Professional Documents
Culture Documents
PP Vs Tomawis
PP Vs Tomawis
SUPREME COURT
SECOND DIVISION
-versus-
DECISION
CAGUIOA, J.:
The Facts
CONTRARY TO LAW.8
Upon his arraignment, Tomawis pleaded not guilty.9 During the pretrial
conference, the following facts were stipulated upon: (1) the identity of
the accused and jurisdiction of the RTC over his person; (2) the
qualification of the forensic chemist who conducted the drug test; (3)
the sample examined by the forensic chemist tested positive for
methylamphetamine hydrochloride with a weight of 12.7402 grams;
and (4) the sample was delivered by Intelligence Officer 1 (IO1) Mabel
Alejandro (IO1 Alejandro).10
There were six men in the vehicle, none of which he knew. The van
stopped in front of the mall, and a man peeped inside and said "bro,
hindi yan iyong subject." One of them inside the van laughed and replied
"pare-parehas lang ang mga muslim." They stopped by a toll gate where
two policemen carrying guns arrived. One of them said "pare, ibaba mo
na muna yan kausapin mo." The men got out and talked for a few
minutes and when they returned, said, "pare, panindigan na lang natin
na yan iyong subject."
In the PDEA Office, his wife and mother told him that he will be charged
with an illegal drug related case. He denied the allegations and said that
he was being falsely charged because the PDEA officers knew he was
selling cellular phones inside the mall. He cannot think of any other
motive why the PDEA officers would file a case against him. His urine
was tested and yielded a negative result. Tomawis's mother
corroborated his testimony.12
The Ruling of the RTC
The trial court gave full credence to the testimony of the prosecution
witnesses on the reason that they enjoyed the presumption of regularity
in the performance of their official functions. The RTC also held that the
prosecution was able to preserve the integrity of the seized drugs. The
RTC further ruled that the conduct of the inventory and photographing
was justifiably done in a different place because of the commotion that
ensued in the place of arrest. The defense proffered by Tomawis being a
mere denial, cannot prevail over the positive assertions of the arresting
officers.14
Undaunted, Tomawis elevated the case to the CA.15 He argued that the
prosecution failed to prove the identity and integrity of the alleged
seized drugs due to the following irregularities in the conduct of the
buy bust operation: (1) failure to present the testimony ofl01 Romano
Alfonso (IO1 Alfonso), who received the shabu from IO1 Alejandro; (2)
failure to immediately mark the shabu at the time of seizure and initial
custody; and (3) the conduct of the inventory and marking at the
barangay hall of Brgy. Pinyahan, Quezon City.16
The appellate court held that the prosecution was able to prove all the
elements of the crime of sale of illegal drugs as punished under Section
5, RA 9165. The CA held that IO1 Alejandro's testimony, which was
corroborated by IO1 Lacap and supported by documentary evidence,
rendered a clear and complete narration of the details of the buy-bust
operation. The CA also held that the chain of custody was sufficiently
established. Absent any showing of ill-motive or bad faith on the part of
the buy-bust team, the presumption of regularity in the performance of
official functions prevails.18
Issue
For a successful prosecution for the crime of illegal sale of drugs under
Section 5 of RA 9165, the following must be proven: (a) the identities of
the buyer, seller, object, and consideration; and (b) the delivery of the
thing sold and the payment for it.20 In cases involving dangerous drugs,
the drug itself constitutes the corpus delicti of the offense.21 Thus, it is of
paramount importance that the prosecution prove that the identity and
integrity of the seized drugs are preserved. Each link in the chain of
custody of the seized drugs must be established.
(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[.]
Section 21(a), Article II of the Implementing Rules and Regulations of
RA 9165 (IRR) filled in the details as to place of inventory and added a
saving clause in case of non-compliance with the requirements under
justifiable grounds, thus:
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 personls 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)
Parsed, the above provisions impose the following requirements in the
manner of handling and inventory, time, witnesses, and of place after
the arrest of the accused and seizure of the dangerous drugs:
In this case, the buy-bust team committed several and patent procedural
lapses in the conduct of the seizure, initial custody, and handling of the
seized drug - which thus created reasonable doubt as to the identity and
integrity of the drugs and, consequently, reasonable doubt as to the guilt
of the accused.
The buy-bust team failed to comply with the three-witness rule
The phrase "immediately after seizure and confiscation" means that the
physical inventory and photographing of the drugs were intended by
the law to be made immediately after, or at the place of apprehension.
And only if this is not practicable, the IRR allows that the inventory and
photographing could be done as soon as the buy-bust team reaches the
nearest police station or the nearest office of the apprehending
officer/team. By the same token, however, this also means that the three
required witnesses should already be physically present at the time of
apprehension-a requirement that can easily be complied with by the
buy-bust team considering that the buy-bust operation is, by its nature,
a planned activity. Simply put, the buy-bust team has enough time and
opportunity to bring with them said witnesses.
