Republic of the Philippines

COURT OF APPEALS
Manila

PEOPLE OF THE PHILIPPINES, CA GR. CR-36666

Complainant-Appellee,

-versus- For: Appeal of the Decision

Rendered by the Regional
Trial Court, Branch 37, 4th
Judicial Region, Calamba
City, Laguna in Criminal
Case Nos. 16961-C and
16962-C [Re: Violation of
Secs. 5 and 11 of RA 9165]

ADRIAN COLUMA y Deumano @ “Tawtaw”

Accused-Appellant,

x--------------------------------------------------------------x

APPELLANT’S BRIEF

EXORDIUM

The Constitution mandates that an accused shall be

presumed innocent until the contrary is proven beyond
reasonable doubt. The burden lies on the prosecution to
overcome such presumption of innocence by presenting the
quantum of evidence required. In so doing, the prosecution must
rest on the strength of its own evidence and must not rely on the
weakness of the defense. And if the prosecution fails to meet its
burden of proof, the defense may logically not even present
evidence on its own behalf. In such cases the presumption
prevails and the accused should necessarily be acquitted. 1

1 People v. Angus, Jr., G.R. No. 178778. August 3, 2010.

Page 1 of 23
 Pursuant to the Notice of this Honorable Court, dated
October 19, 2014 that was received by the undersigned counsel
on October 21, 2014, accused-appellant Adrian D. Columa, by
counsel, most respectfully submits his brief.

ASSIGNMENT OF ERRORS

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE THE IRREGULARITY OF
THE BUY-BUST OPERATION.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE THE FAILURE TO
COMPLY WITH THE “OBJECTIVE TEST” IN BUY-BUST
OPERATIONS.

II

THE TRIAL COURT ERRED IN UPHOLDING THE

PRESUMPTION OF REGULARITY IN THE PERFORMANCE
OF OFFICIAL DUTY BY THE POLICE OFFICERS DESPITE
THE PATENT IRREGULARITIES IN THE BUY-BUST
OPERATION.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE NON-COMPLIANCE WITH
THE REQUIREMENTS FOR THE PROPER CUSTODY OF
SEIZED DANGEROUS DRUGS UNDER R.A. NO. 9165.

IV

THE TRIAL COURT GRAVELY ERRED IN GIVING

CREDENCE TO THE PROSECUTION’S EVIDENCE

Page 2 of 23
NOTWITHSTANDING THE FAILURE OF THE
APPREHENDING TEAM TO PROVE THE INTEGRITY OF
THE SEIZED DRUGS.

STATEMENT OF THE CASE

This is an appeal2 from the Decision3 dated June 5, 2014 of

the Regional Trial Court (RTC) of Calamba City, Laguna, Branch
37, finding accused-appellant Adrian D. Columa @ “Tawtaw”
guilty beyond reasonable doubt of violating Sections 5 and 11,
Article II of Republic Act No. 9165 (R.A. No. 9165), otherwise
known as the Comprehensive Dangerous Drugs Act of 2002.
The dispositive portion of the assailed Decision reads as follows:

“IN VIEW OF THE FOREGOING, in Criminal Case

No. 16961-C, the Court finds the accused, Adrain Columa y
Deumano, GUILTY BEYOND REASONABLE DOUBT of
violation of Section 11, paragraph 2(3), Article II of
Republic Act 9165. He is hereby sentenced to suffer the
indeterminate penalty of imprisonment of TWELVE (12)
YEARS and ONE (1), as minimum, to FOURTEEN (14)
YEARS, as maximum, and to PAY A FINE OF THREE
HUNDRED (P 300,000.00) PESOS.

In Criminal Case No. 16962-2010-C, the Court finds

the accused, Adrain Columa y Deumano, GUILTY BEYOND
REASONABLE DOUBT of violation of Section 5, Article II of
Republic Act 9165. The accused is hereby sentenced to
suffer the penalty of LIFE IMPRISONMENT and to PAY A
FINE OF FIVE HUNDRED (P 500,000.00) PESOS.

