserved, will not suffice to uphold appellant's conviction. Judicial reliance on the presumption of regularity in the performance of official duty despite the lapses in the procedures undertaken by the agents of the law is fundamentally flawed because the lapses themselves are affirmative proofs of irregularity.[14] The presumption may only arise when there is a showing that the apprehending officer/team followed the requirements of Section 21 or when the saving clause found in the IRR is successfully triggered. In this case, the presumption of regularity had been contradicted and overcome by evidence of non-compliance with the law.[15]
At this point, it is not amiss to express my position regarding the issue of which between the Congress and the Judiciary has jurisdiction to determine sufficiency of compliance with the rule on chain of custody, which essentially boils down to the application of procedural rules on admissibility of evidence. In this regard, I agree with the view of Hon. Associate Justice Teresita J. Leonardo-De Castro in People v. Teng Moner y Adam[16] that "if the evidence of illegal drugs was not handled precisely in the manner prescribed by the chain of custody rule, the consequence relates not to inadmissibility that would automatically destroy the prosecution's case but rather to the weight of evidence presented for each particular case." As aptly pointed out by Justice Leonardo-De Castro, the Court's power to promulgate judicial rules, including rules of evidence, is no longer shared by the Court with Congress.
I subscribe to the view of Justice Leonardo-De Castro that the chain of custody rule is a matter of evidence and a rule of procedure, and that the Court has the last say regarding the appreciation of evidence. Evidentiary matters are indeed well within the powers of courts to appreciate and rule upon, and so, when the courts find appropriate, substantial compliance with the chain of custody rule as long as the integrity and evidentiary value of the seized items have been preserved may warrant the conviction of the accused.
I further submit that the requirements of marking the seized items, conduct of inventory and taking photograph in the presence of a representative from the media or the DOJ and a local elective official, are police investigation procedures which call for administrative sanctions in case of non-compliance. Violation of such procedure may even merit penalty under R.A. No. 9165, to wit:
Section 29. Criminal Liability for Planting of Evidence. - Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.
Section 32. Liability to a Person Violating Any Regulation Issued by the Board - The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand Pesos (P50,000.00) shall be imposed upon any person found violating any regulation duly issued by the Board pursuant to this Act, in addition to the administrative sanctions imposed by the Board.
However, non-observance of such police administrative procedures should not affect the validity of the seizure of the evidence, because the issue of chain of custody is ultimately anchored on the admissibility of evidence, which is exclusively within the prerogative of the courts to decide in accordance with the rules on evidence.
[1] "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES"
[2] 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;
[3] People v. Ramirez, G.R. No. 225690, January 17, 2018.
[4] "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."
[5] Senate Journal, Session No. 80, 16th Congress, 1st Regular Session, June 4, 2014, p. 348.
[6] Id.
[7] Id.
[8] Id. at 349-350.
[9] People v. Sagana, G.R. No. 208471, August 2, 2017,
[10] People v. Miranda, G.R. No. 229671, January 31, 2018; People v. Paz, G.R. No. 229512, January 31, 2018; and People v. Mamangon, G.R. No. 229102, January 29, 2018.
[11] People v. Saragena, G.R. No. 210677, August 23, 2017.
[12] Id.
[13] Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.
[14] People v. Ramirez, supra note 3.
[15] People v. Gajo, G.R. No. 217026, January 22, 2018.
[16] G.R. No. 202206, March 5, 2018.