The buy-bust team in this case utterly failed to comply with these
requirements. To start, the conduct of the inventory in this case was not
conducted immediately at the place of arrest but at the barangay hall of
Pinyahan, Quezon City. As explained by the buy-bust team of the PDEA,
IO1 Alejandro and IO1 Lacap, they could not conduct the inventory at
Starmall, Alabang, because a commotion ensued as bystanders in the
food court tried to assist Tomawis who shouted for help. Evidently, this
happened because the buy-bust operation was conducted in a shopping
mall.
While the IRR allows alternative places for the conduct of the inventory
and photographing of the seized drugs, the requirement of having the
three required witnesses to be physically present at the time or near the
place of apprehension, is not dispensed with. The reason is simple, it is
at the time of arrest - or at the time of the drugs' "seizure and
confiscation" - that the presence of the three witnesses is most needed,
as it is their presence at the time of seizure and confiscation that would
insulate against the police practice of planting evidence.
The presence of the witnesses from the DOJ, media, and from public
elective office is necessary to protect against the possibility of planting,
contamination, or loss of the seized drug. Using the language of the
Court in People v. Mendoza,28 without the insulating presence of the
representative from the media or the DOJ and any elected public official
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 subject sachet that was
evidence of the corpus delicti, and thus adversely affected the
trustworthiness of the incrimination of the accused.29
The presence of the three witnesses must be secured not only during
the inventory but more importantly at the time of the warrantless
arrest.
To restate, the presence of the three witnesses at the time of seizure and
confiscation of the drugs must be secured and complied with at the time
of the warrantless arrest; such that they are required to be at or near
the intended place of the arrest so that they can be ready to witness the
inventory and photographing of the seized and confiscated drugs
"immediately after seizure and confiscation."
Meanwhile, IO1 Lacap, also claimed to have received the seized drugs
from Tomawis. He also contradicted IO1 Alejandro's testimony as he
said that IO1 Alfonso was the one who had custody of the drugs prior to
the delivery to the crime laboratory.
There are unexplained gaps in the custody of the seized drugs. The
transfer and movement of the seized drugs between IO1 Alejandro, IO1
Lacap, and IO1 Alfonso was not established. It is unclear as to who held
custody of the seized drugs from the place of arrest in Starman, Alabang
to Brgy. Pinyahan, Quezon City and from Brgy. Pinyahan, Quezon City to
the PDEA office. It was not clarified as to how and when the seized
drugs were returned to IO1 Alejandro after the inventory was
conducted by IO1 Alfonso. There was also no testimony as to who
received the seized drugs from IO1 Alejandro at the laboratory, and to
whom they were given after the testing was conducted.
The buy-bust team also failed to take photographs of the seized drugs.
The only photo, submitted as Exhibit "O" for the prosecution, was a
black and white photocopy of pictures of Tomawis and barangay
councilors Burce and Gaffud at the barangay hall. The law requires
photographs of the seized drug itself and not of the accused and the
witnesses.
It was also not established where the marking was done by IO1
Alejandro. She only mentioned that they were not able to mark the
seized drugs at the place of arrest due to the commotion caused thereat.
This is excusable due to the occurrence of the commotion. However, it is
not clear if the marking was done at the barangay hall of Pinyahan,
Quezon City or at the PDEA office. Neither was it specified if the marking
was done in the presence of the accused and the witnesses.
At the risk of repetition, the seized drug is the corpus delicti of the crime
itself. Thus, it is crucial for the prosecution to prove the identity and
integrity of the seized drugs. The apprehending officers must account
for each and every item that was seized from the accused. The process
of the inventory, marking, and photograph of the seized drugs imposes
another layer of protection to ensure that the substance seized from the
accused is the same one that is presented and submitted in evidence.
The failure of the apprehending team to comply with these
requirements greatly diminished the evidentiary value of the seized
drugs.
However, in drugs cases, more stringent standards must be used for the
presumption of regularity to apply. The presumption should arise
only when there is a showing that the apprehending officer/buy-
bust team followed the requirements of Section 21, or when the
saving clause may be properly applied. Gaps in the chain of custody
cannot be filled in by the mere invocation of the presumption of
regularity.
All told, the prosecution failed to prove the corpus delicti of the offense
of sale of illegal drugs due to the multiple unexplained breaches of
procedure committed by the buy-bust team in the seizure, custody, and
handling of the seized drug. Thus, the prosecution was not able to
overcome the presumption of innocence ofTomawis.
As a final note, the Court reiterates the reminder it has given in recent
jurisprudence on the subject matter:
The Court strongly supports the campaign of the government against
drug addiction and commends the efforts of our law enforcement
officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill
of Rights for the protection of liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the
mantle of its protection that innocent and the guilty alike against any
manner of high-handedness from the authorities, however
praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. [For
indeed,] [o]rder is too high a price for the loss of liberty. x x x50
In the same vein, the Court likewise reiterates:
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 record/s 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.51
WHEREFORE, premises considered, the Decision dated June 6, 2016 of
the Court of Appeals in CA-G.R. CR-H.C. No. 06662
is REVERSED and SET ASIDE. Accused-appellant Basher Tomawis y Ali
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.
SO ORDERED.
