Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 193234               October 19, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROBERTO MARTIN Y CASTANO, Accused-Appellant.

DECISION

SERENO, J.:

Before us on automatic review is the Decision of the Court of Appeals (CA) affirming the trial
court’s conviction of the accused for the sale of methylamphetamine hydrochloride or shabu.
Accused cries foul, alleging extortion and citing various irregularities in the prosecution’s
evidence and in the conduct of the alleged buy-bust operation.

On 13 November 2006, an Information was filed against Roberto Martin y Castano alias

Inpet (Martin) for violation of Section 5, Article II of Republic Act (RA) No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, in the following manner:

That on or about November 6, 2006, in the City of Manila, Philippines, the said accused, not
being authorized by law to sell, trade, deliver, or give away to another, any dangerous drug,
did then and there willfully, unlawfully and knowingly sell or offer for sale ZERO POINT
ZERO FIVE THREE (0.053) gram of white crystalline substance known as shabu, containing
methylamphetamine hydrochloride which is a dangerous drug.

Contrary to law.

The case was docketed as Criminal Case No. 06-248053 and was raffled to the Regional
Trial Court (RTC), Branch 2, Manila presided over by Judge Alejandro G. Bijasa. Martin
pleaded not guilty to the charge during arraignment.

Trial ensued with the prosecution presenting the testimonies of Police Officer 3 (PO3)
Rodolfo Ong and Senior Police Officer 1 (SPO1) Jose Mora. Meanwhile, the defense
presented the testimonies of Juvilyn Caletisen, Jimmy Garote, and accused Martin himself.

According to the prosecution, the buy-bust operation and the subsequent events which led to
the filing of the information against the accused were as follows:

SPO1 Mora testified that after they received information from a confidential informant, 1 who
came to their office "at around 5:30 p.m." of 6 November 2006, 2 the Pre-Operation
Report/Coordination Sheet was prepared on the same day. On re-direct, SPO1 Mora stated
that the informant came to their office at 5:00 p.m.3 On the other hand, SPO3 Ong testified
that they prepared the Pre-Operation Report/Coordination Sheet on 6 November 2006 "on or
about 2:00 to 3:00p.m."4 and that they submitted this document to the Philippine Drug
Enforcement Agency (PDEA) at "around 2:30 p.m." 5 The confidential informant was neither
identified nor presented in court.

A photocopy of the Pre-Operation Report/Coordination Sheet provisionally marked Exhibit

"D" on 4 September 20076 (the original was never presented in court) showed that it was
received by "SPO4 Mariano" of "PDEA-MMRO" but the date and time of receipt was not
indicated in the space so provided. Assuming that the date and time of receipt by the PDEA-
MMRO of the coordination document was either one of three faint stamps marked on the
face thereof,7 it received the said document hours ahead of the arrival of the confidential
informant to the police station.

The Pre-Operation Report/Coordination Sheet named six (6) police officers as part of the
team led by Senior Police Inspector Joselito Binayug. They planned on using six (6) vehicles,
three (3) of them SUVs, to perform the operation against alias "Inpet" in the area broadly
identified as "MPD AOR (PS1 to PS 11)". After accomplishing the Pre-Operation
Report/Coordination Sheet, the police officers testified that they proceeded to Oro-B,
Pandacan, Manila accompanied by the informant.

SPO1 Mora confirmed that he was designated as the poseur buyer, and that he was given
the ₱100.00 marked money which he himself marked at the right hand portion with
"DAID".8 SPO1 Mora narrated that he arrived at the site together with the informant on board
his car. The informant alighted from the car and, before he could reach Martin who was
standing along Oro-B Street, the latter waved at the informant to come near. 9 SPO1 Mora
then approached Martin together with the informant who introduced him to Martin as a buyer
of ₱100.00 worth of shabu. Simultaneously, SPO1 Mora handed the ₱100.00 to Martin while
the latter gave him a small plastic sachet.10 SPO1 Mora grabbed Martin and introduced
himself as a police officer while PO3 Ong assisted him with a body search of Martin.

