PEOPLE VS.

YAGAO
G.R. No. 216725, February 18, 2019, Chief Justice Bersamin

“The delivery of the dangerous drug to the poseur-buyer by the accused as the seller,
and the receipt by the latter of the marked money during the buy-bust transaction are
the acts that consummate the crime of illegal sale of the dangerous drug. Considering
that there can be no sale without the delivery, the act of delivery must be proved in
order to hold the accused guilty of the crime of illegal sale of the dangerous drug.

The observance of the chain of custody, being necessary to preserve the integrity of the
drug presented as evidence, must be clearly established. Otherwise, the accused must
be acquitted on the ground of reasonable doubt of his guilt.”

FACTS:
On August 1, 2006, PO2 Fred Yasay (PO2 Yasay) received a tip from their confidential
informant that a certain Rogelio Yagao was selling illegal drugs in Zone 4, Bugo,
Cagayan de Oro City. Upon the order of their superior SPO3 Rico Justalero, a buy-bust
team was organized composed of PO2 Yasay, PO2 Joel Deloso, PO2 Edzel Nacaya,
PO1 Leonard Comilang, PO2 George Tabian, Jr., PO2 Bangcola Manangcawal, PO2
Ariel Lig-Ang and PO2 Frederick Yamis.

Around 5 p.m. in the afternoon of the same day, PO2 Yasay and the buy-bust team
proceeded to Zone 4, Bugo, Cagayan de Oro to conduct the buy-bust operation. It was
agreed that the confidential informant, PO2 Joel Deloso (PO2 Deloso) and PO2 Yasay
would act as the poseurs-buyers.

Upon their arrival at accused's residence, the confidential informant called upon the
former who was at the terrace of his house and asked "Kuha mi bai" (We will get).

Accused came down from the terrace and approached the buy-bust team. The
confidential informant then handed Five (5) Twenty (20) Peso bills to accused. Upon
receiving the money, accused then got from his right front pocket a cellophane
containing dried marijuana leaves.

At that juncture, PO2 Yasay and PO2 Deloso proceeded to grab accused and told him
he was under arrest. PO2 Deloso then informed accused of his constitutional rights.
Thereafter, accused was brought to the Maharlika police station in Carmen.

PO2 Deloso corroborated PO2 Yasay's testimony and narrated that at the Maharlika
police station, PO2 Sagun marked the sachet which he then signed and initialled. After
the marking, accused was brought to the PNP Crime Laboratory in Camp Alagar,
Cagayan de Oro City, where the sachet and marked money were presented for
laboratory examination. Accused's hands were likewise subjected to an ultra-violet
examination. The request for laboratory examination was issued by P/SINSP Efren
Miole Camaro at 19:45 in the evening.
On the other hand, accused interposed the defense of denial and frame-up. He alleged
that at the time of his "illegal arrest," he was at the porch of his house talking to Brenda
Villacorta (the cousin of his wife), waiting for the birthday celebration of his grandchild to
start. Accused averred that he was abruptly approached by a man who asked him if he
had jumped bail for violating R.A. 6425 before the Regional Trial Court, Branch 40. The
person then allegedly asked him to go by the roadside. Accused acceded and as he
was about to get a shirt inside his house, he suddenly noticed several men rushing
towards him. Accused was then brought outside by these men and forced to board a
van.

Accused stated that he was initially brought to the Puerto Police Station and then to the
Maharlika Police Station in Carmen, wherein he saw for the first time Two (2) packets of
marijuana and Two (2) pieces of P20.00 Peso bills. He was then made to sign a piece
of paper and was brought to the PNP Crime Laboratory in Camp Alagar, Cagayan de
Oro City, where he was made to give a urine sample and then subjected to an ultra-
violet examination.

On February 11, 2011, the RTC convicted the accused of the crime of illegal sale of
dangerous drug.

On appeal, CA affirmed the conviction of the accused.

ISSUE:
Whether or not Rogelio Yagao should be held guilty of violating Section 5, Article II of
RA 9165.

RULING:
Accused must be acquitted.

1. The Prosecution did not establish the essential element of delivery of the
dangerous drug by the accused to the poseur buyer.

In prosecuting the charge, the State bore the burden to prove the following elements of
the violation, namely: (a) the identities of the buyer and the seller, the object of the sale,
and the consideration; and (b) the delivery of the thing sold and its payment. The
delivery to the poseur-buyer of the dangerous drug by the accused as the seller, and
the receipt by the latter of the marked money consummated the illegal sale of the
dangerous drug during the buy-bust transaction. Without showing that the delivery of
the dangerous drug took place, the State's evidence would not amount to proof of guilt
beyond reasonable doubt, for it was the delivery of the drug by the accused-accused,
coupled with the presentation in court of the confiscated drug itself, or the corpus delicti,
that would establish to a moral certainty the commission of the violation.

