SECOND DIVISION

G.R. No. 227394, June 06, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NORJANA SOOD Y

AMATONDIN, Accused-Appellant.

DECISION

CAGUIOA, J.:

This is an Appeal1 under Section 13, Rule 124 of the Rules of Court from the
Decision2 dated September 18, 2015 of the Court of Appeals, Special Eleventh Division
(CA), in CA-G.R. CR-HC No. 06285. The CA Decision affirmed the Decision3 dated
January 24, 2013 rendered by the Regional Trial Court of Quezon City, Branch 99
(RTC), in Criminal Case No. Q-09-156944, which found accused-appellant Norjana Sood
y Amatondin (accused-appellant) guilty of violating Section 5, Article II of Republic Act
No. (RA) 9165.

Facts

The Information against accused-appellant for violating Section 5, Article II of RA 9165

states:

The undersigned accuses NORJANA SOOD y AMATONDIN for Violation of Section 5, Art.
II, R.A. 9165, Comprehensive Dangerous Drugs Act of 2002, committed as follows:

That on or about 28th day of January, 2009 in Quezon City, accused without lawful
authority did then and there willfully and unlawfully sell, trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or transport, or act as
broker in the said transaction, a dangerous drug, to wit:

five point eighty five (5.85) grams of Methylamphetamine Hydrochloride (Shabu)

CONTRARY TO LAW.4

The version of the prosecution is as follows:

On 28 January 2009, a certain "Florence" was apprehended in a buy-bust operation

conducted by police operatives belonging to the Station Anti-Illegal Drugs-Special
Operation Task Group, Kamuning Police Station (PS-10), Quezon City Police District.
Upon their return to the police station, they were informed by the confidential informant
that the dealer of the alleged drugs, accused-appellant, was due to arrive from
Caloocan City that afternoon.
Police Senior Inspector Christopher N. Luyun, the Chief of SAID-SOTG, thereafter
allowed the continuous police operation for the arrest of accused-appellant. After a
briefing for accused-appellant's apprehension, the CI called the latter through a mobile
phone on loudspeaker. Pretending to be Florence, the CI asked accused-appellant,
"Norjana, pwede ako ulit magconsign ng isang bulto?" Accused-appellant replied: "Sige
bigyan kita responde pero ang remittance ay next week" to which the CI answered:
"ok, text kana lang pag malapit kana para pasundo kita." The CI and accused appellant
agreed to meet later that day at the place where they usually do their drug
transactions.

The police operatives and the CI proceeded to the target area. When the CI saw
accused-appellant, she pointed the latter to SPO1 Regato. SPO1 Regato then
approached accused-appellant and asked her: "ikaw ba si Norjana, pinapasundo ka pala
ni Florence." Accused-appellant replied in the affirmative and added, "ah sige, kuya
puwede kayo na magbigay kay Ate Florence kasi nagmamadali ako." She then took
from her right pocket two (2) transparent plastic sachets containing white crystalline
substance believed to be methylamphetamine hydrochloride, commonly known as
"shabu" and handed them to SPO1 Regato, who thereafter introduced himself as a
police officer. Accused-appellant was then arrested and apprised of her constitutional
rights. Before leaving the target area, SPO1 Regato placed the markings "AR1-28
JAN09" and "AR2-28 JAN09" on the plastic sachets.

Accused appellant was then taken to the barangay hall. SPO1 Regato prepared the
Inventory of Seized Properties/Items and the inventory was conducted before Kgd.
Manette P. Salazar and Rey Argana, a media representative. Both Kgd. Salazar and
Argana signed the certificate of inventory for the two (2) transparent plastic sachets.
Afterwards, accused appellant was brought to the police station. SPO1 Regato turned
over the confiscated items to their investigator, PO3 Cortes, who prepared a Request
for Laboratory Examination of the subject specimens. Thereafter, SPO1 Regato
submitted the evidence to the crime laboratory for examination, which gave positive
results to the tests for shabu.5

On the other hand, the defense evidence is as follows:

Accused appellant vehemently denied the prosecution's version of the events which
occurred on 28 January 2009. She testified that on the same day, she was laying out
her merchandise on the Luzon Overpass, being a sidewalk vendor, when she was
apprehended by two (2) men who she thought were officers of the Metro Manila
Development Authority. She was taken to the police station where allegedly, the
apprehending officers demanded thirty five thousand (P35,000.00) pesos for her
release, but she did not file any case against them. Accused-appellant denied selling
shabu at the time of her arrest.6

The RTC convicted accused-appellant in its Decision dated January 24, 2013, the
dispositive portion of which states:

PREMISES GIVEN, the Court orders the following:

i. x x x NORJANA SOOD Y AMATONDIN is found GUILTY under SECTION 5, R.A. 9165

and shall be punished with Life Imprisonment.
ii. the FINE is fixed at Five Hundred Thousand (PHP500,000.00) Pesos.

She shall be credited with the period that she has served in detention.

SO ORDERED.7

The RTC found that Section 21 of RA 9165 was not complied with when the inventory
was not conducted on site, but excused the same on the ground that the police officers
were able to explain or justify the lapses.8 The RTC likewise ruled that the defense
evidence failed to overcome the presumption of regularity in the performance of official
duty on the part of the police officers.9

Accused-appellant then notified the RTC of her intention to appeal to the CA.10

On appeal, the CA affirmed the RTC's conviction in its Decision dated September 18,
2015, the dispositive portion of which states:

WHEREFORE, the instant Appeal is DENIED. Accordingly, the Decision of the Regional
Trial Court, Branch 99, Quezon City, dated 24 January 2013 is hereby AFFIRMED in
toto.

SO ORDERED.11

The CA likewise found that there was non-compliance with Section 21 of RA 9165 but
still held that there was "substantial compliance" with the law because the integrity and
evidentiary value of the drugs seized were preserved.12 The CA also found that there
were inconsistencies in the testimonies of the buy-bust team as to the place of
inventory, but decided to treat them as "minor inconsistencies" that did not affect the
credibility of the witnesses.13

Accused-appellant then notified the CA that she 1s appealing the Decision to the
Court.14 Hence, this Appeal.

Issue

The principal issue is whether accused-appellant's guilt was proven beyond reasonable
doubt for violating Section 5, Article II of RA 9165.

The Court's Ruling

The Court acquits accused-appellant.

Compliance with Section 21 of RA No. 9165 mandatory

Section 21, Article II of RA 9165 states the procedure to be followed by a buy-bust

team in the seizure, initial custody, and handling of confiscated illegal drugs and/or
paraphernalia. This section was amended by RA 1064015 which imposed less stringent
requirements in the procedure; but the amendment was approved only on July 15,
2014. As the crime in this case was committed on January 28, 2009, the original
version of Section 21 is applicable, thus:

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[.]

Here, it is undisputed, as was found by both the RTC and the CA that the prosecution
failed to comply with Section 21 of RA 9165. To be sure, the findings of the CA show an
utter failure on the part of the police to conduct the inventory at the place of seizure of
the drugs. In this regard, the CA pointedly observed that the testimonies of the police
officers were conflicting as to whether the purported inventory was conducted, whether
at the barangay office or at the police station. SPO1 Armand Q. Regato (SPO1 Regato)
testified that the inventory was done in the barangay hall while PO1 Andrew B. Hega
(PO1 Hega) testified that the documentation after accused-appellant's arrest was done
in the police station:

Relative thereto, accused-appellant likewise points out that SPO1 Regato and PO1
Hega gave conflicting testimonies. SPO1 Regato testified that the marking and
inventory of the specimens were done in the barangay hall immediately after
accused-appellant's apprehension. PO1 Hega, on the other hand, testified that
after the arrest, they immediately proceeded to the police station for proper
documentation and did not mention that the same were done in the area of
arrest nor at the barangay hall.

Evidently, the law itself lays down exceptions to its requirements. Thus, noncompliance
with the regulations is not necessarily fatal as to render an accused's arrest illegal or
the items confiscated from him inadmissible as evidence of his guilt, for what is of the
utmost importance is the preservation of the integrity and the evidentiary value of the
confiscated items that will be utilized in the determination of his guilt or innocence.
Such that, when there is a failure to follow strictly the said procedure, the crime can
still be proven, i.e., that the noncompliance was under justifiable grounds or that the
shabu taken is the same one presented in court by proof of "chain of custody."

In the case at bar, there was substantial compliance with the law; the integrity and
evidentiary value of the drugs seized being preserved. The chain of custody of the
drugs subject matter of the case was established by the testimonies of the witnesses as
not to have been broken. The factual milieu of the case reveals that after SPO1 Regato
had obtained the prohibited drug from the accused-appellant, the latter was
 immediately arrested. Before leaving the target area SPO1 Regato marked the seized
sachets. The accused-appellant was first taken to the barangay hall in order for SPO1
Regato to conduct an inventory of the seized items. The corresponding certificate of
inventory was signed accordingly by both the barangay and media representative.
Thereafter, the plastic sachets were brought to the crime laboratory to determine the
presence of any prohibited drug on the specimens submitted. And as per Chemistry
Report No. D-34-09, the specimens submitted contained shabu, a dangerous drug.

While there were conflicting testimonies as to where the inventory was made, it has
been held in People vs. Alcala that noncompliance with Section 21 of RA 9165,
particularly the making of the inventory and the photographing of the drugs confiscated
and/or seized, will not render the drugs inadmissible in evidence. The chain of custody
of the drug subject matter of the instant case was shown not to have been broken.
SPO1 Regato even explained the reason why the inventory of the seized items was
done at the barangay hall instead of the place of arrest.

Jurisprudence dictates that minor inconsistencies do not affect the credibility of the
witness. We have held that "discrepancies and inconsistencies in the testimonies of
witnesses referring to minor details, and not in actuality touching upon the central fact
of the crime, do not impair their credibility. Testimonies of witnesses need only
corroborate each other on important and relevant details concerning the principal
occurrence. In fact, such minor inconsistencies may even serve to strengthen the
witnesses' credibility as they negate any suspicion that the testimonies have been
rehearsed."

In reiteration, the arrest of an accused will not be invalidated and the items seized from
him rendered inadmissible on the sole ground of noncompliance with Section 21, Article
II of RA 9165.16 (Emphasis and underscoring supplied)

In addition, SPO1 Regato admitted that, at the time of the arrest, there were no
witnesses, and that, according to him, this was the reason the inventory was conducted
in the barangay hall instead of at the place of arrest of accused-appellant, thus:

Q - Why did you not prepare the Inventory at the area of recovery and arrest of accused?
     
A - It is so much better to prepare it to (sic) the Barangay so that we will have witnesses for
that.17

He likewise admitted that the photographing was also conducted in the police station
instead of the place of arrest, specifically at the investigation room of the police station:

Q - Before you brought the accused for inquest, what else transpired in your Station in
connection with the investigation?
     
A - The investigator took pictures.
     
Q - Where was it taken?
     
A - At the investigation room.
     
Q - And why not it (sic) was taken at the area of arrest and recover (sic)?
     
A - We do not have a camera at that time.18

Unquestionably, the prosecution failed to prove that the three required witnesses were
present during the inventory and photographing of the seized drugs. As the RTC itself
found, only the barangay official and media representative were present during the
inventory, and they were called in only after the arrest and seizure had already
happened — which may have been at the barangay hall or at the police station:

This Court is convinced, that, whatever lapses may be detected in the compliance with
SECTION 21, these have been explained or justified by the Police Officers concerned.

SPO1 ARMADO REGATO in his direct testimony narrated how, through the confidential
informant who had posed as a certain "Florence," the Police Officers who were part of
the operation, had contacted the Accused NORJANA SOOD Y AMATONDIN. The cell
phone was on speaker mode. (TSN, ARACELI P. BONIFACIO, March 16, 2010; pp. 6 to
8.)

SPO1 ARMADO REGATO himself had approached the Accused NORJANA SOOD Y
AMATONDIN. She herself handed the two (2) pieces of subject sachet specimen
(marked as EXHIBIT C, C-1 and D, D-1) to the same Police Officer. SPO1 ARMADO
REGATO identified the Accused NORJANA SOOD Y AMATONDIN as well as EXHIBITS C,
C-1 and D, D-1 during his testimony on March 16, 2010.

Admittedly however, there was no sale. No money was exchanged from the Police
Officer/Poseur and the Accused NORJANA SOOD Y AMATONDIN. The two (2) pieces of
heat sealed plastic sachet were for purposes of delivery to a certain "Florence."

Even if the inventory was conducted at the Barangay Office and not on site, the Police
Officer, SPO1 ARMADO REGATO was consistent in pointing out that he has custody of
the recovered specimen (EXHIBITS C, C-1, D, D-1) from the area of operation all the
way up to the Barangay Hall. (TSN, ARACELI P. BONIFACIO, March 16, 2010, pp. 12 to
13.) In fact, the same Police Officer had prepared the Inventory in the presence of
Witnesses. The same Police officer also prepared the request the Laboratory
Examination and brought the specimen to the Crime Laboratory. (TSN, ARACELI P.
BONIFACIO, March 16, 2010, p. 16.)
As Witnesses during the Inventory, there was a Barangay Kagawad and a
media representative. (TSN, ARACELI P. BONIFACIO, March 16, 2010, p. 14; pp. 29
to 31.)

On cross examination, SPO1 ARMADO REGATO was able to maintain that "Florence"
was another target person, one among others that operate in the area. (TSN, ARACELI
P. BONIFACIO, March 16, 2010, p. 22.)19 (Emphasis and underscoring supplied)

A reading of the testimonies of SPO1 Regato and PO1 Hega shows that they were
completely silent as to whether there were any witnesses during the photographing of
the seized drugs.