SECOND DIVISION
DECISION
CAGUIOA, J.:
The role of the Court in the fight against the illegal drug menace is to
ensure that the guilty is convicted and that the appropriate penalty is
imposed. In the discharge of this task, the Court must be mindful that
the rights of the individual must, at all times, be safeguarded. As
Blackstone's ratio goes, it is better that 100 guilty persons should
escape than that one innocent person should suffer.
The Facts
CONTRARY TO LAW.8
For the defense, Tomawis testified that he was with his mother in
Starmall-Alabang when they were accosted by two men. One of them
wrung his neck and he could not breathe. His mother tried to help him
but was unable to do so. When he was trying to get away from the man
holding him, the other man punched his stomach and grabbed his
cellular phone. A seller in Starmall-Alabang, who knew him, tried to help
him but was unable to do so because the two men brought out their
guns. He was brought out to the parking lot and into a vehicle where his
hands were handcuffed and his wallet containing P13,500.00 was taken.
There were six men in the vehicle, none of which he knew. The van
stopped in front of the mall, and a man peeped inside and said "bro,
hindi yan iyong subject." One of them inside the van laughed and replied
"pare-parehas lang ang mga muslim." They stopped by a toll gate where
two policemen carrying guns arrived. One of them said "pare, ibaba mo
na muna yan kausapin mo." The men got out and talked for a few
minutes and when they returned, said, "pare, panindigan na lang natin
na yan iyong subject."
In the PDEA Office, his wife and mother told him that he will be charged
with an illegal drug related case. He denied the allegations and said that
he was being falsely charged because the PDEA officers knew he was
selling cellular phones inside the mall. He cannot think of any other
motive why the PDEA officers would file a case against him. His urine
was tested and yielded a negative result. Tomawis's mother
corroborated his testimony.12
The trial court gave full credence to the testimony of the prosecution
witnesses on the reason that they enjoyed the presumption of regularity
in the performance of their official functions. The RTC also held that the
prosecution was able to preserve the integrity of the seized drugs. The
RTC further ruled that the conduct of the inventory and photographing
was justifiably done in a different place because of the commotion that
ensued in the place of arrest. The defense proffered by Tomawis being a
mere denial, cannot prevail over the positive assertions of the arresting
officers.14
Undaunted, Tomawis elevated the case to the CA.15 He argued that the
prosecution failed to prove the identity and integrity of the alleged
seized drugs due to the following irregularities in the conduct of the
buy bust operation: (1) failure to present the testimony ofl01 Romano
Alfonso (IO1 Alfonso), who received the shabu from IO1 Alejandro; (2)
failure to immediately mark the shabu at the time of seizure and initial
custody; and (3) the conduct of the inventory and marking at the
barangay hall of Brgy. Pinyahan, Quezon City.16
The appellate court held that the prosecution was able to prove all the
elements of the crime of sale of illegal drugs as punished under Section
5, RA 9165. The CA held that IO1 Alejandro's testimony, which was
corroborated by IO1 Lacap and supported by documentary evidence,
rendered a clear and complete narration of the details of the buy-bust
operation. The CA also held that the chain of custody was sufficiently
established. Absent any showing of ill-motive or bad faith on the part of
the buy-bust team, the presumption of regularity in the performance of
official functions prevails.18
Issue
For a successful prosecution for the crime of illegal sale of drugs under
Section 5 of RA 9165, the following must be proven: (a) the identities of
the buyer, seller, object, and consideration; and (b) the delivery of the
thing sold and the payment for it.20 In cases involving dangerous drugs,
the drug itself constitutes the corpus delicti of the offense.21 Thus, it is of
paramount importance that the prosecution prove that the identity and
integrity of the seized drugs are preserved. Each link in the chain of
custody of the seized drugs must be established.
(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[.]
In this case, the buy-bust team committed several and patent procedural
lapses in the conduct of the seizure, initial custody, and handling of the
seized drug - which thus created reasonable doubt as to the identity and
integrity of the drugs and, consequently, reasonable doubt as to the guilt
of the accused.
The phrase "immediately after seizure and confiscation" means that the
physical inventory and photographing of the drugs were intended by
the law to be made immediately after, or at the place of apprehension.
And only if this is not practicable, the IRR allows that the inventory and
photographing could be done as soon as the buy-bust team reaches the
nearest police station or the nearest office of the apprehending
officer/team. By the same token, however, this also means that the three
required witnesses should already be physically present at the time of
apprehension-a requirement that can easily be complied with by the
buy-bust team considering that the buy-bust operation is, by its nature,
a planned activity. Simply put, the buy-bust team has enough time and
opportunity to bring with them said witnesses.
The buy-bust team in this case utterly failed to comply with these
requirements. To start, the conduct of the inventory in this case was not
conducted immediately at the place of arrest but at the barangay hall of
Pinyahan, Quezon City. As explained by the buy-bust team of the PDEA,
IO1 Alejandro and IO1 Lacap, they could not conduct the inventory at
Starmall, Alabang, because a commotion ensued as bystanders in the
food court tried to assist Tomawis who shouted for help. Evidently, this
happened because the buy-bust operation was conducted in a shopping
mall.