The Branch Clerk of Court is hereby ordered to turn

over the menthamphetamine hydrochloride (shabu) subject
of Chemistry Report No. D-031-10 to PDEA for proper
disposition and destruction.”4

2 Under Rule 44 of the Rules of Court.

3 Record pp. 141-152, Crim. Case No. 16962-2010-C.
4 Records, p. 152 , Crim. Case No. 16952-2010-C [RTC Decision, p. 12.]

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 In Criminal Case No. 16961-C, accused-appellant was
charged in an Information5 that read:

“The undersigned 2nd Assistant City Prosecutor accuses

ADRIAN COLUMA y Deumano @ “taw-taw” of violation of Sec.
11 of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, committed as
follows:

That on January 27, 2010 or thereabout, in the City of

Calamba, Laguna, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, not being lawfully
authorized to possess any dangerous drug and without the
corresponding license or prescription, did then and there
willfully, unlawfully and feloniously has in his possession, direct
custody and control Methamphetamine Hydrochloride (shabu)
weighing ZERO POINT ZERO SIX (0.06) grams, which is a
dangerous drug, in violation of the above-cited law.”

While the pertinent portion of the Information6 filed in

Criminal Case No. 16962-2010-C stated:7

“The undersigned Prosecutor accuses ADRIAN COLUMA y

Deumano @ “taw-taw” of violation of Sec. 5 of Republic Act No.
9165, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002, committed as follows:

That on January 27, 2010 or thereabout, in Calamba City,

Laguna, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without being authorized by
law, did then and there willfully, unlawfully and feloniously sell,
distribute or give away Methamphetamine Hydrochloride
(shabu) weighing Zero point Zero Two (0.02) grams, a
dangerous drug, in violation of the above-cited law.”

During his arraignment on February 8, 20108 and March 10,

20109, accused-appellant, assisted by his counsel, pled not guilty
to the charges. Thereafter, the cases were consolidated. After a
joint trial of the cases, the trial court rendered the assailed
Decision.

5 Records, p. 1, Crim. Case No. 16951-2010-C.

6 Records, p. 1, Crim. Case No. 16952-2010-C.
7 Initially filed in RTC Branch 92, Calamba City, Laguna.
8 Records, p. 19, Crim. Case No. 16951-2010-C.
9 Records, p.23, Crim. Case No. 16952-2010-C.
Page 4 of 23
 STATEMENT OF FACTS

On January 27, 2010, at around 5:00 p.m., an alleged buy-

bust operation was carried out in Brgy. Sanpiruhan, Calamba
City, Laguna, by Intelligence members of the Philippine National
Police (PNP) in Calamba City. The operation allegedly led to the
arrest of the accused-appellant who, as mentioned above, was
charged for violating Sections 5 and Article II of R.A. No. 9165.
In the ensuing arraignment, the accused-appellant entered
a “Not Guilty” plea. Thereafter, pre-trial and trial were held.

The prosecution presented the lone testimony of PO2

Aldabe, one the police officers who participated in the alleged
buy-bust operation. It dispensed with the presentation of the
testimonies of PNP Forensic Chemist Lalaine Ong Rodrigo, who
conducted the chemical analysis of the specimens submitted for
her examination, and PO2 Tejada, the police man who delivered
the specimen to the crime laboratory, since the subject matter of
their respective testimonies had already been stipulated during
the hearing on March 13, 2014.10

