LEONEN, J.:
In a separate Information, Pagaspas was further charged with violation of Section 11[7] of the same law. It reads:Criminal Case No. 30080-2017-C
That on or about 3:20 o'clock [sic] in the afternoon of 19 July 2017, at Sitio Palao, Kapayapaan Village, Brgy. Canlubang, City of Calamba, Province of Laguna and within the jurisdiction of the Honorable Court, the above-named accused conspiring and confederating without any authority of law, did then and there willfully, unlawfully and feloniously sell to a poseur bu[y]er a quantity of methamphetamine hydrochloride otherwise known as shabu, a dangerous drug. having a total weight of 0.06 gram/s, in violation of the aforementioned law.
CONTRARY TO LAW.[6]
On arraignment, De Leon and Pagaspas pleaded not guilty to the charges filed against them. Trial on the merits then ensued.[9]Criminal Case No. 30079-2017-C
That on or about 3:20 o'clock [sic] in the afternoon of 19 July 2017, at Sitio Palao, Kapayapaan Village, Brgy. Canlubang, City of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused without any authority of law, did then and there willfully, unlawfully and feloniously possess four (4) heat[-]sealed transparent plastic sachets of methamphetamine hydrochloride otherwise known as shabu, a dangerous drug, having a total weight of 0.22 gram/s, in violation of the aforementioned law.
CONTRARY TO LAW.[8] (Emphasis in the original)
IN VIEW OF THE FOREGOING, [i]n Criminal Case No. 30079-2017-C, the Court finds the accused, PABLITO PAGASPAS y ALCANTARA, GUILTY BEYOND REASONABLE DOUBT of violation of Section 11, paragraph 2(3), Article II of Republic Act [No.] 9165. He is hereby sentenced to suffer the indeterminate penalty of imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, and to PAY A FINE OF THREE HUNDRED THOUSAND (P300,000.00) PESOS.Brushing aside the defense of frame-up, the trial court gave more weight to the prosecution witnesses' testimonies, saying that the arresting officers had no ill motive and were presumed to have regularly performed their official functions.[25] It further held that all the elements of illegal sale and illegal possession of dangerous drugs were sufficiently established, and that the chain of custody was properly accounted for.[26] Finally, it ruled that while there was no strict compliance with Section 21 of Republic Act No. 9165, the lapses were not fatal since the seized items' integrity and evidentiary value have been preserved.[27]
In Criminal Case No. 30080-2017-C, the [C]ourt finds the accused PABLITO PAGASPAS y ALCANTARA and JOEL DE LEON y VALERIANO, GUILTY BEYOND REASONABLE DOUBT of violation of Section 5, in relation to 26, Article II of Republic Act [No.] 9165. Both accused are hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and TO PAY A FINE OF FIVE HUNDRED THOUSAND (PHP500,000.00) PESOS each.
The Branch Clerk of Court is hereby ordered to turn-over [sic] the illegal drugs subject of this case to PDEA for proper disposition and destruction.
SO ORDERED.[24] (Emphasis in the original)
WHEREFORE, premises considered, the instant Appeal is hereby DENIED. Accordingly, the Decision dated 03 May 2018, issued by Branch 37, Regional Trial Court of Calamba City, Laguna is AFFIRMED in toto.The Court of Appeals sustained the convictions of De Leon and Pagaspas. It held that there was an unbroken chain of custody of the five sachets.[35] It further held that the arresting officers had no ill motive to falsely accuse the two of the crime.[36] It also found all the elements of the crimes sufficiently established.[37]
SO ORDERED.[34] (Emphasis in the original)
In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.Essential to a conviction for either offense is the proof that the integrity and identity of the dangerous drug-the corpus delicti for both offenses-have been preserved.[44]
On the other hand, in prosecutions for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond reasonable doubt.[43]
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:In People v. Castillo,[45] this Court enumerated the four links in the chain of custody that the prosecution must establish:
(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. (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination[.]