While the IRR allows alternative places for the conduct of the inventory
and photographing of the seized drugs, the requirement of having the
three required witnesses to be physically present at the time or near the
place of apprehension, is not dispensed with. The reason is simple, it is
at the time of arrest - or at the time of the drugs' "seizure and
confiscation" - that the presence of the three witnesses is most needed,
as it is their presence at the time of seizure and confiscation that would
insulate against the police practice of planting evidence.
[Q] Will you please tell us how you came to sign the Certificate of
- Inventory?
A- Your Honor, I just like to inform you that I was not part in the
Operation of PDEA but according to the Book of PDEA any
Government or Local Officials that they have a responsibility to
sign as witness in the Inventory.
[Q] How were you called by PDEA to sign the inventory?
-
A- I was at the Basketball Court your Honor, when they called me.
[Q] Who were present during the Inventory of the drug evidence, aside
- from you?
xxxx
[Q] How about the accused was he present during the Inventory?
-
xxxx
ATTY. FELICEN:
[Q] Who was in possession of the items brought to the Brgy. when it
- was Inventoried?
xxxx
[Q] So, what you did is you just affixed your signature in this Certificate
- of Inventory without knowing where the items came from?
A- I was informed by the PDEA Operatives sir, that the items were
recovered from a buy-bust operation conducted at the Metropolis.
Q- Aside from the information from the PDEA you have no other
personal knowledge?
A- Yes, sir.
Q- You even do not know who was the person who put those items on
top of the table?
A - I was called by one of the Brgy. Tanod and I was informed that
the PDEA Operatives arrived at the office sir, and they need one
Brgy. Official to witness the Inventory, sir.
Q - So, when you were about to witness the inventory, you just saw the
items to be inventory (sic) at that time on top of the table also?
A - The items were not yet at the table, when I arrived, they got the items
from one of the PDEA Operatives, sir.
Q - From where did that member of the PDEA got (sic) the items?
A - They were holding a plastic sir, and they brought out the content of
the plastic sir, and they place it on top of the table, sir.27 (Emphasis
supplied)
The presence of the witnesses from the DOJ, media, and from public
elective office is necessary to protect against the possibility of planting,
contamination, or loss of the seized drug. Using the language of the
Court in People v. Mendoza,28 without the insulating presence of the
representative from the media or the DOJ and any elected public official
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 subject sachet that was
evidence of the corpus delicti, and thus adversely affected the
trustworthiness of the incrimination of the accused.29
The presence of the three witnesses must be secured not only during
the inventory but more importantly at the time of the warrantless
arrest.
To restate, the presence of the three witnesses at the time of seizure and
confiscation of the drugs must be secured and complied with at the time
of the warrantless arrest; such that they are required to be at or near
the intended place of the arrest so that they can be ready to witness the
inventory and photographing of the seized and confiscated drugs
"immediately after seizure and confiscation."
In the present case, there are gaps in the chain of custody of the seized
drugs which creates reasonable doubt as to the identity and integrity
thereof.
Q: And after the accused went back after ten minutes, what
happened next?
Q: And after that he gave you the shabu what happened next?
Q: And after you gave the pre-arranged signal, what happened next, Ms.
Witness?
Q: And after the accused was apprehended, what did you do next,
Ms. Witness?
A: The bystanders inside the food court, your Honor, inside the mall,
wanted to help Mr. Basher Tomawis.
xxxx
xxxx
Q: If I will show you the item that you brought to the laboratory for
examination, would you be able to identify it, Ms. Witness?
A: Yes, sir.
Q: Will you please tell us what identifying marks did you put it if
any?
A: My initial, your Honor, the initial MCA and the initial of Beltran
Lacap, Jr., BTL.
xxxx
Q: Will you please explain to us, Ms. Witness, why did you not affix your
own signature in the inventory marked as Exhibit "F"?
A: The reason why, your Honor, because I was the poseur buyer and my
colleague was assigned as Inventory Officer. He is the Inventory
Officer in our office, your Honor. All the seized items for
inventory after brought to the barangay and before bringing the
said items to the PDEA Laboratory, IO1 Romano Alfonso was the
one who kept them your Honor.32 (Emphasis and underscoring
supplied)
IO1 Alejandro testified that she received the drugs from Tomawis and
that she submitted the same to the laboratory for testing. The inventory
was conducted by the assigned Inventory Officer, IO1 Alfonso. However,
there is no testimony as to the movement of the drugs from IO1
Alejandro to IO1 Alfonso, and supposedly back again from IO1 Alfonso
to IO1 Alejandro for the submission of the seized drugs to the crime
laboratory.
Meanwhile, IO1 Lacap, also claimed to have received the seized drugs
from Tomawis. He also contradicted IO1 Alejandro's testimony as he
said that IO1 Alfonso was the one who had custody of the drugs prior to
the delivery to the crime laboratory.
A: I was, sir.
Q: If will be shown to you again this pouch, can you identify it?
