G.R. No. 217026
January 22, 2018
D E C I S I O N
DEL CASTILLO, J.:
On appeal is the October 13, 2014 Decision of the Court of Appeals (CA) in CA-G.R. CR-HC No. 06071 which affirmed in toto the December 6, 2010 Joint Decision of the Regional Trial Court (RTC) of San Mateo, Rizal, Branch 77 in Criminal Case Nos. 9185, 9186, and 9187 finding Lawrence Gajo y Buenafe (Lawrence) and Rico Gajo y Buenafe (Rico) guilty beyond reasonable doubt of violating Section 5 (sale of dangerous drugs), and Section 11 (possession of dangerous drugs), Article II of Republic Act No. 9165 (RA 9165), and imposing upon them the penalty of life imprisonment and a P500,000.00 fine for illegal sale of shabu; and, the indeterminate prison term of twelve (12) years and one (1) day as minimum, to fifteen (15) years and one (1) day as maximum, as well as a P300,000.00 fine for illegal possession of shabu.
The Information for illegal sale of shabu against Lawrence and Rico contained the following accusatory allegations:
[In Criminal Case No. 9185]
That, on or about the 23rd day of March 2007, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, in conspiracy with one another, without having been authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver or give away to another 0.01 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet, which substance was found positive to the test for Methamphetamine Hydrochloride, commonly known as 'Shabu', a dangerous drug, in consideration of the amount of Php 200.00, in violation of the above-cited law.
CONTRARY TO LAW.
On the other hand, the Information below respectively charged Lawrence and Rico for illegal possession of shabu:
[In Criminal Case No. 9186 - against Lawrence]
That, on or about the 23rd day of March 2007 in the Municipality of San Mateo, Province of Rizal, Philippines, and within the Jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control 0.01 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet and which was found positive to the test for Methamphetamine Hydrochloride, a dangerous drug, in violation of the above-cited law.
CONTRARY TO LAW.
[In Criminal Case No. 9187 - against Rico]
That, on or about the 23rd day of March 2007 in the Municipality of San Mateo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control 0.02 gram and 0.02 gram, with a total weight of 0.04 gram of white crystalline substance contained in two (2) heat-sealed transparent plastic sachets and which were found positive to the test for Methamphetamine Hydrochloride, a dangerous drug, in violation of the above-cited law.
CONTRARY TO LAW.
When arraigned, Lawrence and Rico pleaded ''Not Guilty" to the charges against them.
During the trial, the parties stipulated on the intended testimony of Forensic Chemist P/I Ruben M. Apostol, Jr. as regards the existence of Chemistry Report No. D-140-07. This Report found that the submitted specimens with markings GMJ (0.01 gram), GMJ-1 (0.02 gram), GMJ-2 (0.02 gram), and GMJ-3 (0.01 gram) were found positive for the presence of Methamphetamine Hydrochloride or shabu.
Version of the Prosecution
To establish its case, the prosecution presented Police Officer 3 Gerallo Justo (PO3 Justo) and PO1 Jimmy A. San Pedro (PO1 San Pedro) who narrated on the following facts:
Sometime in March 2007, the Intel Personnel Department of San Mateo (Rizal) Municipal Police Station (Police Station) conducted a surveillance on Lawrence, a resident of Pag-asa Compound, Ampid I, San Mateo, Rizal. A week before the actual operation, PO3 Justo conducted further surveillance, and witnessed the physical description of their target person and the appearance of the latter's house.
On March 23, 2007, at about 11:05 p.m., PO3 Justo, PO1 Sangahin, and PO1 San Pedro were on duty at the Police Station. While thereat, they planned to conduct a buy-bust operation against Lawrence based on the details given by a civilian informant. PO3 Justo wrote his initials "GMJ" into two P100.00 bills, and the police agreed that if PO3 Justo, as poseur buyer, successfully bought shabu during the buy-bust, he would remove his cap.