The plain import of Section 21 of RA 9165 is that the buy-bust team is to conduct the
physical inventory and photographing of the seized items immediately after
seizure and confiscation in the presence of the accused, his counsel, or
representative, a representative of the DOJ, the media, and an elected public
official, who shall be required to sign the copies of the inventory and be given a copy
thereof. And only if this is not practicable, can the inventory and photographing be
done as soon as the buy-bust team reaches the nearest police station or the nearest
office of the apprehending officer/team.

Here, the buy-bust team admittedly failed to comply with the foregoing
requirements. First, the conduct of the inventory was not conducted immediately at the
place of seizure and apprehension; indeed, the police officers even contradicted each
other as to where the inventory was supposedly conducted. This creates a very serious
doubt in the Court's mind as to whether an inventory was actually even conducted. If
the members of the buy-bust team have markedly different versions of what transpired
after the seizure of the items, the Court cannot rely on their testimonies on the conduct
of the inventory and photographing.

Second, even assuming an inventory had been conducted, the prosecution failed to
comply with the requirement that the photographing be also done at the place of arrest.
The prosecution's excuse of not having a camera is flimsy as they had planned the
operation. In the 1999 Philippine National Police Drug Enforcement Manual,20 the buy-
bust team is required to bring a camera in the conduct of buy-bust operations:

ANTI-DRUG OPERATIONAL PROCEDURES

xxxx

V. SPECIFIC RULES

A. Planning and Preparation:

xxxx

2. After identifying the suspect/s, determining their movements and activities, and
establishing their locations, the following must be prepared/undertaken:
a. Buy-Bust Operations

1. Pre-operation Order indicating the name of the suspect/s, address and area of
operations, description and quantity of drugs subject of the offense and the team leader
and members of operating team/s, signed by the Chief of Unit/Office or his duly
authorized subordinate officer.

2. The poseur-buyer and the buy-bust money and request for dusting (ultra-violet
powder) if necessary. The buy-bust money shall be covered by a receipt indicating
therein the denominations and respective serial numbers of the genuine bills received.
(If dusting is necessary, the poseur-buyer must be the one to deliver the buy-bust
money to the PNP CLG for dusting together with appropriate request);

3. Handcuffs, ropes and other gadgets to secure the suspect/s and bags/containers to
secure and preserve the evidence;

4. Vehicles, communications-electronics equipment, camera, weighing scale, indelible

marking pens, firearms and other appropriate equipment/gadgets.

The reason that the buy-bust team did not have a camera is thus exposed to be
nothing more than a convenient excuse that is belied by the foregoing requirements
that the team ought to have followed. What makes this reason to be more incredible is
that in 2009, mobile phones with cameras were already widely available. Thus, the buy-
bust team's failure to even take photographs of the seized drugs at the scene of their
seizure gives credence to the assertions of the accused-appellant that no buy-bust had
actually taken place, and that the charge against her was completely fabricated.

Finally, and most revealing as to whether or not a buy-bust actually took place is the
prosecution's abject and complete failure to comply with the requirement of bringing
along the required three witnesses from the media, the DOJ, and any elected public
official. To be certain, these witnesses should already have been present at the time of
apprehension and the drugs' seizure, as this is a requirement the buy-bust team could
easily have complied with given the nature of a buy-bust operation as a planned
activity.

The Court again takes this opportunity to emphasize that the presence of the three
witnesses required by Section 21 is precisely to protect and guard against the
pernicious practice of policemen in planting evidence. Without the insulating presence
of the three witnesses during the seizure and marking of the 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 seized drugs that were evidence of the corpus delicti, and thus adversely affected
the trustworthiness of the incrimination of accused-appellant.21

It is truly disconcerting how the members of the buy-bust team have different
testimonies on the place where the inventory was conducted. This is not, by any
means, a "minor inconsistency," as erroneously held by the CA. This inconsistency goes
into the very heart of whether or not there really was a buy-bust operation that had
been conducted.
Failure to show justifiable grounds for non-compliance and establish the chain of custody of the
seized drugs

Supplementing RA 9165, Section 21(a), Article II of the Implementing Rules and

Regulations of RA 9165 (IRR) states that in cases of non-compliance with the procedure
for inventory and photographing, the IRR imposed the twin requirements of, first, there
should be justifiable grounds for the non-compliance, and second, the integrity and the
evidentiary value of the seized items should be properly preserved. Failure to show
these two conditions renders void and invalid the seizure of and custody of the seized
drugs, thus:

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[.]

Here, the prosecution's reason for not conducting the inventory in the place of seizure
was that they supposedly wanted to avoid any commotion at the area because there
would be vehicular traffic. PO2 Hega testified during his re-direct examination:

Q - You claimed that the Inventory was made not at the place of arrest Sood?
     
A - Yes, sir.
     
Q - What could be reason why it was made in the Station and not in the place of arrest?
     
A - According to our team leader to avoid any commotion at the area because there will be a
vehicular traffic, we will proceed to our Station because it is the nearest Station and also
we invite thru cellphone the Barangay Kagawad of Roxas District to witness the
Inventory.22

The foregoing reason hardly qualifies as sufficient justification for not complying with
the requirements of Section 21 as to the conduct of the inventory and photographing at
the place of seizure. As buy-bust operations are planned, the team could have easily
ensured that the conduct of the inventory and photographing would cause minimal
disruption to the area. Similarly, in People v. Mola,23 the Court considered the following
excuse as hollow: the apprehending officer conducted the inventory at the nearest
police station because he was the only one in the area and that there were many
persons there. Also, in People v. Cornel,24 the Court ruled that the buy-bust team's
excuse of the existence of a commotion was not a justifiable reason for failing to
conduct the inventory at the place of seizure. The Court there ruled that seven armed
members of the buy-bust team could have easily contained any commotion, thus they
should have been able to conduct the marking and inventory at the place of seizure.

Further, and more importantly, the records fail to show any reason for the prosecution's
failure to comply with the presence of the three witnesses during the inventory and
photographing of the seized drugs.

In light of the foregoing, it is no longer necessary to determine the second requirement

of whether the prosecution had been able to prove that the evidentiary value of the
seized items had been properly preserved. Nonetheless, and if only to highlight the
grave errors of the buy-bust team, the Court will show that even the evidentiary value
of the seized items had not been preserved.

In People v. Alviz,25 the Court held that the integrity and evidentiary value of seized
items are properly preserved for as long as the chain of custody of the same is duly
established. Chain of custody is defined in Section 1(b) of Dangerous Drugs Board
Regulation No. 1, Series of 2002:

b. "Chain of Custody" means the duly recorded authorized movements and

custody of seized drugs or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of
seized item shall include the identity and signature of the person who held temporary
custody of the seized item, the date and time when such transfer of custody were made
in the course of safekeeping and use in court as evidence, and the final disposition[.]
(Emphasis supplied)

Given that narcotic substances are not readily identifiable, the Court in Mallillin v.
People26 ruled that a more exacting standard compared to other object evidence that
are readily identifiable is required to render it improbable that the original item has
either been exchanged with another or been contaminated or tampered with. Thus:

A unique characteristic of narcotic substances is that they are not readily identifiable as
in fact they are subject to scientific analysis to determine their composition and nature.
The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility,
that at any of the links in the chain of custody over the same there could have been
tampering, alteration or substitution of substances from other cases by accident or
otherwise – in which similar evidence was seized or in which similar evidence was
submitted for laboratory testing. Hence, in authenticating the same, a standard more
stringent than that applied to cases involving objects which are readily identifiable must
be applied, a more exacting standard that entails a chain of custody of the item with
sufficient completeness if only to render it improbable that the original item has either
been exchanged with another or been contaminated or tampered with.27

As the drug itself is the corpus delicti in drugs cases, it is of utmost importance that
there be no doubt or uncertainty as to its identity and integrity.

Here, there are serious gaps in the chain of custody  of the seized drugs which

create reasonable doubt as to its identity and integrity.
First, the glaring inconsistencies in the testimonies of the buy-bust team members
make it unclear as to whether the buy-bust team went directly to the police station
after the seizure of the drugs or whether they still went to the barangay hall and then
proceeded to the police station. Second, although there was testimony as to the
turnover of the seized drugs from the buy-bust team to the laboratory, there was no
testimony on the safekeeping of the seized items after the laboratory testing. Last,
there was no testimony as to the retrieval of the seized drugs from the laboratory for
presentation in court as evidence.

Thus, contrary to the findings of the RTC and CA, the prosecution actually failed to
establish the unbroken chain of custody. The inconsistencies in the testimony of the
buy-bust team and lack of information at specific stages of the seizure, custody, and
examination of the seized drugs create doubt as to the identity and integrity thereof.

The prosecution cannot find cover in the presumption of regularity in the performance
of the police officers' duty, and the RTC erred in applying this presumption as against
compliance with Section 21 of RA 9165. In a prosecution under RA 9165, all the
requirements of Section 21 thereof should be proven; there is no presumption that a
buy-bust team has complied with the requirements of this section. The Court reiterates
its reminder in People v. Mamangon,28 where it held that:

In this light, prosecutors are strongly reminded that they have the positive duty to
prove compliance with the procedure set forth in Section 21 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.29 (Additional emphasis and underscoring supplied)

The Court supports the State's drive against illegal drugs. But such drive should strictly
comply with the law and the Constitution. Although the amount of drugs involved in this
case is not insubstantial, this alone does not warrant a relaxation of the rules. In fact,
the procedure outlined in Section 21 is straightforward and easy to comply with; and
the prosecution should account for and explain any deviations from the mandatory
procedure outlined in Section 21. As shown above, the prosecution failed to comply
with Section 21 or justifiably explain the deviations from it. Given this, the
Constitutional right of accused-appellant to be presumed innocent stands.30

WHEREFORE, premises considered, the Appeal is hereby GRANTED. The Decision of

the Court of Appeals dated September 18, 2015 in CA-G.R. CR-HC No. 06285 is
hereby SET ASIDE. Accused-appellant Norjana Sood y Amatondin is
hereby ACQUITTED and ordered immediately RELEASED from detention unless she is
confined for any other lawful cause.
Let a copy of this Decision be furnished the Director of the Bureau of Corrections for
immediate implementation, and is directed to report to the Court, within five (5) days
from receipt of this Decision, the action he has taken.

SO ORDERED.

Carpio, (Chairperson), Perlas-Bernabe, and Reyes, Jr., JJ., concur.

Peralta, J., please see separate concurring opinion.

Endnotes:

1
 CA rollo, pp. 144-146.

2
Rollo, pp. 2-15. Penned by Associate Justice Rodil V. Zalameda, with Associate Justices
Stephen C. Cruz and Pedro B. Corales concurring.

3
 CA rollo, pp. 63-71. Penned by Acting Presiding Judge Maria Amifaith S. Fider-Reyes.

4
 Records, p. 1.

5
Rollo, pp. 4-6.

6
 Id. at 6.

7
 CA rollo, pp. 70-71.

8
 Id. at 67.

9
 Id. at 68.

10
 Records, p. 108.

11
Rollo, p. 14.

12
 Id. at 10.

13
 Id. at 11.

14
 Id. at 16-18.

15
 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."

16
Rollo, pp. 10-11.
17
 TSN, March 16, 2010, p. 13.

18
 Id. at 18-19.

19
 CA rollo, pp. 67-68.

20
 PNPM-D-O-3-1-99 [NG], the precursor anti-illegal drug operations manual prior to the
2010 and 2014 AIDSOTF Manual.

21
People v. Mendoza, 736 Phil. 749, 764 (2014).

22
 TSN, January 27, 2011, p. 26.

23
 G.R. No. 226481, April 18, 2018, p. 9.

24
 G.R. No. 229047, April 16, 2018, pp. 9-10.

25
 703 Phil. 58, 73 (2013).

26
 576 Phil. 576 (2008).

27
 Id. at 588-589.

28
 G.R. No. 229102, January 29, 2018.

29
 Id. at 9.

30
 See People v. Jugo, G.R. No. 231792, January 29, 2018, pp. 9-10.

SEPARATE CONCURRING OPINION

PERALTA, J.:

I concur with the ponencia in acquitting accused-appellant Norjana Sood y Amatondin

of the charge of illegal sale of dangerous drugs or violation of Section 5, Article II of
Republic Act No. (R.A. No.) 9165.1 As aptly noted by the ponencia, the testimonies of
the police officers were conflicting as to whether the purported inventory was conducted
at the barangay office of the police station. Significantly, only the barangay official and
media representative were present during the inventory and the photographing of the
seized drugs sans a representative from the Department of Justice (DOJ), while the
reason proffered by the prosecution as to the non-observance of Section 212 of R.A. No.
9165, i.e., "to avoid any commotion at the area because there will be vehicular traffic"
is hollow and unjustifiable. 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.

xxxx

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 Its strict adherence to Section 21 is required where the quantity of
illegal drugs seized is minuscule to prevent incidents of planting, tampering or
alteration of evidence.12 Here, the prosecution failed to discharge its burden.

With respect to the presence of all the required witnesses under Section 21 of R.A. No.
9165, the prosecution never alleged and proved 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
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 13of 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 Adam16 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.

Endnotes:

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. (Emphasis ours)

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" Approved on July 15, 2014.

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 tile 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.

-=============================-
 SECOND DIVISION

G.R. No. 231133, June 06, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARVIN MADRONA

OTICO, Accused-Appellant.