A: Yes, sir.
xxxx
Q: How come you did not have time to make the inventory in the area?
A: At that time, sir, the vendors around who knew the accused tried to
help the accused, sir. There was a little scuffle, sir.
xxxx
xxxx
A: Yes, sir.
A: Yes, sir.
Q: IO1 Romano was not part of the actual operation inside the
Metropolis?
A: No, sir.
Q: Was he inside?
A: Yes, sir.
A: Yes, sir. We signed as witness, sir, but Agent Romano Alfonso was
designated as Inventory Officer.
Q: Are you sure that he signed the inventory or you are not sure?
Q: The truth is that you did not witness the signing of the
inventory, is that correct?
There are unexplained gaps in the custody of the seized drugs. The
transfer and movement of the seized drugs between IO1 Alejandro, IO1
Lacap, and IO1 Alfonso was not established. It is unclear as to who held
custody of the seized drugs from the place of arrest in Starman, Alabang
to Brgy. Pinyahan, Quezon City and from Brgy. Pinyahan, Quezon City to
the PDEA office. It was not clarified as to how and when the seized
drugs were returned to IO1 Alejandro after the inventory was
conducted by IO1 Alfonso. There was also no testimony as to who
received the seized drugs from IO1 Alejandro at the laboratory, and to
whom they were given after the testing was conducted.
The buy-bust team also failed to take photographs of the seized drugs.
The only photo, submitted as Exhibit "O" for the prosecution, was a
black and white photocopy of pictures of Tomawis and barangay
councilors Burce and Gaffud at the barangay hall. The law requires
photographs of the seized drug itself and not of the accused and the
witnesses.
It was also not established where the marking was done by IO1
Alejandro. She only mentioned that they were not able to mark the
seized drugs at the place of arrest due to the commotion caused thereat.
This is excusable due to the occurrence of the commotion. However, it is
not clear if the marking was done at the barangay hall of Pinyahan,
Quezon City or at the PDEA office. Neither was it specified if the marking
was done in the presence of the accused and the witnesses.
At the risk of repetition, the seized drug is the corpus delicti of the crime
itself. Thus, it is crucial for the prosecution to prove the identity and
integrity of the seized drugs. The apprehending officers must account
for each and every item that was seized from the accused. The process
of the inventory, marking, and photograph of the seized drugs imposes
another layer of protection to ensure that the substance seized from the
accused is the same one that is presented and submitted in evidence.
The failure of the apprehending team to comply with these
requirements greatly diminished the evidentiary value of the seized
drugs.
However, in drugs cases, more stringent standards must be used for the
presumption of regularity to apply. The presumption should arise
only when there is a showing that the apprehending officer/buy-
bust team followed the requirements of Section 21, or when the
saving clause may be properly applied. Gaps in the chain of custody
cannot be filled in by the mere invocation of the presumption of
regularity.
This means that even in the event that the presumption of regularity
may stand, it will not be stronger than the presumption of innocence in
favor of the accused.47 Otherwise, a mere rule of evidence will defeat the
constitutionally enshrined right to be presumed innocent.48 Trial courts
have been directed by the Court to apply this differentiation.49
All told, the prosecution failed to prove the corpus delicti of the offense
of sale of illegal drugs due to the multiple unexplained breaches of
procedure committed by the buy-bust team in the seizure, custody, and
handling of the seized drug. Thus, the prosecution was not able to
overcome the presumption of innocence ofTomawis.
As a final note, the Court reiterates the reminder it has given in recent
jurisprudence on the subject matter:
The Court strongly supports the campaign of the government against
drug addiction and commends the efforts of our law enforcement
officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill
of Rights for the protection of liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the
mantle of its protection that innocent and the guilty alike against any
manner of high-handedness from the authorities, however
praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. [For
indeed,] [o]rder is too high a price for the loss of liberty. x x x50
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 record/s 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.51
SO ORDERED.
SECOND DIVISION
DECISION
CAGUIOA, J.:
The role of the Court in the fight against the illegal drug menace is to
ensure that the guilty is convicted and that the appropriate penalty is
imposed. In the discharge of this task, the Court must be mindful that
the rights of the individual must, at all times, be safeguarded. As
Blackstone's ratio goes, it is better that 100 guilty persons should
escape than that one innocent person should suffer.
The Facts
Before the Court is an appeal2 filed pursuant to Section 13(c), Rule 124
of the Revised Rules on Criminal Procedure by accused-appellant
Basher Tomawis y Ali (Tomawis) assailing the Decision3 dated June 6,
2016 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 06662, which
affirmed the Judgment4 dated January 29, 2014 of the Regional Trial
Court (RTC), Branch 204, Muntinlupa City in Crim. Case No. 08-636,
finding him guilty beyond reasonable doubt of violating Section 5,5
Article II of Republic Act No. (RA) 9165,6 otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002."