Documentary and object evidence were likewise submitted,

such as: Affidavit of Arrest,11 Request for Laboratory
Examination12, Chemistry Report No. D-031-1013, four (4) pieces
small size heat-sealed transparent plastic sachet containing
shabu14, and the Pre-Operation Coordination Report15 and the
Coordination Form.16
10 Records, pp. 86-87, Crim. Case No. 16952-2010-C.
11 Exhibit “A”, Records, pp. 4-5, Crim. Case No. 16952-2010-C.
12 Exhibit “B”, Records, p. 7, Crim. Case No. 16952-2010-C.
13 Exhibit “C”, Records, pp. 92, Crim. Case No. 16952-2010-C.
14 Exhibits “D” to “D-3”
15 Exhibit “E”, Records, p. 7, Crim. Case No. 16952-2010-C.
16 Exhibit “F”, Records, p. 7, Crim. Case No. 16952-2010-C.
Page 5 of 23
 Based on the totality of the evidence submitted, the
prosecution presented the following version of the events which
led to accused-appellant’s arrest:

PO2 Aldabe, testified that on 27 January 2010, their

team leader Police Inspector Rogel Sarreal (“PI Sarreal”)
received information from an asset pertaining to the
rampant selling of illegal drugs by Taw-Taw in Brgy.
Sampiruhan. Triggered by the information, PI Sarreal
organized a team to conduct a surveillance operation. The
surveillance team was composed of SPO2 Melvin Llanes,
SPO1 Apolonio Naredo, PO2 Sanque, PO2 Lorente, PO2
Cruz and PO2 Carpio who confirmed that there was drug
dealing in the place. At around 5:00pm, PO2 Aldabe and
the confidential asset approached Columa who was at the
time in front of his house. Columa asked the asset, “I have
something here, do you want?” and the confidential asset
replied, “Yes, only dos”. The asset then handed Columa the
Php200.00 marked money and in turn Columa gave the
asset a small plastic sachet. After the exchange, PO2
Aldabe held the arms of Columa and introduced himself as
a policeman. The other members of the team who were
hiding some seven to ten meters away rushed to PO2
Aldabe assist him. PO2 Aldabe then conducted a preventive
search and confiscated three small plastic sachets
containing shabu in the possession of Columa in the latter’s
right pocket. PO2 Aldabe marked the confiscated items as
well as the item purchased in the buy-bust with initials
RUA-ADC, RUA-ADC-1, RUA-ADC-2, and RUA-ADC-3. The
buy-bust money was likewise recovered by PO2 Aldabe
from Columa. PI Sarreal instructed the team to go back to
the police station due to a commotion as somebody was
throwing stones at them. When they reached the police,
station, PO2 Aldabe made a Request for Laboratory
Examination. The said request together with the seized
specimens were delivered by PO2 Tejada to the crime
laboratory. The result of the examination yielded that the
seized items were positive for methamphetamine
hydrochloride.17

After the prosecution had rested its case, the accused-

appellant filed a Motion for Leave of Court to File Demurrer to

17 Records, pp. 142-143, Crim. Case No. 16952-2010-C.

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Evidence,18 which the Honorable Trial Court denied in its Order 19
dated April 7. 2014.

However, as accused-appellant believed that the

prosecution has utterly failed to prove his guilt beyond
reasonable, he proceeded to file his demurrer. 20

As intimated, on June 5, 2014, the Honorable Trial Court

rendered judgment finding the accused-appellant guilty beyond
reasonable doubt of the offenses charged.

In its Decision, the trial court upheld the veracity of the

buy-bust operation. It ruled that the accused-appellant was
caught in flagrante delicto of selling shabu which led to a
warrantless arrest and search which yielded the possession of
more illegal drugs. The trial court ruled that the elements for the
prosecution of illegal sale of dangerous drugs had been proven in
this case, i.e., that there was a meeting of the minds between the
accused-appellant and the poseur-buyer for the sale of P200.00
worth of shabu and there was delivery of the drugs to the poseur-
buyer who gave money in exchange therefor.