DECISION

CAGUIOA, J.:

Before the Court is an appeal1 under Section 13, Rule 124 of the 2000 Rules of Criminal
Procedure assailing the Decision2 dated October 26, 2016 (Decision) of the Court of
Appeals3(CA) in CA-G.R. CR-HC. No. 02129, denying the appeal and affirming  in
toto the Decision4 of the Regional Trial Court, 7th Judicial Region, Branch 62 of Oslob,
Cebu (RTC) in Criminal Case No. OS-11-680 which found accused-appellant Marvin
Madrona Otico a.k.a. "Pare"5 (Otico) guilty beyond reasonable doubt of the offense of
illegal sale of dangerous drug in violation of Section 5, Article II (Section 5) of Republic
Act No. (RA) 91656 otherwise known as the "Comprehensive Dangerous Drugs Act of
2002," and imposed upon him the penalty of life imprisonment and a fine of Five
Hundred Thousand Pesos (P500,000.00).

The Charge Against the Accused

Otico was indicted for illegal sale of dangerous drug, defined and penalized under
Section 5 of RA 9165. The Information reads:

That on the 22nd day of April, 2011 at about 10:30 o'clock in the morning, at Barangay
Looc, Oslob, Province of Cebu, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without authority of law, did then and there willfully,
unlawfully and feloniously sell, deliver and distribute to a PNP agent acting as poseur
buyer one (1) heat sealed transparent plastic pack of white crystalline substance,
weighing 0.02 gram, in consideration of the sum of five hundred (P500.00) pesos
consisting of one (1) five hundred peso bill, with serial number QD628746, used as buy
bust money, which when subjected for laboratory examination gave positive result for
the presence of methamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.7

The Facts and Antecedent Proceedings

Otico pleaded not guilty during his arraignment.8 Trial on the merits then ensued.

Version of the Prosecution

The CA Decision narrates the prosecution's version of the facts as follows:

On the strength of the report from their surveillance conducted around 1:00 o'clock in
the afternoon on 21 April 2011, it was confirmed that a certain Marvin Madrona Otico,
a.k.a. "Pare" [(Otico)] was engaged in the sale of illegal drugs or shabu in Barangay
Looc, Oslob, Cebu. The Chief of Police of Oslob Police Station then called the attention
of Police Officer 1 (PO1) Alan Villasurda, Police Officer 3 (PO3) Nelson Saquibal, and a
civilian poseur-buyer to conduct a briefing for an entrapment operation.

During the said operational briefing, P03 Saquibal was designated as the team leader, a
civilian agent was assigned as the poseur-buyer, and PO1 Villasurda, as the immediate
back-up. The poseur-buyer was given one (1) five hundred peso bill (Php 500.00) with
serial number QD628746. PO3 Saquibal marked the bill with the suspect's initials,
"MO," on both sides. Before proceeding with their planned buy-bust operation, the team
coordinated with the Philippine Drug Enforcement Agency (PDEA) through IO1 Melisa
Montesa via telephone call. The latter then issued a coordination control number. As
soon [as] the briefing was done, a pre-operation report was prepared and faxed to
PDEA and a coordination form was also prepared by PNP Oslob.

Around 8:00 o'clock in the morning on 22 April 2011, the team proceeded to the target
area. The poseur-buyer went ahead while P03 Saquibal and PO1 Villasurda followed on
board their own motorcycle. They arrived at the area around 10:10 in the morning that
same day and positioned themselves in a strategic location near a store. They stood
about ten (10) meters away from the poseur-buyer, who was texting near the house of
[Otico].

Around 10:30 in the morning, [Otico] arrived and approached the poseur-buyer. PO1
Villasurda saw the poseur-buyer give the money to [Otico], who, in exchange, handed
to the latter a plastic sachet. Upon receiving the plastic sachet from [Otico], the
poseur-buyer executed the pre-arranged signal by scratching his head, indicating that
the transaction was completed.

When the signal was given, PO3 Saquibal immediately held [Otico] and announced his
authority as a police officer while PO1 Villasurda took the plastic sachet from the
poseur-buyer. [Otico] tried to evade arrest upon hearing that the two (2) were police
officers, but to no avail.

As soon as [Otico] was subdued, and after verifying that the plastic sachet
contained shabu, PO3 Saquibal arrested him for violation of Section 5, Article II of R.A.
No. 9165, and informed him of his constitutional rights. PO3 Saquibal took from
[Otico's] possession the buy-bust money and a cellphone. Subsequently, the buy-bust
team proceeded to the PNP Oslob Police Station together with [Otico].

At the police station, PO1 Villasurda conducted an inventory of the seized items in the
presence of [Otico] and Municipal Councilor Guillermo Zamora. The items were
photographed by PO2 Nelson Mendaros and then marked by PO1 Villasurda. The seized
plastic sachet was marked "MMO-1" and the marked money, "MMO-2," the initials
referring to [Otico's] complete name, Marvin Madrona Otico. PO3 Saquibal then
prepared the Certificate of Inventory, a spot report and a letter-request for laboratory
examination. PO1 Villasurda personally delivered the request and the specimen to the
PNP Crime Laboratory for laboratory examination.
The letter-request and the specimen were received by PO1 Pangatungan, who
personally delivered the same to Police Senior Inspector Ryan Ace Mabilen Sala, the
PNP Forensic Chemist of the PNP Crime Laboratory.

P/S Insp. Sala conducted a [qualitative] examination on the specimen, which gave
positive result to the test for Methamphetamine Hydrochloride, a dangerous drug under
R.A. No. 9165. His findings and conclusion were indicated in his submitted Chemistry
Report No. D-466-2011. The Chemistry Report, specimen and the letter request were
all forwarded to PO2 Joseph Bocayan, the evidence custodian of the PNP Crime
Laboratory.

In support of the case x x x, PO3 Saquibal and PO1 Villasurda executed a Joint Affidavit
of Apprehension in connection with the arrest of [Otico].9

Version of the Defense

The CA Decision summarizes Otico's version, to wit:

In his testimony, [Otico] recounted that at around 10:30 in the morning on 22 April
2011, he was just buying a cellphone load at the store located near his house when he
was apprehended by the police officers. When he inquired for the reason for his arrest,
however, the police officers merely told him that he ask his questions at the police
station. He was handcuffed and brought to the police station.

[Otico] testified that when they arrived at the police station, he saw PO3 Saquibal enter
another office and was already holding one (1) plastic sachet when he came out.
Allegedly, PO3 Saquibal subsequently entered another room and had with him one (1)
Five Hundred Peso bill when he emerged therefrom.

[Otico] further averred that since he did not admit ownership of the items which were
brought and presented on the table by PO3 Saquibal, the latter yelled and told him not
to lie.10

The RTC Ruling

After trial, the RTC rendered a Decision dated August 27, 2015, the dispositive portion
of which reads:

WHEREFORE, premises considered, the court finds accused Marvin Otico GUILTY
beyond reasonable doubt of the offense of Illegal Sale of Dangerous Drug in violation of
Section 5, Article II of R.A. 9165 and imposes upon him the penalty of life
imprisonment and a fine of Five Hundred Thousand Pesos (P500,000.00).

His period of preventive imprisonment shall be credited in his favor.

LET a mittimus issue committing him to Leyte Regional Prisons in Abuyog, Leyte.

The subject shabu shall be confiscated in accordance with the rules governing the
same.
Costs against the accused.

SO ORDERED.11

Aggrieved, Otico filed a Notice of Appeal12 dated August 28, 2015.

The CA Ruling

The CA denied Otico's appeal in a Decision dated October 26, 2016, the dispositive
portion of which states:

WHEREFORE, the appeal is DENIED. The Decision of the Regional Trial Court,
7th Judicial Region, Branch 62 of Oslob, Cebu, in Criminal Case No. OS-11-680, is
hereby AFFIRMED in toto.

SO ORDERED.13

Otico filed a Notice of Appeal14 dated December 2, 2016. In the Court's

Resolution15 dated July 5, 2017, the parties were required to file their respective
supplemental briefs. The People, through the Office of the Solicitor General, filed a
"Manifestation & Motion"16 dated September 27, 2017, wherein it was manifested that
the People would no longer file a supplemental brief and, in lieu thereof, the Brief filed
before the CA would be considered in the resolution of the present appeal. Otico,
through the Public Attorney's Office-Regional Special and Appealed Cases Unit-Cebu,
filed a "Manifestation (In Lieu of Supplemental Brief)"17 dated October 25, 2017.

Issue

The issue is whether the CA erred in affirming the conviction of Otico for the offense of
illegal sale of dangerous drug in violation of Section 5, RA 9165.

The Court's Ruling

Basic is the rule that, for a conviction of the crime of illegal sale of dangerous drugs to
stand, the prosecution should have proven the following elements beyond reasonable
doubt: (1) the identity of the buyer and seller, the object, and the consideration; and
(2) the delivery of the thing sold and its payment. The prosecution has the onus to
prove beyond reasonable doubt that the transaction actually took place, coupled with
the presentation before the court of the prohibited or regulated drug or the corpus
delicti.18

This onus can be discharged by the prosecution only by clearly and adequately showing
the details of the purported transaction, starting from the initial contact between the
poseur-buyer and the pusher, the offer to purchase, the promise or payment of the
consideration until the consummation of the sale by the delivery of the illegal drug
subject of the sale.19 Thus, the manner by which the initial contact was made, whether
or not through an informant, the offer to purchase the drug, the payment of the buy-
bust money, and the delivery of the illegal drug, whether to the informant alone or the
police officer, must be the subject of strict scrutiny by courts to insure that law-abiding
citizens are not unlawfully induced to commit an offense20 or the constitutional rights of
every citizen — to be presumed innocent and to be secure in their persons against
unreasonable searches and seizures — are not unduly curtailed.

In this case, the prosecution's proof that the "transaction actually took place" consists
of the "eyewitness" accounts of police officers PO1 Alan Villasurda (PO1 Villasurda) and
PO3 Nelson Saquibal (PO3 Saquibal), neither of whom was the poseur-buyer, and who
were admittedly 10 meters away from where the poseur-buyer allegedly transacted
with Otico.21 The civilian agent, who was assigned as the poseur-buyer,22 was never
presented as a witness.

While informants are usually not presented in court because of the need to hide their
identity and preserve their invaluable service to the police,23 and the non-presentation
of the confidential informant is not fatal to the prosecution,24 as where the testimony of
the informant will merely be corroborative of the apprehending officers' eyewitness
testimonies25 so that there is no need to present the informant in court where the sale
was actually witnessed and adequately proved by prosecution witnesses,26 their
presentation is necessary, if not indispensable, when the accused vehemently denies
selling prohibited drugs and there are material inconsistencies in the testimonies of the
arresting officers,27 or there are reasons to believe that the arresting officers had
motives to testify falsely against the accused,28 or when the informant was the poseur-
buyer and the only one who actually witnessed the entire transaction.29

Indeed, while the assistance of confidential informants or civilian agents is

acknowledged to be invaluable, the Court is nevertheless aware of the pitfalls of the
confidential informant system. The Court's observations in People v. Doria30 are
reiterated, viz.:

Though considered essential by the police in enforcing vice legislation, the

confidential informant system breeds abominable abuse. Frequently, a person
who accepts payment from the police in the apprehension of drug peddlers and
gamblers also accept payment from these persons who deceive the police. The
informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. For
whatever noble purpose it serves, the spectacle that government is secretly mated with
the underworld and uses underworld characters to help maintain law and order is not
an inspiring one.31 Equally odious is the bitter reality of dealing with unscrupulous,
corrupt and exploitative law enforcers. Like the informant, unscrupulous law
enforcers' motivations are legion – harassment, extortion, vengeance,
blackmail, or a desire to report an accomplishment to their superiors. This
Court has taken judicial notice of this ugly reality in a number of cases32 where we
observed that it is a common modus operandi of corrupt law enforcers to prey on weak
and hapless persons, particularly unsuspecting provincial hicks.33The use of shady
underworld characters as informants, the relative ease with which illegal
drugs may be planted in the hands or property of trusting and ignorant
persons, and the imposed secrecy that inevitably shrouds all drug deals have
compelled this Court to be extra-vigilant in deciding drug cases. 34 Criminal
activity is such that stealth and strategy, although necessary weapons in the arsenal of
the police officer, become as objectionable police methods as the coerced confession
and the unlawful search. x x x35 (Emphasis supplied)
To determine whether "the transaction actually took place," the "eyewitness" accounts
of the two police officers have to be strictly scrutinized.

PO1 Villasurda, the designated immediate back-up,36 testified:

FISCAL MA. LUISA B. ONG: (To the Witness)

Q:
Mr. Witness, you mentioned that you designated a civilian poseur buyer, can you tell
this Honorable Court the identity of this civilian poseur buyer?
A:
I cannot divulge his personal identity because he hides his personal identity.
  
Q:
If you can enlighten this Honorable Court what is the actuation of this civilian poseur
buyer that indeed his identity should not be disclosed, Mr. Witness?
A:
As far as I know this civilian informant is a drug user.
  
Q:
What is the reason, Mr. Witness, that being a user you and your office tasked him being
a poseur buyer?
A:
Considering that he is a drug user he will be given that prohibited drug if he is going to
buy.
 
xxxx
  
Q:
What was the instruction given to the civilian poseur buyer during the planning when he
tasked as poseur buyer?
A:
We gave him the marked buy-bust money and his only task was just to buy drugs.
 
xxxx
  
Q:
Where did you conduct your briefing, Mr. Witness?
A:
In the Police Station.
  
Q:
In what particular area of the Police Station?
A:
In the office of our Chief of Police.
 
xxxx
  
Q:
You mentioned, Mr. Witness, that after you have conducted the planning with the
poseur buyer, how long this planning takes place?
A:
One hour more or less.
  