CONTRARY TO LAW.8
Upon his arraignment, Tomawis pleaded not guilty.9 During the pretrial
conference, the following facts were stipulated upon: (1) the identity of
the accused and jurisdiction of the RTC over his person; (2) the
qualification of the forensic chemist who conducted the drug test; (3)
the sample examined by the forensic chemist tested positive for
methylamphetamine hydrochloride with a weight of 12.7402 grams;
and (4) the sample was delivered by Intelligence Officer 1 (IO1) Mabel
Alejandro (IO1 Alejandro).10
For the defense, Tomawis testified that he was with his mother in
Starmall-Alabang when they were accosted by two men. One of them
wrung his neck and he could not breathe. His mother tried to help him
but was unable to do so. When he was trying to get away from the man
holding him, the other man punched his stomach and grabbed his
cellular phone. A seller in Starmall-Alabang, who knew him, tried to help
him but was unable to do so because the two men brought out their
guns. He was brought out to the parking lot and into a vehicle where his
hands were handcuffed and his wallet containing P13,500.00 was taken.
There were six men in the vehicle, none of which he knew. The van
stopped in front of the mall, and a man peeped inside and said "bro,
hindi yan iyong subject." One of them inside the van laughed and replied
"pare-parehas lang ang mga muslim." They stopped by a toll gate where
two policemen carrying guns arrived. One of them said "pare, ibaba mo
na muna yan kausapin mo." The men got out and talked for a few
minutes and when they returned, said, "pare, panindigan na lang natin
na yan iyong subject."
Tomawis was told that in exchange of his money, he will be released.
When he asked what his violation was, they answered that it was
because he resisted.
In the PDEA Office, his wife and mother told him that he will be charged
with an illegal drug related case. He denied the allegations and said that
he was being falsely charged because the PDEA officers knew he was
selling cellular phones inside the mall. He cannot think of any other
motive why the PDEA officers would file a case against him. His urine
was tested and yielded a negative result. Tomawis's mother
corroborated his testimony.12
The trial court gave full credence to the testimony of the prosecution
witnesses on the reason that they enjoyed the presumption of regularity
in the performance of their official functions. The RTC also held that the
prosecution was able to preserve the integrity of the seized drugs. The
RTC further ruled that the conduct of the inventory and photographing
was justifiably done in a different place because of the commotion that
ensued in the place of arrest. The defense proffered by Tomawis being a
mere denial, cannot prevail over the positive assertions of the arresting
officers.14
The Ruling of the CA
Undaunted, Tomawis elevated the case to the CA.15 He argued that the
prosecution failed to prove the identity and integrity of the alleged
seized drugs due to the following irregularities in the conduct of the
buy bust operation: (1) failure to present the testimony ofl01 Romano
Alfonso (IO1 Alfonso), who received the shabu from IO1 Alejandro; (2)
failure to immediately mark the shabu at the time of seizure and initial
custody; and (3) the conduct of the inventory and marking at the
barangay hall of Brgy. Pinyahan, Quezon City.16
The appellate court held that the prosecution was able to prove all the
elements of the crime of sale of illegal drugs as punished under Section
5, RA 9165. The CA held that IO1 Alejandro's testimony, which was
corroborated by IO1 Lacap and supported by documentary evidence,
rendered a clear and complete narration of the details of the buy-bust
operation. The CA also held that the chain of custody was sufficiently
established. Absent any showing of ill-motive or bad faith on the part of
the buy-bust team, the presumption of regularity in the performance of
official functions prevails.18
Issue
For a successful prosecution for the crime of illegal sale of drugs under
Section 5 of RA 9165, the following must be proven: (a) the identities of
the buyer, seller, object, and consideration; and (b) the delivery of the
thing sold and the payment for it.20 In cases involving dangerous drugs,
the drug itself constitutes the corpus delicti of the offense.21 Thus, it is
of paramount importance that the prosecution prove that the identity
and integrity of the seized drugs are preserved. Each link in the chain of
custody of the seized drugs must be established.
(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[.]
(a)
In this case, the buy-bust team committed several and patent procedural
lapses in the conduct of the seizure, initial custody, and handling of the
seized drug - which thus created reasonable doubt as to the identity and
integrity of the drugs and, consequently, reasonable doubt as to the guilt
of the accused.
The phrase "immediately after seizure and confiscation" means that the
physical inventory and photographing of the drugs were intended by
the law to be made immediately after, or at the place of apprehension.
And only if this is not practicable, the IRR allows that the inventory and
photographing could be done as soon as the buy-bust team reaches the
nearest police station or the nearest office of the apprehending
officer/team. By the same token, however, this also means that the three
required witnesses should already be physically present at the time of
apprehension-a requirement that can easily be complied with by the
buy-bust team considering that the buy-bust operation is, by its nature,
a planned activity. Simply put, the buy-bust team has enough time and
opportunity to bring with them said witnesses.
The buy-bust team in this case utterly failed to comply with these
requirements. To start, the conduct of the inventory in this case was not
conducted immediately at the place of arrest but at the barangay hall of
Pinyahan, Quezon City. As explained by the buy-bust team of the PDEA,
IO1 Alejandro and IO1 Lacap, they could not conduct the inventory at
Starmall, Alabang, because a commotion ensued as bystanders in the
food court tried to assist Tomawis who shouted for help. Evidently, this
happened because the buy-bust operation was conducted in a shopping
mall.