Records reveal that PO2 Deloso and PO2 Yasay quickly effected the arrest of the
accused just as soon as he had pulled out the marijuana from his pocket. Necessarily,
the seizure happened before he could hand the marijuana over to PO2 Deloso as the
poseur buyer. Under such circumstance, there was no sale because the delivery of the
dangerous drug to the poseur buyer had not yet transpired. Delivery as one of the
essential elements of illegal sale of dangerous drug under Section 5 of R.A. No. 9165 is
defined as the act of knowingly passing a dangerous drug to another, personally or
otherwise, and by any means, with or without consideration. Consequently, the finding
against the accused could not be upheld.

Despite the claim by the arresting officers that their arrest of the accused had resulted
from the conduct of the buy-bust operation mounted against him, we ineluctably
conclude that the confiscation did not take place following a sale. Indeed, in order to be
successful, the buy-bust operation - albeit necessary to catch the offender in the
campaign against the drug menace - must still involve the offender in a transaction in
which the poseur buyer offered to buy the drug, and the offender accepted the offer and
delivered the drug in exchange for the price agreed upon. This is precisely why the
operation is aptly denominated as a "buy-bust." In this case, however, the operation
was merely a "bust" in view of the absence of a sale.

2. The chain of custody of the confiscated drug, not being unbroken, raised
grave doubts about the integrity of the drug as evidence of the corpus
delicti

Despite its necessity in the success of the campaign against the drug menace, the buy-
bust operation has been susceptible to abuse by mulcting law enforcers who have
frequently used it as a tool for extortion through planting or substitution of evidence. To
eliminate or minimize the potential for abuse, Congress has engrafted in the law
procedural safeguards designed to prevent or eliminate the evils that the buy-bust
operation could be used for. Congress intended to thereby ensure that the agents of the
State faithfully comply with the procedural safeguards in every drug-related prosecution.
The procedural safeguards are now embodied in Section 21 of R.A. No. 9165, to wit:

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:

(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;

The Implementing Rules and Regulations (IRR) of Section 21 (a), adopted to implement
Section 21 of R.A. No. 9165, mirrors the procedural requirements, thus:
 (a) The apprehending office/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;

Conformably with the safeguards, we have frequently held that the observance of the
chain of custody was essential in the preservation of the identity of the confiscated drug.
This is because the drug, being itself the corpus delicti of the crime of illegal sale
charged, will be the factual basis for holding the accused criminally liable under Section
5 of R.A. No. 9165.

For sure, the chain of custody is ultimately about the proper handling of the confiscated
drug. The law has characterized the chain of custody in drug enforcement as nothing
less than the duly recorded authorized movements and custody of the seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment from
the time of seizure/confiscation to the moment of receipt in the forensic laboratory to the
safekeeping until their presentation in court as evidence, and for eventual destruction.
The faithful written record of the movement and custody of the seized items - including
the identities and signatures of all the persons who may have temporary custody
thereof, the dates and times when the transfers of the custody are made in the course
of the safekeeping, and when the articles are used in court as evidence, until their final
disposition is the requirement that actually highlights the absolute need of establishing
the identity of the seized drug with the drug presented as evidence in court. The
procedural safeguards of marking, inventory and picture taking are decisive in proving
that the dangerous drug confiscated from the accused was the very same substance
delivered to and presented in the trial court. Given the significance of the chain of
custody, any deviations must not be lightly dismissed as inconsequential, but must be
fully explained by the State during the trial.

Contrary to the findings of the CA and the RTC, serious and unjustifiable gaps broke the
chain of custody of the confiscated marijuana.

To begin with, irreconcilable inconsistencies tainted the arresting and seizing officers'
recollections about the links in the chain of custody.

Although PO2 Yasay testified that PO2 Deloso had taken possession of the marijuana
following the arrest, the latter did not actually mark the marijuana at the place of the
arrest; instead, he immediately brought the accused and the confiscated drug to the
police station, justifying such move with the supposed growing hostility of the crowd that
had gathered at the crime scene. What is puzzling, however, is that PO2 Deloso did not
mark the marijuana even after getting to the police station. Instead, PO2 Deloso
declared during his direct examination that PO2 Yasay was the one who had marked
the seized drug. Such a declaration soon became the source of more confusion,
however, after PO2 Deloso completely reversed himself on cross-examination to state
that it had been PO2 Sagun who marked the seized drug and the latter just let him sign
the same.