The police officers testified that the pre-arranged signal to indicate the consummation of the
buy bust operation was the arrest of the accused. 11 Only the poseur-buyer, SPO1 Mora, and
the confidential informant were with Martin minutes prior to the latter's arrest. SPO3 Ong
confirmed that he was 10 to 15 meters away from SPO1 Mora and Martin while the meeting
was taking place such that he could not "ascertain what was going on between the poseur
buyer, SPO1 Mora and the accused"12 and that he was the only police officer who assisted
SPO1 Mora during the arrest, as the other police officers were left inside their respective
vehicles13 and were "very far" from him.14

On the other hand, the defense witnesses testified as follows:

The accused denied that he is alias Inpet, or that he gave PO1 Mora a plastic sachet
containing shabu.15 He testified that on 6 November 2006, he was working at the junkshop
with Jimmy Garrote whom he later invited for lunch at his house nearby. They were about to
enter the alley near Oro-B when the accused’s neighbor, Juvilyn Caletisen, called out to talk
with him.16 A certain Jayrold was also in the alley. It was then that six policemen arrived and
forced them to go with the police.17 When asked what their offense was, the police replied
that they could explain their side at the precinct. 18

Juvilyn Caletisen corroborated this with her testimony that six armed persons arrived at the
alley near their house in Oro-B before lunch while she was conversing with the
accused.19 They arrested the accused, herself, Jimmy, Jayrold, and a certain Brian 20 and
brought them to the police headquarters where they were detained for a night.
In their respective testimonies, Juvilyn Calitesen, 21 Jimmy Garote22 and the accused23 all
testified that the police demanded that they give P5,000 each for their release or else, they
will be charged with a crime. All the defense witnesses also testified that except for Martin
who had no money, all of them were released because they were each able to give the
P5,000 which the police demanded.24

On 10 March 2008, the trial court issued its Decision, the dispositive portion of which read in
part:

WHEREFORE, finding the accused, Roberto Martin y Castano @ Inpet, GUILTY, beyond
reasonable doubt of the crime charged, he is hereby sentenced to life imprisonment and to
pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay
the costs.

The trial court held that there was no showing of any ill motive on the part of the police in
testifying against Martin. The integrity and evidentiary value of the seized item was properly
preserved by SPO1 Mora. The defense of frame up is viewed with disfavor because it is
easily concocted and commonly used as a standard line of defense in most prosecution of
dangerous drugs cases. Assuming there was extortion, such fact is not determinative of his
guilt or innocence as the demand was made after the offense was consummated.

The Court of Appeals (CA) denied Martin’s appeal and affirmed the RTC decision. 25 Martin
elevated the matter for review by this Court, alleging that the Court of Appeals' Decision was
contrary to facts, law, and jurisprudence.

OUR RULING

The accused is acquitted of the crime charged for failure of the prosecution to prove his guilt
beyond reasonable doubt.

Various irregularities in the conduct of the buy-bust operation and the processing of the
evidence in the present case have left the case against the accused too weak to overcome
the presumption of innocence in his favor.

The first irregularity attaches to the Pre-Operation Report/Coordination Sheet, which is

intended to show the coordination between the PDEA and the police. Its importance lies in
the fact that RA No. 9165 mandates close coordination between the Philippine National
Police/National Bureau of Investigation and the PDEA on all drug-related matters, including
investigations on violations of RA No. 9165, with the PDEA as the lead agency. 26

