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SECOND DIVISION

[ G.R. No. 216754, July 17, 2019 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HAVIB GALUKEN Y SAAVEDRA, ACCUSED-APPELLANT.

DECISION

CAGUIOA, J:

This is an Appeal[1] under Section 13(c), Rule 124 of the Rules of Court from the Decision[2] dated November 5, 2014 of the Court of Appeals (CA) in CA-G.R. CR No. 00972-MIN, which affirmed the Judgment[3] dated June 22, 2010 rendered by the Regional Trial Court, Branch 20, Tacurong City in Criminal Case No. 3144, finding accused-appellant Havib Galuken y Saavedra (Havib) guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. (RA) 9165,[4] otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as amended.

The Facts


Havib was charged with violating Section 5, Article II of RA 9165. The Information[5] filed against Havib pertinently reads:

That on or about 5:35 o'clock in the afternoon of May 26, 2009 beside MCI Commercial Building, Purok 9, Barangay Poblacion, Tacurong City, Province of Sultan Kudarat, Philippines and within the jurisdiction of this Honorable Court, the said accused, not being authorized by law, did then and there, willfully, unlawfully and feloniously sell and found to have sold to 101 Roderick P. Falle two (2) sachets weighing zero point one two four two (0.1242) gram of Methamphetamine Hydrochloride commonly known as Shabu, a dangerous drug.

CONTRARY TO LAW.[6]


Upon arraignment, Havib pleaded not guilty to the charge.[7]

Version of the Prosecution

The version of the prosecution, as summarized by the Solicitor General and adopted by the CA, is as follows:

At about 3:00 [o]'clock in the afternoon of 26 May 2009, I03 Adrian Alvariño (I03 Alvariño), Philippine Drug Enforcement Agency (PDEA) Provincial Director for South Cotabato and Sultan Kudarat, briefed I01 Llano, I01 Falle, a monitoring officer and the confidential informant on the narcotics operation to be conducted against appellant in Tacurong City.

During the briefing, I01 Falle was designated as the poseur buyer. He was given one (1) five hundred peso bill to be used in the operation, which he marked with his initials "RPF".

After the briefing, I01 Falle and the confidential informant proceeded to Caltex Station fronting Tacurong City Fit Mart, where the appellant was waiting. On the other hand, I01 Llano, who was designated as the arresting officer, and his two (2) companions followed I01 Falle and the confidential informant using a separate motorcycle.

When they reached the gasoline station, the confidential informant and I01 Falle approached the appellant. The confidential informant introduced I01 Falle as his cousin who wanted to buy shabu. The confidential informant negotiated with the appellant. After, I01 Falle told appellant to move faster because there might be PDEA agents on the lookout. Immediately, appellant pulled from his pocket two (2) transparent plastic bags containing shabu and after examining and confirming that the contents of the bags were actually shabu, I01 Falle handed to said person the buy-bust money.

I01 Falle lighted a cigarette, as a pre-arranged signal to alert his other companions who were, at that time, strategically positioned in the area.

Appellant ran toward the round ball but I01 Llano was able to apprehend him near MCI Commercial.

The team bought the appellant and the confiscated items at the Tacurong City Police Station. I01 Falle marked the two (2) sachets with "RPF" and "RPF-1". The police officers likewise prepared an inventory receipt signed by Barangay Poblacion Kagawad Pamplona and took photographs of the seized items.

At 9:00 o'clock in the evening of the same day, I01 Falle, I01 Llano and I03 Alvariño brought appellant to PDEA Regional Office in General Santos City. The two (2) sachets remained in the custody of I01 Falle.

At the PDEA Regional Office, I01 Falle prepared his affidavit and endorsed the sachets of shabu to I01 Llano.

The following day, I01 Falle and I01 Llano delivered the sachets to the PNP Regional Crime Laboratory Office 12 in General Santos City for examination. PO2 Edmund Delos Reyes received the sachets from them.

On the same day, PO2 Delos Reyes endorsed the sachets with a letter request for laboratory examination to Police Inspector Lily Grace Mapa, a Forensic Chemist.