While the IRR allows alternative places for the conduct of the inventory
and photographing of the seized drugs, the requirement of having the
three required witnesses to be physically present at the time or near the
place of apprehension, is not dispensed with. The reason is simple, it is
at the time of arrest - or at the time of the drugs' "seizure and
confiscation" - that the presence of the three witnesses is most needed,
as it is their presence at the time of seizure and confiscation that would
insulate against the police practice of planting evidence.
[Q] -
Will you please tell us how you came to sign the Certificate of Inventory?
A-
Your Honor, I just like to inform you that I was not part in the Operation
of PDEA but according to the Book of PDEA any Government or Local
Officials that they have a responsibility to sign as witness in the
Inventory.
[Q] -
A-
I was at the Basketball Court your Honor, when they called me.
[Q] -
A-
[Q] -
Who were present during the Inventory of the drug evidence, aside from
you?
A-
[Q] -
Who else?
A-
xxxx
[Q] -
A-
xxxx
ATTY. FELICEN:
[Q] -
Who was in possession of the items brought to the Brgy. when it was
Inventoried?
A-
When I reached the office, the confiscated items were already placed on
the top of the table and then the items were presented there and then
we even asked the accused if the items were recovered from him, sir.
xxxx
[Q] -
So, what you did is you just affixed your signature in this Certificate of
Inventory without knowing where the items came from?
A-
I was informed by the PDEA Operatives sir, that the items were
recovered from a buy-bust operation conducted at the Metropolis.
Q-
Aside from the information from the PDEA you have no other personal
knowledge?
A-
Yes, sir.
Q-
You even do not know who was the person who put those items on top
of the table?
A-
Q-
I was called by one of the Brgy. Tanod and I was informed that the PDEA
Operatives arrived at the office sir, and they need one Brgy. Official to
witness the Inventory, sir.
Q-
So, when you were about to witness the inventory, you just saw the
items to be inventory (sic) at that time on top of the table also?
A-
The items were not yet at the table, when I arrived, they got the items
from one of the PDEA Operatives, sir.
Q-
From where did that member of the PDEA got (sic) the items?
A-
They were holding a plastic sir, and they brought out the content of the
plastic sir, and they place it on top of the table, sir.27 (Emphasis
supplied)
The presence of the witnesses from the DOJ, media, and from public
elective office is necessary to protect against the possibility of planting,
contamination, or loss of the seized drug. Using the language of the
Court in People v. Mendoza,28 without the insulating presence of the
representative from the media or the DOJ and any elected public official
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 subject sachet that was
evidence of the corpus delicti, and thus adversely affected the
trustworthiness of the incrimination of the accused.29
The presence of the three witnesses must be secured not only during
the inventory but more importantly at the time of the warrantless
arrest.
To restate, the presence of the three witnesses at the time of seizure and
confiscation of the drugs must be secured and complied with at the time
of the warrantless arrest; such that they are required to be at or near
the intended place of the arrest so that they can be ready to witness the
inventory and photographing of the seized and confiscated drugs
"immediately after seizure and confiscation."
In People v. Alviz,31 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.
b.
In the present case, there are gaps in the chain of custody of the seized
drugs which creates reasonable doubt as to the identity and integrity
thereof.
And after the accused went back after ten minutes, what happened
next?
A:
He asked me the money again and then I said, where is the shabu? When
he showed me the shabuI gave him the money and he gave me the
shabu.
Q:
And after that he gave you the shabu what happened next?
A:
Q:
And after you gave the pre-arranged signal, what happened next, Ms.
Witness?
A:
Q:
A:
Q:
A:
Q:
And after the accused was apprehended, what did you do next, Ms.
Witness?
A:
We were not able to put markings on the evidence in the vicinity, your
Honor, because of the commotion happened when we arrested the
accused Mr. Basher Tomawis, your Honor.
Q:
A:
The bystanders inside the food court, your Honor, inside the mall,
wanted to help Mr. Basher Tomawis.
Q:
A:
xxxx
Q:
A:
Q:
A:
Q:
A:
xxxx
Q:
A:
Q:
A:
xxxx
Q:
If I will show you the item that you brought to the laboratory for
examination, would you be able to identify it, Ms. Witness?
A:
Yes, sir.
Q:
Will you please tell us what identifying marks did you put it if any?
A:
My initial, your Honor, the initial MCA and the initial of Beltran Lacap,
Jr., BTL.
xxxx
Q:
Will you please explain to us, Ms. Witness, why did you not affix your
own signature in the inventory marked as Exhibit "F"?
A:
The reason why, your Honor, because I was the poseur buyer and my
colleague was assigned as Inventory Officer. He is the Inventory Officer
in our office, your Honor. All the seized items for inventory after
brought to the barangay and before bringing the said items to the PDEA
Laboratory, IO1 Romano Alfonso was the one who kept them your
Honor.32 (Emphasis and underscoring supplied)
IO1 Alejandro testified that she received the drugs from Tomawis and
that she submitted the same to the laboratory for testing. The inventory
was conducted by the assigned Inventory Officer, IO1 Alfonso. However,
there is no testimony as to the movement of the drugs from IO1
Alejandro to IO1 Alfonso, and supposedly back again from IO1 Alfonso
to IO1 Alejandro for the submission of the seized drugs to the crime
laboratory.