Q:
Per your planning and briefing, Mr. Witness, when did you undertake the buy-bust
operation?
A:
We decided to conduct a buy-bust operation on the following day.
 
xxxx
  
Q:
And after that final briefing, Mr. Witness, what happened next?
A:
We proceeded to the area but we let the civilian poseur buyer went ahead to the area.

Q:
How did you proceed to the area including the civilian poseur buyer?
A:
We rode a motorcycle while the civilian poseur buyer rode also with his own motorcycle.

Q:
Meaning to say, that the civilian poseur went ahead to the area alone, Mr. Witness?
A:
Yes, ma'am.

Q:
How about you, Mr. Witness, who were with you on the motorcycle?
A:
I had no back rider because we rode in a separate motorcycle and PO3 Saquibal had his
own motorcycle also.

xxxx

Q:
At around what time did you arrive at the area, Mr. Witness?
A:
We arrived at the area at about 10:10 o'clock in the morning.

Q:
You mentioned that you went to conduct a buy-bust operation in Looc, Oslob, Cebu, I
would like to ask Mr. Witness, where in particular place of Looc, Oslob, Cebu did you
stop?
A:
As far as I know the place is just beyond the boundary of barangay Lagunde and
barangay Looc, Oslob, Cebu.

Q:
When you arrived there, Mr. Witness, where was the poseur buyer?
A:
The poseur buyer was [a]waiting the subject.

Q:
You mentioned that the poseur buyer was waiting for the subject, where in particular
place did the poseur buyer waiting?
A:
In the highway near the house of the subject.

Q:
As you and PO3 Saquibal arrived in the area, what did you do?
A:
When we arrived at the said place we hide our motorcycles and after that we stayed
behind a store.

Q:
How far was that store from where the poseur buyer was waiting?
A:
More or less ten (10) meters.

Q:
What can you see, Mr. Witness, from where you were standing near a store facing the
poseur buyer?
A:
We could clearly see if there is somebody will approach the civilian poseur byer.

Q:
Since you mentioned, Mr. Witness, that the poseur buyer was still waiting of the
subject, you and Saquibal situated at around ten (10) meters where the poseur buyer
was, how long did the waiting take, Mr. Witness, until somebody approached the poseur
buyer?
A:
I could not recall anymore how long the poseur buyer waited until somebody
approached him because he went ahead of us and when we arrived the poseur buyer
was already there.

Q:
How about you, Mr. Witness, how long did you wait before any development happened?
A:
I think about 20 minutes because the transaction was made at about 10:30 in the
morning and we arrived at the area about 10:10 in the morning.

Q:
Considering, Mr. Witness, that you were waiting from 10:10 in the morning and 20
minutes was almost over, what have you observed of the poseur buyer?
A:
I could not clearly see what the civilian poseur buyer did at that time what was I
observed that he was just texting someone and the subject person arrived in the
person of Marvin Otico.

Q:
Mr. Witness, since the subject, Marvin Otico, arrived around 10:30 in the morning did
you able to see his face?
A:
Yes, ma'am.

xxxx

Q:
Have you noticed, Mr. Witness, when the accused approached the poseur buyer, what
happened next?
A:
When the subject approached the civilian poseur buyer I saw them exchanging
something; I saw the poseur buyer gave something to the subject and I also saw the
subject getting something from his right pocket and gave it to the civilian poseur buyer.

Q:
As per observation, Mr. Witness, who made the handing first?
A:
It was the poseur buyer handed first the money.

Q:
What happened next?
A:
The subject also handed something to the poseur buyer.
  
Q:
Mr. Witness, what money did the poseur buyer handed to the subject?
A:
The marked money that we gave to him.
  
Q:
I would like to ask, Mr. Witness, when was this marked money handed to the civilian
poseur buyer?
A:
At the police station during our briefing.
  
Q:
In which briefing, Mr. Witness, on April 21 or on April 22, 2011?
A:
On April 22, 2011.
  
Q:
As what you have observed, Mr. Witness, that after exchanging of the money and the
items by the poseur buyer and the accused, what happened next?
A:
As we agreed in our briefing the poseur buyer scratched his head when the transaction
was consummated.37 (Emphasis supplied)

On cross-examination, PO1 Villasurda confirmed:

[ATTY. PAOLO CRISPINO C. SUCALIT (to the witness)]

   
Q:
You mentioned that during your briefing you secured the services of the civilian poseur
buyer, am I correct?
A:
Yes, sir.

Q:
And is this civilian poseur buyer your civilian asset of the PNP?
A:
Yes, sir.

xxxx

Q:
He is only an asset of the PNP Oslob station, am I correct or used by other station?
A:
I think he is only the civilian asset of the PNP Oslob station.

Q:
Is he under the payroll of the PNP Oslob?
A:
No, sir.

Q:
And since you answered that he is a civilian asset could you please tell the Honorable
court who is his handler?
A:
I do not know his handler but as far as I know he is a friend of Police Officer Saquibal
and I only came across his identity in this operation.
 
xxxx
  
Q:
Was he a male or a female?
A:
He is a male but I cannot divulge the name.
 
xxxx
  
Q:
By the way, how far were you from the poseur buyer?
A:
10 meters away from the poseur buyer.
  
Q:
Based on where you are sitting will you please point the reference where the poseur
buyer was standing at the time?
A:
From where I am sitting up to the wall where there is a painting hung which is about 15
meters.
  
Q:
So based on that distance 10 to 15 meters were you able to see what
transpired between the accused and your civilian poseur buyer?
A:
We saw them exchanging something but we do not know what item they were
exchanging.
  
Q:
You mentioned that this poseur buyer of yours is a known drug user here in Oslob, am I
correct?
A:
According to Officer Saquibal he is a user.
  
Q:
You will agree with me that since he is a known drug user from time to time he has in
his possession the shabu?
A:
I am not sure if he has a shabu or not.
  
Q:
So you are not sure, but what you are sure is that he is a known user?
A:
Yes, that is according to PO3 Saquibal.
  
Q:
As what you have said you are not sure that from time to time he has a shabu?
A:
Maybe he does not have a shabu because he only buy if he is going to use.38 (Emphasis
supplied)

On the other hand, PO3 Saquibal testified as follows:

FISCAL MA. LUISA B. ONG: (To the Witness)

xxxx
   
Q:
Who was this civilian asset that you are referring to, Mr. Witness?
A:
I am afraid, ma'am, I could not tell and I could not reveal his name in open court.
  
Q:
If you could not reveal his name in open court, Mr. Witness, what can you tell about
this civilian asset who you do utilize him as a civilian asset, Mr. Witness?
A:
He is a drug user of course and he is a regular customer of the subject person.
  
Q:
How were you able to identify this civilian asset, Mr. Witness?
A:
He was a friend, he was my long asset.39
 
xxxx
  
Q:
Mr. Witness, the last thing that you have mentioned during your last testimony that you
were situating yourselves, you and Police Officer Villasurda ten (10) meters away from
the poseur buyer; at what place, Mr. Witness
A:
Barangay Looc, Oslob, Cebu specifically in the store owned by Rene Figues.
 
xxxx
  
Q:
How did they make the transaction, Mr. Witness, between Marvin and the poseur
buyer?
A:
Our poseur buyer handed Marvin Madrona Otico the Five Hundred Peso bill buy-bust
money to Marvin Otico.
  
Q:
And after handing over the Five Hundred Peso bill, Mr. Witness, to Marvin Otico, what
happened next?
A:
In exchanged, the subject person Marvin Otico gave the plastic sachet containing white
crystalline substance to our poseur buyer.
  
Q:
Meaning to say, Mr. Witness, you can see that happening ten (10) meters away from
the poseur buyer?
A:
Yes, ma'am.
  
Q:
And after Marvin Otico handed the plastic sachet containing white granules, Mr.
Witness, to the poseur buyer, what happened next?
A:
Our poseur buyer then as what has been agreed; he made his hand signal by scratching
his head.40

Atty. Leo E. Sarvida (to the witness)

xxxx
Q:
Which part of the Fiquez's store where you hiding during that time at the back, at the
front, at the right, at the left which side?
A:
If you are heading to Cebu City facing the store, we hide ourselves at the right portion
of the store covered by a very huge refrigerator.

Q:
When you were hiding during that time you cannot actually hear what was talking about
the accused and the poseur buyer, is that correct?
A:
We can hear but just a little, we cannot exactly hear.

Q:
Because of the distance where you hide, is that correct?
A:
We can hear something but we cannot exactly hear clearly it was ten (10) meters from
us.

Q:
You did not hear that poseur buyer buy shabu from the accused, is that correct?
A:
It was already programmed.

Q:
I was asking if you have knowledge Officer Saquibal, you did not hear actually the
accused saying that he was selling shabu?
A:
No need for us to hear.
Q:
Just answer the question "yes" or "no", you hear or you did not hear?
A:
We did not hear.41

Given the foregoing testimonies of the two police officers, was the prosecution able to
prove beyond reasonable doubt that the illegal sale of shabu  between the unidentified
civilian agent and Otico took place?

Section 2, Rule 133 of the Rules of Court provides:

SEC. 2. Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to
an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind.

Both police officers, PO1 Villasurda and PO3 Saquibal, had testified that they were 10
meters away from Otico and the purported civilian agent, who acted as the poseur-
buyer. PO1 Villasurda saw them "exchanging something" with the poseur-buyer
handing "first the money" and "the subject also hand[ing] something to the poseur
buyer."42 PO3 Saquibal saw that the "poseur buyer handed [to] x x x Otico the Five
Hundred Peso bill buy-bust money" and "[i]n exchanged (sic), x x x Otico gave the
plastic sachet containing white crystalline substance to [the] poseur buyer."43

The version of PO3 Saquibal is incredible. Given the distance of 10 meters, it is

unbelievable that a very small or tiny plastic sachet44 can be seen being handed from
one person to another. To be able to see the "white crystalline substance" with a weight
of 0.02 gram inside such tiny plastic sachet is utterly impossible, unless one has "bionic
eyes" or x-ray vision. Also, PO3 Saquibal's testimony wherein he was able to identify
from 10 meters that the P500-bill, which the civilian asset allegedly handed to Otico,
was the same one previously marked at the police station means that he was able to
either read the serial number of the bill or see the marking "MO" thereon. Of course,
that is again impossible.

PO1 Villasurda's version that he saw the handing of "money" from the civilian asset to
Otico is too tentative given the fact that he used "something" as his initial description.
Also, the use of the word "something" in describing what Otico handed to the civilian
agent creates reasonable doubt because the description is equivocal.

The acquittal of Otico is warranted on the ground that the evidence presented by the
prosecution to prove that the illegal sale of dangerous drug really took place falls
terribly short of the quantum of proof beyond reasonable doubt.

In addition, the identity of the dangerous drug that Otico allegedly sold to the civilian
agent is uncertain.
Nowhere is the weight of the plastic sachet containing the shabu, which was the object
of the illegal sale, mentioned in the testimonies of police officers PO1 Villasurda and
PO3 Saquibal. In their Affidavit of Apprehension45 dated April 25, 2011, the weight of
the "One (1) small lungitudinal (sic) size transparent plastic sachet containing white
crystalline granules 'Marked MMO-1' believed to be SHABU"46 is not specified. In the
Spot Report dated "22 April 02, 2011" (Exh. "H"47) the "WEIGHT/VOLUME/QUANTITY"
column is left blank. In the Certification dated "25 APRIL 2011" (Exh. J"48) , the
dangerous drug is described as ''one (1) small longitudinal size transparent plastic
sachet of white crystalline granules believed to be 'shabu"' without mention of its
weight. The Certificate of Inventory dated "April 22, 2011" (Exh. "K"49 describes the
dangerous drug as "[o]ne (1) small longitudinal size heat sealed transparent plastic
sachet of white crystalline granules believed to be 'SHABU' marked MMO-1" without
mention of its weight. In the Memorandum50 dated April 22, 2011 from the Chief of
Police, Oslob Police Station for the Chief PNP Regional Crime Laboratory Office
(Attention: Chief Forensic Chemist) concerning the request for laboratory examination
of "One (1) small longitudinal size transparent plastic sachet of white crystalline
granules believed to be 'shabu' Marked MMO-1," the weight thereof is not indicated. It
is only in Chemistry Report No. D-466-201151 issued by the PNP Regional Crime
Laboratory Office 7 at Camp Sotero Cabahug, Cebu City where the weight is included in
the description of the specimen submitted, to wit: "A - One (1) staple-sealed
transparent plastic sachet containing: A-1 One (1) heat-sealed transparent plastic
sachet with attached markings 'MMO-1 4-22-11' with signature containing 0.02 gram
white crystalline substance. xxx"

In the PNP52 Manual on Anti-Illegal Drugs Operation and Investigation (PNP Manual),

approved by the National Police Commission in its Resolution No. 2010-094 on February
26, 2010, which provides for the standard rules to be followed by PNP members and
units engaged in the enforcement of RA 9165 in support of the Philippine Drug
Enforcement Agency (PDEA),53 part of the handling of drug evidence is "the weighing of
dangerous drugs, and if possible under existing conditions, with the registered weight
of the evidence on the scale focused by the camera, in the presence of persons
required, as provided under Section 21, Art II, RA 9165."54

Given the failure to indicate the weight of the shabu in the documents required to be
accomplished in the handling of the drug evidence starting from recovery of
the shabu from the civilian agent to the request for laboratory examination to prove the
regularity of the buy-bust operation and preserve the integrity of the recovered shabu,
and to comply with the requirement in the PNP Manual on the weighing thereof, the
object of the illegal sale has clearly not been proven beyond reasonable doubt. There is
thus reasonable doubt that the alleged shabu, which was recovered from the civilian
agent and bought by the latter from Otico, might not be the same one that was
delivered to the PNP Regional Crime Laboratory Office 7 for examination.