At about 11:20 p.m. of even date, PO3 Justo, PO1 Sangahin and PO1 San Pedro arrived at their target area. PO3 Justo immediately alighted from the vehicle and proceeded to the house of Lawrence. He saw Lawrence standing near a lamp post and approached him. PO3 Justo told Lawrence, "pakuha ng dos," handing him (Lawrence) P200.00. Lawrence took the money, and replied, "sandali lang, asa bahay." And thereafter, he entered his house. After a while, a man, who the police later on identified as Rico, came out of Lawrence's house and handed PO3 Justo a small plastic sachet containing suspected shabu. Consequently, PO3 Justo removed his cap, the police's pre-arranged signal that PO3 Justo already bought shabu.
When approached by PO1 San Pedro, PO3 Justo told him that Lawrence received the marked money and went inside his (Lawrence's) house. PO3 Justo thereafter held Rico's arm and informed him of his constitutional rights. He also directed Rico to bring out the contents of his pocket. Upon doing so, PO3 Justo saw from Rico's pocket two plastic sachets suspected to contain shabu. Meanwhile PO1 San Pedro and PO1 Sangahin entered the house of Lawrence. There, PO1 San Pedro recovered the marked money and one plastic sachet of suspected shabu from Lawrence.
In the Police Station, PO3 Justo placed the markings GMJ, GMJ-1, and GMJ-2 on the three sachets he recovered from Rico. He also marked and placed his initials, GMJ-3, on the plastic sachet that PO1 San Pedro recovered from Lawrence. PO3 Justo marked all the seized items in the presence of PO1 San Pedro and PO1 Sangahin. According to PO1 San Pedro, at the time of the marking, '"[the accused] was already inside the jai1."
In addition, PO3 Justo testified that he marked the plastic sachet at the Police Station because there was already a commotion at the place of the incident. However, PO1 San Pedro denied that there was any commotion immediately after the buy-bust.
In the Police Station, PO1 San Pedro made an inventory of the recovered items. This inventory was the same Initial Laboratory Report submitted to the Crime Laboratory. PO3 Justo and PO1 San Pedro confirmed that they brought the seized items to the Crime Laboratory. However, based on the Request for Laboratory Examination, it was a certain PO2 Cruz who submitted them to the Crime Laboratory Service of Tikling, Taytay, Rizal.
Version of the Defense
For its part, the defense presented Lawrence and Rico, who denied the allegations against them and narrated on these events:
On March 23, 2007, at around 11:00 p.m., Rico was inside his room at the house he had been living with his family, including his brother, Lawrence, and their mother. Suddenly, he heard noise from outside. Upon going out of his room, he saw five armed persons. Later, he learned that these men were Police Officers Arellano, San Pedro, Justo, Benito and Moreno. Thereafter, SPO1 Arellano poked a gun at and asked Rico his name. He also informed the latter that they were looking for Bubot, a neighbor of Rico. In reply, Rico told SPO1 Arellano that Bubot did not reside at their (Rico) house. After insisting that Bubot entered Rico's house, PO1 San Pedro frisked Rico, and eventually, directed him to sit down. The police then searched the house.
Meanwhile, Lawrence who was then sleeping, also heard noise and came out of his room. He saw five men in civilian clothes inside their house. Eventually, he learned that these men were policemen. Lawrence saw that the police were accusing Rico that he was Bubot. He attempted to stop them from arresting Rico. In turn, the police frisked Lawrence and asked him to sit beside Rico.
After searching Rico's house, the policemen boarded Lawrence and Rico to their (police) vehicle and brought them to the Police Station.
Rico testified that SPO1 Arellano asked P20,000.00 from him but he replied that he did not have any money.
Ruling of the Regional Trial Court
According to the RTC, the act of Lawrence of accepting two P100.00 bills from PO3 Justo and Rico's turning over one plastic sachet of shabu to PO3 Justo proved that there was conspiracy between them to sell drugs. Moreover, PO1 San Pedro recovered one plastic sachet of shabu from Lawrence while PO3 Justo recovered two more plastic sachets of shabu from Rico. As such, the RTC decreed that Lawrence and Rico were guilty of illegal possession of shabu as they failed to prove that they were legally authorized to possess or use the same.