In the case at bar, the original Pre-Operation Report/Coordination Sheet was not presented
in court and the records contain only a photocopy thereof, provisionally marked Exhibit "D."
Caution must be made that the failure of the prosecution to present the Pre-Operation
Report, by itself, is not fatal to the prosecution’s cause.27 Even if the Pre-Operation
Report/Coordination Sheet was properly presented in evidence, however, it is suspect as it
was apparently accomplished and sent to PDEA hours before the informant arrived to give
the police any information about the alleged illegal drug activity of Martin. SPO1 Mora
variably testified that the confidential informant came to their office at 5 p.m. or 5:30 p.m. of 6
November 2006. Meanwhile, from the three faint stamps marked on the face of the Pre-
Operation Report/Coordination Sheet, it was received by PDEA-MMRO either at 1:30 p.m.,
1:40 p.m. or 2:00 p.m. of 6 November 2006.
Second, the actual marked money was likewise not presented in evidence 28 since SPO1
Mora could no longer locate the marked money 29 after he probably turned it over to the
Investigator who photocopied it.30 While the Court has also had occasion to hold that
presentation of the buy-bust money, as a lone defect, is not indispensable to the prosecution
of a drug case,31 again it raises doubts regarding the regularity of the buy-bust operation.

Third, the police officer did not comply with the procedure for seizure of evidence laid out in
Section 21 of R.A. No. 916532 and its corresponding Implementing Rules 33 without giving any
reasonable excuse for the lapse. When confronted with the fact that they have not complied
with the procedure for seizure of evidence laid out in Section 21 of R.A. No. 9165, SPO1
Mora testified:

Asst. Pros. Yap:

Q Now you said the marking was made by the Investigator. Why did you not mark the
specimen at the scene of the transaction?

Witness:

A Because the Investigator will make an inventory regarding the recovered evidence and
other pertinent documents, sir.

Asst. Pros. Yap:

That would be all, your Honor.

COURT:

Cross.

Atty. Cabrera:

With the kind permission of this Honorable Court.

Q Why did you not mark the specimen at the crime scene, you were not following the
guidelines under the rules?

A Because it was not properly implemented yet those guidelines of RA 9165, sir. 34

While noncompliance with the procedure laid out in Section 21 of R.A. No. 9165 is not
necessarily fatal to the prosecution's case because 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," nevertheless, lapses in procedure "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." 35 Otherwise, the procedure set out in the
law will be mere lip service.

In the present case, it was not shown that the police officers intended to comply with the
procedure but were thwarted by some justifiable consideration/reason. The only "reason" the
police officers gave for not complying with the guidelines does not even hold water. The
police justified their non-compliance with the procedure laid down in RA No. 9165 allegedly
because these have not yet been "properly implemented" at the time. In truth, however, the
implementing guidelines for R.A. No. 9165 took effect on November 27, 2002 while the arrest
took place about four years later, or on 6 November 2006.

Fourth, the prosecution failed to establish the "chain of custody"36 of the seized item. After
the buy-bust operation, the police officers proceeded to the DAID office where they turned
over the sachet and (probably) the marked money to the Investigator. 37 It was this
unidentified "investigator" who marked the corpus delicti (plastic sachet) and who had
custody of both the corpus delicti and the marked money. Apparently, it was also he who
turned over the plastic sachet to the Crime Laboratory for testing. 38 However, he was not
presented to testify as to the marking of the sachet, the whereabouts of the marked money
and the completion of the chain of custody of the evidence from SPO1 Mora to the Crime
Laboratory.

Various reasons exist why failure to establish the chain of custody in a narcotics case, such
as the case at bar, is fatal to the prosecution’s case. As the Court exhaustively explained
in Carino v. People, 39

While a testimony about a perfect chain is not always the standard because it is almost
always impossible to obtain, an unbroken chain of custody becomes indispensable and
essential when the item of real evidence is not distinctive and is not readily identifiable, or
when its condition at the time of testing or trial is critical, or when a witness has failed to
observe its uniqueness. The same standard likewise obtains in case the evidence is
susceptible to alteration, tampering, contamination and even substitution and exchange. In
other words, the exhibit's level of susceptibility to fungibility, alteration or tampering —
without regard to whether the same is advertent or otherwise not — dictates the level of
strictness in the application of the chain of custody rule.