Furthermore, there are serious lapses in the police officers' compliance with Section 21,
Article II of RA 916555 and its Implementing Rules and Regulations.

Section 21, which embodies the procedure to be followed by a buy bust team in the
seizure, custody, handling and disposition of confiscated illegal drugs and/or
paraphernalia, states in part:
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[.] (Emphasis supplied)

Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165 (IRR),
which added provisos to Section 21(1) of RA 9165 regarding the place of inventory and
allowable deviation from the strict observance of the statutory requirements under
justifiable grounds, 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, 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:

(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[.] (Emphasis supplied)

Strict observance of the requirements under Section 21 of RA 9165 and the IRR is
enjoined under the PNP Manual.

Section 13, Rule II on General Rules and Procedures of the PNP Manual provides:

Section 13. Handling, Custody and Disposition of Drug Evidence

a. In the handling, custody and disposition of the evidence, the provision of Section 21,
RA 9165 and its IRR shall be strictly observed.

b. Photographs of the pieces of evidence must be taken upon discovery without moving
or altering its position in the place where it is situated, kept or hidden, including the
process of recording the inventory and the weighing of dangerous drugs, and if possible
under existing conditions, with the registered weight of the evidence on the scale
focused by the camera, in the presence of persons required, as provided under Section
21, Art II, RA 9165.

c. The seizing officer must mark the evidence with his initials indicating therein the
date, time and place where the evidence was found and seized. The seizing officer shall
secure and preserve the evidence in a suitable evidence bag or in an appropriate
container for further laboratory examinations.

xxxx

A - Drug Evidence

a. Upon seizure or confiscation of the dangerous drugs or controlled precursors and/or

essential chemicals (CPECs), laboratory equipment, apparatus and paraphernalia, the
operating unit's seizing officer/ inventory officer must conduct the physical inventory,
markings and photograph the same in the place of operation in the presence of:

a. The suspect/s or the person/s from whom such items were confiscated
and/or seized or his/her representative or counsel.

b. A representative from the media.

c. A representative from the Department of Justice; and

d. Any elected public official who shall affix their signatures and who shall be
given copies of the inventory.

xxxx

c. In warrantless seizures like buy-bust operations, the inventory and the taking of
photographs should be done at the nearest police station or office of the apprehending
officer or team. However, the apprehending authority is not precluded from conducting
the inventory at the place where the drugs were seized.

d. If the said procedures in the inventory, markings and taking of photographs of the
seized items were not observed, (Section 21, RA 9165), the law enforcers must present
an explanation to justify non observance of prescribed procedures and "must prove that
the integrity and evidentiary value of the seized items are not tainted."

e. All the dangerous drugs and/or CPECs shall be properly marked for identification,
weighed when possible or counted, sealed, packed and labeled. The items weighed in
their gross weight, if already determined, should be noted on the inventory and chain of
custody forms, or evidence vouchers.
f. Within the same period, the seizing/inventory officer shall prepare a list of inventory
receipt of confiscation/seizure to include but not limited to the following:

1. Time, date and place of occurrence/seizure.

2. Identity of person/s arrested.

3. Identity of the seizing officer and all persons present.

4. Circumstances in which seizure took place.

5. Description of a vehicle, vessel, place or person searched where the

substance was found.

6. Description of packaging, seals and other identifying features.

7. Description of quantity, volume and units and the measurement method

employed.

8. Description of the substance found.

9. Description of any preliminary identification test (test kit) used and

results.

Under Rule III on Specific Rules and Procedures of the PNP Manual, the seizing officer,
during the Buy-Bust Phase, shall, after seizure and taking initial custody of the
dangerous drugs:

f. x x x conduct the actual physical inventory, place markings and photograph the
evidence in the place of operation in the presence of:

1. The accused or the person/s from whom such items were confiscated
and/or seized or his/her representative or counsel;

2. A representative from the media;

3. A representative from the Department of Justice; and

4. Any elected public official (at least Brgy Kagawad) who shall sign, and
shall be given copies of the inventory.

(Note: The presence of the above-mentioned witnesses shall only be required

during the physical inventory of the confiscated items.) 56

In warrantless searches and seizures, like buy-bust operations, the PNP Manual further
provides:

g. In warrantless searches and seizures like buy-bust operations, the inventory and
taking of photographs shall be made where the evidence or items were confiscated to
properly preserve the integrity and evidentiary value of the evidence. In case of failure
to do so, the conduct of inventory may be made at the nearest police station or office of
the apprehending officer or team, however, they must execute a written explanation to
justify non-compliance of the prescribed rules on inventory under Section 21, RA 9165.
Thereafter, the arresting/seizing officer shall turn-over the arrested suspects as well as
the seized articles or items of evidence to the Investigator-On-Case who shall be
required to issue an acknowledgement receipt of the turnover.57

The failure of the police officers to comply with Section 21 of RA 9165 and its IRR as
well as the PNP Manual, afore-quoted, is without question, and evident from the
following statements of PO1 Villasurda and PO3 Saquibal in their testimonies.

PO1 Villasurda testified as follows:

[FISCAL MA. LUISA B. ONG: (To the Witness)]

Q
After frisking and after recovering the buy bust money and the cellphone what
happened next?
A
PO3 Saquibal informed of his constitutional rights being an accused.

xxxx

Q
So you mean to say, Mr. Witness that after frisking and retrieving those items and also
informing him of his arrest you immediately handcuffed him and brought him to the
police station, correct?
A
Yes, ma'am.
  
Q
What happened Mr. Witness when you arrived at the police station, Mr. Witness?
A
We made the photographing and the inventory of the said evidences.
  
Q
Who lead the conduct of the inventory, Mr. Witness?
A
PO3 Saquibal.
  
Q
And who were present in that inventory, Mr. Witness?
A
While the photographing and the inventory of the evidences were made Municipal
Councilor Guillermo Zamora was present.
  
Q
How about you Mr. Witness where were you?
A
I was also present and I was the one who marked the evidences.
 
xxxx
  
Q
You mentioned that aside from the inventory and making of the spot report, Mr.
Witness there was also a picture taking, Mr. Witness, who took the pictures, Mr.
Witness?
A
I could not recall the name of the person who took the pictures but he was the
companion of the Municipal Councilor.58

PO3 Saquibal's version is as follows:

FISCAL MA. LUISA B. ONG: (To the Witness)

Q:
After that, Mr. Witness, when you reached the police station in Oslob, what happened
or transpired then?
A:
We immediately made an inventory.
  
Q:
Who were present during the conduct of the inventory, Mr. Witness?
A:
I myself, PO1 Allan Villasurda, the accused and the SB member.
  
Q:
Do you have any proof, Mr. Witness, that indeed the inventory was conducted during
that time?
A:
Yes, ma'am, we have the certificate of inventory and the pictures.
 
xxxx
  
Q:
You mentioned also that there were pictures taken, Mr. Witness x x x
 
xxxx
  
Q:
I would like to ask, Mr. Witness, who took these pictures, Mr. Witness?
A:
It was PO2 Nelson Mendaros.59

In the Certificate of Inventory60 dated April 22, 2011, in the spaces for the witnesses at
the bottom, only the name and signature of Guillermo Rodriguez Zamora, as the
"Elected Official," appear. The spaces for the representatives from the media and
DOJ are blank. With respect to Otico, there is a note: "Refused to Sign." The
Certificate of Inventory reflects PO3 Saquibal as the Team Leader and the one who
prepared the same.

In fine, the following flaws or defects in the strict observance by the police officers of
Section 21 of RA 9165 and its IRR are apparent:

1. The inventory and photograph taking were not done immediately after seizure and
confiscation in the place of operation.

2. Except for the elected official, the required witnesses were not present during the
inventory and photograph taking. Only one of the three third-party witnesses was
present.

3. The police officers did not present justifiable grounds for their non-compliance with
the required procedure and proof that the integrity and the evidentiary value of the
seized items were properly preserved by them.

In People v. Umipang,61 the Court stressed that:

x x x the step-by-step procedure outlined under R.A. 9165 is a matter of substantive

law, which cannot be simply brushed aside as a simple procedural technicality. The
provisions were crafted by Congress as safety precautions to address potential police
abuses, especially considering that the penalty imposed may be life imprisonment.
In People v. Coreche,62 we explained thus:

The concern with narrowing the window of opportunity for tampering with

evidence found legislative expression in Section 21 (1) of RA 9165 on the inventory of
seized dangerous drugs and paraphernalia by putting in place a three-tiered
requirement on the time, witnesses, and proof of inventory by imposing on the
apprehending team having initial custody and control of the drugs the duty to
"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." (Emphasis supplied.)

Consequently, in a line of cases,63 we have lain emphasis on the importance of

complying with the prescribed procedure. Stringent compliance is justified under the
rule that penal laws shall be construed strictly against the government and liberally in
favor of the accused.64 Otherwise, "the procedure set out in the law will be mere lip
service."65

xxxx

Minor deviations from the procedures under R.A. 9165 would not automatically
exonerate an accused from the crimes of which he or she was convicted.66 This is
especially true when the lapses in procedure were "recognized and explained in terms
of [] justifiable grounds."67 There must also be a showing "that the police officers
intended to comply with the procedure but were thwarted by some justifiable
consideration/reason."68 However, when there is gross disregard of the procedural
safeguards prescribed in the substantive law (R.A. 9165), serious uncertainty is
generated about the identity of the seized items that the prosecution presented in
evidence.69 This uncertainty cannot be remedied by simply invoking the presumption of
regularity in the performance of official duties, for a gross, systematic, or deliberate
disregard of the procedural safeguards effectively produces an irregularity in the
performance of official duties.70 As a result, the prosecution is deemed to have failed to
fully establish the elements of the crimes charged, creating reasonable doubt on the
criminal liability of the accused.71

As the Court explained in People v. Mendoza,72 the deliberate taking of the identifying

steps, which include marking, physical inventory and photographing of the contraband,
immediately upon seizure by the police officer concerned, or, if that is not possible, as
close to the time and place of the seizure as practicable under the obtaining
circumstances before the insulating presence of the three third-party witnesses is
aimed at preserving an unbroken chain of custody and obviating 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).73The failure to do so
will negate the integrity and credibility of the seizure and confiscation of the
dangerous drug that is evidence of the corpus delicti, and adversely affected
the trustworthiness of the incrimination of the accused. 74

In this case, the lapses noted above are far from being minor. They are major
deviations from the statutorily mandated procedure and there was no attempt
whatsoever by the prosecution, through the testimonies of the police officers, to explain
why an honest-to-goodness compliance with Section 21 of RA 9165 and its IRR, as well
as the PNP Manual, was unavailable under the circumstances obtaining during the buy-
bust operation.

Given the unexplained major procedural lapses, the indefiniteness of the substantiation
of the elements of illegal drug sale under Section 5 of RA 9165, and the questionable
identification of the sachet of shabu, which is the purported object of the illegal sale,
the Court is compelled to acquit Otico for the failure of the prosecution to prove his
guilt beyond reasonable doubt. The presumption of innocence in favor of Otico stands.

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
IRR, 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 herewith, 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.75
WHEREFORE, premises considered, the Decision dated October 26, 2016 of the Court
of Appeals in CA-G.R. CR-HC No. 02129 is REVERSED and SET ASIDE. Accused-
appellant Marvin Madrona Otico is hereby ACQUITTED for failure of the prosecution to
prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from
detention, unless he is confined for any other lawful cause.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections,
Muntinlupa City, for immediate implementation. The Director of the Bureau of
Corrections is directed to report to this Court, within five (5) days from receipt of this
Decision, the action he has taken. A copy shall also be furnished to the Director General
of Philippine National Police for his information.

SO ORDERED.

Carpio,*Perlas-Bernabe, and Reyes, Jr., JJ., concur.

Peralta, J., please see separate concurring opinion.

Endnotes:

*
 Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as
amended)

1
Rollo, pp. 24-26.

2
 Id. at 4-23. Penned by Associate Justice Geraldine C. Fiel-Macaraig, with Associate
Justices Edgardo L. Delos Santos and Edward B. Contreras concurring.

3
 Nineteenth Division.

4
 Records, pp. 113-118. Penned by Presiding Judge James Stewart Ramon E.
Himalaloan.

5
Rollo, p. 5.

6
 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).

7
 Records, p. 1.

8
Rollo, p. 5.

9
 Id. at 7-10.

10
 Id. at 10.

11
 Records, p. 118.
12
 Id. at 123.

13
Rollo, p. 23.

14
 Id. at 24-26.

15
 Id. at 29-30.

16
 Id. at 37-40.

17
 Id. at 41-44.

18
People v. Montevirgen, 723 Phil. 534, 542 (2013); People v. Blanco, 716 Phil. 408,
414 (2013).

19
People v. Doria, 361 Phil. 595, 621 (1999), citing People v. Tadepa, 314 Phil. 231,
235 (1995) and People v. Crisostomo, 294 Phil. 501, 507 (1993).

20
 Id.

21
 See rollo, p. 8.

22
 Id. at 7.

23
People v. Doria, supra note 19, at 622, citing People v. Gireng, 311 Phil. 12, 21
(1995); People v. Nicolas, 311 Phil. 79, 87 (1995) and People v. Marcelo, 295 Phil. 26,
43 (1993).

