ECOND DIVISION

G.R. No. 188905 : July 13, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROSE NANDI y SALI, Accused-Appellant.

DECISION

MENDOZA, J.:

This is an appeal from the October 23, 2008 Decision1 of the Court of Appeals (CA), which affirmed in
toto the August 2, 2007 Decision2 of the Regional Trial Court (RTC), Branch 103, Quezon City, finding
accused Rose Nandi guilty beyond reasonable doubt of having committed the crime of Violation of
Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Drugs
Act of 2002, and sentencing her to suffer the penalty of life imprisonment.

Accused Rose Nandi was arrested in a buy-bust operation and was eventually indicted in an
Information dated July 10, 2003, the accusatory portion of which reads: chan robles virtual law library

That on or about the 9th day of July 2003 in Quezon City, Philippines, the said accused, not being
authorized by law to sell, dispense, deliver, transport, or distribute any dangerous drug, did then and
there, willfully, and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said
transaction, zero point zero three (0.03) gram of methylamphetamine hydrochloride, a dangerous
drug.

CONTRARY TO LAW.

During the trial, the prosecution presented its evidence which basically hinged on the testimony of the
poseur-buyer and documentary exhibits pertaining to the buy-bust operation.

It appears from the prosecution evidence that on July 9, 2003, at around 7:00 o'clock in the evening,
Chief of Police Colonel Ratuita of Police Station 3, Talipapa, Quezon City, received an information that
someone was selling shabu along Tandang Sora Avenue. Col. Ratuita immediately formed a buy-bust
operation team composed of SPO4 Brigido Ann, its team leader, and members, PO1 Cecil Collado (PO1
Collado), PO1 Mendi, and PO1 Virgilio Bernardo. PO1 Collado, designated as the poseur-buyer,
prepared the Five Hundred Pesos (P500.00) marked money with his initials "CCC" on the face of the
bill. SPO4 Brigido Ann, in the meantime, prepared a pre-operations report and recorded the formation
of the buy-bust team in the dispatch book, including the important details of the buy-bust operation.

At around 11:00 o'clock in the evening, the team, together with the informant, proceeded to Tandang
Sora Avenue, Quezon City and positioned themselves around Culiat High School where the alleged
shabu sale was to take place. The informant first talked with the accused and later called and
introduced PO1 Collado as the buyer. The accused asked how much PO1 Collado was buying and the
latter replied that he wanted Two Hundred Pesos (P200.00) worth of shabu. PO1 Collado handed over
the marked money to the accused, and, in return, the latter gave a small transparent plastic sachet.
After examining the contents thereof, PO1 Collado scratched his head. As this was the pre-arranged
signal, the other team members rushed towards them and apprehended the accused. PO1 Collado told
her that she was being arrested for selling drugs, frisked her, recovered from her the marked money,
and then informed her of her rights.

The accused was immediately taken to Police Station 3 in Talipapa, Quezon City, where an inquest
paper was prepared and the recovered items, handed over to the investigator. The documents and the
recovered specimen were then taken to the crime laboratory, where Forensic Chemist Bernardino M.
Banac, Jr., conducted a three-step examination consisting of a physical test, a chemical test and the
confirmatory test on the sample from the sachet attached to the letter-request. The sample tested
positive for shabu, and this finding was contained in Chemistry Report No. D-604-03. Forensic
Chemist Banac, Jr. also placed the marking "D-604-03/BMB" on the plastic sachet, on the brown
envelope and on the masking tape that sealed the plastic sachet.

The accused, on the other hand, vehemently denied that she sold shabu and that she was arrested in
a buy-bust operation. She recounted that on July 9, 2003, at about 7:00 o'clock in the evening, she
was in the Muslim Compound of Barangay Culiat, Tandang Sora, Quezon City. She simply went there
to submit her pictures to her cousin, a certain Kenex Bagundan, for a possible job application abroad.
She said that she used to work as a domestic helper in Saudi Arabia and in the United Arab Emirates.

According to her, after leaving the house of her cousin and while waiting for a ride home, a man
dragged her to a parked vehicle. Inside the vehicle, there were several police officers who told her not
to shout and not to make any noise. Fearing for her life, she did what she was told. She further
asserted that they first drove to different places before she was finally taken to the police station.
Upon arriving at the station, she was frisked by a police officer and her personal things like cellular
phone, pieces of jewelry and money were confiscated.