Police Inspector Mapa personally examined the items, which yielded positive for methamphetamine hydrochloride, as reflected in her report. After the examination, she turned over the sachets to the evidence custodian of the Laboratory Office, PO2 Sotero Tauro, Jr.[8]


Version of the Defense

On the other hand, the version of the defense, as summarized by the Public Attorney's Office and adopted by the CA, is as follows:

On May 26, 2012, [a]ppellant went to Tacurong Fit Mart located at Tacurong City in order to buy [a] T- Shirt. After buying one, he went to the Tacurong City Public Market to take his lunch. After eating, he walked his way to the terminal for passenger vehicles located near the round ball and was arrested by unknown persons.[9]


Ruling of the RTC


In the assailed Judgment dated June 22, 2010, the RTC convicted Havib of the less serious offense of Illegal Possession of Dangerous Drugs under Section 11, Article II of RA 9165 instead of the offense of Illegal Sale Dangerous Drugs under Section 5, Article II of RA 9165, as charged in the Information.

The dispositive portion of the Judgment reads:

Wherefore, upon all the foregoing considerations, the Court finds the guilt of accused HAVIB GALUKEN Y SAAVEDRA to the crime of Illegal Possession of Methamphetamine Hydrochloride, otherwise known as shabu[,] beyond reasonable doubt and hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from TEN (10) YEARS of prision mayor, as minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion temporal, as maximum and to pay the fine of THREE HUNDRED THOUSAND PESOS (P300,000.00).

x x x x

IT IS SO ORDERED.[10]


The RTC ruled that the evidence presented by the prosecution is insufficient to prove the crime of Illegal Sale of Dangerous Drugs.[11] The alleged poseur-buyer is not actually a buyer, but a delivery man.[12] Moreover, the prosecution was not able to present the confidential informant who negotiated for the sale of the dangerous drugs.[13] Although Havib may not be convicted of the crime charged, he can however be convicted of the crime of Illegal Possession of Dangerous Drugs.[14] The offense of Illegal Sale of Dangerous Drugs necessarily includes the offense of Illegal Possession of Dangerous Drugs, the latter being offense which the prosecution has proved.[15] Lastly, the defense of denial by Havib is a weak defense which is self-serving.[16]

Aggrieved, Havib appealed to the CA.

Ruling of the CA


In the assailed Decision dated November 5, 2014, the CA affirmed Havib's conviction with modifications. The dispositive portion of the Decision reads:

ACCORDINGLY, the Judgment dated 22 June 2010 finding accused appellant guilty is AFFIRMED with MODIFICATION. The accused-appellant Havib Galuken y Saavedra is found GUILTY beyond reasonable doubt of illegal sale of dangerous drugs and is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of P500,000.00, without eligibility for parole.

SO ORDERED.[17]


The CA ruled that Havib should be convicted of Illegal Sale of Dangerous Drugs as charged, not Illegal Possession of Dangerous Drugs.[18] In stark contrast to the findings of the RTC, the CA found that all the elements of Illegal Sale of Dangerous Drugs are present.[19] During the trial, IO1 Roderick P. Falle (IO1 Falle) categorically described the sale from the time he received two (2) sachets of shabu from Havib, the payment of the consideration, and the subsequent arrest of Havib.[20] Notwithstanding that it was the informant who made initial contact with Havib, the CA was convinced that IO1 Falle did not simply act as delivery man of the marked money.[21] First, it is explicit in IO1 Falle's testimony that understandably it was the informant who would initiate the transaction by introducing the former as the potential buyer of the shabu.[22] Second, it was IO1 Falle who told Havib to hurry up the transaction as PDEA agents might be around the area.[23] It further ruled that the inconsistencies in the testimonies of IO1 Falle and IO1 Cielito E. Llano (IO1 Llano) pertained to minor, inconsequential or trivial matters that do not impair the proven elements of the commission of Illegal Sale of Dangerous Drugs.[24] Lastly, it ruled that the police officers substantially complied with the requirements of Section 21.[25]

Hence, the instant appeal.

Issue


Whether the CA erred in finding Havib guilty of the crime of Illegal Sale of Dangerous Drugs.

The Court's Ruling


The petition is meritorious. Havib is accordingly acquitted.