24
 Id.

25
 Id., citing People v. Lucero, 299 Phil. 1, 9 (1994); People v. Tranca, 305 Phil. 492,
501-502 (1994); People v. Solon, 314 Phil. 495, 504 (1995); People v. Abbu, 317 Phil.
518, 524 (1995).

26
 Id., citing People v. Solon, id.; People v. Co, 315 Phil. 829 (1995).

27
 Id., citing People v. Ale, 229 Phil. 81 (1986).

28
 Id., citing People v. Sillo, 288 Phil. 841 (1992).

29
 Id., citing People v. Sahagun, 261 Phil. 200 (1990); People v. Libag, 263 Phil. 662,
671-672 (1990) and People v. Ramos, 264 Phil. 554, 565-566 (1990).

30
 Supra note 19.

31
 Id. at 619, citing Richard C. Donnelly, "Judicial Control of Informants, Spies, Stool
Pigeons and Agent Provocateurs," The Yale Law Journal, Vol. 60: 1091, 1094 (1951).
32
 Id., citing People v. Simon, 304 Phil. 725, 744 (1994); People v. Cruz, 301 Phil. 770,
774-775 (1994); People v. Crisostomo, supra note 19, at 506; People v. Fernando, 229
Phil. 177, 184 (1986) and People v. Ale, supra note 27, at 87-88.

33
 Id., citing People v. Simon, id.

34
 Id. at 619-620, citing People v. Cruz, supra note 32; People v. Salcedo, 272-A Phil.
310, 319-320; People v. William, 285 Phil. 396, 402 and People v. Ale, supra note 27,
at 87-88.

35
 Id. at 620.

36
Rollo, p. 7.

37
 TSN, August 2, 2011, pp. 11-23.

38
 TSN, December 6, 2011, pp. 12-13, 19-21.

39
 TSN, November 27, 2012, pp. 6-7.

40
 TSN, January 15, 2013, pp. 4-6.

41
 TSN, July 18, 2013, pp. 6-7.

42
 TSN, August 2, 2011, p. 22.

43
 TSN, January 15, 2013, pp. 5-6.

44
 See photograph of Otico and witnesses with the P500-bill marked money, confiscated
cellphone and plastic sachet, Exh. "L-2," wherein the plastic sachet is so tiny; records,
p. 14.

45
 Exh. "D," records, pp. 3-4.

46
 Id. at 4.

47
 Id. at 10.

48
 Id. at 12.

49
 Id. at 13.

50
 Exh. "A," id. at 125.

51
 Exh. "C," id. at 126.

52
 Philippine National Police, thru Anti-Illegal Drugs Special Operations Task Force
(AIDSOTF).
53
 PNP Manual on Anti-Illegal Drugs Operation and Investigation, Rule I, Sec. 2.

54
 Id., Rule II, Sec. 13(b).

55
 Sec. 21 of RA 9165 was subsequently amended by RA 10640, "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," which was approved on July 15,
2014. Based on the Information, the alleged violation of RA 9165 occurred on April 22,
2011 . Thus, the original RA 9165 is applicable in this case.

56
 PNP Manual, Rule III, Sec. 19(B)(f).

57
 Id., Rule III, Sec. 19(B)(g).

58
 TSN, September 27, 2011, pp. 7-10.

59
 TSN, January 15, 2013, pp. 13-14.

60
 Exh. "K," records, p. 13.

61
 686 Phil. 1024 (2012).

62
 612 Phil. 1238, 1246 (2009).

63
People v. Garcia, 599 Phil. 416, 430 (2009); citations omitted.

64
People v. Umipang, supra note 61, at 1038-1039, citing People v. Garcia, id. at 430;
citation omitted.

65
 Id. at 1039, citing People v. Martin, 675 Phil. 877, 890 (2011).

66
 Id. at 1053, citing People v. Ulama, 678 Phil. 861, 876-877 (2011).

67
 Id., citing People v. Martin, supra note 65, at 890.

68
 Id., citing People v. Martin, id.

69
 Id. at 1053-1054, citing People v. Garcia, supra note 63, at 436.

70
 Id. at 1054, citing People v. Garcia, id. at 436-437.

71
 Id., citing People v. Garcia, id.

72
 736 Phil. 749 (2014).

73
 Id. at 761-764.
74
 Id. at 764.

75
 See People v. Jugo, G.R. No. 231792, January 29, 2018, p. 10.

SEPARATE CONCURRING OPINION

PERALTA, J.:

I concur with the ponencia in acquitting accused-appellant Marvin Madrona Otico of the

charge of illegal sale of dangerous drugs, or violation of Section 5, Article II of Republic
Act No. 9165 (R.A. No. 9165),1 respectively. I agree that the prosecution failed to prove
appellant's guilt beyond reasonable doubt, because the "eyewitness" accounts of the
two police officers, who were admittedly ten (10) meters away from the place where
the civilian agent/poseur-buyer and the appellant traded the 0.02 gram of suspected
shabu and the P500.00 buy-bust money, are incredible. Moreover, the prosecution
failed to provide justifiable grounds for the police officers' non-observance of the three-
witness rule under Section 212 of R.A. No. 9165, i.e., except for the elected public
official, the representatives from the media and the Department of Justice were not
present during the inventory photograph taking of the seized items. At any rate, 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.

xxxx

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 crime 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 13of 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 Adam16 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.

Endnotes:

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.

-===========================-

FIRST DIVISION

December 14, 2017

G.R. No. 219175

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
AMRODING MACUD y DIMAAMPAO,, Accused-Appellant.

DECISION

DEL CASTILLO, J.:

Before the Court is the appeal  of accused Amroding Macud y Dimaampao a.k.a. "Ambro" (Macud)
1

seeking the reversal of the Decision  dated July 31, 2014 of the Court of Appeals (CA) in CA-G.R.
2

CR-H.C. No. 06239. The CA affirmed the Judgment  dated April 30, 2013 of the Regional Trial Court
3

(RTC), Branch 164, Pasig City in Criminal Case No. 17847-D. The RTC convicted Macud of violating
Section 5 of Republic Act (RA) No. 9165 or the Comprehensive Dangerous Drugs At of 2002, as
amended.

The Facts
Through an Amended Information dated January 31, 2012, Macud and his co-accused, Mohammad
Khair M. Bayabao a.k.a. "Khali]" (Bayabao), were charged with the offense of illegal sale of
dangerous drugs penalized under Section 5 of RA No. 9165, allegedly committed in the following
manner:

On or about January 10, 2012, in Pasig City, and within the jurisdiction of this Honorable Court, the
accused, conspiring and confederating together, and both of them mutually helping and aiding one
another, and not being lawfully authorized to sell, possess or otherwise use any dangerous drug. did
then and there willfully, unlawfully and feloniously sell, deliver and give away to Police Officer
Lorenzo S. Catarata, a police poseur-buyer, one (1) heat-sealed transparent plastic sachet
containing white crystalline substance weighing eight (8) centigrams (0.08 gram) marked as "CATS
1-10-12 with signature", which was found positive to the test for methamphetamine hydrochloride
(shabu), a dangerous drugs, in violation of the said law.

Contrary to law. 4

Bayabao was not arrested and, to this day, remains at large.

During the arraignment, Macud (assisted by a lawyer from the Public Attorney's Office) pleaded not
guilty to the offense charged.  After the pretrial proceedings were conducted, trial on the merits
5

ensued. 6

The Prosecution's Evidence

The prosecution's case revolves around its claim that the charge against Macud arose from a
legitimate buy-bust operation. It presented as its witnesses (1) Police Officer 2 Lorenzo S. Catarata
(P02 Catarata), (2) Police Chief Inspector Lourdeliza G. Cejes (PCI Cejes), (3) Police Officer 2 Jay
Santos Francisco (P02 Francisco), and (4) Police Officer 2 Jeffrey Male (P02 Male).

P02 Catarata testified on the acts constituting the offense charged and leading to the apprehension
of Macud. He narrated that, at about 6:00 p.m. of January 10, 2012, the Station Anti-Illegal Drugs
Special Operations Task Group (SAID-SOTG) of Pasig City, led by Police Chief Inspector Joel Q.
Quintero (PCI Quintero), held a briefing for the conduct of a buy-bust operation at Vicper
Compound, Barangay Malinao, Pasig City.  The operation was supposedly in response to
7

confidential information received by the SAID-SOTO that illegal drug activities were being done in
the area. A team was formed to conduct the operation, which included P02 Catara, P02 Francisco,
P02 Male, and three other police officers.  P02 Catarata was to act as the poseur-buyer and was
8

given a ₱500.00 bill on which he placed the mark "CATS," representing his surname. 9

Accompanied by their informant, the team proceeded to and arrived at the Vicper Compound at
about 8:20 p.m. of the same day. As the other team members spread out and positioned
themselves, P02 Catarata and the infonnant proceeded to the house of on "Khalil" (later identified as
the co-accused Bayabao). When they approached the house, they saw Macud standing outside of it
and inquired if "Khalil" was inside because they wanted to buy "tres" or ₱300.00 worth of shabu. In
reply, Macud nodded and asked for the money, P02 Catarata then gave the marked ₱500.00 bill to
Macud. After receiving the money, Macud went upstairs to the second floor of the house where
'"Khalil" was. P02 Catarata claimed that he heard Macud and "Khalil" talking but did not understand
what they said as they were speaking in their vernacular. He then saw Macud hand over to "Khalil"
the ₱500.00 bill, and "Khalil" in tum gave Macud a small plastic sachet. Macud thereafter went
downstairs and gave the plastic sachet to P02 Catarata. It was at this point that P02 Catarata
arrested Macud, introduced himself as a police officer, and read Macud his rights. The other team
members tried to chase "Khalil" but he was able to flee, allegedly with the marked ₱ 500.00 bill.10
P02 Catarata further testified on what he did with the plastic sachet that Macud gave him after the
buy-bust operation. He claimed that, immediately after arresting Macud, he placed the mark "CATS
1-10-12" and his signature on the single heat-sealed transparent plastic sachet containing white
crystalline substance and then prepared the Inventory of Seized Evidence, which Macud refused to
sign.  . P02 Catarata and the team thereafter brought Macud and the plastic sachet, first, to the
11

police station for the preparation of documents, and· second, to the Crime Laboratory Office in
Marikina City for the examination of Macud and the contents of the plastic sachet.12

PCI Cejes testified on the delivery and receipt of the plastic sachet and the examination of its
contents. She stated that she was the Forensic Chemist assigned at the Crime Laboratory Office in
Marikina City. At about 11: 15 p.m. of January 10, 2012, she received from P02 Francisco a Request
for Laboratory Examination of a specimen contained in one heat-sealed transparent plastic sachet
marked "CATS 1-10-12" with signature, along with the mentioned specimen. She proceeded with the
laboratory examination of the spicemen, which she marked as "Exhibit A, D-0010- 2012E LGC," and
found that it tested positive for methamphetamine hydrochloride or shabu. She then prepared
Physical Science Report No. D- 0010-2012E where she listed her findings on the submitted
specimen. 13

The testimonies of P02 Francisco and P02 Male were dispensed with after the prosecution and the
defense agreed on the following stipulation of facts:

As to P02 Francisco:

1. That he was the investigator in the present case;

2. That, as investigator, he prepared the Booking Sheet and Arrest Report of the
accused, the Request for Laboratory Examination of the specimen, and the Request
for Drug Test of the accused;

3. That he took pictures of the accused and the seized evidence at the police station;

4. That he delivered the Request for Laboratory Examination and the specimen
subject of the request, and the Request for Drug Test of the accused to the Crime
Laboratory Office in Marikina City; and

5. That he has no personal knowledge of the circumstances surrounding the arrest of

the accused and the origin and source of the spicemen. 14

As to P02 Male:

1. That he was the police officer who coordinated with the Philippine Drug
Enforcement Agency (PDEA). 15

In addition to the above testimonies, the prosecution offered the following

documentary and object evidence: 16

• Exhibit A and its Request for Laboratory Examination dated submarkings

January 10, 2012 17

• Exhibit B Improvised brown envelope with markings "D-10-2012 E LGC"

 • Exhibit B- l One (l) heat-sealed transparent plastic sachet containing 0.08
gram of white crystalline substance, with markings "CA TS 1-10-12" and
signature

• Exhibit C and its Physical· Sciences Report. No. DD-0010-Submarkings

2012E 18

• Exhibit D and its Sinumpaang Salaysay ng Pag-Aresto  Submarkings

19

• Exhibit E and its Inventory of Seized Evidence  submarkings

20

• Exhibit F Booking Sheet and Arrest Report of the accused 21

• Exhibit G Photograph of the · accused after he was arrested 22

• Exhibit H Photograph of one (1) heat-sealed transparent plastic sachet

containing 0.08 gram of white crystalline substance, with markings "CATS 1-
10-12" and signature 23

• Exhibit I Request for Drug Test 24

• Exhibit J and its Request for Laboratory Examination  submarkings

25

• Exhibit L Pre-Operation Report 26

• Exhibit M Coordination Sheet 27

The Accused's Evidence

Macud denied the charges against him and raised as defense frame up/extortion by the police
officers.