Furthermore, her requests for a female police officer had been refused and police officers asked her to
give the amount of One Hundred Thousand Pesos (P100,000.00) for her release. Since she was not
able to call her relatives, she told them that she did not have any money. She also insisted that it was
not PO1 Collado who arrested her as he merely accompanied her during the inquest. She also claimed
that it was only during the inquest that she first saw the plastic sachet allegedly seized from her.

On August 2, 2007, the trial court rendered judgment finding the accused guilty as charged and
imposed upon the accused the penalty of life imprisonment. The dispositive portion of the RTC
decision3   reads:
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ACCORDINGLY, judgment is rendered finding the accused ROSE NANDI Y SALI, GUILTY, beyond
reasonable doubt of violation of Section 5 of RA 9165 (for selling shabu) as charged and she is hereby
sentenced to suffer a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00.

The shabu in this case weighing 0.03 gram is ordered transmitted to PDEA thru DDB for disposal as
per RA 9165.

SO ORDERED.

On October 23, 2008, the RTC decision was affirmed in toto by the Court of Appeals. In sustaining it,
the appellate court stated that the prosecution was able to establish all the elements of the crime of
illegal possession of a dangerous drug which are: 1] the offender was in possession of an item or an
object identified to be a prohibited or regulated drug; 2] such possession is not authorized by law; and
3] the accused was freely and consciously aware of being in possession of the drug.

The RTC was of the view that the testimony of the prosecution witnesses evinced a more logical and
acceptable series or flow of events culminating in the commission of the offense. The accused
committed the offense charged as she was caught red-handed selling shabu, an illicit drug, in a buy-
bust operation. The appellate court believed that the arrest of the accused was lawful and beyond
reproach, and the confiscation of the illicit drugs and the marked money from her possession was not
tainted with any irregularity.

Aggrieved, the accused questioned the affirmation of her conviction before this Court raising the
following arguments: chan robles virtual law library

ISSUE
WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE ACCUSED-APPELLANT'S
CONVICTION BEYOND REASONABLE DOUBT OF THE CRIME OF VIOLATION OF SECTION 5, ARTICLE II,
R.A. NO. 9165.

The accused maintains that the prosecution failed to establish beyond reasonable doubt the essential
elements of the offense with which she was charged. Primarily, the Information filed against her
stated that the shabu had a weight of 0.03 gram. 4   In contrast, Forensic Chemist Bernardino M.
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Banac, Jr., reported that it weighed 0.23 gram.

Secondly, although the P500.00 peso bill used as buy-bust money was photocopied and marked, it
was done long after the supposed operation. There is, therefore, no certainty that it was the same bill
used during the operation.

Thirdly, the apprehending team failed to comply with Section 21 of the Implementing Rules of
Republic Act (R.A.) No. 9165 when it did not immediately conduct a physical inventory of the seized
items and did not photograph the same in her presence or in the presence of her representative or
counsel, a representative from media and the Department of Justice (DOJ), or an elected public
official. Such failure casts doubt on the identity of the article seized as there was no assurance that it
was the very same one submitted to the forensic chemist and found to be positive for shabu.
Moreover, PO1 Collado himself admitted that he was not present when the subject item was
transferred to the crime laboratory. Hence, a break in the chain of custody of the seized object seems
apparent.

In addition, there were numerous inconsistencies in the testimony of PO1 Collado, the poseur-buyer.

THE COURT'S RULING

The general rule is that passing judgment upon the credibility of witnesses is best left to the trial
courts since the latter are in a better position to decide the question, having heard and observed the
witnesses themselves during the trial. This rule, however, admits of exceptions such as when facts of
weight and substance with direct and material bearing on the final outcome of the case have been
overlooked, misapprehended or misapplied. 5 cra cräläwvirtualibräry

In the case at bench, the Court finds that certain facts of substance have been overlooked, which if
only addressed and appreciated, would have altered the outcome of the case against the accused.
Accordingly, a departure from the general rule is warranted.