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. Hence,
the risk of tampering, loss or mistake with respect to an exhibit of this nature is greatest
when the exhibit is small and is one that has physical characteristics fungible in nature and
similar in form to substances familiar to people in their daily lives. The danger, according
to Graham v. State, is real. In that case, a substance later analyzed as heroin was excluded
from the prosecution evidence because it was previously handled by two police officers prior
to examination who, however, did not testify in court on the condition and whereabouts of the
exhibit at the time it was in their possession. The court pointed out that the white powder
seized could have been indeed heroin or it could have been sugar or baking powder. It ruled
that unless the state can show by records or testimony the continuous whereabouts of the
exhibit at least between the time it came into the possession of police officers until it was
tested in the laboratory to determine its composition, testimony of the state as to the
laboratory's findings is inadmissible.

Indeed, 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 a narcotic specimen 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. (Underscoring supplied)

Fifth, the presumption that the police officers regularly performed their duty cannot, standing
alone, defeat the presumption of innocence of the accused herein. Generally, law enforcers
are presumed to have regularly performed their duty,40 but this is a mere procedural
presumption which cannot overturn the constitutionally recognized presumption of innocence
of the accused where lapses in the buy bust operation are shown. As we held in People v.
Sanchez,41

Admittedly, the defense did not adduce any evidence showing that SPO2 Sevilla had any
motive to falsify. The regularity of the performance of his duties, however, leaves much to be
desired given the lapses in his handling of the allegedly confiscated drugs as heretofore
shown. 1avvphi1

An effect of this lapse, as we held in Lopez v. People, is to negate the presumption that
official duties have been regularly performed by the police officers. Any taint of irregularity
affects the whole performance and should make the presumption unavailable. There can be
no ifs and buts regarding this consequence considering the effect of the evidentiary
presumption of regularity on the constitutional presumption of innocence.

People v. Santos instructively tells us that the presumption of regularity in the performance of

official duty cannot by itself overcome the presumption of innocence nor constitute proof
beyond reasonable doubt. (Underscoring supplied)

In this connection, since there were only three persons who had witnessed what actually
transpired between SPO1 Mora and the accused prior to the arrest (the accused, SPO1
Mora and the confidential informant), the prosecution’s failure to present the confidential
informant left it without any witness to corroborate SPO1 Mora’s testimony. In effect, it is
SPO1 Mora’s word against that of the accused.

However, SPO1 Mora’s testimony is unreliable. First, he testified that after interviewing the
confidential informant who arrived at their office either at 5 p.m. or 5:30 p.m. of 6 November
2006, they prepared the Pre-Operation Report/Coordination Sheet and sent it to PDEA on
the same day. However, the time stamped on the Pre-Operation Report/Coordination Sheet
showed that it was sent to PDEA much earlier - either at 1:30 p.m., 1:40 p.m. or 2 p.m. of 6
November 2006. Second, while SPO1 Mora claimed to have custody of the shabu specimen
right after recovering it from Martin during the latter’s arrest, he did not mark the same at the
scene of the crime. This is contrary to the explicit procedure for seizure of evidence laid
down in Section 21 of R.A. 9165. He justified his non-compliance by saying that at the time,
the guidelines had not yet been "properly implemented." Contrary to SPO1 Mora’s excuse,
however, the implementing guidelines for R.A. No. 9165 took effect on November 27, 2002,
or four years before this incident. Third, SPO1 Mora had custody of the buy-bust money at
the time of Martin’s arrest but when asked to explain its loss less than a year after the
incident, he could not remember whether or not he handed it over to the investigator. 42

In view of the cited irregularities in the buy bust operation and the processing of the evidence
shown in the preceding discussion, SPO1 Mora’s word cannot be given more weight than
that of the accused.

The burden of proving beyond reasonable doubt that the accused is guilty of the crime
charged is based on the constitutional presumption of innocence of the accused until the
contrary is proven.43 Measured against this yardstick, and considering the foregoing
discussion, the prosecution has fallen short of what is required for the conviction of the
accused.

IN VIEW THEREOF, the appealed Decision is hereby SET ASIDE and accused-appellant
Roberto Martin y Castano is hereby ACQUITTED on grounds of reasonable doubt. His
release from detention is hereby ordered forthwith, unless he is detained for some other
lawful cause.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE*
Associate Justice

ATTESTATION

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

CERTIFICATION

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