Macud stated that he earned a living by selling toys in the market. On January 10, 2012, at about
8:20 p.m., he was walking along Vieros Street on his way to the market when he saw five men
entering an alley that led to the Vicper Compound. One of the men asked if he knew "Cali" to which
he replied "no;" the men then continued walking. A few seconds after, a commotion ensued but he
continued on his way. Suddenly, two of the five men returned, held him, and ordered him to join
them to their office for questioning. The men then brought him to the Pasig City Motorpool where
they frisked him and demanded ₱50,000.00 from him, otherwise, they threatened to file a case
against him. When Macud replied that he had no such amount, he was brought to Marikina City for
drug test and medical examination. Thereafter, he was detained in jail for about 21 days until he '18
was transferred to Nagpayong. 28

Macud claimed that he does not know the men and saw them for the first time only during their
encounter on January 10, 2012. He said that prior to his arrest, he had been living at Vicper
Compound for about three months  and he previously came from Mindanao.
29 30

Ruling of the RTC and the CA

The RTC found that the prosecution's evidence sufficiently established that Macud committed the
offense charged. Macud was caught in flagrante delicto illegally selling shabu, a dangerous drug.
Accordingly, it rendered judgment finding Macud guilty beyond reasonable doubt of the offense of
illegal sale of dangerous drugs, and sentenced him to life imprisonment and to pay a fine of
₱500,000.00. 31

As mentioned, the CA affirmed the RTC's guilty verdict after finding Macud's appeal unmeritorious.
Like the RTC, the CA found that the prosecution's evidence sufficiently established that the elements
of the offense of illegal sale of dangerous drugs and that Macud was liable therefor.32

The CA did not agree with Macud's contention that the police officers' failure to comply with Section
21 of RA No. 9165 on the custody and disposition of the seized drugs tainted the buy-bust operation
and rendered the evidence inadmissible. Lt declared that there was substantial compliance with the
procedure to establish an unbroken chain of custody which preserved the integrity and evidentiary
value of the seized evidence.33

Moreover, the CA did not find credible Macud’s claim of frame up/extortion by the police officers.
This claim was uncorroborated and unsupported by any proof of ill motive on the part of the police
officers why they would falsely testily against Macud. The CA considered Macud’s defense as a
mere alibi which cannot stand against the clear and positive testimony of P02 Catarata who was
performing his job when he caught Macud illegally selling shabu. 34

The Appeal

Through the present appeal, Macud seeks the reversal of his conviction by claiming that his guilt
was not proven beyond reasonable doubt.  He alleges that no legitimate buy-bust operation was
35

conducted; instead, what transpired was an extortion attempt. In support of this allegation, he refers
to the failure of the police officers to comply with the procedural requirements under Section 21 of
RA No. 9165 and of the prosecution to present the marked money used in the alleged buy-bust
operation.36

The People, represented by the Solicitor General, disagrees and contends that all the elements of
the offense charged were duly proved.  It claimed that Macud was a1Tested through a valid buy-
37

bust operation where he was caught in flagrante selling shabu. Hence, the appeal must be denied
and the conviction affirmed.

The Court's Ruling

The Court grants the appeal and reverses the CA

Decision that affirmed Macud’s conviction for the offense charged. We find that the integrity
and relevance of the prosecution's evidence have been compromised by the failure of the police to
preserve the chain of custody of the dangerous drug subject of the crime charged and, thus,
insufficient to support Macud’s conviction therefor.

The preservt1tion of the chain of

custody is essential in a successful
prosecution for the illegal sale of
dangerous drug

In every criminal prosecution, the Constitution affords the accused presumption of innocence until
his or her guilt for the crime charged is proven beyond reasonable doubt.  The prosecution bears the
38
burden of overcoming this presumption and proving the liability of the accused by presenting
evidence showing that all the elements of the crime charged are present. 39

To sustain a conviction for the offense, of illegal sale of dangerous drug as penalized under Section
5 of RA No. 9165, the following elements must be established:

"l) the identity of the buyer and the seller, the object, and the consideration; and

2) the delivery of the thing sold and the payment therefor." 40

At this point, we address Macud’s contention that the failure to present the marked ₱500.00 bill used
in the illegal sale of dangerous drugs is fatal to the prosecution's case. The failure to present the
marked money in evidence, by itself, is not material since its absence will not necessarily disprove
the transaction. "[N]either law nor jurisprudence requires the presentation of [the] money used in
[the] buy-bust operation."  We declared in People v. Rebotazo what evidence has to be presented in
41

prosecuting a violation of Section 5 of RA No. 9165:

in prosecuting a case for the sale of dangerous drugs, the failure to present marked money does not
create a hiatus in the evidence for the prosecution, as long as the sale of dangerous drugs is
adequately proven and the drug subject of the transaction is presented before the
court.  (Emphasis supplied)
42

Evidence must be shown that the sale transaction transpired, coupled with the presentation of
the corpus delicti, i.e., the body or substance of the crime establishing its commission.  In a charge
43

for illegal sale of dangerous drugs, the corpus delicti is the dangerous drug subject of the
transaction. 44

Section 21 of RA No. 9165 provides a special rule on the handling of items seized and confiscated in
dangerous drugs cases. It establishes a chain of custody rule which aims to preserve the integrity of
the items to be used in prosecutions under the law.  The adoption of a special rule in the handling of
45

the dangerous drugs in particular is necessitated by the nature of the dangerous drug itself which is
likely to be tampered, altered, contaminated, or substituted. As the Court explained
in Mallillin v. People  –
46

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they
are subject to scientific analysis to determine their composition and nature. The Court cannot
reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in
the chain of custody over the same there could have been tampering, alteration or
substitution of substances from other cases-by accident or otherwise-in which similar
evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in
authenticating the same, a standard more stringent than that applied to cases involving objects
which are readily identifiable must be applied, a more exacting standard that entails a chain
of custody of the item with sufficient completeness if only to render it improbable that the
original item has either been exchanged with another or been contaminated or tampered
with.  (Emphasis supplied)
47

Jurisprudence identified four critical links in the chain of custody of the dangerous drugs, to
wit: ''first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by
the apprehending officer; second, the turnover of the illegal dn1g 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."48
With regard the first two links, Section 21 (1) of RA No. 9165  prescribes the procedure to be
49

observed immediately after the seizure and confiscation of the dangerous drugs. It reads:

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, physicallyinventory 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, and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof. (Emphasis supplied)

xxxx

The law requires that, immediately after the seizure and confiscation of the dangerous drugs, the
apprehending team having initial custody and control of the dangerous drugs
shall physicallyinventory and photograph the same. Bothacts must be done in the presence of
the following persons:

1. the accused or his/her representative or counsel;

2. a representative from the media;

3. a representative from the Department of Justice (DOJ); and

4. any elected public official.

The witnesses shall then sign the inventory and be given copies thereof.

The above procedure is supplemented by the Implementing Rules and Regulations (IRR) of RA No.
9165.  Under Section 21 (a) of the IRR, the physical inventory and photograph of the items seized
50

shall be conducted where the search warrant is served; otherwise, in case of warrantless seizures,
these' shall be' conducted at the nearest police station or at the nearest office of the apprehending
officer/team. 51

Despite the mandatory language of the law, rigid compliance with the above procedure is not
expected. For this reason, the last proviso of Section 21(a) of the IRR states 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." The prosecution must thus be
able to explain the reasons behind the procedural lapses and to prove as facts the grounds raised to
justify non-compliance.  Moreover, it must show that the integrity and evidentiary value of the seized
52

evidence must have been preserved. 53

There was a break in the chain of

custody of the seized dangerous drug
which the prosecution failed to
explain

The Court now proceeds to determine whether the laws and rules discussed have been complied
with in the present case.

The chain of custody began with P02 Catarata who testified that he received from Macud a plastic
sachet containing white crystalline substance after he indicated interest to buy ₱300.00 worth
of shabu and handed over the marked ₱500.00 bill. Upon receipt of the plastic sachet, P02 Catarata
said he arrested Macud and promptly prepared the Inventory of Seized Evidence.

According to P02 Catarata, he had custody of the plastic sachet from the time Macud gave it to him
up to the time it was turned over to the Criminal Laboratory Ot1ice in Marikina for examination:

PROS. MADAMBA:

Q: By the way, Mr. Witness, you are the one who is in custody of the transparent plastic sachet at
the time that you arrest [sic] the accused?

[P02 CATARATA]

A: Yes, ma'am.

Q: At the time you were at the office[,] who is in custody of the evidence?

A: From the start when I was able to confiscate it [sic] was in my custody until it was
delivered to the Crime Laboratory.

Q: So who gave the specimen to the Crime Laboratory?

A: I was the one.  (Emphasis supplied)

54

P02 Catarata's testimony, however, is contradicted by that of PCI Cejes - the forensic chemist in the
Crime Laboratory Office, who stated that she received both the Request for Laboratory Examination
and the specimen, not from P02 Catarata, but from P02 Francisco:

[PROS. MADAMBA:]

Q: On that day, did you receive any document and specimens [sic] with regard to this case?

[PCI CEJES]

A: Yes, ma'am. I received request for laboratory examination from [P02] Francisco from the
Pasig City Police Station and together with the request is one heat sealed plastic sachet
containing white crystalline substance.

Q: Please show to us the evidence that it was received by your office?

A: There is a stamp receipt located at the lower portion of the document and in that stamp receipt
indicates the case number and the date and time received and the person who delivered. It was P02
Francisco, and my name is written in the received by [sic] portion, PCI Cejes.

xxxx

Q: You said it was not you who put the stamp mark receipt?

A: It was the duty recording clerk. The specimen was given to me by P02 Francisco and I
instructed the ... (discontinued).

COURT:

Q: The request for laboratory examination?

A: The specimen, Your Honor, one heat-sealed transparent plastic sachet.

xxxx

RE-DIRECT EXAMINATION BY PROS. MADAMBA:

Q: What is your standard operating procedure upon receiving the specimen, subject of the request
for laboratory examination?

A: Upon receiving the request for laboratory examination and the specimen, the duty recording clerk
will record the documents that would be received by the office and he will put the stamp receipt and
be will write entries that document, while the specimen will be handed over the forensic chemist who
is the duty officer for that particular case

Q. Do you know the person why he put your name PCI Cejes as received by?

ATTY. AMPONG III:

She will be incompetent.

PROS. MADAMBA:

If she knows.

COURT:

Witness may answer.

A: Because, I am the duty forensic chemist and I was the one who received the Specimen from P02
Francisco.

xxxx

Q: Who received the specimen, subject of your laboratory examination, one heat scaled plastic
sachet?
A: I was the one, from P02 Francisco.  (Emphasis supplied)
55

Later in his testimony, P02 Catarata was asked to clarify who turned over what item to PCI Cejes:

Q: Mr. Witness, as you mentioned a while ago, you're carrying that specimen from your office to the
Crime Laboratory in Marikina and what about this document who handed over this to the Marikina
Crime Laboratory personnel, if you can remember?

ATTY. AMPONG:

I believe, Your Honor, it [has] already been answered.

COURT:

No, witness may answer. The prosecution is asking who handed the Request for Laboratory
Examination.

A: Perhaps, it was Francisco.

PROS. MADAMBA:

Q: But a while ago, when you were asked who went with you to the Crime Laboratory, you didn't
mention Francisco, Mr. Witness?

A: Yes, ma'am

Q: But now you remember it was P02 Francisco who handed over this document?

A: Yes, ma'am.

Q: How about the specimen who handed that specimen?

A: i was the one, we were together in going to the Crime Laboratory.

xxxx

[CROSS-EXAMINATION BY ATTY. AMPONG]

Q: In fact, after that the Request for Laboratory Examination was shown to you and you saw
in this stamp receipt the name of P02 Francisco, that was the only time that you said P02
Francisco accompanied you to the Crime Laboratory, isn't it.

A: Yes, sir.

xxxx

Q: What is that something that P02 Francisco handed to the receiving officer?

A: Document, sir.
Q: He was the one who handed that document but you were the one who handed the plastic
sachet to the receiving officer, correct?

A: Yes, sir.  (Emphasis supplied)

56

While no one is expected to have a perfect memory, we find more credible PCT Cejes'
straightforward and consistent statement that it was P02 Francisco who handed her both the
document entitled Request for Laboratory Examination and the specimen subject of the
request, i.e., the plastic sachet with shabu. Indeed, this was among the facts that the parties
stipulated on with regard the testimony of P02 Francisco:

x x x (4) that he was the one who delivered the request for laboratory examination together with the
specimen stated thereon, and the request for drug test to the Crime Laboratory Service in Marikina
City; x x x
57

There is thus a break in the chain of custody of the dangerous drug that was never explained
by the prosecution, even when the opportunity to do so arose. Nothing in the records
showed when, how, and why the custody of the plastic sachet was transferred from P02
Catarata to P02 Francisco. We emphasized in Mallillin v. People  how the chain of custody must
58

be explained:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered into evidence, in such a way that
every person who touched the exhibit would describe how and from whom it was received,
where it was and what ha1.mencd to it while in the witness' possession, the condition in
which it was received and the condition in which it was delivered to the next link in the chain.
These witnesses would then describe the precautions taken to ensure that there had been no
change in the condition of the item and no opportunity for someone not in the chain to have
possession of the same. (Emphasis supplied)

It may nevertheless be argued that the identity and integrity of the cotpus delicti was preserved,
since the plastic sachet that P02 Catarata, P02 Francisco, PCI Cejes had all bore the marking
"CATS 1-10-12" and P02 Catarata's signature, suggesting that they all handed the same item that
was seized from Macud. Though such an explanation is plausible, we note that there are other
significant lapses in the prosecution's evidence that - viewed as a whole - cast reasonable doubt on
its case against Macud.

There was an unjustified failure to

comply with the procedure
prescribed under Section 21, RA No.
9165

The prosecution never contested that the police officers failed to comply with Section 21(1) of RA
No. 9165 and Section 21(a) of its IRR. The lapses constituted of the following:

first, the absence of a representative of the media, the DOJ, and any elected public official to witness
the marking and physical inventory of the seized drugs; and
second, although the marking and physical inventory of the seized drugs were done immediately
after the arrest, the photograph was done after the operation and in the police station by P02
Francisco,  also without the requisite persons who should have witnessed the act.
59

When asked to explain why there was failure to comply with the procedural requirements, P02
Catarata simply said that doing so could compromise the buy-bust operation:

COURT:

Q: Mr. Witness, why in the inventory receipt there is no representative from PDEA, from barangay,
Department of Justice and media?