It is well-settled that in prosecution of cases of illegal sale of dangerous drugs, the following elements
must be duly established: (1) proof that the transaction or sale took place; and (2) the presentation in
court of the corpus delicti or the illicit drug as evidence. Proof of the corpus delicti in a buy-bust
situation requires not only the actual existence of the transacted drugs but also the certainty that the
drugs examined and presented in court were the very ones seized. This is a condition sine qua non for
conviction since drugs are the main subject of the illegal sale constituting the crime and their
existence and identification must be proven for the crime to exist."6   cralaw cralaw

The Court has scrutinized the evidence on record but found it wanting with respect to the identification
of the seized drug itself. Nebulous can only be the description of the evidence on how the contraband
was handled before and after the alleged seizure.

Section 21 of the Implementing Rules of R.A. No. 9165 prescribes the procedure on the custody and
disposition of confiscated, seized, and/or surrendered dangerous drugs, given the severity of the
penalties imposed for violations of said law, viz.: chan robles virtual law library

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 so confiscated, seized and/or
surrendered, for disposition in the following manner: chanrobles virtualaw library

(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 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 copy
thereof. Provided, that the physical inventory and the photograph shall be conducted at the place
where the search warrant is served; or at least 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
evidentiary value of the seized items are properly preserved by the apprehending team/officer, shall
not render void and invalid such seizures of and custody over said items. x x x x

Strict compliance with the prescribed procedure is necessary because of the illegal drug's unique
characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration
or substitution either by accident or otherwise. 7   cra cralaw cralaw

A closer look at the records of the case reveals that the prosecution failed to show that there was
compliance with the inventory requirements of R.A. No. 9165. When the poseur-buyer, PO1 Cecil
Collado, took the witness stand, he failed to describe with particulars how the seized shabu was
handled and marked after its confiscation. He merely stated the following on direct examination, to
wit:

Q: After you arrested the accused Rose Nandi, what happened next?

A: We brought her to our station.

Q: How about the item, where was it when you proceeded to the station?

A: I gave it to the investigator.

Q: Before you gave that, what did you do to that item?

A: I put my marking CCC. 8 cra cräläwvirtualibräry

On cross-examination, PO1 Collado simply replied:

Q: You testified that the item you confiscated from the accused was turned over to the investigator,
did you happen to know what is that item?

A: I gave it to the investigator and the document the specimen were given to the crime lab. 9 cra

Moreover, the prosecution failed to prove beyond reasonable doubt that the subject substance was the
very same object taken from the accused. To erase all doubts as to the identity of the seized drugs,
the prosecution should establish its movement from the accused, to the police, to the forensic
chemist, and finally to the court. 10   In Mallillin v. People,11   the Court had the occasion to explain the
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chain of custody rule and what constitutes sufficient compliance with this rule:

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 happened to it while in the witnesses' 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]

Thus, the following links should be established in the chain of custody of the confiscated item: 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 drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal
drug seized from the forensic chemist to the court. 12   cra cralaw cralaw

After a closer look, the Court finds that the linkages in the chain of custody of the subject item were
not clearly established. As can be gleaned from his forequoted testimony, PO1 Collado failed to
provide informative details on how the subject shabu was handled immediately after the seizure. He
just claimed that the item was handed to him by the accused in the course of the transaction and,
thereafter, he handed it to the investigator.

There is no evidence either on how the item was stored, preserved, labeled, and recorded. PO1
Collado could not even provide the court with the name of the investigator. He admitted that he was
not present when it was delivered to the crime laboratory. 13   It was Forensic Chemist Bernardino M. cra cralaw cralaw

Banac, Jr. who identified the person who delivered the specimen to the crime laboratory. He disclosed
that he received the specimen from one PO1 Cuadra, who was not even a member of the buy-bust
team. Per their record, PO1 Cuadra delivered the letter-request with the attached seized item to the
CPD Crime Laboratory Office where a certain PO2 Semacio recorded it and turned it over to the
Chemistry Section. 14
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In view of the foregoing, the Court is of the considered view that chain of custody of the illicit drug
seized was compromised. Hence, the presumption of regularity in the performance of duties cannot be
applied in this case.