Anent the supposed non-compliance with the inventory and

photography requirements in R.A. No. 9165, the trial court
brushed the same aside, pointing out that the evidence of the
prosecution disclosed that the chain of custody of the seized
illegal drugs had been preserved. It pointed out that there was

18 Records, pp. 96-97, Crim. Case No. 16952-2010-C.

19 Records, p. 98, Crim. Case No. 16952-2010-C.
20 Records, pp. 104-128, Crim. Case No. 16952-2010-C.

Page 7 of 23
no hiatus or confusion in the confiscation, handling, custody and
examination of the shabu. The illegal drugs that were confiscated
from accused-appellant, taken to the police headquarters,
subjected to qualitative examination at the crime laboratory, and
finally introduced in evidence against accused-appellant were the
same illegal drugs that were confiscated from him when he was
caught in flagrante delicto selling and possessing the same.

ISSUES OF FACTS AND LAW

Whether or not the guilt of the accused-appellant for illegal

sale and possession of methamphetamine hydrochloride or shabu
was proved beyond reasonable doubt.

Whether or not the arresting officers preserved the integrity

and the evidentiary value of the seized items despite their failure
to observe the mandatory procedural requirements of Sec. 21 of
R.A. 9165 and its IRR.

ARGUMENTS

The assigned errors, being closely allied, will be discussed

jointly.

To reiterate, the Constitution demands that every accused

be presumed innocent until the charge is proved. Before an
accused can be convicted of any criminal act, his guilt must first
be proved beyond reasonable doubt.21 The prosecution has the
burden to overcome such presumption of innocence by
presenting the quantum of evidence required.22

21 People v. Rentoria, G.R. No. 175333. September 21, 2007.

22 People v. Clara, G.R. No. 195528. July 24, 2013.

Page 8 of 23
 Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced
mind.23 It must rest on its own merits and must not rely on the
weakness of the defense. If the prosecution fails to meet the
required amount of evidence, the defense may logically not
even present evidence on its own behalf, in which case, the
presumption prevails and the accused should necessarily
be acquitted.24

In this case, the prosecution failed to overcome such

presumption.

A buy-bust operation is a legally effective and proven

procedure, sanctioned by law, for apprehending drug peddlers
and distributors.25 As in all drugs cases, compliance with the
chain of custody rule is crucial in any prosecution that follows
such operation. The rule is imperative, as it is essential that the
prohibited drug confiscated or recovered from the suspect is the
very same substance offered in court as exhibit; and that the
identity of said drug is established with the same unwavering
exactitude as that requisite to make a finding of guilt. 26

In the recent case of People v. Relato27, the High Court

reiterated the following:

“In a prosecution of the sale and possession of

methamphetamine hydrochloride prohibited under
Republic Act No. 9165, the State not only carries the heavy
23 Section 2, Rule 133, Rules of Court.
24 People v. Capuno, G.R. No. 185715, 19 January 2011 640 SCRA 233.
25 People v. Mantalaba, G.R. No. 186227, July 20, 2011, 654 SCRA 188.
26 People v. Remigio, G.R. No. 189277, December 5, 2012, 687 SCRA 336.
27 G.R. No. 173794, 18 January 2012.
Page 9 of 23
 burden of proving the elements of the offense of, but also
bears the obligation to prove the corpus delicti, failing in
which the State will not discharge its basic duty of proving
the guilt of the accused beyond reasonable doubt. It is
settled that the State does not establish the corpus delicti
when the prohibited substance subject of the prosecution is
missing or when substantial gaps in the chain of custody of
the prohibited substance raise grave doubts about the
authenticity of the prohibited substance presented as
evidence in court. Any gap renders the case for the State
less than complete in terms of proving the guilt of the
accused beyond reasonable doubt. Thus, Relato deserves
exculpation, especially as we recall that his defense of
frame-up became plausible in the face of the weakness of
the Prosecution’s evidence of guilt.”