The inconsistencies between the police officers' testimonies, because they were
irreconcilable, diminished the credibility of their supposed observance of the chain of
custody. Hence, their incrimination of the accused was fully discredited and should not
be allowed to stand. As a result, we should doubt the stated reason for the arrest.

Secondly, the State presented no witness to testify on the circumstances surrounding

the marking of the confiscated drug, and on whether or not the marking had been made
in the presence of the accused-accused. The omission further discredited the evidence
of guilt. Likewise, we cannot avoid observing that the fact that the marking on the
marijuana (Exhibit A) appeared to be too generic defeated the objective for requiring the
marking, which was to segregate the seized drug from other similar substances to avoid
tainting the proof or compromising the integrity of the evidence against any particular
suspect. In short, all the notable weaknesses placed the integrity of the marijuana
ultimately presented as evidence against the accused into serious doubt, with the effect
that there remained no dependable assurance that Exhibit A was the same substance
seized from him at the time of the arrest.

In this connection, we reiterate what we emphatically observed in People v. Angngao:

The manner and timing of the marking of the seized drugs or related items in accordance with
the foregoing statutory rules are crucial in proving the chain of custody. The marking by the
arresting officer of the drugs, being the starting point in the custodial link, should be made
immediately upon the seizure, or, if that is not possible, as close to the time and place of the
seizure as practicable under the obtaining circumstances. This immediate marking is
essential because the succeeding handlers of the drugs would use the markings as their
reference to the seizure, and because it further serves to segregate the marked seized
drugs from all other evidence from the time and point of seizure until the drugs are
disposed of at the end of the criminal proceedings. The deliberate taking of these
identifying steps is statutorily aimed at obviating switching, "planting" or contamination
of the evidence. Verily, the preservation of the chain of custody vis-a-vis the drugs ensures the
integrity of the evidence incriminating the accused, and fulfills the element of relevancy as a
requisite for the admissibility of the evidence.

And, thirdly, PO2 Deloso disclosed that no inventory or pictures had been taken during
the arrest of the accused and seizure of the dangerous drug and in the aftermath. The
disclosure further severely discredited the incrimination of the accused-accused. We
have not lacked in stressing the importance of the requirements of inventory and
picture-taking, which, while not indispensable, might be foregone only when there were
justifiable grounds for doing so, and such grounds must be made known by the State, at
the latest, during the ensuing trial. As we pointed out in People v. Pagaduan:

In several cases, we have emphasized the importance of compliance with the prescribed procedure in the
custody and disposition of the seized drugs. We have repeatedly declared that the deviation from the
standard procedure dismally compromises the integrity of the evidence. In People v. Morales, we
acquitted the accused for failure of the buy-bust team to photograph and inventory the seized items,
without giving any justifiable ground for the non-observance of the required procedures. People v. Garcia
likewise resulted in an acquittal because no physical inventory was ever made, and no photograph of the
seized items was taken under the circumstances required by R.A. No. 9165 and its implementing rules. In
Bondad, Jr. v. People, we also acquitted the accused for the failure of the police to conduct an inventory
and to photograph the seized items, without justifiable grounds.

We had the same rulings in People v. Gutierrez, People v. Denoman, People v. Partoza, People v.
Robles, and People v. dela Cruz, where we emphasized the importance of complying with the required
mandatory procedures under Section 21 of R.A. No. 9165.

We recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not
always be possible under field conditions; the police operates under varied conditions, and cannot at all
times attend to all the niceties of the procedures in the handling of confiscated evidence. For this reason,
the last sentence of the implementing rules provides 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" Thus, noncompliance with the strict directive of
Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecution's case; police procedures in the
handling of confiscated evidence may still have some lapses, as in the present case. These lapses,
however, must be recognized and explained in terms of their justifiable grounds, and the integrity
and evidentiary value of the evidence seized must be shown to have been preserved.

In the present case, the prosecution did not bother to offer any explanation to justify the failure of the
police to conduct the required physical inventory and photograph of the seized drugs. The apprehending
team failed to show why an inventory and photograph of the seized evidence had not been made either in
the place of seizure and arrest or at the nearest police station (as required by the Implementing Rules in
case of warrantless arrests). We emphasize that for the saving clause to apply, it is important that
the prosecution explain the reasons behind the procedural lapses, and that the integrity and value
of the seized evidence had been preserved. In other words, the justifiable ground for
noncompliance must be proven as a fact. The court cannot presume what these grounds are or
that they even exist.
In this case, the arresting officers made no attempt to justify their deviation from the
procedures and safeguards set by Section 21 of R.A. No. 9165 was indicative of the
absence of any justification. Indeed, our review of the records leads us to find and
declare that none existed.