Consequently, the RTC ruled that Rico and Lawrence were guilty of violating Section 5, Article II of RA 9165. It sentenced them to life imprisonment, and ordered them to pay a P500,000.00 fine. It also found them guilty of violating Section 11, Article II of RA 9165 imposing upon them the indeterminate penalty of 12 years and one day imprisonment, as minimum, to 15 years and one day, as maximum, and ordering them to pay a P300,000.00 fine each.
On appeal, Rico and Lawrence argued that the procedure on the seizure and custody of drugs was not complied with in the case. Thus, the prosecution failed to establish their guilt beyond reasonable doubt.
Ruling of the Court of Appeals
On October 13, 2014, the CA affirmed the RTC Joint Decision. It ruled that the elements of illegal sale of dangerous drugs had been established as the prosecution proved beyond reasonable doubt a) the identities of Rico and Lawrence as the persons with whom the poseur-buyer transacted for the purchase of shabu; b) the Crime Laboratory confirmed that the seized items were shabu; and c) the consideration of the sale (P200.00). Anent the charge of illegal possession of dangerous drugs, the CA held that Rico and Lawrence were in possession and control of three sachets of shabu, two of which (0.02 gram each) were obtained from Rico, and the other one (0.01 gram) was obtained from Lawrence.
The CA likewise decreed that the chain of custody requirement had been sufficiently complied with. It explained that the prosecution established the seizure and markings of the illegal drugs; the transfer of the seized items by PO3 Justo to the custody of the requesting authority and Investigating Officer, Anastacio Benzon; and the Rizal Provincial Crime Laboratory received the request for laboratory examination signed by Inspector Benzon. It noted nonetheless that it was a certain PO2 Cruz, not PO3 Justo, who personally delivered the specimens. As regards the last link, it ruled that the same had been substantially complied with after the marking of the specimens during the trial.
According to the CA, while there might be deficiency in compliance on the chain of custody of the seized items, the integrity of the seized drugs had been preserved and the chain of its custody had been continuous and unbroken.
Hence, this appeal.
Lawrence and Rico contend that the prosecution failed to establish their guilt beyond reasonable doubt because of non-observance of the chain of custody requirement under Section 21, Article II of RA 9165 in the case.
The Court agrees.
Section 21 Article II of RA 9165 as emended by RA 10640, pertinently provides:
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, x x x 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, x x x 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 (44) hours upon confiscation/seizure of dangerous drugs, x x x 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 x x x shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of dangerous drugs, x x x 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 case, Lawrence and Rico were indicted for illegal sale and possession of shabu. Thus, it is necessary for the prosecution to establish with moral certainty the elements of these offenses. Specifically, for the case of illegal sale of shabu, the prosecution must prove: 1) the identity of the buyer and the seller as well as the object and consideration of the sale; and, 2) the delivery and payment of the object sold. As regards illegal possession of shabu, it is necessary to establish: 1) the possession of the accused of an identified prohibited drug; 2) such possession was not legally authorized; and 3) the accused freely and consciously possessed it.
At the same time, to convict Lawrence and Rico, it is primordial that the corpus delicti or the confiscated illegal drugs had been proved beyond reasonable doubt. This means that the same illegal drugs possessed and sold by the accused must be the same ones offered in court. As such, the required unbroken chain of custody under Section 21, Article II of RA 9165 above-quoted comes into play to ensure that no unnecessary doubt is created on the identity of the seized illegal drugs.
More particularly, chain of custody refers to recorded authorized movements and custody of confiscated dangerous drugs, or controlled substances. It involves testimony on every link in the chain - from the confiscation of the illegal drugs to its receipt in the forensic laboratory up to its presentation in court. It is necessary that every person who touched the seized item describe how and from whom he or she received it; where and what happened to it while in the witness’ possession; its condition when received and at the time it was delivered to the next link in the chain.
Generally, there are four links in said chain of custody: 1) the seizure and marking, if practicable, of the illegal drug confiscated from the accused by the apprehending officer; 2) the turnover of the seized drug by the apprehending officer to the investigating officer; 3) the turnover by the investigating officer of said item to the forensic chemist for examination; and, 4) the turnover and submission thereof from forensic chemist to the court.