To eliminate doubt, and even abuse, in the handling of

seized substances, some safeguards for compliance by law
enforcement officers are established by law and jurisprudence.
For one, Section 21 of R.A. No. 9165, which reads in part:

“Sec. 21. Custody and Disposition of Confiscated,

Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. — The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following
manner:

(1) The apprehending team having initial custody

and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of
the inventory and be given a copy thereof;”

Page 10 of 23
 The Implementing Rules and Regulations (IRR) of R.A. No.
9165, particularly Section 21 thereof, further provides the
following guidelines in the custody and control of confiscated
drugs:

“(a) The apprehending officer/team having initial

custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a
copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or
at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures;
Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody
over said items;”

Though the rule includes the proviso that procedural lapses

in the handling of the seized drugs are not ipso facto fatal to the
prosecution’s cause, provided that the integrity and the
evidentiary value of the seized items are preserved. Courts, in
each case, are nonetheless reminded to thoroughly evaluate and
differentiate those errors that constitute a simple procedural
lapse from those that amount to a gross, systematic, or
deliberate disregard of the safeguards that are drawn by
the law 28
for the protection of the corpus delicti.

28 People v. Umipang, G.R. No. 190321, April 25, 2012, 671 SCRA 324, 355.

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 "Chain of custody" means the duly recorded authorized
movements and custody of seized drugs or controlled chemicals
or plant sources of dangerous drugs or laboratory equipment of
each stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court and
finally for destruction. Such record of movements and custody of
seized item shall include the identity and signature of the person
who held temporary custody of the seized item, the date and time
when such transfer of custody were made in the course of
safekeeping and use in court as evidence, and the final
disposition.29

To establish the chain of custody in a buy-bust operation,

the prosecution must establish the following links, namely: First,
the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; Second,
the turnover of the illegal drug seized by the apprehending
officer to the investigating officer; Third, the turnover by the
investigating officer of the illegal drug to the forensic chemist for
laboratory examination; and Fourth, the turnover and submission
of the marked illegal drug seized by the forensic chemist to the
court.30

The “objective test” in determining the credibility of

prosecution witnesses regarding the conduct of buy-bust
operation provides that it is the duty of the prosecution to
present a complete picture detailing the buy-bust operation –
from the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of the
consideration, until the consummation of the sale by the delivery

29 Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 which
implements R.A. No. 9165
30 Supra, see note 26.

Page 12 of 23
of the illegal subject of sale.31 The manner by which the initial
contact was made, the offer to purchase the drug, the payment of
the buy-bust money, and the delivery of the illegal drug must be
the subject of strict scrutiny by courts to insure that law-abiding
citizens are not unlawfully induced to commit an offense. 32

The strict demands and significant value of the chain of

custody rule were emphasized in the oft-cited Malillin v.
People33 wherein the Supreme Court held:

“As a method of authenticating evidence, the chain of

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

While 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.”34
31 People v. Doria, 361 Phil. 595 (1999).
32 Cabugao v. People, G.R. No. 158033, 30 July 2004, 435 SCRA 624.
33 576 Phil. 576 (2008).
34 Emphasis and underscoring supplied.
Page 13 of 23
 As accused-appellant pointed out in his Demurer to
Evidence, and now points out in this brief, there were several
lapses in the law enforcers’ handling of the seized item which,
when taken collectively, render the standards of chain of custody
seriously breached. In a line of cases, the Supreme Court
explained that the failure to comply with the indispensable
requirement of corpus delicti happens not only when it is
missing, but also where there are substantial gaps in the chain of
custody of the seized drugs which raise doubts on the
authenticity of the evidence presented in court. 35

Here, below were such lapses and doubt that mar the
instant case.

FIRST. Utter irregularity attaches to the Coordination

Form, 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.

“Section 86. Transfer, Absorption, and Integration of

All Operating Units on Illegal Drugs into the PDEA and
Transitory Provisions. – The Narcotics Group of the PNP,
the Narcotics Division of the NBI and the Customs
Narcotics Interdiction Unit are hereby abolished; however
they shall continue with the performance of their task as
detail service with the PDEA, subject to screening, until
such time that the organizational structure of the Agency is
fully operational and the number of graduates of the PDEA
Academy is sufficient to do the task themselves . . .

