839 Phil. 394
TIJAM, J.:
WHEREFORE, IN THE LIGHT OF THE FOREGOING, JUDGMENT IS HEREBY RENDERED finding Accused DANNY LUMUMBA Y MADE GUILTY beyond reasonable doubt of the offense charged for violation of Section 5, ART, II, R.A. 9165 for having sold 0.64 gram of Marijuana Fruiting Tops, a dangerous drug and he is hereby sentenced to suffer THE PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF FIVE HUNDRED THOUSAND (P500,000.00) PESOS.On appeal, the CA sustained accused-appellant's conviction. It echoed that the elements for the illegal sale of marijuana were established. It found that the non-compliance with Sec. 21 of RA 9165 was negligible, considering that the prosecution was able to preserve the integrity and evidentiary value of the illegal drug.
In the service of his sentence, herein accused shall be credited with the full time during which he has undergone preventive imprisonment, provided he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners.
The Branch Clerk of this Court is hereby ordered to record the dispositive portion of this Decision in the Criminal Docket of the Court and to turn over the subject specimen covered by Chemistry Report No. D-465-08, consisting of 0.64 gram of Marijuana Fruiting Tops too (sic) the Chief of PDEA Crime Laboratory so that the same shall be included in PDENs next scheduled date of burning and destruction.
She is also ordered to prepare the Mittimus and necessary documents for the immediate transfer of the accused (sic) custody to the Bureau of Corrections in Muntinlupa City, pursuant to the SC Circular.
SO ORDERED.
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:The rules clearly provide that the apprehending team should mark and conduct a physical inventory of the seized items, and to photograph the same immediately after seizure and confiscation in the presence of the accused or his representative or counsel, as well as any elected public official and a representative of the National Prosecution Service or the media. The law mandates that the insulating witnesses be present during the marking, the actual inventory, and the taking of photographs of the seized items to deter [possible planting of] evidence.[16](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 person/s 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;
(3) A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject items: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued immediately upon completion of the said examination and certification[.]
In this relation, Section 21, Article II of RA 9165 provides the chain of custody rule, outlining the procedure that police officers must follow in handling the seized drugs in order to ensure that their integrity and evidentiary value are preserved. Under the said section, prior to its amendment by RA 10640, the apprehending team shall, among others, immediately after seizure and confiscation conduct a physical inventory and take photographs of the seized items in the presence of the accused or the person from whom such 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 then 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 purposes. In the case of People v. Mendoza, the Court stressed that "[w]ithout the insulating presence of the representative from the media or the [DOJ], 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] 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."Here, there were various lapses in the procedure that were left unexplained or with no justifiable grounds for non-compliance. First, a scrutiny of the inventory receipt[18] would reveal that accused-appellant did not sign the same, which was also confirmed during trial, in the testimony of PO1 Gadia:
The Court, however, clarified that under varied field conditions, strict compliance with the requirements of Section 21of RA 9165 may not always be possible. In fact, the Implementing Rules and Regulations (IRR) of RA 9165 - which is now crystallized into statutory law with the passage of RA 1064030 - provide that non-compliance with the requirements of Section 21, Article II of RA 9165 - under justifiable grounds - will not automatically 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. In other words, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 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. In People v. Almorfe, 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. Also, in People v. De Guzman, it was emphasized that the justifiable ground for noncompliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist. (Emphasis Supplied)
FISCAL BACOLOR: Who were present when you conducted the said Inventory?Second, only the media representative was present and signed the said inventory receipt:
WITNESS: Myself, PO1 Erwin Bautista and my other operatives.
FISCAL BACOLOR: Where is the accused when you conducted the Inventory?
WITNESS: He was with us present when we conducted an Inventory.
FISCAL BACOLOR: Did you ask him to sign the Inventory?
WITNESS: No, sir.[19]
x x x x
FISCAL BACOLOR: You mentioned that there was a representative from the Media who was present when you made the Inventory, can you please tell us who was that representative from the Media?Contrary to the conclusion of the CA, the reason given cannot be deemed a justifiable ground for non-compliance of the requirement for the presence of the insulating witnesses. There was no proof that other measures were taken to ensure that any other elected public official could be present after the alleged members of the said barangay refused to do so. Police officers must prove that they exerted efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable.[22] We do not find that to be so in this case.
WITNESS: Yes, this person, Alice Francisco from DZAM.[20]
x x x x
FISCAL COLES: And who were present during the inventory?
WITNESS: PO1 Franklin Gadia, I, and a representative from OFW Asia, a media representative Alice Francisco, Ma'am.
FISCAL COLES: Where was the accused at that time?
WITNESS: He was also present, Ma'am.
FISCAL COLES: Why there were (sic) no representatives from DOJ and from the barangay?
WITNESS: That was only the available witness na nakuha namin, si Alice Francisco, from media.
COURT: What time was this?
WITNESS: 1:00 o'clock p.m., your Honor.
COURT: In the afternoon, and yet there were no available witnesses, mandated witnesses required by the law?
WITNESS: Yun pong kasi mga nasa barangay, your Honor, hindi po sila nikikialam (sic), sa madali't salita, your Honor, naglilinis po sila, hindi po sila tumitistigo.
COURT: Are you trying to tell the court that they refused?
WITNESS: Yes, your Honor, parang ayaw po nilang makialam.
COURT: Saan barangay yan?
WITNESS: Barangay Tatalon, your Honor.
COURT: Were you able to talk to the Barangay Chairman?
WITNESS: No, your Honor, that was only the media representative, your Honor.
COURT: Be candid with the court, wala kayong pinuntahang barangay?
WITNESS: It was the investigator who invited the supposed witnesses, your Honor.
x x x x[21]
As a rule, inconsistencies or discrepancies in the testimonies of witnesses on minor details do not impair the credibility of the witnesses. However, irreconcilable inconsistencies on material facts diminish, or even destroy, the veracity of their testimonies.[25]
x x x x Q: And, where did you conduct the inventory, Mr. Witness? A: At the area, sir. Q: And, who in particular conducted the inventory? A: I was the one and PO1 Bautista. Q: Who wrote the entries in the inventory? A: PO1 Bautista, sir. x x x x Q: Now, were there pictures taken, Mr. Witness? A: Yes, sir, at the area. Q: So there were pictures taken in the area? A: Yes, sir. Q: Pictures of the accused as well as the surrounding of the area or the place of operation? A: Picture of the accused and the specimen.[23] x x x x
ATTY. MALLABO: Aside from the markings, did you take photographs at the place of seizure?
WITNESS: No, sir.
ATTY. MALLABO: Are you not supposed to photograph the item you received or you recovered or you seized from any person right there at the place of seizure, that is the requirement of the law? Hindi mo ginawa?
WITNESS: Hindi po, sir.
ATTY. MALLABO: So, your statement is insufficient?
WITNESS: Sir, ginawa naman po namin sa opisina, sir.
ATTY. MALLABO: You are not supposed to bring the money right at the place of seizure, that is my question. Your answer is, no, I did not. Therefore, your statement is insufficient, correct?
WITNESS: No, sir.
FISCAL ZULUETA: It is up to the court to determine.
x x x x
ATTY. MALLABO: And also the inventory, there is lack of the mandatory witnesses as required by Section 21 of Republic Act 9165?
WITNESS: Yes, sir.
x x x x[24]