In cases involving dangerous drugs, the confiscated drug constitutes the very corpus delicti of the offense[26] and the fact of its existence is vital to sustain a judgment of conviction.[27] It is essential, therefore, that the identity and integrity of the seized drugs be established with moral certainty.[28] Thus, in order to obviate any unnecessary doubt on their identity, 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 their presentation in court as evidence of the crime.[29]

In this connection, the Court has repeatedly held that Section 21,[30] Article II of RA 9165, the applicable law at the time of the commission of the alleged crime, strictly requires that (1) the seized items be inventoried and photographed immediately after seizure or confiscation; and (2) the physical inventory and photographing must be done in the presence of (a) the accused or his/her representative or counsel, (b) an elected public official, (c) a representative from the media, and (d) a representative from the Department of Justice (DOJ).[31]

Verily, the three required witnesses should already be physically present at the time of the conduct of the inventory of the seized items which, again, must be immediately done at the place of seizure and confiscation — a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity.[32]

While the Court has clarified that under varied field conditions, strict compliance with the requirements of Section 21 of RA 9165 may not always be possible[33] and that the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of RA 9165 does not ipso facto render the seizure and custody over the items void, this has always been with the caveat that the prosecution still needs to satisfactorily prove that: (a) there is justifiable ground for non-compliance and (b) the integrity and evidentiary value of the seized items are properly preserved.[34]

However, in the case at bar, the police officers completely disregarded the requirements of Section 21.

First, none of the required witnesses was present at the place of arrest. The police officers merely called-in a Barangay Kagawad and media representative when they were already at the police station to sign the inventory receipt which they had already prepared prior to the arrival of said witnesses. Thus, it is clear that they failed to comply with the mandatory requirements of the law. As testified by IO1 Llano:

Q
-
How about this person wearing short pants and ball cap?



A
-
That is Honorable Dante Pamplona, Barangay Kagawad of Poblacion, Tacurong, sir.



Q
-
How come that Barangay Kagawad Dante Pamplona was there during the taking of the photographs?



A
-
Maybe our team leader called for him, sir.



Q
-
So you are not sure who called for that Barangay [K]agawad?



A
-
Yes, sir.



x x x x



Q
-
Again there are two pictures here. Please look at these and examine these pictures and tell us who are depicted in these pictures?



A
-
This person who pointed the 500-peso bill is the arrested suspect. (Witness pointed to Havib Galuken)



Q
-
How about the other person?



A
-
A media representative, Anter Alcos of Brigada, sir.



Q
-
How come that this Anter Alcos was there?



A
-
I believe [that] he was called by the team leader to sign the inventory of [the] seized evidence, sir.



x x x x



Q
-
Why you have to execute your affidavit of justification? What is this all about? (sic)



A
-
Because there was no representative from the DOJ to sign the inventory of seized evidence, sir.



Q
-
No representative from the DOJ during the operation?



A
-
Yes, sir.[35]


Second, the police officers did not conduct the marking, inventory, and photography of the seized items at the place of arrest. Their explanation that the crowd became uncontrollable is hardly plausible considering that they conducted the buy-bust operation at a Caltex Station[36] and it is highly unbelievable that there would be a crowd in the said area that would pose a danger to their lives. As testified by the police officers:

[IO1 Falle:]


Q
Aside from preparing the inventory of evidence/property at Tacurong City Police Station, what else did your group do in the police station?


A
I myself marked the confiscated evidence, sir.


Q
How about picture taking?


A
Yes we do the picture taking also at Tacurong City Police station, sir. (sic)[37]
[IO1 Llano:]



Q
-
Why at the Tacurong City Police Station that you conducted an inventory when Section 21 of RA 9165 required that the inventory be conducted at the place where those items were seized? (sic)



A
-
At that time the crowd is uncontrollable considering the security of the group, our team leader decided to bring the suspect to the Tacurong City Police Station, your Honor.



x x x x



Q
-
Who prepared the inventory of the property seized?