Meanwhile, IO1 Lacap, also claimed to have received the seized drugs
from Tomawis. He also contradicted IO1 Alejandro's testimony as he
said that IO1 Alfonso was the one who had custody of the drugs prior to
the delivery to the crime laboratory.
Q:
A:
A maroon pouch, sir, with folka (sic) dots and inside is a suspected
shabu placed in a knot tied plastic sachet, sir.
Q:
A:
I was, sir.
Q:
If will be shown to you again this pouch, can you identify it?
A:
Yes, sir.
Q:
And from whom did you recover this pouch?
A:
Q:
The pouch was recovered by Agent Alejandro. What did you recover if
any, Mr. Witness?
A:
xxxx
Q:
How come you did not have time to make the inventory in the area?
A:
At that time, sir, the vendors around who knew the accused tried to help
the accused, sir. There was a little scuffle, sir.
xxxx
Q:
A:
Q:
A:
Q:
A:
Kagawad Gaffud and Kagawad Burce witnessed the inventory, sir.33
(Emphasis supplied)
xxxx
Q:
And so it was Alejandro who was in the possession of the item shabu
allegedly recovered from the accused at the Metropolis to Brgy[.]
Pinyahan?
A:
Yes, sir.
Q:
And surprisingly, however, the officer who conducted the inventory was
IO1 Romano?
A:
Yes, sir.
Q:
IO1 Romano was not part of the actual operation inside the Metropolis?
A:
No, sir.
Q:
A:
Q:
Was he inside?
A:
Yes, sir.
Q:
Meaning, that IO1 Alejandro turn-over (sic) the item to IO1 Romano?
A:
Q:
So despite that Mabel Alejandro was the one who personally allegedly
recovered the item from the suspect she did not sign the inventory
including you and IO1 Romano?
A:
Yes, sir. We signed as witness, sir, but Agent Romano Alfonso was
designated as Inventory Officer.
Q:
Are you sure that he signed the inventory or you are not sure?
A:
Q:
The truth is that you did not witness the signing of the inventory, is that
correct?
A:
There are unexplained gaps in the custody of the seized drugs. The
transfer and movement of the seized drugs between IO1 Alejandro, IO1
Lacap, and IO1 Alfonso was not established. It is unclear as to who held
custody of the seized drugs from the place of arrest in Starman, Alabang
to Brgy. Pinyahan, Quezon City and from Brgy. Pinyahan, Quezon City to
the PDEA office. It was not clarified as to how and when the seized
drugs were returned to IO1 Alejandro after the inventory was
conducted by IO1 Alfonso. There was also no testimony as to who
received the seized drugs from IO1 Alejandro at the laboratory, and to
whom they were given after the testing was conducted.
The buy-bust team also failed to take photographs of the seized drugs.
The only photo, submitted as Exhibit "O" for the prosecution, was a
black and white photocopy of pictures of Tomawis and barangay
councilors Burce and Gaffud at the barangay hall. The law requires
photographs of the seized drug itself and not of the accused and the
witnesses.
It was also not established where the marking was done by IO1
Alejandro. She only mentioned that they were not able to mark the
seized drugs at the place of arrest due to the commotion caused thereat.
This is excusable due to the occurrence of the commotion. However, it is
not clear if the marking was done at the barangay hall of Pinyahan,
Quezon City or at the PDEA office. Neither was it specified if the marking
was done in the presence of the accused and the witnesses.
At the risk of repetition, the seized drug is the corpus delicti of the crime
itself. Thus, it is crucial for the prosecution to prove the identity and
integrity of the seized drugs. The apprehending officers must account
for each and every item that was seized from the accused. The process
of the inventory, marking, and photograph of the seized drugs imposes
another layer of protection to ensure that the substance seized from the
accused is the same one that is presented and submitted in evidence.
The failure of the apprehending team to comply with these
requirements greatly diminished the evidentiary value of the seized
drugs.
However, in drugs cases, more stringent standards must be used for the
presumption of regularity to apply. The presumption should arise only
when there is a showing that the apprehending officer/buy-bust team
followed the requirements of Section 21, or when the saving clause may
be properly applied. Gaps in the chain of custody cannot be filled in by
the mere invocation of the presumption of regularity.
This means that even in the event that the presumption of regularity
may stand, it will not be stronger than the presumption of innocence in
favor of the accused.47 Otherwise, a mere rule of evidence will defeat
the constitutionally enshrined right to be presumed innocent.48 Trial
courts have been directed by the Court to apply this differentiation.49
As a final note, the Court reiterates the reminder it has given in recent
jurisprudence on the subject matter:
Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. [For
indeed,] [o]rder is too high a price for the loss of liberty. x x x50
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 record/s 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.51
SO ORDERED.