Nothing in this Act shall mean a diminution of the

investigative powers of the NBI and the PNP on all other

35 People v. Relato, G.R. No. 173794, January 18, 2012, 663 SCRA 260.

Page 14 of 23
 crimes as provided for in their respective organic laws:
Provided, however, That when the investigation being
conducted by the NBI, PNP or any ad hoc anti-drug task
force is found to be a violation of any of the provisions of
this Act, the PDEA shall be the lead agency. The NBI, PNP
or any of the task force shall immediately transfer the same
to the PDEA: Provided, further, That the NBI, PNP and the
Bureau of Customs shall maintain close coordination with
the PDEA on all drug related matters.”

In the case at bar, the coordination form is suspect as it

was apparently accomplished and sent to PDEA a day after
the alleged buy-bust operation was conducted. PO2 Aldabe
testified that they arrested accused-appellant in an entrapment
operation on 5:00 p.m. of January 27, 2010.36 Meanwhile, from
“TIME RECIEVED” marked on the face of the Coordination Form,
it was received by PO1 Castillo at 2:00 p.m. of January 28,
2010.

Enlightening is People v. Martin,37 wherein the Supreme

Court acquitted the accused-appellant, by reasons, among
others, of violation of Sec. 86 of RA 9165, thus –

“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

36 TSN, 13 March 2014, pp. 4-8.

37 G.R. No. 193234. October 19, 2011.

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 violations of RA No. 9165, with the PDEA as the lead
agency.

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. 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 marking had NOT been done in the

presence of accused-appellant. Again, to reiterate, when
prosecuting the sale or possession of dangerous drugs like
shabu, the State must prove not only the elements of each of the
offenses. It must prove as well the corpus delicti, failing in which
the State will be unable to discharge its basic duty of proving the
guilt of the accused beyond reasonable doubt.38 To prove the
corpus delicti, the prosecution must show that the dangerous
drugs seized from the accused and subsequently examined in the
laboratory are the same dangerous drugs presented in court as
evidence to prove his guilt.39

The first stage after seizure is the taking of inventory of the

dangerous drugs seized from the suspect. It begins with the
marking of the seized objects to fix its identity. Such marking
38 Supra, see note 35.
39 People v. Gonzales, G.R. No. 182417, April 3, 2013, 695 SCRA 123, 133.

Page 16 of 23
should be made as far as practicable in the presence of the
suspect immediately upon his arrest. 40

Here, is not clear from the evidence that the markings were
made in the presence of the accused or his representative.
Marking, which is the affixing on the dangerous drugs or related
items by the apprehending officer or the poseur-buyer of his
initials or signature or other identifying signs, should be made in
the presence of the apprehended violator immediately upon
arrest.41

Although PO2 Aldabe, the State’s lone witness, testified that

he had marked the sachets of shabu with his own initials of
“RUA-ADC”, “RUA-ADC-1”, “RUA-ADC-2”, and RUA-ADC-3”
following accused-appellant arrest, he did not explain,
either in his court testimony or in his affidavit of arrest 42,
whether his marking had been done in the presence of
accused-appellant.

“Another phase of the first link to the chain of custody

is the marking of seized items. The rule requires that it
should be done in the presence of the apprehended violator
and immediately upon confiscation to ensure that they are
the same items that enter the chain and are eventually the
ones offered in evidence.”43

Thus, there is already a gap in determining whether the

specimens that entered into the chain were actually the ones
examined and offered in evidence.

40 People v. Bautista, G.R. No. 198113. December 11, 2013.

41 Supra, see note 39.
42 Supra, see note 11.
43 Fajardo, et. al. v. People, G.R. No. 185460. July 25, 2012.
Page 17 of 23
 Crucial in proving chain of custody is the marking of the
seized drugs or other related items immediately after they are
seized from the accused. Marking after seizure is the starting
point in the custodial link, thus it is vital that the seized
contrabands are immediately marked because succeeding
handlers of the specimens will use the markings as reference.
The marking of the evidence serves to separate the marked
evidence from the corpus of all other similar or related evidence
from the time they are seized from the accused until they are
disposed of at the end of criminal proceedings, obviating
switching, planting, or contamination of evidence.