As stated, the first link requires seizure and marking of the illegal drugs. To stress, marking must be done immediately upon the seizure of the illegal drugs and in the presence of the apprehended violator of law. Such prompt marking is important because the subsequent handlers of the seized items will use the marking as reference. The marking also sets apart the seized item from other materials from the moment it was confiscated until its disposal after the proceedings. In fine, marking is essential to preserve the integrity and evidentiary value of the recovered dangerous drug.
In this case, however, the apprehending officer did not make a proper marking of the seized shabu.
PO3 Justo confirmed that he marked the seized items upon arrival at the Police Station. He attested that he did not immediately mark the three sachets of shabu from Rico and the one sachet recovered by PO1 San Pedro from Lawrence as there was already a commotion at the place of incident. Nonetheless, PO1 San Pedro refuted such claim of PO3 Justo, to wit:
Q: Why did you mark that in the police station?
A: Because that is our usual procedure, sir, that we mar[k] the evidence we confiscated already at the police station.
Q: So, that is the only reason Mr. Witness, you don't have any knowledge that these pieces of object evidence should be marked at the scene of the crime?
A: Formerly, sir, we used to mark the object evidence at the police station, because there were times that commotion ensued whenever we are going to arrest and we were being stoned, so to avoid harm to ourselves, we just marked them at the station.
Q: After you have allegedly recovered the said shabu, you immediately proceeded to the police station and placed the markings?
A: Yes, ma'am.
Q: By the way, at that time[,] was there a commotion?
A: None, ma'am.
Q: There was no commotion[?]
A: None, ma’am.
Since there was no commotion that transpired after the seizure of shabu, there was nothing that would prevent PO3 Justo from marking the shabu immediately after confiscation.
Moreover, PO3 Justo marked it without the presence of Lawrence and Rico. As testified by PO3 Justo himself, he marked the confiscated shabu in the presence of PO1 Sangahin and PO1 San Pedro. And, PO1 San Pedro declared that "[the accused] was already inside the jail" when PO3 Justo marked the recovered items.
Indeed, the failure to immediately mark the shabu after confiscation, and for marking it without the presence of the accused constituted clear gaps in the chain of custody of the seized illegal drugs.
In People v. Ismael, the Court stressed that the failure to mark the illegal drugs immediately after confiscation from the accused casts doubt on the prosecution's evidence and warrants the acquittal of the accused on reasonable doubt. Also, in Ismael, the Court ruled that the requirement that the marking be done in the presence of the accused is not a mere technicality as it assures the preservation of the identity and integrity of the illegal drugs. As such, the non compliance with this requirement is fatal to the case against Lawrence and Rico.
In addition, the second link was not complied with here.
To reiterate, to establish an unbroken chain of custody, every person who touched the seized illegal drug must describe how and from whom it was received; its condition upon receipt, including its condition upon delivery to the next link in the chain.
Here, PO3 Justo supposedly turned over the confiscated shabu to Police Chief Inspector Anastacio B. Benzon (PC/Insp. Benzon), the investigating officer. Nevertheless, the prosecution did not present PC/Insp. Benzon to testify on the matter. Such non-presentation undeniably constitutes another gap in the chain of custody of the seized prohibited drugs.
Similarly, the third link in the chain of custody was also infirm. This is because the Request for Laboratory Examination indicated a certain PO2 Cruz as the person who delivered the specimens to the crime laboratory for examination. Nevertheless, like in the case of PC/Insp. Benzon, the prosecution did not present PO2 Cruz to testify on his receipt of the seized shabu. Evidently, this non-presentation of a necessary witness constituted another gap in the chain of custody.
Additionally, while the parties stipulated on the intended testimony of Forensic Chemist P/I Ruben M. Apostol, Jr., the same was rendered futile by reason of the above-discussed gaps in the chain of custody of the seized shabu. It could not thus be denied that the seized illegal drugs were not properly handled from the time they were confiscated to their turnover in the Police Station including their transfer to the Crime Laboratory.