A
-
It was me, sir.[38]


It bears stressing that the prosecution has the burden of (1) proving the police officers' compliance with Section 21, RA 9165, and (2) providing a sufficient explanation in case of non-compliance. As the Court en banc unanimously held in the recent case of People v. Lim,[39]

It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not obtained due to reason/s 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 was 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 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.[40] (Emphasis in the original and underscoring supplied)


Undeniably, none of the abovementioned circumstances was attendant in the case. Their excuse for non-compliance is unconvincing. Moreover, their failure to comply with the mandatory requirements laid down in Section 21 of RA 9165 is immensely condemnable, especially because it is not their first time to conduct a buy-bust operation. As testified by IO1 Falle, he has been a member of the PDEA for almost two (2) years.[41] Hence, he and his team should have already been well familiar with the standard operating procedures in conducting a buy-bust operation.

In addition, the police officers admitted that they only "called-in" the mandatory witnesses when they were already at the police station. Even more bothersome is the fact that they were unaware and unsure of who called the said Barangay Kagawad and media representative at the police station.

Time and again, the Court has held that the practice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so — and "calling them in" to the place of inventory to witness the inventory and photographing of the drugs only after the buy-bust operation has already been finished — does not achieve the purpose of the law in having these witnesses prevent or insulate against the planting of drugs.[42]

Lastly, the conflicting testimonies of the members of the buy-bust team make their credibility questionable. Thus, to the mind of the Court, there is doubt whether there was even really a buy-bust operation. For one, IO1 Llano initially testified that they were able to recover three (3) sachets from Havib – two (2) sachets were recovered by IO1 Falle and one (1) sachet was recovered by IO1 Llano when he conducted a body search of Havib. However, he subsequently changed his testimony and denied recovering one (1) sachet from Havib:

Q
-
What again did you recover from the accused?



A
-
P500 with marking RTF, sir.



Q
-
What else if any did you recover?



A
-
Nothing more, sir.



Q
-
Yesterday when you testified you mentioned that you also recovered one(l) sachet from the said suspect aside from the buy bust money?



A
-
I changed it because I did not recover any sachet, sir.



Q
-
And why did you say earlier that you were able to recover one(1) sachet?



A
-
I was not able to glance or read my case folder because I came from Cotabato City and we came to the court late, sir.[43]


The presumption of innocence of the
accused is superior over the presumption of
regularity in performance of official duties.


The CA held that the police officers enjoy the presumption of regularity in the performance of their official duties.[44] However, the Court finds that this presumption does not hold water in this case.

The Court has repeatedly held that since a buy-bust is a planned operation, it strains credulity why the buy-bust team could not have ensured the presence of the required witnesses pursuant to Section 21 or at the very least marked, photographed and inventoried the seized items according to the procedures in their own operations manual.[45] As applied in this case, the presumption of regularity cannot stand because of the buy-bust team's blatant disregard of the established procedures under Section 21 of RA 9165.

In this connection, the presumption of regularity in the performance of official duty cannot overcome the stronger presumption of innocence in favor of the accused.[46] The right of the accused to be presumed innocent until proven guilty is a constitutionally protected right.[47] Thus, it would be a patent violation of the Constitution to uphold the importance of the presumption of regularity in the performance of official duty over the presumption of innocence, especially in this case where there are more than enough reasons to disregard the former.

All told, the prosecution failed to prove the corpus delicti of the crime charged due to the multiple unexplained breaches of procedure committed by the buy-bust team in the seizure, custody, and handling of the seized drug. In other words, the prosecution was not able to overcome the presumption of innocence of Havib.

As a reminder, the Court exhorts the prosecutors to diligently discharge their onus to prove compliance with the provisions of Section 21 of RA 9165, as amended, and its Implementing Rules and Regulations, which is fundamental in preserving the integrity and evidentiary value of the corpus delicti. To the mind of the Court, the procedure outlined in Section 21 is straightforward and easy to comply with. In the presentation of evidence to prove compliance therewith, the prosecutors are enjoined to recognize any deviation from the prescribed procedure and provide the explanation therefor as dictated by available evidence. Compliance with Section 21 being integral to every conviction, the appellate court, this Court included, is at liberty to review the records of the case to satisfy itself that the required proof has been adduced by the prosecution whether the accused has raised, before the trial or appellate court, any issue of non-compliance. If deviations are observed and no justifiable reasons are provided, the conviction must be overturned, and the innocence of the accused affirmed.[48]

WHEREFORE, in view of the foregoing, the appeal is hereby GRANTED. The Decision dated November 5, 2014 of the Court of Appeals in CA-G.R. CR No. 00972-MIN, is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant HAVIB GALUKEN y SAAVEDRA is ACQUITTED of the crime of Section 5, Article II of Republic Act No. 9165 on the ground of reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from detention unless he is being lawfully held for another cause. Let an entry of final judgment be issued immediately.