THIRD. The lawmen also failed to duly accomplish an

inventory and took photographs of the seized items
pursuant to the above-stated provision. This, PO2 Aldabe
categorically admitted in his testimony.44 His pathetic excuse that
he took photographs of the seized items using his mobile but the
phone broke45 is a puerile, if not pathetic, excuse, to say the
least. Moreover, there is nothing in the records that would show
at least an attempt to comply with this procedural safeguard;
neither was there any justifiable reason propounded for failing
to do so. Yes, stones were pelted at them at the alleged buy-bust
scene,46 but that would not excuse them from complying with the
mandatory provisions of Section 21 and the IRR of R.A. No. 9165
because the same can be accomplice at the police station. This is
either sloppy police work or utter refusal to comply with what is
required of them.

The saving clause in Section 21, IRR of R.A. No. 9165

cannot remedy these lapses committed by the police. The

44 TSN, 13 March, 2014, pp. 30-32.

45 Id., pp. 33-44.
46 Supra, see note 44.

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Supreme Court has emphasized in People v. Garcia47 that the
saving clause applies only where the prosecution recognized the
procedural lapses, and thereafter cited justifiable grounds. 48
Failure to follow the procedure mandated under R.A. No. 9165
and its IRR must be adequately explained. 49
Equally important,
the prosecution must establish that the integrity and the
evidentiary value of the seized item are properly preserved.

“To be sure, Section 21 (a), Article II of the IRR offers

some flexibility in complying with the express requirements
under paragraph 1, Section 21, Article II of R.A. No. 9165,
i.e., "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." In Sanchez, we clarified that this saving clause
applies only where the prosecution recognized the
procedural lapses, and thereafter explained the cited
justifiable grounds. We also stressed in Sanchez, that in
such case, the prosecution must show that the integrity
and evidentiary value of the evidence seized have been
preserved.”

The prosecution failed in this regard. Taking into account

the several rules and requirements that were not followed by the
law enforcers, there was an evident disregard on their part of the
established legal requirements. Their breach of the chain of
custody rule, magnified by the prosecution’s anaemic explanation
as to the deficiencies during the trial, casts doubt on whether the
items claimed to have been sold by accused-appellant to the
police asset, as was allegedly possessed by him were the same
items that were brought for examination by the police to the
crime laboratory and eventually presented in court as evidence.
In People v. Lim50, the Supreme Court held:

47 G.R. No. 173480, February 25, 2009, 580 SCRA 259.

48 People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194.
49 People v. Lorenzo, G.R. No. 184760, April 23, 2010, 619 SCRA 389, 400.
50 G.R. No. 141699, August 7, 2002.
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 “. . . any apprehending team having initial custody
and control of said drugs and/or paraphernalia, should
immediately after seizure and confiscation, have the same
physically inventoried and photographed in the presence of
the accused, if there be any, and or his representative, who
shall be required to sign the copies of the inventory and be
given a copy thereof. The failure of the agents to comply
with such a requirement raises a doubt whether what was
submitted for laboratory examination and presented in
court was actually recovered from the appellants. It
negates the presumption that official duties have been
regularly performed by the PAOC-TF agents.”

In Bondad, Jr. v. People,51 where the prosecution did not

inventory and photograph the confiscated evidence, the Supreme
Court acquitted therein accused reasoning that failure to comply
with the aforesaid requirements of the law compromised the
identity of the items seized.

In People v. Orteza,52 the Court explained the implications

of the failure to comply with Paragraph 1, Section 21, Article II of
Republic Act No. 9165, to wit:

“In People v. Laxa, where the buy-bust team failed to

mark the confiscated marijuana immediately after the
apprehension of the accused, the Court held that the
deviation from the standard procedure in anti-narcotics
operations produced doubts as to the origins of the
marijuana. Consequently, the Court concluded that the
prosecution failed to establish the identity of the corpus
delicti.