Likewise, the Court observes that no physical inventory and photograph of the seized items were made in the presence of the accused or their counsel or representative, and in the presence of a representative of the media and the Department of Justice, and any elected public official. While we agree that strict compliance to procedural rules may not be always possible, nonetheless, the prosecution has the burden to prove justifiable reason for its non-compliance. However, in the instant case, no justifiable reason was given anent the failure of the police to observe the foregoing procedural requirements. Certainly, the integrity of the corpus delicti was compromised; and the same became highly questionable. Verily, the Court could not determine with moral certainty that the supposed shabu seized from Lawrence and Rico were the same ones submitted to the Crime Laboratory, and eventually, presented in court.
Also similar to People v. Barte, this case came about after the conduct of a buy-bust operation based on information given by a civilian informant whose identity was never confirmed. Added to this, the alleged surveillance made on Lawrence were not recorded, and there was no other proof to support the conclusion that the target of the surveillance was indeed Lawrence. Taking into account these matters, and the fact that buy-busts are prone to police abuse, the safeguards provided under Section 21 , RA 9165 or the chain of custody requirements must be complied with to "protect the innocent from abuse and violation of their rights[, and to] guide the law enforcers on ensuring the integrity of the evidence to be presented in court."
Indeed, the constitutional right of accused Lawrence and Rico to be presumed innocent must be upheld. This right shall prevail over the presumption of regularity in the performance of duties of the concerned police officers as the latter presumption had been overcome by contrary proof, that is, the non compliance by the police with the requirements under Section 21, RA 9165.
WHEREFORE, the appeal is GRANTED. The October 13, 2014 Decision the Court of Appeals in CA-G.R. CR-HC No. 06071 is REVERSED AND SET ASIDE. Appellants Lawrence Gajo y Buenafe and Rico Gajo y Buenafe are ACQUITTED of the charges as their guilt had not been established beyond beyond reasonable doubt. Their immediate release from detention is ordered, unless other lawful and valid grounds for their further detention exist.
Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin,[*] and Tijam, JJ., concur.
[*] Per raffle dated October 18, 2017 vice Justice Francis H. Jardeleza who recused due to prior participation as Solicitor General
 CA rollo, pp. 114-136, penned by Associate Justice Apolinario D. Bruselas, Jr. and concurred in by Associate Justices Amy C. Lazaro-Javier and Samuel H. Gaerlan.
 Records in Crim. Case No. 9185, pp. 249-265, penned by Judge Lily Villareal Biton.
 COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002.
 Records in Crim. Case No. 9185, p. 1.
 Records in Crim. Case No. 9186, p. 1.
 Records in Crim. Case No. 9187, p. 1.
 Records in Crim. Case No. 9185, p. 8. Crim. Case No. 9186, p. 6; Crim. Case No. 9187; p. 28.
 Records in Crim. Case No. 9185, pp 81-82 (including dorsal portion).
 Id. at 144.
 At the time of his testimony, Jimmy A. San Pedro was already a Police Officer 2 (PO2); id. at 195.
 Id. at 163-164, 180-181.
 Id. at 183-184.
 Id. at 196.
 Id. at 186.
 Id. at 165.
 Id. at 166-167.
 Id. at 185.
 Id. at 187-A.
 Id. at 167-168.
 Id. at 168-169.
 Id. at 188-189.
 Id. at 168.
 Id. at 197.
 Id. at 200.
 Id. at 178, 189-190.
 Id. at 200-201.
 Id. at 190.
 Id. at 208.
 Id. at 144.
 Id. at 170, 208.
 Id. at 143, 147.
 Id. at 214, 237.
 Id. at 215-219.
 Id. at 237-240.
 Id. at 218.
 Id. at 219.
 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 July 15, 2014.
 People v. Ismael, G.R. No. 208093, February 20, 2017.
 People v. Gayoso, G.R. No. 206590, March 27, 2017.
 People v. Hementiza, G.R. No. 227398, March 22, 2017.
 People v. Ismael, supra note 38, citing People v. Gonzales, 708 Phil. 121, 130-131 (2013).
 Records in Crim. Case No. 9185, p. 201.
 Id. at 207-208.
 Id. at 170.
 Id. at 201.
 Supra note 38.
 People v. Macapundag, G.R. No. 225965, March 13, 2017.
 G.R. No. 179749, March 1, 2017.
 People v. Hementiza, supra note 41.