Let a copy of this Decision be furnished the Penal Superintendent of the Davao Prison and Penal Farm, Dujali, Davao del Norte for immediate implementation. The said Penal Superintendent is ORDERED to REPORT to this Court within five (5) days from receipt of this Decision the action he has taken.

Further, the Philippine National Police is hereby DIRECTED to CONDUCT AN INVESTIGATION on the police officers involved in the buy-bust operation conducted in this case.

SO ORDERED.

Carpio, (Chairperson), J. Reyes, Jr., and Lazaro-Javier, JJ., concur.
Perlas-Bernabe, J., on official leave.



[1] See Notice of Appeal dated November 19, 2014, rollo, pp. 17-18.

[2] Rollo, pp. 3-16. Penned by Associate Justice Pablito A. Perez with Associate Justices Edgardo A. Camello and Henri Jean Paul B. Inting (now a member of this Court), concurring.

[3] CA rollo, pp. 48-67. Penned by Judge Milanio M. Guerrero.

[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" (2002).

[5] Records, p. 1.

[6] Id.

[7] Rollo, p. 4.

[8] Id. at 4-6.

[9] Id. at 6.

[10] CA rollo, pp. 65-66.

[11] Id at 61.

[12] Id.

[13] Id at 62.

[14] Id.

[15] Id.

[16] Id. at 63.

[17] Rollo, p. 16.

[18] See id. at 8.

[19] Id. at 9.

[20] Id. at 9-10.

[21] Id. at 11.

[22] Id.

[23] Id.

[24] Id. at 12.

[25] Id. at 14.

[26] People v. Sagana, G.R. No. 208471, August 2, 2017, 834 SCRA 225, 240.

[27] Derilo v. People, 784 Phil. 679, 686 (2016).

[28] People v. Alvaro, G.R. No. 225596, January 10, 2018, accessed at .

[29] People v. Manansala, G.R. No. 229092, February 21, 2018, accessed at .

[30] The said section reads 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 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[.]

[31] See RA 9165, Art. II, Sec. 21 (1) and (2); Ramos v. People, G.R. No. 233572, July 30, 2018, accessed at ; People v. Ilagan, G.R. No. 227021, December 5, 2018, accessed at ; People v. Mendoza, G.R. No. 225061, October 10, 2018, accessed at .

[32] People v. Angeles, G.R. No. 237355, November 21, 2018, accessed at .

[33] People v. Sanchez, 590 Phil. 214, 234 (2008)

[34] People v. Ceralde, G.R. No. 228894, August 7, 2017, 834 SCRA 613, 625.

[35] TSN, February 9, 2010, pp. 10-15.

[36] Rollo,p.5.

[37] TSN, November 10, 2009 (afternoon), p. 8.

[38] TSN, Februarys 2010, pp. 6-7.

[39] G.R. No. 231989, September 4, 2018, accessed at .

[40] Id., citing People v. Sipin, G.R. No. 224290, June 11, 2018, accessed at .

[41] TSN, November 10, 2009 (morning), p. 5.

[42] People v. Tomawis, G.R. No. 228890, April 18, 2018, accessed at .

[43] TSN, February 9, 2010, pp. 4-5.

[44] Rollo, p. 12.

[45] People v. Zheng Bai Hui, 393 Phil. 68, 133 (2000).

[46] People v. Mendoza, 736 Phil. 749, 769-770 (2014).

[47] Constitution, Art. III, Sec. 14, par. (2): "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved x x x."

[48] See People v. Jugo, G.R. No. 231792, January 29, 2018, accessed at .

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