The Court made a similar ruling in People v. Kimura,

where the Narcom operatives failed to place markings on
the seized marijuana at the time the accused was arrested
and to observe the procedure and take custody of the drug.

More recently, in Zarraga v. People, the Court held

that the material inconsistencies with regard to when and
where the markings on the shabu were made and the lack
of inventory on the seized drugs created reasonable doubt
as to the identity of the corpus delicti. The Court thus
51 G.R. No. 173804, December 10, 2008, 573 SCRA 497.
52 G.R. No. 173051, July 31, 2007, 528 SCRA 750.

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 acquitted the accused due to the prosecution's failure to
indubitably show the identity of the shabu.”
FOURTH, the presumption of regularity in the performance
of official duty cannot be invoked by the prosecution where the
procedure was tainted with material lapses.53 The presumption of
regularity in the performance of official duty cannot by itself
overcome the presumption of innocence nor constitute proof
beyond reasonable doubt.54 The inconsistency in the evidence
and the weak presentation of the prosecution leaves a gaping
hole in the chain of custody, which creates a reasonable doubt on
the guilt of the accused. In view of the prosecution’s failure to
adduce justifiable grounds on their procedural lapses, the
reversal of the finding of the court a quo is in order.

As the Supreme Court held in People v. Umipang, 55

“[W]e reiterate our past rulings calling upon the

authorities to exert greater efforts in combating the drug
menace using the safeguards that our lawmakers have
deemed necessary for the greater benefit of our society.
The need to employ a more stringent approach to
scrutinizing the evidence of the prosecution – especially
when the pieces of evidence were derived from a buy-bust
operation – redounds to the benefit of the criminal justice
system by protecting civil liberties and at the same time
instilling rigorous discipline on prosecutors.”

FINALLY. Accused is begging the Honorable Court of

Appeals to take a second look at his Demurrer to Evidence. In
totality, the Demurrer to Evidence emphasizes the lapses and
irregularities in the buy-bust operation against accused and
same is hereto attached as Annex “2.” 56

53 People v. Salonga, G.R. No. 194948. September 2, 2013.

54 Id.
55 Supra, see note 28.
56 Supra, see note 20.

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 RELIEF

WHEREFORE, it is respectfully prayed that the Decision of

the Regional Trial Court of Calamba City, Laguna, Branch 37,
dated June 5, 2014, in Criminal Case No. . 16961-C and in
Criminal Case No. 16962-C be REVERSED AND SET ASIDE
and accused-appellant Adrian D. Columa @ “Tawtaw” be
ACQUITTED.

Other reliefs, just and equitable under the premises are

likewise prayed for.

Calamba City. November 13, 2014.

By:

ATTY. BERNHARD RYAN MURO

Counsel for Accused-Appellant
Attorney Roll No. 51118
PTR No. 5297081/ 02-05-2014/ Calamba City, Laguna
IBP No. 941736/ 02-05-2014/ Laguna
MCLE Compliance No.IV-0010453/12-14-2012

MURO LAW OFFICE

2 Floor, Unit 6, PRH Building
nd

S.V. Rizal Street, Old Municipal Site Calamba City, Laguna

Copy furnished:

THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village,
Makati, Metro Manila

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REGIONAL TRIAL COURT
Branch 37
4th Judicial Region
Bulwagan, Old Municipal Site,
Calamba City, Laguna

OFFICE OF THE CITY PROSECUTOR

Calamba City,
New City Hall Building,
Brgy. Halang, Calamba City, Laguna
EXPLANATION
(Pursuant to Section 11, Rule 13 of the 1997 Rules on Civil
Procedures)

The Appellant’s Brief is being served by registered mail due

to lack of personnel to effect personal service.

ATTY. BERNHARD RYAN MURO

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