Given the flagrant procedural lapses the police committed in handling the seized shabu and the
obvious evidentiary gaps in the chain of its custody, a presumption of regularity in the performance of
duties cannot be made in this case. A presumption of regularity in the performance of official duty is
made in the context of an existing rule of law or statute authorizing the performance of an act or duty
or prescribing a procedure in the performance thereof. The presumption applies when nothing in the
record suggests that the law enforcers deviated from the standard conduct of official duty required by
law; where the official act is irregular on its face, the presumption cannot arise. In light of the flagrant
lapses we noted, the lower courts were obviously wrong when they relied on the presumption of
regularity in the performance of official duty. 15   [Emphasis supplied]
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With the chain of custody in serious question, the Court cannot gloss over the argument of the
accused regarding the weight of the seized drug. The standard procedure is that after the confiscation
of the dangerous substance, it is brought to the crime laboratory for a series of tests. The result
thereof becomes one of the bases of the charge to be filed.

The documentary evidence on record, specifically Chemistry Report No. D-604-0316   as attested by cralaw cralaw

Forensic Chemist Bernardino M. Banac, Jr., shows that the substance brought to their office for
examination was tested to be methylamphetamine hydrochloride and weighed 0.23 gram. 17   The cra cralaw cralaw

corresponding Information, however, alleges that the substance only weighed 0.03 gram. When PO1
Collado was confronted with this discrepancy, he merely deduced this as an error committed at the
forensic laboratory. 18   Considering the grave doubt already cast upon the linkages in the chain of
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custody, this explanation is simply unacceptable. Besides, he was not competent to testify on the
discrepancy. He neither formulated the Information nor prepared the Chemistry Report.
Going over the records, the Court notes that the accused has consistently raised this argument from
the onset of the case, but the trial court and the Court of Appeals failed to address it. It is rather
unfortunate that the issue was simply disregarded.

It could be that the accused had indeed transacted with the police in a deal involving illegal drugs. But
in view of the frailty of the prosecution evidence and the severity of the imposed penalty, the Court
resolves the doubt in favor of the accused. The prosecution simply failed to establish all the elements
of the crime with moral certainty.

WHEREFORE, the October 23, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02938,
is hereby REVERSED and SET ASIDE and another judgment entered ACQUITTING the accused.

The accused is hereby ordered immediately RELEASED from detention, unless she is being confined
for any other lawful cause.

SO ORDERED.

JOSE CATRAL MENDOZA

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.*

JOSE PORTUGAL PEREZ**

A T T E S T A T I O N

I attest 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.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, 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.

RENATO C. CORONA
Chief Justice
cralaw  Endnotes:

*
 Designated as additional member in lieu of Justice Diosdado M. Peralta, per Special Order No. 858 dated July 1, 2010.

 Designated as additional member in lieu of Justice Antonio Eduardo B. Nachura, per Special Order No. 863 dated July 5,
**

2010. cralaw

1
  CA Decision, Rollo, pp. 2-14 (penned by Associate Justice Guevara-Salonga with Associate Justice Magdangal M. De
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Leon and Associate Justice Ramon R. Garcia, concurring). cralaw

2
cralaw   RTC Decision, Records, pp. 50-55.
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3
cralaw   Records, pp. 50-55.
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4
cralaw   CA Records, p. 8.
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5
cralaw   People v. Zaida Kamad, G. R. No. 174198, January 19, 2010.
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6
cralaw   Id.
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7
cralaw   People v. Robles, G.R. No. 177220, April 24, 2009, 586 SCRA 647.
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8
cralaw   TSN, November 4, 2003, p. 18.
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9
cralaw   Id. at 20.
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10
cralaw   People v. Almorfe, G.R. No. 181831, March 29, 2010.
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11
cralaw   G.R. No. 172953, April 30, 2008, 553 SCRA 619, 633.
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12
cralaw   People v. Zaida Kamad, supra note 4.
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13
cralaw   TSN, November 4, 2003, pp. 66-68.
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14
cralaw   TSN, October 20, 2003, pp. 25-26.
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15
cralaw   People v. Zaida Kamad, supra note 4.
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16
cralaw   TSN, October 20, 2003, p. 20.
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17
cralaw   Records, Exhibit "D," p. 6.
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18
cralaw   TSN, November 4, 2003, p. 70.
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