WITNESS:

A: We have no companion, your Honor.

COURT:

Q: You did not coordinate with the barangay of Vicper Compound?

A:Yes, your Honor.

COURT:

Q: Why?

WITNESS:

A: Because if we will coordinate it might compromise the operation, your Honor.

COURT:

Witness, you're [excused].  (Emphasis supplied)

60

We find this justification insufficient. Other than P02 Catarata's bare allegation that coordination with
the local officials could have compromised the buy-bust operation, the prosecution offered no factual
evidence to substantiate this claim. Even if the claim were true, there is no requirement under the
law that the elected public official who should witness the operation must be one of those elected in
the same locality where the operation is conducted so as not to compromise the police operation in
the area. This is clear from the wordings of the law itself which says "any elected public official."
61

We cannot even declare that there was substantial compliance with the law in this case as the police
officers invited no other person to witness the procedures that were done after the buy-bust
operation, i.e., the marking, inventory, and photography of the seized drugs. There was no
representative of the media or the DOJ and no allegation that these people could similarly
compromise the operation if they had been informed of and present before, during, and after the
operation.

The presence of the persons who should witness the post-operation procedures is necessary to
insulate the apprehension and incrimination proceedings from any taint of illegitimacy or
irregularity.  The insulating presence of such witnesses would have preserved an unbroken chain of
62

custody.  We have noted in several cases that a buy-bust operation is susceptible to abuse, and the
63

only way to prevent this is to ensure that the procedural safeguards provided by the law are strictly
observed. In the present case, not only have the prescribed procedures not been followed, but also
(and more importantly) the lapses not justifiably explained. In People v. Dela Cruz  where there was
64

a similar failure to comply with Section 21 of RA No. 9165, the Court declared:

x x x This inexcusable non-compliance effectively invalidates their seizure of and custody over the
seized drugs, thus, compromising the identity and integrity of the same. We resolve the doubt in the
integrity and identity of the corpus delicti in favor of appellant as every fact necessary to constitute
the crime must be established by proof beyond reasonable doubt. Considering that the prosecution
failed to present the required quantum of evidence, appellants acquittal is in order. 65

As in Dela Cruz, and in view of the foregoing, the Court finds the acquittal of Macud in order.

The prosecution cannot rely on the

presumption of regularity in the
performance of official functions
and the weakness of the defense's
evidence to bolster its case

Any doubt on the conduct of the police operations cannot be resolved in the prosecution's favor by
relying on the presumption of regularity in the performance of official functions. The failure to
observe the proper procedure negates the operation of the regularity accorded to police
officers.  Moreover, to allow the presumption to prevail notwithstanding clear lapses on the part of
66

the police is to negate the safeguards precisely placed by the law to ensure that no abuse is
committed.

Macud may not have offered much by way of defense; he simply denied the charges and claimed
that it was nothing but an extortion attempt by the police.  Nevertheless, the prosecution cannot rely
1âwphi1

on the weaknesses of the defense's evidence to bolster its case. "If the prosecution cannot
establish, in the first place, the [accused’s] guilt beyond reasonable doubt, the need for the defense
to adduce evidence in its behalf in fact never arises. "
67

We recognize the pernicious effects of dangerous drugs in our society, but the efforts to defeat or
eradicate these cannot trample on the constitution rights of individuals, particularly those at the
margins of our society who are prone to abuse at the hands of the armed and uniformed men of the
State. Time and again, we have· exhorted courts ''to be extra vigilant in trying drug cases, lest an
innocent person is made to suffer the unusually severe penalties for. drug offenses."  This case in
68

particular exhibits how a miniscule amount - 0.08 gram - of drugs could have cost a man his liberty
for a lifetime due a bungled up buy-bust operation.

We thus end our ruling by reiterating our words in People v. Holgado: 69

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.

WHEREFORE, prem1ses considered, the Decision dated July 31, 2014 of the Court of Appeals in
CA-G.R. CR-H.C. No. 06239 is REVERSED and SETASIDE. Accused-appellant Amroding
Macud y Dimaampao is hereby ACQUITTED for the failure of the prosecution to prove his guilt
beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is
confined for any other lawful cause.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections, Muntinlupa City,
for immediate implementation. The Director of the Bureau of Corrections is directed to report to this
Court within five days from receipt of this Decision the action he has taken. Copies shall also be
furnished to the Director Gei1eral of Philippine National Police and the Director General of Philippine
Drugs Enforcement Agency for their information.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

NOEL GIMENEZ TIJAM

Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

 Designated as additional member per October 18, 2017 raffle vice J. Jardeleza who
*

recused from the case due to prior participation as Solicitor General.

1
 Notice of Appeal, rollo, pp. 14-16.

 CA rollo, pp. 91-102; penned by Associate Justice Remedios A. Salazar-Fernando and

2

concurred in byAssociate Justices Ramon R. Garcia and Danton Q. Bueser.

3
 Records, pp. 83-90; penned by Presiding Judge Jennifer A. Pilar.

4
 Id. at 24.

5
 Id. at 31.

6
 Id. at 34.

7
 CA rollo, p. 93.

 Identified as Special Police Officer I Rescue, Police Officer I Reginald Layug, and Police
8

Officer 2 Victorinio L. Oreiro, records, p. 84; CA rollo, p. 93.

9
 CA rollo, p. 93.

10
 Id.

11
 Id.

12
 Id. at 93-94.

13
 Id. at 92-93.

14
 Records, p. 84; CA rollo, p. 94.

15
 Id.; id.

16
 Record s , p. 86.

17
 Id. at 65.

18
 Id. at 66.

19
 Id. at 67.

20
 Id. at 68.

21
 Id. at 69.

22
 Id. at 70.

23
 Id.

24
 Id. at 71.
  Id. at 72.
25

 Id. at 73.
26

 Id. at 74.
27

 CA rollo, p. 94.
28

 TSN, April 3, 2013, p. 9.

29

 Id.
30

 Records, p. 90.
31

 CA rollo, p. 97.
32

 Id. at 98-99.
33

 Id. at 101.
34

35
 Per Manifestation elated October 16, 2015, Macud adopts the Appellant's Brief which he
filed before the CA as his Supplemental Brief and rep leads the allegations therein, rollo, p.
21.

 CA rollo, pp. 51 -52.
36

 Per Manifestation and Motion dated October 22, 2015, the Plaintiff-Appellee adopts the
37

Appellee’s Brief which it filed before the CA as its Supplemental Brief and repleads the
allegations therein, rollo, pp, 25-27.

 CONSTITUTION, Article III, Section 14(2).

38

 People v. Garcia, 599 Phil. 416, 426 (2009).

39

 Id.
40

 People v. Rebotazo, 711 Phil. 150, 163-164 (2013).

41

 Id. at 164.
42

 Id.
43

 People v. Dela Cruz, 744 Phil. 816, 827-30 (2014); People v. Mendoza. 736 Phil. 749,
44

760(2014).

 People v. Mendoza, supra at 759-760.

45

 576 Phil. 576 (2008).

46

 Id. at 588-589.
47
  People v. Holgado, 741 Phil 78, 94-95 (2014),citing People v. Nandi, 639 Phil. 134, 144-
48

145 (2010).

 Section 21(1) was subsequently amended by RA No. 10640 in 2014 and now reads as
49

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
PDLT shall take charge and have custody of all dangerous drugs, plant source or
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:

I. 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.ls 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 inventor; and be given a copy
thereof': Provided, That the physical inventory and photograph shall be conducted at
the place where the warrant is served: or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is practicable, in any case
of warrantless seizure: Provided, finally, That noncompliance of these requirements
under justifiable grounds, as long as the integrity and evidentiary value of the seized
items are properly preserved by the apprehending officer/team, shall not render void
and invalid such seizure and custody over said items.

 In light of the amendments introduced by RA No. 10640 the PDEA has revised its
50

guidelines on the IRR of RA No. 9165, See Guidelines on the implementing Rules and
Regulations (IRR) of Section 21 of Republic Act No. 9165 as amended by Republic Act No.
104602 and the Amendment to the Guidelines.

The relevant portion of the guidelines as amended, states:

A. Marking Inventory and Photograph; Chain of Custody Implementing Paragraph "a"

of the IRR.

A.1 The apprehending or seizing officer having initial custody and control of the
seized or confiscated dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and confiscation, mark, inventory and
photograph the same in the following manner:

A.1.1 The marking; physical inventory and photograph of the seized/

confiscated items shall be conducted where the search warrant is served.

A.1.2. The marking is the placing by the apprehending officer or the poseur-
buyer of his/her initials and signature on the item/s seized.
A.1.3. In warrantless seizures, the marking of the seized items in the
presence of the violator shall be done immediately at the place where the
drugs were seized or at the nearest police station or nearest office of the
apprehending officer/team, whichever is practicable. The physical inventory
and photograph shall be conducted in the same nearest police station or
nearest office of the apprehending officer/team, whichever is practicable.

A.1.4. In cases when the execution of search warrant is preceded by

warrantless seizures, the marking, inventory and photograph of the items
recovered from the search warrant shall be performed separately from the
marking, inventory and photograph of the items seized from warrantless
seizures.

A.1.5. The physical inventory and photograph of the seized/ confiscated

items shall be done in the presence of the suspect or his representative or
counsel, with elected public official and a representative of the National
Prosecution Service (NPS) or the media, who shall be required to sign the
copies of the inventory of the seized or confiscated items and be given copy
thereof. In case of their refusal to sign, it shall be stated "refused to sign"
above their names in the certificate of inventory of the apprehending or
seizing officer.

A.1.6. A representative of the NPS is anyone from its employees, while the
media representative is any media practitioner. The elected public official is
any incumbent public official regardless of the place where he/she is elected.

A.1.7 To prevent switching or contamination, the seized items, which are

fungible and indistinct in character, and which have been marked after the
seizure, shall be sealed in a container or evidence bag and signed by the
apprehending/ seizing officer for submission to the forensic laboratory for
examination.

A.1.8. In case of seizure of plant sources at the plantation site, where it is not
physically possible to count or weigh the seizure as a complete entity, the
seizing officer shall estimate its count or gross weight or net weight, as the
case may be. If it is safe and practicable, marking, inventory and photograph
of the seized plant sources may be performed at 'the plantation site.
Representative samples of prescribed quantity pursuant to Board Regulation
No. 1, Series of 2002, as amended, and/or Board Regulation No. I, Series of
2007, as amended, shall be taken from the site after the seizure for
laboratory examination, and retained for presentation as the corpus delicti of
the seized/confiscated plant sources following the chain of custody of
evidence.

A.1.9. Noncompliance, under justifiable grounds, with the requirements of

Section 21(1) of RA No. 9165, as amended, shall not render void and invalid
such seizures and custody over the items provided the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/ team.

A.1.10. Any justification or explanation in cases of noncompliance with the

requirements of Section 21(1) of RA No. 9165, a5 amended, shall he clearly
 stated in the sworn statements/affidavits of the apprehending/seizing officers,
as well as the steps taken to preserve the integrity and evidentiary value of
the seized/confiscated items. Certification or record of coordination for
operating units other than the PDEA pursuant to Section 86(a) and (b),
Article IX of the IRR of RA No. 9165 shall be presented.

A.1.11. The chain of custody of evidence shall indicate the time and place of
marking, the names of officers who marked, inventoried, photographed and
sealed the seized items, who took custody and received the evidence from
one officer to another within the chain, and further indicating the time and
date every time the transfer of custody of the same evidence were made in
the course of safekeeping until submitted to laboratory personnel for forensic
laboratory examination. The latter shall continue the chain as required in
paragraph B.5 below.

 In People v. Sanchez, 590 Phil. 214, 241 (2008), the Court noted that, despite the
51

distinction made by Section 21 (a) of the TRR on the venue where the physical 1 inventory
and photography shall be made, "nothing prevents the apprehending officer/team from
immediately conducting the physical inventory and photography of the items at the place
where they were seized, as it is more in keeping with the law's intent of preserving their
integrity and evidentiary value."

 People v. Beran, 724 Phil. 788, 822(2014).

52

 Id.
53

 TSN, July 10, 2012. p. 15.

54

 TSN, June25,2012, pp.5, 10, 12-13.

55

 TSN,July 10,2012,pp. 16-17,22-23.

56

 Records, p. 84.
57

 Supra note 46 at 587.
58

 These were one of the stipulated facts as regards the testimony of P02 Francisco, records,
59

p. 84.

 TSN, July 10, 2012, pp. 34-35.

60

 REPUBLIC ACT No. 9165, Section 21. The Guidelines on the IRR of Section 21 of RA No.
61

9165, as amended by RA No. 10640 now clarifies that:

A.1.6. A representative of the NPS is anyone from its employees, while the media
representative is any media practitioner. The elected public official is any
incumbent public official regardless of the place where he/she is
elected. (Emphasis supplied)

 People v. Mendoza, supra note 46 at 761-762.

62
  Id. at 764.
63

 591 Phil. 259 (2008).

64

 Id. at 271.
65

 People v. Dela Cruz, 589 Phil. 259. 272 (2008), citing People v. Santos, 562 Phil. 458
66

(2007).

 People v. Sanchez, supra note 51 at 244.

67

 People v. Rebotazo, supra note 40 at 162

68

 Supra note 48 at 100
69

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