There are four (4) links in the chain of custody of the confiscated item that need to be established:Marking is the "starting point in the custodial link[.]"[47] In People v. Dahil,[48] this Court explained the significance of marking in safeguarding the corpus delicti's integrity and identity. It held:[F]irst, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.[46] (Citation omitted)
Crucial in proving the chain of custody is the marking of the seized drugs or other related items immediately after they have been seized from the accused. "Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, thus, preventing switching, planting or contamination of evidence.The importance of marking was emphasized in People v. Ameril,[50] where this Court acquitted the accused due to the discrepancies in the seized items' markings. We held that these inconsistencies compromised the integrity of the seized drugs and raised doubts on whether the items presented in court were the exact ones seized from the accused.[51]
It must be noted that marking is not found in R.A. No. 9165 and is different from the inventory-taking and photography under Section 21 of the said law. Long before Congress passed R.A. No. 9165, however, this Court had consistently held that failure of the authorities to immediately mark the seized drugs would cast reasonable doubt on the authenticity of the corpus delicti.[49] (Emphasis supplied, citations omitted)
Q: What was the markings [sic] that you placed on the sachet that you purchased?The differences are various and varied. One source says that slashes were written for the dates; another says that hyphens were used. Even the Court of Appeals, which cited PO1 Agudo's Kusang Loob na Salaysay, wrote, "7/19/17 BB FYM."[57] A hyphen went missing between "BB" and "FYM."
A: "7-19-17 BB-FYM", ma'am.[56] (Emphasis in the original)
PO1 Male marked the plastic sachet he purchased with "7/19/17 BB FYM," placed it in his right pocket, then frisked accused-appellant Pagaspas. In the course thereof, he retrieved from accused-appellant Pagaspas the buy-bust money and a black coin purse, containing four (4) more plastic sachets, containing suspected shabu. He marked the four (4) sachets with "FYM-1," "FYM-2," "FYM-3" and "FYM-4." Later on, he prepared the Receipt/Inventory For Property Seized. He did the marking and the inventory in the presence of accused-appellants, as well as Konsehal Mario D. Legaspi and Trinidad.The prosecution's narrative leaves a significant gap as to how exactly PO1 Male maintained custody of the allegedly seized items. It leaves no guarantee of the items' identity and integrity other than PO1 Male's own assertions. Such self-serving guarantees do not impress this Court that the seized items' integrity was indeed preserved.
PO1 Male took custody of the five (5) plastic sachets and brought them to the police station. He subsequently delivered the said items to the Crime Laboratory[.][58] (Citations omitted)
Here, the prosecution established that from the place of seizure to the barangay hall, PO2 Hechanova had sole custody of the supposedly confiscated items. But this alone cannot be taken as a guarantee of the items' integrity. On the contrary, an officer's act of personally and bodily keeping allegedly seized items, without any clear indication of safeguards other than his or her mere possession, has been viewed as prejudicial to the integrity of the items.It does not escape this Court's attention how no investigating officer who received the items from PO1 Male was ever mentioned. Dahil explained the importance of the second link in the chain of custody:
In People v. Dela Cruz, this Court reprehended the act of a police officer who, having custody of the sachets seized from a buy-bust operation, recklessly kept them in his pockets until they were supposedly turned over for examination:The prosecution effectively admits that from the moment of the supposed buy-bust operation until the seized items' turnover for examination, these items had been in the sole possession of a police officer. In fact, not only had they been in his possession, they had been in such close proximity to him that they had been nowhere else but in his own pockets.In Dela Cruz, this Court did not approve of the incautious keeping of allegedly seized narcotics even as the prosecution averred separating them in different pockets as a supposed measure to preserve integrity. With greater reason should this Court, in this case, reject PO2 Hechanova's claim. The bare assertion that PO2 Hechanova had possession of the items, without so much as a simulation of safekeeping measures such as the segregation in Dela Cruz, is a blatant gap in the chain of custody. The dearth of specific and detailed descriptions of how the allegedly seized items had been preserved while in transit amounts to a broken, unreliable chain of custody. This is fatal to the prosecution's case.[61] (Citation omitted)
Keeping one of the seized items in his right pocket and the rest in his left pocket is a doubtful and suspicious way of ensuring the integrity of the items. Contrary to the Court of Appeals' finding that PO1 Bobon took the necessary precautions, we find his actions reckless, if not dubious.
Even without referring to the strict requirements of Section 21, common sense dictates that a single police office's act of bodily-keeping the item(s) which is at the crux of offenses penalized under the Comprehensive Dangerous Drugs Act of 2002, is fraught with dangers. One need not engage in a meticulous counter-checking with the requirements of Section 21 to view with distrust the items coming out of PO1 Bobon's pockets. That the Regional Trial Court and the Court of Appeals both failed to see through this and fell - hook, line, and sinker - for PO1 Bobon's avowals is mind-boggling.
Moreover, PO1 Bobon did so without even offering the slightest justification for dispensing with the requirements of Section 21.
Section 21, paragraph 1, of the Comprehensive Dangerous Drugs Act of 2002, includes a proviso to the effect that "noncompliance of (sic) 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." Plainly, the prosecution has not shown that - on September 14, 2004, when dela Cruz was arrested and the sachets supposedly seized and marked - there were "justifiable grounds" for dispensing with compliance with Section 21. All that the prosecution has done is insist on its self-serving assertion that the integrity of the seized sachets has, despite all its lapses, nevertheless been preserved.
The second link in the chain of custody is the transfer of the seized drugs by the apprehending officer to the investigating officer. Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who will then send it by courier to the police crime laboratory for testing. This is a necessary step in the chain of custody because it will be the investigating officer who shall conduct the proper investigation and prepare the necessary documents for the developing criminal case. Certainly, the investigating officer must have possession of the illegal drugs to properly prepare the required documents.In this case, the prosecution offered no justification as to why the seized items seemingly went straight from the apprehending officer to the forensic chemist, completely bypassing an investigating officer.
The investigator in this case was a certain SPO4 Jamisolamin. Surprisingly, there was no testimony from the witnesses as to the turnover of the seized items to SPO4 Jamisolamin. It is highly improbable for an investigator in a drug-related case to effectively perform his work without having custody of the seized items. Again, the case of the prosecution is forcing this Court to resort to guesswork as to whether PO2 Corpuz and SPO1 Licu gave the seized drugs to SPO4 Jamisolamin as the investigating officer or they had custody of the marijuana all night while SPO4 Jamisolamin was conducting his investigation on the same items.
In People v. Remigio, the Court noted the failure of the police officers to establish the chain of custody as the apprehending officer did not transfer the seized items to the investigating officer. The apprehending officer kept the alleged shabu from the time of confiscation until the time he transferred them to the forensic chemist. The deviation from the links in the chain of custody led to the acquittal of the accused in the said case.[62] (Emphasis supplied, citations omitted)
Given the flagrant procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its custody, a presumption of regularity in the performance of duties cannot be made in this case. A presumption of regularity in the performance of official duty is made in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise. In light of the flagrant lapses we noted, the lower courts were obviously wrong when they relied on the presumption of regularity in the performance of official duty.[68] (Citation omitted)As stressed in Kamad, the presumption shall only apply when the police officers complied with the required "standard conduct of official duty required by law";[69] it cannot stand when there are irregularities in the law enforcers' conduct of their operations.
It is lamentable that while our dockets are clogged with prosecutions under Republic Act No. 9165 involving small-time drug users and retailers, we are seriously short of prosecutions involving the proverbial "big fish." We are swamped with cases involving small fry who have been arrested for miniscule amounts. While they are certainly a bane to our society, small retailers are but low-lying fruits in an exceedingly vast network of drug cartels. Both law enforcers and prosecutors should realize that the more effective and efficient strategy is to focus resources more on the source and true leadership of these nefarious organizations. Otherwise, all these executive and judicial resources expended to attempt to convict an accused for 0.05 gram of shabu under doubtful custodial arrangements will hardly make a dent in the overall picture. It might in fact be distracting our law enforcers from their more challenging task: to uproot the causes of this drug menace. We stand ready to assess cases involving greater amounts of drugs and the leadership of these cartels.[71]WHEREFORE, the Court of Appeals' June 21, 2019 Decision in CA-G.R. CR-HC No. 11161 is REVERSED and SET ASIDE. Accused-appellants Pablito Pagaspas y Alcantara and Joey De Leon y Valeriano are ACQUITTED of the crimes charged. They are ordered RELEASED from confinement unless they are being held for some other legal grounds.